Advantages and disadvantages to New Zealand of the treaty entering into force and not entering into force for New Zealand
Advantages of treaty action
There are a number of significant advantages in New Zealand taking treaty action:
- The Convention complements the other two Hague Children’s Conventions to which New Zealand is a party. Together these three conventions enable co-operation between States that share a common interest in protecting children across international borders. This is of increasing importance in family law matters due to the growing number of cases with a cross-border connection.
- Acceding to the Convention would be consistent with and demonstrate New Zealand’s longstanding commitment to co-operate in multilateral efforts to provide better protection for children in cross-border situations.
- The Convention’s aims complement New Zealand’s existing obligations under the United Nations Convention on the Rights of the Child.
- Establishing jurisdictional rules will eliminate or reduce conflicts of jurisdiction arising from nationality or citizenship and will directly benefit children and parents.
- The Convention confirms that the law which applies to parental responsibility is the law of the child’s habitual residence. This means that other Contracting States whose law does not recognise the parental responsibility of a father not married to his child’s mother will recognise a New Zealand father’s rights if the child is habitually resident in the other Contracting State.
- The Convention enhances the Child Abduction Convention by enabling a New Zealand court to impose enforceable conditions on an order for a child’s return where there are concerns for a child’s well-being. Such orders remain in place until the authorities in the other country have taken measures and these have been recognised by the New Zealand court. The Convention also has superior provisions to those in the Child Abduction Convention enabling parents to organise or secure contact.
- New Zealand court orders will be automatically recognised by operation of law in another Contracting State unless one of the limited grounds for non-recognition applies. This will:
- promote finality in cross-border litigation which has cross-border elements
- discourage “forum shopping”
- discourage the breach of New Zealand parenting orders in other Contracting States and vice versa
- recognise the reasonable expectation of New Zealand parents that domestic orders should be recognised and be capable of being enforced internationally
- reduce the need for time-consuming and expensive access applications to be pursued under the Child Abduction Convention
- reduce the number of child abductions by providing certainty about the enforceability of orders
- protect children subject to New Zealand child protection orders who are placed in or who travel to other Contracting States and vice versa.
- Acceding to the Convention will enable confirmation from another Contracting State that an order will be recognised and enforced (if necessary) by that State. This ability to confirm in advance that existing care arrangements for children will be recognised and enforced is a significant advantage to a parent who may have concerns about agreeing to their child having contact in or relocating to another country.
- A further advantage is the establishment of a Central Authority as the main point of contact in international matters. This will facilitate co-operation and exchange of information between Courts and administrative authorities of Contracting States. There is already a well-developed level of co-operation under the Child Abduction Convention and New Zealand is at the forefront of this.
Statement of feasible options for achieving the desired objectives
Retain the status quo
An alternative to acceding to the Convention would be to retain the status quo. Subpart 3 of the Care of Children Act 2004 provides for the enforcement of parenting orders for day-to-day care or contact between prescribed countries. These provisions enable a party from a prescribed country to register an overseas court order in New Zealand, or to register a New Zealand court order in a prescribed overseas country.
An overseas order once registered in New Zealand may be enforced, varied or discharged as if it were an order made by a New Zealand Court under the Act. Similarly, a New Zealand court order may be registered and enforced overseas. Currently Australia is the only prescribed country under the Act in a reciprocal arrangement included in the Australian Family Law Act 1976 (Cth).
New Zealand does not have formal arrangements for dealing with international child protection matters with any country, other than Australia. Part 3A of the Children, Young Persons, and Their Families Act 1989 contains provisions allowing for the transfer of child protection orders and proceedings from New Zealand to Australian States and Territories and vice versa. Legislation in the Australian States and Territories contains similar legislative provisions to those in the Children, Young Persons, and Their Families Act 1989.
The Protocol for the Transfer of Care and Protection Orders and Proceedings and Interstate Assistance sets out agreement between New Zealand and Australia on the means by which child protection authorities will implement the relevant legislative provisions and how they will operate in trans-Tasman cases. They provide agreed processes for the exchange of information and placement of children for the purposes of a holiday or on a longer term basis.
The advantage of continuing with the status quo is that the majority of international cases are with Australia with whom New Zealand has bilateral agreements in both family law and child protection.
The disadvantages in the status quo remaining are that the existing provisions only apply to Australia, are limited in their scope, and do not provide all the benefits that the Convention does.
Enter into further bilateral arrangements with other countries
New Zealand could actively pursue more bilateral relationships with other countries under the existing provisions in legislation as an alternative to acceding to the Convention. Further countries could be prescribed under the provisions of the Care of Children Act 2004 and New Zealand could enter into reciprocal child protection arrangements with other countries in addition to Australia.
This course of action has the advantage that New Zealand can choose which countries it would like to enter into arrangements with. However, replicating the trans-Tasman arrangements with other countries is likely to be expensive and time consuming. It could also mean different arrangements with different countries, which could be complicated for courts and agencies to implement and the public to understand.
