SG v DSG
[2019] NZHC 218
•20 February 2019
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
HTTPS://WWW.JUSTICE.GOVT.NZ/FAMILY/ABOUT/RESTRICTION-ON- PUBLISHING-JUDGMENTS.
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN. SEE ALSO [84] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-001137
[2019] NZHC 218
BETWEEN SG
Plaintiff
AND
DSG
Defendant
Hearing: 13 February 2019 Counsel:
M A Twentyman and A M Sanders for the Plaintiff A Hansen for the Defendant
U Patel for the Children
Judgment:
20 February 2019
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 20 February 2019 at 1.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Counsel: A Hansen, Auckland
U Patel, Auckland
Solicitors: Morrison Kent, Wellington
SG v DSG [2019] NZHC 218 [20 February 2019]
[1] This case concerns three young boys: L, aged five, and his twin brothers (P and T), who are four years old. The children are currently in India. Until very recently they were full-time residents at a boarding school. They are now day students at that school, and are living with their paternal grandmother. Their estranged parents both live and work in New Zealand.
[2] The mother, Ms G, seeks interim orders under s 35 of Care of Children Act 2004 (COCA) for orders placing the children under the guardianship of the High Court to facilitate their return to New Zealand, pending the determination of the substantive proceeding. That substantive proceeding is set down for trial in September 2019. Ancillary orders appointing Oranga Tamariki as the Court’s agent, and providing for the children’s day-to-day care are also sought. The mother says that these orders are the only way of ensuring the children’s best interests and welfare are protected from the psychological harm caused by their ongoing separation from both parents.
[3] Ms Patel was appointed counsel for the children. She supports the mother’s application. She considers the psychological risk to the children of continued separation from both parents requires their immediate return to New Zealand pending the determination of the substantive proceeding.
[4] The father, Mr G, opposes the application. He says the children are settled in India and are well cared for there. He says that the mother poses a risk of physical harm to the children, and that uplifting them from their current surroundings would cause them psychological and emotional trauma.
Key events
[5] Mr G came to New Zealand in 2002 and has been a permanent resident since 2005. He returns to India on a regular basis to visit family. In 2006 he began boarding with Ms Gillian Warwick. He is currently working as an independent contractor.
[6] In 2010, Mr G returned to India and he met and married Ms G on 16 May 2010. Ms G moved to New Zealand soon after and is also a permanent resident of New Zealand. The newly married couple moved into a flat attached to Ms Warwick’s house. Ms Warwick and Ms G became close friends, and Ms G is now a boarder with
Ms Warwick. Ms G is currently working as a catering assistant. Ms Warwick has sworn an affidavit in support of Ms G’s application. It is proposed that Ms Warwick monitor Ms G’s interactions with the children if they are returned to New Zealand.
[7] L was born in New Zealand on 6 June 2013. He is a New Zealand citizen. Mr G’s mother travelled from India to New Zealand on a nine-month visitor permit to stay with the family following L’s birth. However, Ms G was L’s primary caregiver, and remained at home after his birth to care for him.
[8] The twins, P and T, were born in New Zealand on 16 December 2014, and are also New Zealand citizens. As with the previous pregnancy, Mr G’s mother returned to New Zealand on a nine-month visitor permit to stay with the family during Ms G’s pregnancy, but Ms G remained their primary caregiver.
[9] In August 2015, Ms G, Mr G’s mother, and the children travelled to India. Mr G followed a few months later. When the family returned to New Zealand in November 2015, the eldest child, L, remained in India in the care of Mr G’s mother. He was two years, five months old at the time. There is a dispute between the parties as to how that situation came about. Ms G says that she had no other choice but to leave L in India as Mr G had told her that she could not go back to New Zealand with him and the twins unless she left him behind. Ms G also says that Mr G reassured her that L would not be left in India for any longer than six months. She alleges that Mr G was controlling and abusive and she had no choice but to do as he asked.
