Preventing Child Abduction in New Zealand
Judge Peter Boshier
Preventing Child Abduction in New Zealand - The Capitol Hilton, Washington, D.C.
1 June 2007
Each year in New Zealand a significant number of children are abducted to other countries, or abducted to New Zealand from other countries. In 2006, the Family Court was required to intervene in 31 cases where children were abducted to New Zealand, and New Zealand requested Courts in other countries to return children abducted from New Zealand in 61 cases.
Preventing child abduction before it occurs is clearly better than responding to it after the fact. Children can still suffer considerable upheaval no matter how swiftly they are returned to their home. The main aim of the Hague Convention of 1980 on the Civil Aspects of International Child Abduction ("the 1980 Convention") is to prevent children being harmed by abduction, however this is done by managing the return process, rather than by directly preventing abduction. The 1980 Convention receives considerable attention in the international legal community, while preventative measures are not so widely discussed.
Having recognised the potentially serious harms of child abduction, and thus becoming a party to the 1980 Convention, it follows that States should do all in their power to prevent international child abduction. As the 1980 Convention does not itself provide direct preventative measures beyond deterrence, States must enact domestic legislation specific to prevention. International co-operation is also important, through bilateral agreements or ratification of instruments such as the Hague Convention of 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children ("the 1996 Convention").
In 2005 the Hague Conference published the Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part III - Preventative Measures ("the Guide"). The Guide recognises that it is better to prevent abduction than have to seek a child’s return after abduction, and outlines a large number of measures which States can draw on to construct their own preventative system. The Guide does not intend that States implement every recommendation. Rather each State can take from it what will work in its own circumstances.
New Zealand already has in place many of the most potent preventative measures outlined in the Guide. I will outline the main steps that can be taken to prevent a child being removed from New Zealand, before turning to consider whether any further provisions are desirable. I want to particularly focus on the possible accession to and ratification of the 1996 Convention. This is an important instrument that can have an impact not only on the prevention of child abduction but also in making the 1980 Convention more effective by facilitating better return orders. Significantly, the 1996 Convention allows the international community to implement a system of childcare arrangements and orders that can be recognised and enforced across borders. This is of ever-increasing importance as parents move around the world.
PREVENTATIVE MEASURES IN NEW ZEALAND
There are a number of steps that can be taken to prevent a child being removed from New Zealand. The main preventative powers are found in the Care of Children Act 2004. There is no one piece of legislation which aims solely to prevent child abduction but several sources which I will outline.
There are broadly two situations where different measures can be implemented: first where there is evidence abduction is about to take place, and second if it appears there is no immediate likelihood of abduction but the situation poses a risk for the future. I will address both of these situations under the following topics:
- Order for non-removal
- Surrender of travel documents
- Warrant to place child in care
- CAPPS listings (border control)
- Restrictions on issue of new passports
- Residency conditions on Parenting Orders
- Criminal offences relating to child abduction
- Creating an international legal environment which deters child abduction
Orders for non-removal
The primary means of preventing abduction is an order preventing the removal of a child from New Zealand under s77 of the Care of Children Act. Any person can apply for this order but the removal must have the potential effect of defeating the claim of a person who has, or is about to apply for, an order about the provision of day-to-day care or contact with the child. Or removal must have the effect of preventing an order about day-to-day care or contact being complied with. These orders can only be made where there is credible evidence that abduction is about to occur. They cannot be made as a precautionary measure where circumstances indicate a heightened risk of abduction (for example, where parents have separated and the custodial parent is from another country, with all of their family in that other country).
Under s77 the Court can order the surrender of any tickets or travel documents to the Court. This includes the passports of the child and any person believed to be about to take the child out of New Zealand. The Court also has the power under s77 to issue a warrant for a Police officer or social worker to place the child in a suitable care pending an order under this section or a further order of the Court.
There will obviously be situations where these steps to prevent abduction will need to be taken urgently. The Act provides a wide avenue for such applications. Firstly, applications for a non-removal order can be made without notice, to ensure a swift response. Secondly, access to the Court is considerably extended for these orders compared to other orders under the Care of Children Act. The Family Court generally has exclusive jurisdiction under the Care of Children Act but under s77, applications can be made to the District Court or High Court as well. If no Judges are available at any of these Courts, then the application can be made to a Registrar, who then has the same powers as a Judge to make a non-removal order. So there should be no problem getting an order very quickly if required. The number of applications made to the Family Court under s77 in 2006 were as follows:
|s77(3)(c)||Order to Prevent removal from New Zealand||1072|
|s77(3)(a)||Warrant to place child in care||18|
|s77(3)(b)||Order to Surrender travel documents||6|
|s77(5)||Discharge non-removal order||803|
Where the Court has made an order under s77, the Registry forwards a copy of the order to the Passports Office at the Department of Internal Affairs, and to Interpol. The Passports Office will not issue a new or pending application for a passport while the order is in place, and will also notify the Court Registry of any existing passports for that child. Under the Passports Act 1992, children are issued with a separate passport of their own, rather than being listed on a parent’s passport. Only one parent’s consent is required for the issue of the child’s passport. The Guide to Good practice notes that it may be useful to have the ability to place conditions on the issuing of a passport, such as requiring both parents’ consent.
