A European mother who abducted her child and brought her to New Zealand is allowed to keep custody of her despite a top court ruling she should have been returned years ago.
Years of not knowing his child’s whereabouts eventually led to the man flying to New Zealand, forcibly removing her from school in the Coromandel, and fleeing to an Auckland address.
It was these actions which played a part in the Court of Appeal upholding a previous Family Court ruling that declined to order the child’s return to Europe.
In declining the man’s appeal, the Court of Appeal judgment described it as a “very sad case” with “no ready resolution”. The ruling was the culmination in a decade of custody battles between the child’s mother and father.
The child was born in Europe in 2007. Two years later, her parents separated and the father’s contact with his daughter became less frequent. In 2012, he had access on three days instead of the 60 ordered by the courts, and in 2013 and 2014, he had none.
Because of this, the father was granted sole custody in 2014.
But by May 2015 the girl’s mother, step-father and half-sister had secretly travelled to New Zealand where they were granted three-year work visas and student and visitor visas.
According to the judgment, the mother obtained the visas by falsely stating she had sole custody of her daughter.
The Immigration and Protection Tribunal described the document produced by the mother as “obviously on its face an incomplete and suspicious document that did not prove that the [mother] had the right to remove [her daughter] from [Europe]”.
Immigration New Zealand’s general manager for border and visa operations Nicola Hogg said INZ has always required applicants to make a declaration that states that the information provided in their visa application is both true and correct.
The responsibility is on the applicant to ensure they provide genuine and accurate information as part of their visa application.
While the girl’s father filed a missing person’s report, and European police added her to the international list of wanted persons, the girl and her family were living in a remote part of the Coromandel.
According to the judgment, she was banned from using the school’s internet to avoid detection.
More than a year later, a social media campaign to find the child went viral online, and an anonymous tipster alerted the father to his daughter’s whereabouts.
The family was subsequently issued deportation liability notices, while her father lodged an application for his daughter to be returned.
The Family Court dismissed it, ruling the girl was “physically and emotionally settled in her new environment” and returning to Europe would be “too cataclysmic”.
The child, who was then aged 10, objected to returning.
The father, frustrated with the Family Court decision, took “matters into his own hands” and, accompanied by a man and a woman, arrived at the girl’s classroom and forcibly uplifted her in front of her teacher and classmates.
They drove to an address in Auckland where a woman there, seeing the child was upset, contacted police.
The child was returned to her mother later that same evening and she was “traumatised” and “remained scared of her father”.
In a just released Court of Appeal decision, Justices Christine French and Murray Gilbert noted the girl, now 12, had lived more than a third of her life in New Zealand, and given her past transient lifestyle with her mother, was probably more settled now than she had ever been.
They were satisfied a return order should have been made in 2017 but now, the opportunity for her to be promptly returned under the Hague Convention, a law which secures the prompt return of children wrongfully removed to or retained in another country, had “long passed”.
Justice Forrest Millernoted the child’s fear of her father was likely in part a product of her mother’s manipulation, and noted the mother had told her daughter that if she was returned, she wouldn’t be able to go with her.
“Notably, it is a disturbing feature of this case that the mother has been prepared to manipulate (the child),” he said.
The father’s appeal was dismissed.
Auckland barrister Jeremy Sutton said there were not many Hague Convention cases that had made it to the Court of Appeal recently.
Prior to New Zealand becoming a signatory to the Convention, the country was was seen as a “kidnapper’s paradise”, he said.
“New Zealand will probably always be a target for Hague Convention cases, because physically it’s such a long way to get to on a plane.”
He said the court’s decision reinforced the policy of the Convention, and did not undermine its process.
“You can’t take the law into your own hands. You’ve got to follow through the proper procedures,” he said.
“So it doesn’t set a precedent that says if you take a child out of their originating country and into another country for two years, you’re okay.”
The child was placed under the guardianship of the Family Court and was receiving weekly therapeutic counselling. She has been granted a student visa valid until May, 2021.
This article by Kelley Tantau was first published in Stuff.