[10] However, Mr G says that during their time in India, Ms G was inattentive towards the children, slapped them, pinched them, and yelled at them. He also says that she would leave them for long periods – despite the fact that she was breastfeeding the twins at the time. Mr G’s mother, who has sworn a number of affidavits in support of her son, says that she was very concerned about the ability of Ms G to properly take care of the children. She describes one occasion when she found the children locked in a room, covered in faeces and their nappies unchanged, as their mother slept on a couch next door. Mr G says that because Ms G could not look after all the children, it was agreed that L would stay in India with his grandmother.
[11] In October 2017, Mr and Ms G and the twins returned to India. Again, Mr and Ms G give very different accounts of this trip. Ms G says that she agreed to go to India as Mr G had told her they would all be living as a family there, that is, together with
L. She also understood that Mr G had purchased a business and that they needed to return quickly as Mr G’s mother was about to have back surgery.
[12] However, when they arrived in India, instead of staying with family, they stayed in a hotel, and then moved to a rental property in Ahmedabad. Then, a few weeks later on 14 November 2017, Ms G says that Mr G told her he wanted a divorce. This, she said, came as a complete surprise. She was not aware that Mr G had filed divorce proceedings and proceedings seeking custody of the children on 8 November 2017. Of greater concern, on her account, was the fact that Mr G had taken the children the night before, and did not return with them the following day. Mr G refused to return the children to Ms G or tell her where they were. Looking back, Ms G says that Mr G made false promises about living together as a family in India to get her to leave New Zealand so that Mr G could divorce her and take sole custody of the children.
[13] Mr G’s account of events in 2017 differs. He says that the parties had agreed that they would separate prior to returning to India, and that they had also agreed that the children would be enrolled in a private boarding school. The only remaining matter in dispute was the negotiation of the final terms of a separation agreement with Ms G’s family. Mr G says that Ms G’s father was aggressive and hit Mr G when they met, and that Ms G returned to her family home in Jodhpur soon after that. Mr G’s position is that this entire proceeding is solely due to Ms G changing her mind, and wanting to return to New Zealand.
[14] On 18 November 2017, Mr G returned to New Zealand. Ms G remained in India. She says she still did not know where the children were. She made complaints to the police, applied for assistance from the Women’s Commission, and commenced proceedings against Mr G on grounds of domestic violence. She says that it was only some six weeks after separation, on 25 December 2017, that she finally located the children at the Divine Care School in Mehsana (approximately two hours away from Ahmedabad, where Mr G’s paternal family were living). The children were full-time boarders at the school. At this time, L was aged four years, six months and the twins
were three years old. Ms G had not been listed on the enrolment form, and the school only allowed her very limited contact with the children. Ms G commenced proceedings against members of Mr G’s family, and the principal of the school, alleging that the children were being wrongfully detained.
[15] Mr G acknowledges that he did not tell Ms G that he had enrolled the children in a private residential school as he feared for the children’s safety and was worried that Ms G and her family would take them at that time.
[16] Ms G visited the children on 26 February 2018, and then returned to New Zealand the following day. She says her intention was to seek the children’s return to her care from New Zealand, and she only did this after exhausting all avenues in India to attempt to regain custody of her children.
[17] In April 2018, Ms G was told by the Divine Care School that the children had not returned after the school holidays. She did not know where they were. This prompted the current application, originally made on a without notice basis, to be filed on 11 May 2018. Directions requiring the application to be put on notice, and timetabling orders progressing it to the current hearing were then made. The substantive proceeding, in which Ms G seeks guardianship orders under s 31 of COCA, has now been set down for a seven-day trial commencing 30 September 2019.
[18] Ms G was subsequently told where the children were. They had been moved by their father to the Global International School in Bangalore, and started there as full-time boarders on 7 June 2018. At this time, L was five years old, and P and T were three years, five months old. Ms G had Skype contact with the children once a week as that is all the school would allow. She says that sometimes the call would not be answered, or it would end mid-call, making contact with the children extremely difficult.