Another significant consequence of the making of a non-removal order is that the applicant can then apply for a Customs alert listing (CAPPS listing). A CAPPS listing is a border control alert which means the child’s name will be entered into the Customs computer system so that the child will be prevented from leaving the country. This is very effective in our island nation by which the only means of leaving are air or sea.
Again, very urgent situations are accounted for. A temporary CAPPS listing can be obtained where the applicant is about to make an application under s77 to ensure the child does not leave the country before the order is made.
The parties are responsible for obtaining the listing, not the Court, however the Court advises the applicant about this possibility, and gives information on how to make the application. The application is made through the Interpol office at Police National Headquarters in Wellington.
A CAPPS alert means that no person can leave the country with the child, so even the person who had the alert put in place cannot take the child on holiday. The alert remains in place until the child turns 16, unless it is a temporary listing made pending an application for a non-removal order - these last for 3 months. So one should be sure to have the alert removed when it is no longer required, or if the non-removal order has been discharged.
Where there is no immediate threat of abduction but it is felt that it would be in the child’s best interests to ensure they are not removed from the country at a later date, the Court can make a residency condition as part of a parenting order. These conditions can be put in place as long as to do so is in the welfare and best interests of the child. There is no need to prove that the other party is contemplating abduction. The example mentioned above where one of the parents is from another country with their family base in that country may be one such situation, where it is felt that for the sake of certainty and clarity the child would benefit from a residency condition.
The condition can be included at the initial making of the order under s48, or can result from a dispute between guardians about where the child should live under s44, and a variation of an existing parenting order under s56.
Residency conditions are not as robust as non-removal orders as they do not have the additional powers such as requiring the surrender of travel documents, or obtaining a CAPPS listing. So in an urgent situation an application should be made under s77. Section 77 orders also allow for greater protection as they apply to every person - it is a general order that the child not be removed from New Zealand by anyone. Residency conditions apply only to the parties to the Parenting Order.
Preventing removal to defeat Convention application
Where a child has been abducted to New Zealand, it is possible to apply to the Court to make an order preventing that child’s removal from New Zealand pending an application under the Hague Convention. This application can be made where the abducting parent seeks to defeat a person’s claim under the Convention, whether the application has been made or is about to be made. The Court has the same powers as an order under s77, so can order non-removal, surrender of travel documents, and/or a warrant to place the child in appropriate care pending a further Court order.
The table below shows the number of applications in 2006 made to stop an abduction which would defeat a claim under the Hague Convention:
|s117||Warrant to prevent concealment||3|
|s118(2)(c)||Order to Prevent removal from New Zealand||22|
|s118(2)(b)||Order to Surrender travel documents||14|
|s118(3)||Discharge non-removal order||4|
FURTHER PREVENTATIVE MEASURES
Criminal offence to take child from New Zealand
It is a criminal offence to take a child from New Zealand knowing that there is an order giving day-to-day care or contact to another person, or knowing proceedings are pending or about to be commenced in respect of the child. There is a maximum fine of $2500 or a term of imprisonment of up to three months. It is also a criminal offence to breach a parenting order. Because these offences carry the possibility of imprisonment, Police can arrest any person committing such as offence without a warrant. A person can thus be physically stopped from boarding a plane, for example, where there is no order preventing removal but leaving the country would breach a parenting order.
It is no defence that the person removing the child has rights of day-to-day care or contact, for parental responsibility is to be jointly exercised, and one parent cannot deprive the other parent their parental rights and responsibilities. This section applies to any person who takes a child. It is not specific to parents.
The preventative measures outlined above generally require the parties to take the initiative. There is no watchdog to keep abduction in check, or monitor risky situations. So the preventative measures will be most successful if they are widely known, and access to information about how to implement them is readily available. The Guide to Good Practice recommends the use of the Internet to supply information about preventing and dealing with child abduction. The Family Court of New Zealand has a comprehensive website which covers the prevention of child abduction. There is advice on how to apply for an order preventing removal, including the possibility of applying without notice in urgent situations, and advice on how to apply for a CAPPS listing.
