Nightmare battle over a 'little Kiwi citizen'

Bruce Laybourn visiting son Dylan in Turkey. Photo / Supplied

As tug-of-love cases go, Bruce Laybourn's seemed as open and shut as these white-knuckle disputes can ever be.

After his wife Nil took their baby Dylan to visit her family in Turkey, then didn't come home, Laybourn invoked the Hague Convention on child abductions to bring them back.

The 1980 convention is a cross-borders agreement which binds countries to return children spirited overseas in domestic breakups to the country where they normally live.

Then the courts in the country of residence can decide custody and access arrangements.

Laybourn's case ticked all the boxes. Dylan was born in Auckland in early 2007.

His parents had met and married in Auckland and were living together in Laybourn's Newmarket house. While Laybourn says they had their ups and downs like any couple, they were happy "98 per cent of the time."

The couple met at the Viaduct Basin amid the buoyancy and bubbles of the 2000 America's Cup defence and lived the high life.

She was stunningly beautiful, with a temper to match her exotic good looks. He was a successful businessman, older but with a zest for life.

They "hit it off" and she accompanied him on trips researching stories for his glossy travel mag Destinations. She even did a cover shoot in Africa, head wrapped in a tiger-patterned scarf, looking mysterious against the backdrop of the Zambezi River.

As if to cement this bridging of cultures, he took her to Gallipoli where his grandfather had fought the Turks.

He introduced her to sailing and the Kiwi outdoor lifestyle; she rekindled his passion for Harley Davidsons. She renounced Islam in favour of Buddhism and became a New Zealand citizen. He employed her in accounts; she bought him a pair of Alaskan malamutes (sled dogs).

Despite the 17-year age gap and her struggle to accept Laybourn's relationship with his teenage daughter from a previous marriage, the pair wed in 2005 on a mountain top in Queenstown.

Things changed with her pregnancy - her lavish spending had to be reined in. Dylan's birth in January 2007 also brought the arrival of her Kurdish mother and older sister from Istanbul.

Laybourn claims Nil's traditional Muslim family coerced her back to Turkey, determined to raise their 4-month-old grandson their way.

"It was almost like Dylan belonged to the village."

A shellshocked Laybourn found out about the Hague Convention and swiftly lodged an application for Dylan's return. Both countries are Hague signatories and the Turkish authorities acted quickly, as the convention demands.

It's a reciprocal arrangement - each country appoints a "central authority" (New Zealand's is within the Justice Ministry) to represent the child in Hague issues. In this case, New Zealand relied on Turkish officials to work for Dylan's return, which they set out to do.

Then New Zealand pointed out a technical glitch - Turkey, which signed the convention in 1998, had yet to formally recognise New Zealand's status as a member country - an arcane requirement of the convention.

The cut and dried case turned into a nightmare. It took six months for Turkey to accept New Zealand's status and a further three for acceptance to take effect. Our officials formally asked Turkey to overlook the glitch and deal with the case retrospectively but were told to wait.

In the meantime, Nil obtained custody of Dylan (and a divorce) from the Turkish Family Court at a hearing at which her husband was not represented. When the Turkish central authority learned of the custody order, it closed its file on the case.

According to a TV3 60 Minutes item, court documents filed by Nil in Istanbul alleged Laybourn was an overbearing and controlling father and husband. But he maintains the couple had a "fantastic" relationship.

"She's a real Mediterranean chilli pepper. She can be quite feisty.

"The only issues we had were over finances. She's a label girl."

A letter last October from former Prime Minister Helen Clark to Turkish PM Recep Tayyip Erdogan appears to have prompted the Turks to reconsider the case. But in a decision in March, the application to have Dylan returned to New Zealand was rejected by the Turkish Family Court - largely because of the length of time Dylan has lived with his mother in Turkey.

Laybourn says the Turkish central authority prosecutor failed to put up a case and it was left to his lawyer to do so.

But most of his ire is directed at New Zealand officials and politicians who, he says, failed to fight hard enough for two years for the return of "a little Kiwi citizen".

"There just never seemed to be any urgency. They didn't want to rock the boat. Instead of picking up the phone they would wait for a letter. They would wait and wait."

He says he was warned at the outset that the Turkish authorities would not return Dylan against the mother's wishes.

"When you're fighting for justice on the other side of the world, you have to put the work in. If it was Britain or America, they would have a bold approach. It's as if we don't have a foreign policy anymore."

This is the first tug of love case between the two distant nations with different languages, cultures and legal systems. Certainly, the Turkish court's ruling betrays a gender bias which our politically correct system might struggle with.

The translated decision says that because Dylan was so young when taken, he could not now perceive New Zealand as his customary home. He's at an age where "the mother love and tenderness are needed" and his customary residence should be accepted as with the mother in Turkey.

Laybourn says the court is confusing matters for a custody hearing with Hague Convention issues, and believes there are strong grounds for an appeal. He pressed New Zealand officials to urge their Turkish counterparts to appeal but, with the deadline past, has heard nothing.

With his faith in our officials exhausted, he lodged a private appeal through his Turkish lawyer. But without the central authority's backing, he concedes his chances of winning are slim. If all else fails, he says he still hopes to work out "a loving solution" with Nil.

Things seem to have been lost in translation not just between New Zealand and Turkish bureaucrats but between our officials and Laybourn.

Says one official: "We have to be very careful New Zealand is not seen to be trying to interfere in the judicial processes in Turkey, just as we wouldn't want them criticising decisions of New Zealand courts."