[19] Back in New Zealand, Mr G applied to stay the current proceedings on the basis that New Zealand was not the appropriate forum. That application was dismissed by Courtney J by judgment dated 27 August 2018. Her Honour observed that on the
evidence then before the Court, the children were domiciled in New Zealand.1 The Judge’s findings on the protest application were summarised as follows:2
[53] In summary: despite the time they have spent in India, the children’s connection, particularly that of P and T, is not markedly closer to India than to New Zealand; the children are not Indian citizens and there is no evidence as to what their rights are under Indian law; both their parents are living in New Zealand; they are not living with any member of their extended family; there will be cost and inconvenience whether the issues are determined in New Zealand or India, though because the critical witnesses live in New Zealand, this factor will probably be less significant if the hearing is in New Zealand; there are allegations of violence by Mrs G but I do not consider the risk to be so great as to displace the other factors.
[20] Subsequently, the Court in Ahmedabad confirmed that New Zealand was the appropriate forum to determine custody disputes about the children. Mr G says that he has filed an appeal of that decision.
[21] Towards the end of 2018, Mr G’s mother moved into rented accommodation in Bangalore to be closer to the children. From September 2018 onwards, the children began staying with her on the weekends, and then, on 25 December began living with her full-time. Mr G’s mother says the children are healthy, happy and enjoy their life. Her relationship with L in particular is said to be very close.
[22] Since the children were enrolled in boarding school, they have been visited by their father on three separate occasions, most recently returning in January this year. He obtained undated letters from the children’s teachers and the wardens at their school. Those letters describe the children as being happy and attached to their paternal grandmother and aunt. They also describe the children as being very close to each other, and being protective of each other.
[23] Mr G says he intends to return to India as soon as possible, and the only thing keeping him here is this proceeding. He is currently working as an independent contractor, and there is no indication of when that contract work might come to an end.
1 SG v DSG [2018] NZHC 2209 at [32]–[33].
2 At [53].
[24] The mother has not returned to India at all. She says she cannot return to India due to an assault charge laid by Mr G’s mother against her, which, Ms G says, is totally fabricated. Nevertheless, Ms G says she is fearful that she will be arrested and her passport confiscated if she attempts to return to India to visit her children.
The law
[25] Under s 31 of COCA, a parent may apply for an order placing a child under the guardianship of the Court, with an order appointing a named person to be the agent of the Court either generally or for any particular purpose. The mother has filed substantive proceedings in this Court seeking an order under that section.
[26] The current application for interim orders is made under s 35 of COCA. That section allows the Court to make any interim order it thinks fit about the day to day care, contact and upbringing of a child who is the subject of proceedings.3 It also allows the Court, if appropriate in the circumstances, to make an order with respect to the guardianship of the child.4
[27] In GMO v SPS, Woodhouse J held that s 35(2) of COCA afforded jurisdiction to the Court to make interim orders on guardianship applications.5 His Honour noted that s 35(2) was not completely free from ambiguity, but nevertheless concluded that it should be construed in a way which gives the Court flexible powers to ensure the welfare and best interests of a child are met. I concur with that approach.
[28] The guardianship jurisdiction is to be invoked cautiously and only after proper inquiry, but it is nevertheless a flexible and resourceful remedy.6 The touchstone for invoking the jurisdiction is the need to protect a vulnerable child. Although the jurisdiction is broad and unfettered, it has been described as a jurisdiction of last resort which should not be exercised without consideration of other interventions which might achieve the stated goal.7
3 COCA, s 35(2).
4 COCA, s 35(4).
5 GMO v SPS [2013] NZHC 3185 at [27]–[28].
6 Hawthorne v Cox HC Auckland CIV 2006-404-7390, 27 August 2007 at [75].
7 Re CPPB (2011) FAM-2008-063-226, 2 December 2011 at [9].
[29] COCA implements the Hague Convention of the Civil Aspects of International Child Abduction in New Zealand. That Convention is set out in Schedule 1 to the Act. New Zealand is a contracting state to that Convention, but India is not. The Courts have used guardianship orders as a remedy to return children who have been unlawfully taken out of New Zealand to non-contracting states.8 Whether the children in this case have been removed unlawfully from New Zealand is a matter of dispute between the parties, as discussed further in this judgment.