All of the forms required to make the application to the Court are on the website. Notice is given that it is a criminal offence to abduct a child where a parenting order gives another person day-to-day care or contact. This information is available at www2.justice.govt.nz/family/what-familycourt-does/children/hague-convention.asp#fc50.
There is also a hard copy pamphlet called "Preventing Children Being Removed from New Zealand", which is available at the Court.
abduction is a topic which the New Zealand media takes some interest in
as well. It is often dramatic, and involves highly emotive situations.
For these reasons reporting of child abduction cases is much more
common than reporting of ‘everyday’ family law cases. Having this issue
in the public consciousness is useful in terms of increasing awareness
of the instruments aimed at dealing with child abduction. The reports
generally discuss the Hague Convention, so there is exposure to the
existence of this otherwise quite specialised piece of legislation.
AN INTERNATIONAL ENVIRONMENT THAT DETERS ABDUCTION
The Guide to Good Practice emphasises that ensuring foreign Parenting Orders can be recognised and enforced is an important aspect of creating a legal environment that deters child abduction. Having an internationally enforceable system for parenting arrangements is extremely important for today’s mobile global population, not only to deter abduction but to ensure that parents can move around the world while their children benefit from a well established parenting plan.
In New Zealand, the majority of travel, relocation, and abduction involve trips to Australia. In 2006 79% of children abducted from New Zealand were taken to Australia. Of the children brought to New Zealand in the same period, 62% came from Australia. It can be seen from these numbers, that by far, we have our greatest Hague Convention relationship with Australia.
It is then of greatest concern to New Zealand to ensure that we have a reciprocal system of recognition and enforcement with Australia. It will be seen below that the measures we already have in place to enforce international parenting orders are solely concerned with Australia.
There are a number of ways to have an overseas Court order registered and enforced in New Zealand. However most do not apply to orders about the care of children so are of little help in deterring abduction or creating an international system of parenting arrangements. Those that are applicable to parenting orders require the consent of the parties - to deter forum shopping. I will very briefly outline how judgments can be recognised and enforced in New Zealand before discussing how the situation could be improved, particularly through ratification of the 1996 Hague Convention.
The Reciprocal Enforcement of Judgments Act 1932 ("the REJ Act") applies only to certain judgments. The judgment must be final and conclusive between the parties, and must be for a sum of money. The REJ Act has the potential to be extended to non-money judgments by the Governor-General making an Order in Council. No Order in Council has been made under this provision, so non-money judgments cannot be registered under the Act. Of course this includes orders about the care of children.
Australia has similar provisions under the Foreign Judgments Act 1991 (Cth). This Act applies to the District Court of New Zealand, of which the Family Court is a division. Again the provisions of the Act apply only to money judgments, and orders about the care of children cannot be registered or enforced under this legislation.
Some judgments can be registered for enforcement under the Judicature Act 1908, however, again this Act applies only to money judgments.
In 2003 the Prime Ministers’ of New Zealand and Australia agreed to a working group to review existing trans-Tasman co-operation in court proceedings and regulatory enforcement. The working group suggested that non-money judgments requiring a person "to do or not to do something" be enforceable in the other country. This would mean orders such as specific performance, protection orders (family violence orders), or injunctions could be registered in the other country. Some orders of the Family Court would be excluded, including orders about the care of children.
The Care of Children Act provides for registration and enforcement of final overseas parenting orders. This system is, like the REJ Act, based on the reciprocal enactment of similar provisions in the prescribed countries. Currently the only prescribed country is Australia. The United Kingdom was initially included in 1979 but was removed as it did not enact reciprocal provisions.
The effect of registration is that the order can be enforced, varied or discharged as if it were made in a New Zealand Court. Jurisdiction is significantly restricted, as all parties having day-to-day care or contact with the child must consent to the Court exercising jurisdiction. Also, there must be substantial grounds to believe that the welfare and best interests of the child would be adversely effected if the Court did not exercise its jurisdiction. For the Court to make an order relating to the day-to-day care or contact with the child, it must be shown that there has been such a change in circumstances that the order ought to be made.
The principal object of the restrictions is to discourage the kind of forum-shopping abduction that had occurred under the liberal approach to jurisdiction adopted in previous cases. The restrictions require the party seeking to persuade a New Zealand Court to exercise jurisdiction and to vary or discharge the overseas order to overcome a heavy burden.
