NEW ZEALAND – 1996
(Returned ordered on appeal) (Grave risk) A v A. The mother took the child from Denmark to New Zealand. The Family Court refused to return the child sighting grave risk. This decision was over turned by the High Court stating that the Danish courts had all the information they needed to make a proper decision regarding the safety of the child. The mother appeals that decision. The court of appeal denied the mother’s application for leave to appeal and denied a stay of the High Courts order.
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A v A[1996] NZFLR 529
3 International Abduction [NZ 1996]
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A v A
Court of Appeal CA 95/96
23 May, 11 Jun 1996
Richardson P, McKay, Henry, Thomas and Doogue JJ.
001 Custody — Child abduction — Appeal against order
that child be returned to Denmark — Grave risk to child
alleged if return took place — Correct approach to be taken
by Courts to Guardianship Amendment Act 1991, s 13(1)(c) —
Adequate safeguards available in Danish Courts to protect
the child — Danish Courts to determine the best interests
of the child — Guardianship Amendment Act 1991, ss 7, 12,
13; Guardianship Act 1968 s 31(4).
002 The appellant mother had abducted the child from
Denmark and brought her to Now Zealand, thereby breaching an
order of a Danish Court granting custody of the child to the
respondent father. The Family Court Judge concluded that
there was grave risk that the child’s return to Denmark
would expose her to physical or psychological alarm (s
13(1)(c)) and declined to order the return of she child to
Denmark. This conclusion was based largely on the Judge’s
finding that there was no guarantee that if the child was
returned to Denmark she would not be placed, at least
temporarily, in the care of the father against whom
allegations of sexual abuse had been made. This was
overturned by the High Court. The High Judge was satisfied
that with appropriate evidence before the Danish Courts, the
Danish law would protect the child if a sufficient case was
made out for protection on an interim basis. The High Court
made an order for the return of the child to Denmark. The
mother now appealed. She argued that the High Court Judge
had adopted an unduly narrow approach to the nature of the
appropriate inquiry relative to the grave risk defence under
s 13, did nor appropriately consider the evidence relating
to that risk, and misdirected himself in various ways as to
the evidence.
Held (dismissing the appeal)
003 (1) The High Court Judge had adopted the correct law
and properly applied it to the facts of this case. In cases
where a grave risk to a child is alleged under s 13(1)(c),
the Court of the country to which the child has been
abducted will only be the appropriate Court if it is
established that the child’s return to the country of
habitual residence will give rise to a grave risk and the
Court exercises its discretion in favour of retaining the
child in the country to which the child has been abducted.
004 (2) Where the system of law of the country of habitual
residence makes the best interests of the child paramount
and provides mechanisms by which the best interests of the
child can be protected and properly dealt with, it is for
the Courts of that country and not the country to which the
child has been abducted to determine the best interests of
the child.
005 (3) Given that the laws of Denmark and New Zealand are
similar in ail respects, the Judge was entitled to find as
he did that any risk in the return of the child to Denmark
could be protected by the Courts of Denmark.
006 (4) An order returning a child to another jurisdiction
is not an order returning a child to a parent, and the child
remains the responsibility in the first instance of the
Central Authority of that other jurisdiction.
Cases referred to in judgment
Clarke v Carson [1996] 1 NZLR 349, [1995] NZFLR 926, (1995)
13 FRNZ 662
Cooper v Casey (1995) FLC 8 J, 692
H v H (1995) 12 FRNZ 498
Appeal
007 This was an appeal by the mother of a child against an
order that the child be returned to Denmark, the country
from which she had been abducted, pursuant to the
Guardianship Amendment Act 1991.
C C H Knight for the appellant
J D Howman with V J Hammond for the respondent
DOOGUE, J.
Summary
008 This case centres on whether the High Court was right
in law in finding a child named S. born on 16 April 1991 to
the appellant (“the mother”) and Mr A (“the father”), should
be returned to Denmark after she was abducted to New Zealand
by her mother.