[30] The welfare and best interests of a child are the first and paramount considerations in any application for guardianship, whether interim or final.9 In considering the welfare and best interests of a child and his or her particular circumstances, the Court must take into account:
(a)the principle that decisions affecting the child should be made and implemented within a timeframe appropriate to the child’s sense of time; and
(b)the principles set out in s 5 of COCA.10 Each of the six principles in s 5 are set out and addressed further in this judgment.
[31] In addition, the Court may take into account the conduct of the person who is seeking to have a role in the upbringing of the child to the extent that the conduct is relevant to the child’s welfare and best interests.11
[32] Finally, in proceedings involving the guardianship or day to day care of a child, s 6 requires the child to be given reasonable opportunities to express views on matters affecting the child with those views taken into account by the Court.
8 See ASK v SK [2011] NZFLR 333 at [8]; SS v HKM [2010] NZFLR 949 at [22]–[24]; H v J (1997)
15 FRNZ 258.
COCA, s 4(1).
10 COCA, s 4(2)(a)(i) and (ii).
11 COCA, s 4(2)(b).
What is in the children’s welfare and best interests?
Protection from violence
[33] Section 5(a) of COCA provides that a child’s safety must be protected, and in particular, a child must be protected from all forms of violence from all persons, including members of the child’s family, family group, whānau, hāpu and iwi.
[34] Violence is defined to include physical abuse and psychological abuse. Psychological abuse of a child includes causing or allowing a child to see or hear the abuse of a person with whom the child has a domestic relationship, or puts them at real risk of doing so.12 In this case, there are both physical and psychological risks alleged.
[35] First, I consider the risk of physical violence. The father says that there is a real risk that if the children are returned to New Zealand, in the day-to-day care of their mother, they will be exposed to a risk of physical abuse. He alleges that the mother snatched, slapped and hit the children on numerous occasions. Those allegations are supported by the father’s sister and mother who say that the mother screamed at the children and occasionally did not feed them or change their nappies. The paternal grandmother alleges that on one occasion, when in India, she found the children locked in a room with faeces on the floor and their nappies needing changing.
[36] The mother strongly denies all these allegations. She says that there is no evidence of any complaints being made to any organisation about her parenting of the children, and she has produced evidence from the manager of the childcare centre that the twins attended for eight months which suggests that she was a hard-working, dedicated, and loving mother. In addition, the mother says that the father’s conduct, in leaving her alone with the children, is inconsistent with the allegations he now makes.
[37] The evidence of each party is untested, and I am unable to reconcile or resolve the factual disputes between them at this interlocutory stage. For the purposes of this
12 Domestic Violence Act 1995, ss 3(2)(a), 3(2)(c), and 3(3).
application, I have approached the assessment of risk as if the allegations were subsequently proved true. All forms of violence against children are abhorrent, but the alleged acts of physical violence made against the mother in this case are towards the lower end of the scale. I am satisfied that appropriate monitoring could mitigate any risk of physical violence posed by the mother’s care of the children.
[38] Next, I consider the risk of psychological harm. The mother, supported by counsel for the child, points to the ongoing harm caused by the children’s separation from their parents. A report of a court-appointed psychologist, Dr Rai, substantiates that risk. Dr Rai explains that if the children had a significant attachment relationship to a parent or caregiver, then sudden disruption of that attachment is detrimental to the children’s relationship with that parent or caregiver. The children will experience grief and loss, and are likely to develop anxiety, difficulty in emotional regulation, and psychological problems which will have a lasting impact on their psychological and emotional wellbeing. Dr Rai further states:
For most children between 2 and 5 an absence of the primary caregiver for more than 2 months is beyond their comprehension and for the younger school age child an absence of more than 6 months is outside their coping ability. During this period separation from primary attachment figures is usually distressing. The cognitive ability of a child in this age group to hold a memory of people who are not constantly present in their lives to a sufficient degree to stimulate (developmental) attachment is limited without really regular and consistent contact.
[39] It is not disputed that the mother was the primary caregiver of all the children from the time of their birth up until they moved to India. Based on Dr Rai’s report, the sudden loss of their attachment to their mother is likely to have caused them significant trauma. Perpetuating that separation may pose risks to their ongoing psychological health.