New Zealand Parenting Orders in Australia
Sections 92-93 of the Care of Children Act recognise the corresponding enactment by prescribed countries of provisions allowing for the enforcement, variation or discharge of New Zealand orders. As discussed this currently only applies between New Zealand and Australia. Section 92 sets out the procedure for transmitting a New Zealand order to the prescribed country. This right is limited as the applicant must show that the day to day carer has a reasonable belief that another person will apply for a parenting order overseas, or that the child has been removed from New Zealand without consent during the course of the proceedings in which the parenting order was made. If seeking to enforce contact rights, the applicant must reasonably believe that registration is necessary to enforce those rights.
Division 13 of the Family Law Act 1975 in Australia deals with both the registration of overseas orders in Australia, and the process for the transmission of Australian orders to overseas countries for registration.
The Guide to Good Practice recommends ratification or accession to the 1996 Convention. The 1996 Convention is important not only for matters relating to prevention but also for dealing with abductions once they have occurred. There are significant powers contained in the 1996 Convention to make transitions between States more expedient, and in greater harmony with the children’s best interests. It is through the reinforcement of the 1980 Convention that the 1996 Convention can be expected to improve prevention. That is, by making the 1980 Convention more effective, the 1996 Convention will work as a greater deterrent to abduction. In cases where abduction is not an issue but the parties simply need an internationally enforceable parenting plan, the 1996 Convention provides for this to happen.
Below is a table of those States that have already signed, ratified, or acceded to the 1996 Convention:
|Ratification or Accession||Albania, Australia, Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Monaco, Morocco, Slovakia, Slovenia, Ukraine|
|Signature||Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Poland, Portugal, Romania, Spain, Sweden, Switzerland, United Kingdom and Northern Ireland|
New Zealand is currently not a party to this Convention. The United States and Canada are also yet to sign the Convention. While the European states, including the United Kingdom, have signed the Convention they have not ratified it. Undoubtedly when the United Kingdom and Spain resolve diplomatic differences in relation to Gibraltar, then these and other European states will ratify the Convention.
Australia has ratified the 1996 Convention. That is of significance to New Zealand given the close relationship outlined above. This means that if we become a party to the Convention, its advantages would be immediate and substantial, as we could instantly apply the 1996 Convention in conjunction with our most significant international partner.
1996 Convention in Practice
Under the 1996 Convention, generally, the State of the child’s habitual residence retains jurisdiction over that child. Jurisdiction can be based on presence rather than habitual residence in limited situations, including for refugee children and children whose habitual residence cannot be established.
There are also rules that cover emergency situations, and pre-emptive protective measures. In an urgent situation, the State where the child is present can make interim protective orders. These orders have extra-territorial effect, meaning they follow the child and are enforceable in any other Convention country. These orders could play an important part in returning a child under the 1980 Convention. For example, the Court in New Zealand could make a non-association order as a condition of the return to protect the child where the abducting parent has a violent partner. The emergency orders lapse when the Contracting State with pre-eminent jurisdiction makes its own protective orders.
Where there is not an emergency, the State where the child is present can make protective orders that do not have extra-territorial effect, for example, where a child has been abducted and is awaiting a hearing regarding return.
Where a child’s habitual residence changes, so does jurisdiction. This is subject to provisions relating to wrongful removal or retention which deem jurisdiction to remain in the original habitual residence unless there has been acquiescence or a year has elapsed since the custodian should have known the child’s whereabouts and the child is settled in their new environment.
So consent to jurisdiction, as required to deter forum shopping under the Care of Children Act provisions, is not required under the 1996 Convention. Forum shopping is negated by jurisdiction remaining in the State of habitual residence. This allows for a far more potent system of recognition where the parties are not prepared to give consent.
Recognition and Enforcement
The essential matter is that protective orders which are entitled to recognition under the 1996 Convention taken in one contracting State, must be recognised and enforced in all other contracting States. The requested State cannot review the merits of the measures taken.
There are limited exceptions to this in Art 23(2). The requested State can refuse to enforce the action only under limited grounds, such as recognition would be "manifestly contrary to public policy of the requested State, taking into account the best interests of the child."
Interrelationship with 1980 Convention
One of the most significant advantages of the 1996 Convention is the ability to make protective orders of extra-territorial effect in emergency situations. Where a child is present but is to be returned to their habitual residence, Courts could make orders to protect the child until the Court in the child’s habitual residence is able to make its own protective orders. Note the example given above of a non-association order.