In child protection matters the existing provisions are suited to use where a child is to be placed permanently in Australia. They are not designed for situations where a child is travelling to Australia or vice versa on a less permanent basis, (eg, for a holiday or where a placement has not been finalised).
The existing provisions are also limited to recognition and enforcement and do not provide all the benefits of accession to the Convention. They do not contain rules for determining jurisdiction or applicable law and for co-operation and information sharing. The Convention offers these advantages, while allowing the existing arrangements in the Care of Children Act 2004 and the Children, Young Persons, and Their Families Act 1989 to continue to operate where more appropriate in a particular situation.
Acceding to the Convention
Accession to the Convention will protect New Zealand children caught up in cross-border cases in a greater range of situations. As the Convention applies to both private family law matters (eg, disputes between parents) and public law matters (eg, intervention by Child, Youth and Family), it will provide certainty for parents, judicial and administrative authorities about the rules that apply and confidence in allowing children to travel or relocate overseas. It will also provide assurance to overseas jurisdictions that New Zealand can protect their citizen children while they are in New Zealand.
In the majority of cases, it is likely to be in the best interests of the child for the country of the child’s habitual residence to have primary jurisdiction to take measures for the protection of the child. This recognises that the authorities where the child resides would most often be best placed to assess the best interests of the child and the measures necessary for the protection of the child.
The Convention provides appropriate exceptions to the rule as to jurisdiction, in particular by providing for Contracting States to agree that jurisdiction will be exercised by another Contracting State and for the exercise of jurisdiction in cases of urgency.
Clarifying when the New Zealand Family Court may exercise jurisdiction in cross-border situations could have significant advantages. For example, it would clarify any doubt that the Family Court may take measures during a child’s temporary absence from the country, thereby ensuring that the orders necessary for the child’s protection are in place immediately upon the child’s return. This would avoid the risk of gap in time after the child’s return and before the matter could be brought before the Court.
The standardised approach the Convention offers to international cases would be applicable to relationships with what is likely to be an increasing number of countries. With the exception of the arrangements with Australia, no such arrangements currently exist. The Convention provides an agreed process for resolving international matters involving children with other Contracting States.
To date 19 countries have acceded to the Convention. However, Hague Conventions enjoy a high degree of respect internationally as evidenced by the large number of parties to the Child Abduction and Intercountry Adoption Conventions. With Australia already a party, the European Union countries to become parties later this year and the United States and Canada actively considering accession, membership is likely to increase quickly.
Disadvantages of treaty action
There are no significant disadvantages to New Zealand acceding to the Convention. Accession will require New Zealand to accept some limitations on the jurisdiction of its judicial and administrative authorities in order to avoid conflicts in matters of jurisdiction, applicable law and recognition and enforcement measures for the protection of children.
Unless one of the exceptions apply, New Zealand may have to accept orders made in other Contracting States which reflect different attitudes and cultural values than those held by New Zealand courts and government agencies. However, the benefits of accession outweigh any such disadvantages.
Article 58 of the Convention provides that Contracting States may lodge an objection to an acceding State at the time of its accession. The objection means the Convention does not affect relations between the State lodging the objection and the acceding State. It provides a mechanism by which New Zealand could avoid being bound by the Convention requirements in relation to a country with inadequate family law or child protection systems.
New Zealand would need to assess the standard of the family law and child protection systems of a new Contracting State at the time of its accession and raise an objection at that stage. If New Zealand does not do this, it would be bound to recognise the jurisdiction of the other Contracting State in future cases involving a child habitually resident in that State.
The same option is not available in respect of countries that are already Contracting States at the time that New Zealand might accede. This means that if New Zealand elects to accede to the Convention, the Convention will apply as between New Zealand and all other States that have ratified or acceded at that time (unless, of course, any of them were to lodge an objection to New Zealand’s accession).
Disadvantages of not taking treaty action
Not acceding to the Convention will mean that New Zealand children will not benefit from the protections it affords. Parents, and judicial and administrative authorities will continue to experience difficulties in cross-border cases involving children because of the uncertainty about the international rules affecting:
- when a New Zealand court has jurisdiction to hear an international proceeding about children
- which country’s laws are to be applied
- whether New Zealand’s orders will be recognised (and enforced if necessary) overseas and vice versa
- courts’ and public authorities’ obligations to co-operate in the protection of children.
How will NZ’s position under Hague Conference be affected by not acceding?
In becoming a member of the Hague Conference New Zealand has assumed an obligation to actively support and promote the benefits of the Convention. New Zealand is also expected to show leadership in the Asia/Pacific region in encouraging other States to become parties to the Convention. If New Zealand does not accede to the Convention it may damage our standing among other member States, particularly those in the Asia/Pacific region.