Laybourn says our stance displays ignorance of the Hague Convention. "Every country is entitled to intervene if it believes the other partner is not acting quickly enough.

"Do we have to sacrifice one child to make it okay for everyone else?"

The pursuit of his son's return has clearly immersed Laybourn. He is strongly built but when we meet at his Herne Bay publishing house, he battles at times to contain his emotions. "He is my son, he is my mini-me. I feel the strongest love ..."

To finance his efforts, he sold the 13.8-metre yacht he built from scratch and rented out the family home, moving into a flat attached to his office. He admits the business suffered in the first year as he devoted himself to the case.

He has made four trips to Turkey and obtained a court order granting access to Dylan - for two weeks, twice a year - in Istanbul. But he says Nil's family thwarted access on one visit and is blocking him from maintaining videocam contact with Dylan. Presents have been returned, phone calls and texts to Nil go unanswered.

A security guard went with him on the first access visit, in February last year, and he was advised to bribe officials to ensure he got access. He took Dylan to a hotel and Nil ended up staying with them. "He recognised me after a year. He was teaching me Turkish; I was teaching him English."

But when he returned last August for a second access period, Nil had gone into hiding with Dylan. This February, Turkish officials supervised his access. "If anything, we bonded more strongly than ever."

As desperation has mounted, Laybourn has gone public and used media and political connections to push the case along. The bringdylanhome website is unashamedly emotive.

There's video footage of father and son saying goodbye after their two weeks' together, Dad's eyes welling up. There are Dylan's big brown eyes and curly hair. There are invitations to donate, to sign the international petition, to visit the Facebook page.

There's also an understandable loss of perspective in highly critical posts about the efforts of politicians and officials.

Prime Minister John Key, Foreign Affairs Minister Murray McCully, his predecessor Winston Peters and Justice Minister Simon Power come in for flak. Foreign Affairs is accused of sabotage.

Some officials on the periphery of the case privately suggest Laybourn is "his own worst enemy." His Turkish lawyer says publicity about the case in Istanbul damaged his chances.

It's a case which, once again, demonstrates the Hague Convention's limitations in resolving cases of raw emotion, where the powers of the state can be no match for a parent's determination to keep a child.

Except in this case, the hands-off approach of our officials seems to mirror the Turkish bureaucratic oversight that has dogged his campaign.

What was needed, Laybourn believes, was some raw emotion, and greater urgency, from our officials. He sees nothing in the convention to prevent our diplomatic staff from banging on the doors of their Turkish counterparts or our politicians from banging heads.

He cites past reports that the Turkish authorities were reluctant to meet Hague Convention obligations.

"Turkey, sadly, has a poor reputation for Hague Convention compliance," his website states.

"This is documented by many Hague Convention experts - and all state that success only comes with very active involvement by the requesting state."

He cites the case of a child returned to the United States after the US Ambassador and consulate heads repeatedly pressed for resolution in meetings with Turkish senior officials and cabinet ministers. "For me the yardstick for whether a country has done enough in Turkey is America."

The information however, extracted from the New York-based website international-divorce.com, is several years old and notes that Turkey was taking "encouraging" steps to improve its handling of Hague cases.

Our Foreign Affairs and Justice ministries locked heads to provide a written response to Herald questions about the case.

It lists intermittent enquiries and requests since July 2007, when our central authority informed the Turks that the Hague Convention was not in force and asked them to accept New Zealand's status as soon as possible.

Ten months later, the authority formally asked its Turkish equivalent to overlook the technical breach and apply the convention retrospectively.

The New Zealand Embassy in Ankara, the Turkish capital, helped Laybourn with emergency travel documents and a list of local lawyers. A representative sat in on the court hearing. The embassy has also assisted Nil, a New Zealand citizen.

"Consular officials are instructed not to take sides ... resolution must be through the appropriate channels."

The officials are unrepentant about pointing out the technical hitch.

"It is standard procedure to check if the convention is in force between two countries so it would only have been a matter of time before the Turkish authorities brought that fact to our attention."

"Foreign Affairs considers that it has provided a high level of appropriate diplomatic and consular assistance, while acting consistently with the principle of non-interference in the judicial affairs of other countries, and respecting judicial independence."

The only effort which might be deemed other than by-the-book was Helen Clark's pre-election letter, urging the Turks to reconsider.

It's hard to argue with Laybourn's verdict that our adherence to diplomatic protocol has overridden the rights of a New Zealand father to bring his New-Zealand born son home.

But it may also be that, in this case, no amount of shouting down the phone would have shifted the Turks from their bunker.

Not that Laybourn is accepting defeat.

"Wellington desperately want me to go away. That's never going to happen."


THE HAGUE CONVENTION ON CHILD ABDUCTIONS

* Designed to deter unlawful removal of children overseas by allowing courts to order their return to their customary home country.

* Aims also to impede "forum shopping" - where one parent thinks they may win custody by moving the child to a favourable jurisdiction.

* New Zealand signed up in 1991 and its status is recognised by 76 countries. It is awaiting acceptance of its status by four other countries - Belize, Bosnia and Herzegovina, Macedonia and Montenegro.

* NZ received 113 applications last year and 41 so far this year.

* The convention encourages speedy resolutions: if decisions are not made within six weeks, applicant countries are entitled to request reasons.

* Applications generally go before family courts. If more than one year has elapsed, the court may consider the child to be settled in the new environment and decline to send the child back. But there is flexibility to waive the rules.

* Other grounds for refusing to return a child include grave risk that the child will suffer physical or psychological harm or be placed in an "intolerable situation".