The Secretary for Justice v M F Te N [Child Abduction] is an example of a recent case that would have been resolved more smoothly if our Courts had the power to make protective conditions pending resolution by the home Court. In this case it was found that the child protection authorities in Australia had not acted as they usually would, when it was clear that the child required State intervention into their care. As a result, the child would not have been adequately protected if returned to Australia. The situation was resolved through direct judicial communication and eventually undertakings from the Australian child protection authorities. If the 1996 Convention was in place, the Judge could simply have made protective orders and returned the child more expeditiously, and with greater certainty regarding the outcome.
It would be possible to use the 1996 Convention as an altogether different means of return if there was a custody order in force in the requesting State. The only reason to use the Convention in this way would be if the exceptions to enforcement in Art 23(2) proved harder to make out than the defences under the 1980 Convention. If it was likely that the parent who removed the child could successfully invoke a defence under the 1980 Convention, then the other party to the custody order could instead use the 1996 Convention to seek return. There are more limited situations in the 1996 Convention where a contracting State can refuse to enforce an order giving the requesting person custody. So potential exists for a return to be ordered under the 1996 Convention that would not be ordered under the 1980 Convention.
However there is already a high threshold for making out the defences under the 1980 Convention, so situations where the 1980 Convention would not require a return but the 1996 Convention would are likely to be very rare. Also, one of the exceptions to enforcement in the 1996 Convention is that enforcement would be manifestly contrary to the public policy of the requested State, having regard to the best interests of the child. If the requested State is a party to the abduction treaty, and that treaty would not mandate returning the child, it is arguable that to impose a return under a less specific piece of legislation would be contrary to public policy.
Further drawbacks to using the 1996 Convention in this way are that there is no provision for the requested State to meet the costs of the proceedings, and that the speed of a return under the 1980 Convention is likely to be greater.
New Zealand has powerful domestic legislation which aims to prevent international child abduction. In terms of the recommendations made in the Guide to Good Practice, our country already has in place the majority of the most significant preventative measures which are consistent with our circumstances. The most important step is the Court order for non-removal. This order is available more readily than virtually any other order under the Care of Children Act, and carries with it significant powers to curtail a potential abduction. Where this order is made, the Court can require the surrender of all travel documents, including passports. New passports will not be issued, and it is possible for the applicant to make travel on a child’s existing passport impossible through a CAPPS listing.
In less urgent situations, residency conditions can be including as part of a parenting order.
However I think it is desirable for New Zealand to seriously consider accession and ratification of the 1996 Convention, both as a further preventative measure, as well as enhancing the operation of the 1980 Convention and the international movement of children more generally. While we have domestic legislation that is effective in preventing and dealing with child abduction, New Zealand can contribute to a greater degree to the international community by becoming a party to the 1996 Convention.
1 Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part III - Preventative Measures, p vi
2 Above, p viii
3 s77(3)(b) Care of Children Act
4 s77(3)(a) Care of Children Act
5 r335(1)(b) Family Court Rules 2002
6 s77(1) Care of Children Act
7 statistics supplied by the Ministry of Justice
8 s4(3)(b)(iv) Passports Act 1992
9 s4(3)(a) Passports Act 1992
10 Above, n1, para 184.108.40.206
11 The alert system was upgraded in 1997 and is officially known as CUSMOD, but to save confusion the previous name for the alerts of "CAPPS" was retained (Law Talk, 3 November 1997, Issue 488, p14)
12 Brookers Family Law, Child Law I, CC77.10
13 above, CC103.06
14 s48(5) Care of Children Act
15 s4 Care of Children Act
16 s118 Care of Children Act
17 statistics provided by the Ministry of Justice
18 s80 Care of Children Act
19 s78 Care of Children Act
20 Section 315 Crimes Act
21 Above, n 1, para 4.3.2
22 Above, n 1, p20, para 2.3
23 Figures supplied by the New Zealand Central Authority
25 Foreign Judgments Regulations 1992 (Cth), r5(1)
26 s4 Family Courts Act 1980
28 s56(1) Judicature Act 1908
29 The full report is available at http://www.justice.govt.nz/publications
30 s2 Care of Children Act.
31 Child Law, para CC91.02: Prescribed overseas countries
32 s82 Care of Children Act
33 s83(1) Care of Children Act
34 s83(2) Care of Children Act
35 D v D (1981) 1 DCR 213
36 s93 Care of Children Act
37 see subdivisions C and D
38 Above, n 1, p7
39 Hague Conference, 1996 Convention Status Table, http://www.hcch.net/index_en.php?act=conventions.status&cid=70, last updated on 3/1/2007
40 Art 5(2)
41 Art 23(1)
42  NZFLR 306
43 article 23(2)(d)44 Lowe, Everall QC, Nicholls "International Movement of Children", (Jordan Publishing limited, Bristol, 2004), para 24.66