Martha and her two children are visiting Portugal for a 3-week holiday. They are originally from New Zealand. Martha’s new partner, Pablo is from Portugal and is considering moving back home. Martha believes this holiday to be a perfect opportunity to think about whether to relocate with Pablo to Portugal.
The children’s father, John, resides in New Zealand. He has only agreed for the children to visit Portugal with their mother for 3 weeks.
As soon as Martha stepped off the place, she fell in love with Portugal. She now wishes to stay in Portugal permanently with her two children and Pablo.
Meanwhile, John is furious. He wants the children in New Zealand. He does not know what his rights are and is worried that he will not see his children for a long time.
Does this scenario sound familiar? If you are in this situation, please contact a family lawyer as soon as possible.
You may be able to have the children returned to New Zealand through The Hague Convention. This is an international agreement between various countries on the Civil Aspects of Child Abduction.
The Hague Convention
Firstly, your lawyer will have to determine if the country the children have been taken to is a member of The Hague Convention.
You can check to see if a country is part of The Hague Convention via this link: https://www.hcch.net/en/states/hcch-members
Please note, the countries can change from time to time.
If the country the children have been taken to is a member of The Hague Convention, then there is a presumption that the children should return as quickly as possible to the country in which they normally live (place of habitual residence).
Your family lawyer will assist you with filing an application at The Central Authority in Wellington. Once the application is filed;
- You will be appointed a senior lawyer to assist you; and
- Your matter will then be called before the Family Court to determine whether the children should be ordered to return to New Zealand.
Reasons to Object to The Hague Convention Return
As with all other family court applications, the relocated parent can object to your application.
The relocated parent may object to your application on the following basis:
- That it is in the children’s welfare and best interests to remain in the other country;
- That the children are safe in the new country;
- The relocated parent has more family support in the new country;
- The children’s environment is better in the new country;
- Due to the relocated parent’s financial situation; and
- The children have settled in the new country.
The threshold to meet the above reasons is extremely high. It is very rare for a lawyer to succeed in a Hague Convention defence. Therefore, there is a good chance the children are ordered to return to their original country of residence.
If the new country is not part of The Hague Convention
You might still be able to have your children returned to New Zealand. You may have to engage a lawyer in the overseas country that the children are in.
The Ministry of Foreign Affairs may assist you by giving you a list of lawyers in the overseas country: https://www.mfat.govt.nz/en/about-us/contact-us/
Conclusion – Act quickly!
If you find yourself in such a situation, you will need to act fast. Hague Conventions cases are considered urgent and will need to be dealt with immediately without delay.