009 The parents and S are Danish nationals. In November
1994 the mother brought S to New Zealand. This was despite
an order of a Danish Court, upheld on appeal, granting the
father custody of S. At the time a further application by
the mother for the custody of S was before the Danish
Courts. When the mother abducted S arid came to New Zealand
she was accompanied by her present husband and two other.
girls unrelated to S’s father, a half sister and a
stepsister of S.
010 The Central Authority for New Zealand (“the Central
Authority”) took proceedings under s 12 of the Guardianship
Amendment Act 1991 (“the Act”) to have S returned to
Denmark. The mother opposed that course. On 6 September 1995
an experienced Family Court Judge refused the application by
the Central Authority upon the ground the mother had
established there was a grave risk that the child’s return
to Denmark would expose her to physical or psychological
harm or would otherwise place her in an intolerable
situation under s 13(1)(c) of the Act. The decision was
upon the basis of evidence of a psychologist indicating a
risk of abuse of the child by the father. The Family Court
Judge declined to order S’ return to Denmark because she
found:
There is … no apparent means by which the
child’s safety could be guaranteed pending any
further hearing in Denmark.
011 The Central Authority appealed from that decision. On
29 March 1996, after a de nova hearing, Fraser J reversed
the decision of the Family Court. The Judge was satisfied
that the Family Court Judge’s conclusion was wrong. He was
not prepared to assume it was a foregone conclusion the
Danish legal system could not protect S if a sufficient case
was made out for her protection. Fraser J noted:
The Danish system provides for interim orders
pending a full hearing.
012 Both New Zealand Courts were aware that the Danish
legal system like our own, recognizes the best interests of
the child are paramount and makes appropriate provision for
that to be achieved.
013 The appellant has now applied to this Court far leave
to appeal against that decision and for a stay of execution
of the judgment ordering that S be returned forthwith to
Denmark. Leave can only be granted by this Court upon a
question of law: s 31(4) Guardianship Act 1968.
The relevant provisions of the Act and the Convention
014 The Act incorporated into the law of New Zealand the
provisions of the Convention on the Civil Aspects of
International Child Abduction signed at the Hague on 25
October 1980, commonly known as the Hague Convention (the
Convention). The Convention itself is set out in a Schedule
to the Act and is deemed to be part of it: see s 5(h) of the
Acts Interpretation Act 1924.
015 For the purposes of the present case the only
provisions of the Act of particular relevance are certain
parts of ss 7, 12 and 13.
016 Section 7 requires the Central Authority to perform
all the functions that a Central Authority has under the
Convention.
017 Section 12 enables applications to the Court for the
return of a child who has been abducted. Subject to Section
13 of the Act, where:
(2)(b) The Court is satisfied that the grounds of
the application are made out, — the Court shall
make an order that the child in respect of whom
the application is made be relined forthwith to
such person country as is specified in the order.
Section 13 provides
13. Grounds for refusal of order for return of
child — (1) Where an application is made under
subsection (1) of section 12 of this Act to a
Court in relation to the removal of a child from
a Contracting State to New Zealand, the Court may
refuse to make an order under subsection (2) of
that section for the return of the child if any
person who opposes the making of the order
establishes to the satisfaction of the Court —
(a) That the application was made more than one
year after the removal of the child, and the
child is now settled in his or her new
environment; or
(b) That the person by or rat whose behalf the
application is made —
(i) Was not actually exercising custody rights in
respect of the child at the time of the removal,
unless that person establishes to the
satisfaction of the Court that those custody
rights would have been exercised if the child had
not been removed; or
(ii) Consented to, or subsequently acquiesced in,
the removal; or
(c) That there is a grave risk that the child’s
return —
(i) Would expose the child to physical or
psychological harm; or
(ii) Would otherwise place the child in an
intolerable situation; or
. . .
Article 7 provides:
Central Authorities shall co-operate with each
other… to secure the prompt return of children
and to achieve the other objects of this
Convention.
In particular, either directly or through any
intermediary. they shall take all appropriate
measures —
. . .
b to prevent further harm to the child or
prejudice to interested parties by taking or
causing to be taken provisional measures;
. . .
h to provide such administrative arrangements as
may be necessary and appropriate to secure the
safe return of the child;
018 Section 13(1)(c) is itself to be read in conjunction
with Article 13, which provides that in considering the
circumstances of the case “the judicial and administrative
authorities shall take into account the information relating
to the social background of the child provided by the
Central Authority or other competent authority of the
child’s habitual residence”.
