Family Court of New Zealand

Child Abduction - Form 1 Notes

Notes for Counsel making an application for the return of a child under the Hague Convention

Applications for the return of a child under the Hague Convention on the Civil Aspects of Child Abduction must be made using "Form 1" from the schedule to the Guardianship (International Child Abduction) (Forms) Rules 1991. The form should be completed as fully as possible as providing more relevant information makes it easier for the Authorities in the Convention country to process the application.

Included below is a summary of useful information to include when preparing an application using Form 1.

FORM 1

REQUESTING CENTRAL AUTHORITY OR APPLICANT:

Insert the name of the applicant.

REQUESTED AUTHORITY:

Insert the name of the country to which the child has been taken.

IDENTITY OF THE CHILD AND ITS PARENTS:

If there is more than one child, repeat below the particulars requested on the form. Don't attempt to put all the details of each child together on one line.

The habitual residence of the abducting parent is the address the abducting parent lived at before abducting or wrongfully retaining the child.

REQUESTING INDIVIDUAL OR INSTITUTION:

Insert the name of the individual whose rights of custody have been breached by the wrongful removal retention. In a very few cases, the applicant will be an agency such as Child, Youth and Family.

PLACE WHERE THE CHILD IS THOUGHT TO BE:

Usually the left behind parent will know the address of the child and should give this address. However, if the address is not known, any information which may assist the overseas Central Authority to trace the child should be given. Such information might include answers to questions such as:

Is the abducting parent likely to apply for a benefit;
With which bank does the abducting parent have funds; and/or
Does the abducting parent have any familiarity with a particular part of the country.

TIME, PLACE, DATE AND CIRCUMSTANCES OF THE WRNGFUL REMOVAL OR RETENTION:

This part of the application should be completed as fully as possible. It should include the flight number and date of the departure if known. It should also indicate whether the parent who removed the child has been in contact with the applicant. The details of any conversations relating to return should be given.

FACTUAL OR LEGAL GROUNDS JUSTIFYING THE REQUEST:

History of relationship : The application should briefly explain the relationship between the applicant and the abducting parent. In particular, it should explain when the relationship commenced and when it ended. It should also indicate whether the children were born during the relationship.

Although an affidavit of the applicable law is also required, it is useful to briefly describe and attach any court orders or agreements in force at the time of application. As applicants must claim that they were exercising their rights of custody, evidence to that effect should be given. For example, the application should indicate:

How often the applicant saw the child;
When the applicant last saw the child;
Whether the applicant contributed financially to the upkeep of the child;
Whether the applicant sought to have input into major decisions concerning the child such as educational decisions, medical decisions and religious education decisions, etc.

If the child has been in the new environment for more than 12 months, the application should detail why the applicant has taken so long to make the application. It should indicate whether the applicant did or said anything, at any stage, which might have led the abducting parent to believe that the applicant consented to the removal or retention of the child.

The application should also indicate whether, during any conversations with the child since the abduction, the child has indicated that he or she either wishes to remain where he or she is or to return home.

CIVIL PROCEEDINGS IN PROGRESS:

The application should indicate whether there are any proceedings in progress in the Family Court

CHILD IS TO BE RETURNED TO:

The application should provide details concerning what practical arrangements have been made for the return of the child. It is particularly important to give evidence of financial arrangements. The Australian Central Authority requires funds to be deposited in the solicitor's trust account. The Australian airfare policy is included in the kit.

OTHER REMARKS:

The application can also include any additional information which did not fit under any of the specific headings. If the applicant has any reason to suspect that the person who removed or retained the child overseas might disappear with the child once he or she is aware of your application, the applicant should detail the grounds for his or her fears (for example, previous threats to go into hiding).

LIST OF DOCUMENTS ATTACHED:

Information relating to the social background of the child need only be attached if specifically requested. All other documents should be attached.