[40] However, Dr Rai’s report raises the prospect that further psychological trauma may be caused as a result of uplifting the children from India and returning them to New Zealand. Ms Hansen, for the father, points out that the children have now been living in India for a significant period of time. L has lived there for more than half his life, and the twins have been separated from their mother since November 2017. In the context of their young age, this is a significant period of time. Ms Hansen submits
that uplifting them from their current environment, and in particular the relationship that they have formed with their paternal grandmother, risks causing them further psychological harm.
[41] There is force in Ms Hansen’s submission, particularly as it relates to L. As the mother accepts, L appears to have formed a relationship with his paternal grandmother. But the strength of that relationship is, as yet, undetermined. Furthermore, that relationship needs to be considered in the context of all three children having attended boarding school for much of their time in India. It is only relatively recently (since late December 2018) that the children have begun living full- time with their paternal grandmother. I agree with Ms Patel’s submission that, in light of this broader context, the nature and extent of the risk of psychological trauma in uplifting the children and returning them to New Zealand is difficult to assess.
[42] Despite the risk of trauma to L as a result of being returned to New Zealand, I do not consider it to be in the children’s best interests to separate them. Dr Rai states that the sibling relationship is significant in the midst of parental separation. She explains that siblings can enhance each other’s sense of safety and wellbeing, and provide natural and mutual support to one another. In her opinion, there may be traumatic consequences of separating siblings, including loss, grief and anxiety over their siblings’ wellbeing. In light of that expert opinion, I consider it essential that the brothers remain together.
[43] Finally, Ms Hansen submits that the current arrangements ensure the children are protected from exposure to parental conflict. If they are returned to New Zealand, she says they are likely to be embroiled in their parents’ conflict, which is not in their best interests. Whilst I acknowledge this is a potential risk, I am not persuaded that it is of such a magnitude that it should tip the balance in favour of the children remaining in India. Any potential risk of parental conflict may be addressed by minimising the opportunities that the parents are together in the presence of the children.
[44] Overall, I consider that the ongoing risk of psychological harm to the children as a result of their separation from both their parents weighs in favour of the interim orders sought.
Parental responsibility
[45] The principle in s 5(b) is that a child’s care, development, and upbringing should primarily be the responsibility of his or her parents and guardians.
[46] Mr G says that Ms G agreed to the children living in India and attending boarding school there. Ms G disputes that. She says that the only reason she returned to India was because she was told that the entire family, including L, would be living together. She considers her consent to return to India was obtained by subterfuge.
[47] This is another factual dispute that I am unable to resolve at this interim stage. I do note, however, that Ms G’s account is corroborated to some extent by Mr G’s refusal to tell her where the children were, and Ms G’s subsequent actions in attempting to obtain custody of the children.
[48] In any respect, whatever may have been agreed between the parties prior to separation, the short point now is that neither parent has any ongoing role in the children’s care, development and upbringing. Furthermore, one parent is denied the type of contact with her children that the principle in s 5(b) affirms. That is not in the best interests of the children.
[49] The father has said that he will leave New Zealand to live in India “as soon as possible”, and that the only reason he is remaining here is because of this proceeding. But he has not given any definite timeframe by which he intends to leave, and it appears that he still has ongoing work commitments that are keeping him in New Zealand. Even if he were to return, the children would still be prevented from having a face-to-face relationship with their mother. In those circumstances, I attribute little weight to the father’s unspecified intentions to return to India in the overall assessment of the children’s best interests.
[50]This principle too weighs in favour of the interim orders sought.
Ongoing consultation and co-operation between parents
[51] The third principle set out in s 5(c) is that the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation between parents, guardians, and others having a role in the child’s care under a parenting or guardianship order.
[52] There is no dispute in this case that Mr G made a decision to place the children in boarding school without telling Ms G, and then moved the children to a different school without consulting her. It is clear that he has made unilateral decisions about the children without consulting, let alone co-operating, with their mother.
