KEY POINTS:
A New Zealand mother has been ordered under the Hague Convention to return her son to Spain, where his father lives, although the child speaks no Spanish.
The Court of Appeal has said the woman, who cannot be identified, met a man over the internet and in February 2002 went to Spain to meet him.
They had a sexual relationship and she became pregnant. Later that year she returned to New Zealand and gave birth to her son. The father travelled to New Zealand at Christmas and met his son. He visited New Zealand again in June 2003. At the end of that month all three travelled to Spain where they lived as a family for just over a year.
Then, the mother and child returned to New Zealand on a visit which was to last a few months.
After a month the woman told the man the relationship was at an end and she would not be returning.
Court proceedings began, and under the Hague Convention, Judge Jane McMeeken refused to order the child's return to Spain.
On appeal, Justice Graham Panckhurst concluded the child was "habitually resident in Spain when wrongly retained in New Zealand".
The Court of Appeal has dismissed the woman's application for leave to appeal against this decision.
Justice Panckhurst also rejected an "intolerable situation" defence.
Justice William Young said the mother's lawyer had argued that the boy's return to Spain would involve the grave risk of placing him in an intolerable situation. He had spent about 70 per cent of his lifetime in New Zealand. The order would put the boy in a strange environment.
Counsel for the child's father said the man had not contributed to litigation delays. He offered to pay for flights for the woman and the child from New Zealand to Spain and to provide accommodation in the same house where he lived. He also offered to get the woman a job at a company with which he was associated.
According to the mother, the child had no memory of Spain and could not speak Spanish, Justice Young said.
The woman maintained there was at least uncertainty as to her ability and the child's to remain in Spain, he said. But "unless the intolerable situation defence was made out, Justice Panckhurst was required to direct the return of the child".
- NZPA
