The bereft parent has the ability to apply to what the convention refers to as the "central authority". In New Zealand this is the Ministry of Justice.
The convention places an obligation on that central authority to contact the corresponding central authority in the country where the child is.
The overseas central authority is obliged to apply to the local court for an order to have the child returned. Without getting tied down in the legal jargon, basically two things need to be established by the local court.
First, was the country that the child left, the child's "habitual country of residence"? Second, did the removal prevent the bereft parent from exercising their "rights of custody"?
In this instance "rights of custody" encapsulates all rights and responsibilities in respect of a child. This includes caring for the child, having contact with the child or making important decisions.
Once those grounds are established, the court must order a prompt return. This is usually backed up with the power to uplift children if necessary.
The courts reiterate that proceedings under the convention are not for determining child care arrangements. If an order for return is to be made, then it is for the courts in the home country to determine who cares for a child and when.
There are few circumstances where the court can refuse to order a return. Where a child is settled in the new country for more than a year the court can and does refuse. Where a child is mature enough to object, the court can also refuse to return.
There are a growing number of New Zealanders living in Australia. It is now not uncommon for parents fleeing family violence to get on a flight across the Tasman. This can be a parent coming home to family in New Zealand, or joining family living in Australia.
The fleeing parent, often a legitimate victim, can find themselves the subject of the convention. There are two grounds of refusal a parent in these circumstances will often argue. The first is that there is a grave risk that the return would expose the child to physical or psychological harm.
The other is that the return would place the child in an intolerable situation. The courts, in line with decisions in overseas courts have set the bar very high. The New Zealand courts have also established a firm line that the authorities in developed countries, including Australia, are capable of dealing with family violence and protecting victims.
Such cases have been in the public spotlight recently. In one such case a New Zealand court acknowledged the fleeing parent had suffered some serious incidents requiring the intervention of Australian police, family courts, criminal courts and the local equivalent of Women's Refuge. A return was still ordered.
The only further ground under the convention for a refusal is that it breaches New Zealand law relating to the protection of human rights and fundamental freedoms.
This is a ground that is seldom argued in New Zealand and has never been successful. Even if any of the grounds for refusal are made out, the court has, and often exercises discretion to order a return in any event.
A return order is not the final word, however. Upon return, the fleeing parent can apply to court for permission to return to New Zealand permanently.
Parliament of course has the power to change the Care of Children Act and how the convention is implemented. All well and good.
If New Zealand isn't seen to be meeting its obligations however, other member countries may decide not to play ball with returns to New Zealand. Such a situation would leave aggrieved parents in New Zealand powerless.
Scott Oliver, associate at Treadwell Gordon