[53] Those unilateral actions are at odds with the principle of ongoing consultation and co-operation between parents. Mr G has not taken into account his children’s need to maintain a relationship with their mother, and he has not acted in a way which facilitates that ongoing relationship. In my view, ongoing consultation and co- operation between parents will be better facilitated by returning the children to New Zealand pending any substantive hearing.
Continuity in care
[54] Section 5(d) of COCA provides that a child should have continuity in his or her care, development, and upbringing.
[55] Ms G was the primary caregiver until L, and then the twins, were taken to India and kept there. Continuity in care, development and upbringing, particularly in light of the primary responsibility for that care residing in the child’s parents, favours returning the children to New Zealand – at least on an interim basis.
[56] As already noted, there is a concern, particularly with L, that disruption of his current status quo will cause him some psychological harm. But, for the reasons already outlined, that disruption needs to be seen in the context of the placement in boarding school, away from family support, and the changes to his schooling over recent years.
[57] I consider that returning L, and his siblings, to the care of both parents in New Zealand, at least on an interim basis, is consistent with maintaining continuity in care, development and upbringing.
Relationship with both parents, and family group
[58] The principle in s 5(e) is that a child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hāpu, or iwi should be preserved and strengthened.
[59] The father says that the mother could resume her relationship with the children by returning to India where she would be free to visit the children there. He says he has offered to pay for the mother’s trip, and denies that his mother’s assault charge against Ms G is an obstacle to her returning. He says it is open to Ms G to negotiate with him and his mother regarding that charge, yet she has not taken any steps to do so.
[60] I do not consider this to be a realistic alternative which is in the children’s best interests. Even if Ms G could negotiate her way around the assault charge (which is far from certain), there is no guarantee that she would have regular, face-to-face contact with her children in India pending determination of the substantive proceeding. On the basis of the evidence currently before the Court, that would not be in the children’s best interests.
[61] Furthermore, as Ms Patel submits, the quality of the relationship between the children and both their parents can only be assessed if the children are returned to New Zealand. That submission receives some support from Dr Rai who states that in order to undertake a s 133 report, it is crucial to observe children’s interactions with significant adults in person.
[62] Ms Hansen says that this submission amounts to making an order of guardianship for administrative convenience. If returning the children to New Zealand was for the sole purpose of facilitating preparation for the proceeding, then I would concur with that submission. But, in this case, it is just one of a number of factors to be weighed in the overall assessment of the best interests and welfare of the children.
[63] Finally, Ms Hansen submits that this principle favours maintenance of the relationship between the children and the paternal grandmother. As previously noted, the nature of that relationship, and the risk to the children of disrupting it, has yet to be determined. On the evidence currently before the Court, the risk to the children from continued separation from both their parents pending the determination of the substantive proceeding appears to outweigh the risk of harm from disturbing the current care arrangements.
[64]This principle also favours granting the mother’s application.
Child’s identity
[65] The sixth principle is that the child’s identity (including culture, language, religious denomination and practice) should be preserved and strengthened.
[66] Ms Hansen submits that returning the children to New Zealand would be a cultural shock for the children given their upbringing in India. In particular, she submits that L’s first language is Hindi, and attending an English-speaking New Zealand school may cause him unnecessary trauma.
[67] There is no doubt that preserving the children’s connection to Indian culture is important. But that cultural identity must be seen in the context of two Indian parents who have lived and worked in New Zealand for a lengthy period of time. I accept Ms Patel’s submission that the children’s cultural identity may be maintained through their parents and that this does not provide a reason to refuse the mother’s application.
[68] As far as L’s language is concerned, I accept that he may experience some difficulties in attending a New Zealand school. But the extent of those difficulties is presently unknown and they do not, in and of themselves, tip the balance against the interim orders sought.
[69] The sixth principle set out in s 5 favours returning the children to New Zealand pending the determination of the substantive proceeding.
The views of the children
[70] Section 6 requires the children to be given a reasonable opportunity to express views on matters affecting the child, and for those views to be taken into account.
