The Hague Convention has long stood for the premise that disputes over care and control of children should be determined in the courts of the jurisdiction that comprise the child’s habitual residence.
However, there are a number of cases where the Convention involves mothers fleeing a domestic violence situation, not just in New Zealand but across the globe.
It has traditionally been very difficult for mothers who flee domestic violence situations to defend an application under the Hague Convention. As the law is reads at the moment, the onus falls solely on the respondent mother to show that there is a grave risk that the child could be thrust into an intolerable situation. This is an extremely high threshold.
This could all change following the ruling of the Court of Appeal on Friday where a child was allowed to stay in New Zealand in circumstances where the mother alleged that she was the victim of serious domestic violence in Australia.
- She had been the victim of years of domestic violence at the hands of her former partner, and she fled Australia with her son after an assault in July 2017.
- Originally when she tried to leave the relationship she sought support in Australia she was but was denied legal aid and did not have any financial support. There was almost no help for her to leave the situation so, as a last resort, she returned to New Zealand where she was a citizen.
Arguments made by the respondent mother’s lawyers:
- The fact that the mother was a victim of domestic violence and the impact that might have on the child was generally ignored by the courts in considering a grave risk defence.
- The mother’s lawyers argued that if the mother is at risk of serious harm, so too is the child. In other words, the child’s circumstances include at least the mother’s trauma as a victim of domestic abuse at the hands of the applicant father.
In this case, the Family Court did rule in the mothers favour, but the applicant father appealed to the High Court where the original ruling was overturned.
The Court of Appeal
The matter was head by the Court of Appeal on 6 March 2020. Prior to the hearing, the Court signalled that they would like to look back at the precedent that was set in the 1990’s in these cases and whether that stance was still appropriate.
On Friday 3 April 2020, it was announced that the defence was successful. The child does not have to return to Australia.
The reasons for the decision are going to be published in the next month.
The Judges were particularly interested in the level of support the mother would have if she were forced to return to Australia. They considered whether she would have financial support, where would she live, would she have social support of friends or family in Australia.
Prior to the hearing, the Court asked the father to provide his criminal record including any outstanding charges he was about to face. They also asked for details of any prior family court proceedings. This was a very uncommon request by the court as traditionally the onus lay solely on the fleeing respondent to show a grave risk of an intolerable situation. Here the court was essentially placing some of the burden of proof back on the applicant father.
We won’t know the full extent of the courts decisions but the arguments of the respondent’s lawyers and the questions asked by the judges suggest that the approach of the judges in this case is a major departure from precedent.
Listen to the interview with RNZ reporter Ben Strang here:https://www.rnz.co.nz/national/programmes/morningreport/audio/2018741652/court-of-appeal-rules-in-favour-of-fleeing-mum-in-child-abduction-case