Introduction

Applying for a writ of Habeas Corpus through the High Court of New Zealand can be used in disputes involving custody of children. This is an ancient but seldom used remedy. Many lawyers in their careers will never file an application for Habeas Corpus.

Factual Situation

A child may be taken out of New Zealand on holiday to a non-Haigh Convention country. The intention may have been for that child to only be there on a temporary basis, but continues there and is there unlawfully in that place.

How can I have that child returned?

Possible solution: Apply for writ of Habeas Corpus in New Zealand through the High Court.

What is a writ of Habeas Corpus?

A writ of Habeas Corpus is a seldom used tool that is a Court order that requires the person or agency that has unlawful custody of a child to return the child to the person who has lawful custody. It is used in the case where a child is being wrongfully held.It is potentially powerful when the wrongful party who takes a child out of the country then returns to New Zealand. In that case a writ of Habeas Corpus can be issued against that party while they are in New Zealand. Another relative may be caring for the child overseas.The wrongful detention could be the violation of someone’s custody or parenting order.

Fees

There is no fee payable for the filing of any document in respect of that application: see Habeas Corpus Act, section 7(6).

Why the Habeas Corpus remedy is so powerful

1. Habeas Corpus application must take precedence over all other business. The Registrar must allocate a date no later than 3 working days after the application has been filed.2. It is a summary remedy. This means that there is normally a decision given on the day without evidence from either party being called.3. If you apply for a lawyer, you may be eligible for Legal Aid under the Legal Services Act if you do so.

Conclusion

Jeremy Sutton and his team have experience and success in Habeas Corpus cases. Please contact him or his team on 09 309 4647 or email jeremy@jeremysutton.co.nz for more information.