[71] Ms Hansen relies on affidavit evidence by the children’s paternal grandmother to the effect that the children have expressed a wish not to return to New Zealand. In addition, reliance is placed on letters from the school which the father deposes to having collected between December 2018 and January 2019 on his recent trip. In those letters, the children are described as being settled, happy and flourishing.
[72] Little weight should be put on this evidence in my view. The paternal grandmother is not independent, as she has clearly sided with her son. Similarly, the school letters relied upon appear to have been prepared at the father’s request. Although they were collected recently, there is no confirmation of when they were written. Until such time as counsel for the child is able to speak to the children, the actual views of the children are unknown.
Conclusions on welfare and best interests
[73] Standing back and considering the s 5 principles in their totality, I am satisfied that returning the children to New Zealand is in their best interests and welfare – at least in the interim. I am also satisfied that the children are unlikely to be returned unless the interim orders are made. These are exceptional circumstances, and it follows that the threshold for making an interim guardianship order under s 35 of COCA is made out.
Ancillary orders
[74] The mother seeks an order appointing Oranga Tamariki as the Court’s agent. It is envisaged that two social workers will fly to India and bring the children home. Clearly it would be preferable for the children to be brought back to New Zealand by someone they know, such as their paternal grandmother (who spent nine months in New Zealand on two separate occasions). But in the absence of such an arrangement, I accept that appointing Oranga Tamariki as an agent of the Court to facilitate the
return of the children and to monitor their placement back in New Zealand is appropriate.
[75] On their return, the mother is to be appointed agent of the Court for the purposes of their day-to-day care. Such an order is to be made on the basis that the mother and children reside with Ms Warwick. To the extent that there is a risk of physical violence (which is disputed), I am satisfied that such a condition will mitigate that risk. The mother will be free to enrol the children in the local primary school and childcare centre as she sees fit. The father shall also be entitled to access at times and places to be agreed.
[76] The mother has sought a direction that mirror orders in India be sought. I do not consider it necessary for this Court to make such a direction. The mother is free to enforce the judgment by way of reciprocal proceedings in India as required. However, I intend to respectfully request the Indian authorities to provide all reasonable assistance to ensure compliance with the interim orders – as has been done in other cases.13
[77]Finally, the mother seeks an order requiring the father to provide a bond of
$20,000 or an order requiring him to surrender his passport to ensure he does not thwart the Court’s orders. It is clearly in the children’s best interests that the father take all reasonable steps to facilitate the return of his children to New Zealand without delay. But, given the disputed facts in this proceeding, I am not prepared to infer that the father will breach the orders of this Court, and I decline to make the orders sought.
Result
[78] I make an interim order placing L, P and T under the guardianship of the High Court of New Zealand pending the determination of the substantive proceeding or further order of the Court.
13 See ASK v SK [2011] NZFLR 333; SS v HKM [2010] NZFLR 949; H v J (1997) 15 FRNZ 258.
[79] The Chief Executive of Oranga Tamariki – Ministry for Children is appointed agent of the Court to facilitate the return of the children to New Zealand, and to monitor the children’s placement once back in New Zealand.
[80] Upon their return, and pending determination of the substantive proceeding, the children’s mother is appointed agent of the Court for the purpose of having the day-to-day care and control of the children, but on condition that both she and the children reside with Ms Gillian Warwick.
[81] On return of the children, their passports and travel documents are to be lodged with the Registrar of the High Court at Auckland. The children shall not be removed from New Zealand without leave of the Court.
[82] Leave is reserved to the parties, the Chief Executive, and counsel for the children, to apply for further directions by filing a memorandum of counsel. Leave may be sought on 24-hours’ notice to the other party if there is genuine urgency.
[83] The mother shall file a memorandum notifying the Court when the children have been returned to New Zealand. The proceeding shall be listed for a case management conference at the next available date two weeks after the children’s return.
[84] I make orders suppressing the names and any details identifying the children and members of their family. Access to the Court file is also prohibited without leave, and leave shall not be granted without the parties being heard.
[85] The Court respectfully invites all judicial and administrative bodies in the Republic of India to render assistance in ensuring that the children are returned as soon as possible to the jurisdiction of New Zealand.
Edwards J
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