Other relevant factual and legal matters
019 In the present case the grave risk relied upon by the
mother for the purposes of s 13 (1)(c) of the Act is
primarily a risk of sexual abuse by the father if the child
is returned to Denmark.
020 As the judgments of the Courts below note, and as is
spelt out in more detail in the other papers before this
Court, this allegation has been made by the mother in
Denmark on more than one occasion to different authorities
and Courts, without it being substantiated.
021 After the mother came to New Zealand with her husband,
S and her other children in November 1994, the mother
continued to pursue her concern about the treatment of her
children by S’s father. S and one of the other two children
of the mother were interviewed by the Children And Young
Person Service in Christchurch. Neither of the two
interviews with S resulted in an allegation of sexual abuse.
However, the other girl made clear and explicit statements
in relation to two incidents of alleged sexual abuse by S’s
father. Subsequently thee two girls were seen by a Mr
Dennis Standring, a registered psychologist connected with
the Special Education Service in Christchurch and a female
colleague of his. It was his report and evidence which
weighed heaviest with the Family Court Judge in reaching the
conclusion that she did that S was at grave risk in terms of
s 13 of the Act if she was returned to Denmark. The Judge
noted that Mr Standring was a psychologist of some 20 years’
experience with substantial experience of giving evidence in
the Family Court. He was obviously someone well known to and
respected by the Court. The Family Court Judge accepted the
cogency and strength of Mr Standring’s evidence, which
indicated that both girls complained of sexual abuse by the
father of S and that S had a real fear that if she was
returned to Denmark the abuse could continue. The Family
Court Judge took the view that, given the strength of this
evidence, she would only be prepared to consider a return of
the child to Denmark under conditions which would ensure S’s
continued psychological well-being pending any further
hearing in Denmark. As already mentioned, she was not
satisfied that it was possible for that to occur.
022 Subsequent to that decision, but prior to the decision
of the New Zealand High Court, the 8th Department of the
Western Division of the Danish High Court on 12 October 1995
upheld a judgment of the Court of Struer, a Court of first
instance, of 17 February 1995, rejecting the mother’s
application for custody of S and confirming the father’s
custody of S. It had the report of Mr Standring. It noted in
its decision that the mother’s accusations of neglect and
incest by the father in respect of S were unfounded. It
noted that the mother had not been prepared to participate
in counseling and that the expert on child behaviour
appointed by the Court of first instance had never seen the
father and S together because the mother had refused the
father access to S. The Court went on to state:
The Appellant abducted S to New Zealand after the
Respondent had been granted custody of the child,
both by the Court of first instance and by the
High Court. Therefore, it has not been possible
during this case — which has been brought by the
Appellant for the purpose of having custody
transferred to her, and subsequently appealed by
her to the High Court — to initiate a new
examination by an expert on child behaviour. In
this connection, the High Court would point out
that it does not attach great weight to the
examination made by the expert on child behaviour
during the proceedings in New Zealand for return
of the child, as the High Court considers it
significant that the Appellant attended the
examination, which the Petitioner did not, and
that the conversations with S were held in
English without the use of an interpreter. In
addition, the High Court has attached importance
to the opinions obtained from the child’s doctor
and Health and Social Services Committee prior to
the abduction, describing S as a harmonious
child, comparable to other children in her age
group, not showing any remarkable behaviour, and
functioning normally, both emotionally and
personality – wise. Such as the case has been
present to the High Court, the High Court finds,
based on the grounds stated by the Court of first
instance, that the Appellant has not
substantiated that the conditions for
transferring custody to her, as laid down in
section 17 of the Danish Act on Minors and
Incapacitated Persons, have been met.
023 As a result, the mother’s appeal was dismissed and the
father continues to be the parent entitled to custody of S
in Denmark. The attitude of the Danish Court to the report
of Mr Standring was understandable in the circumstances
which that court was faced with upon an appeal. The mother
had failed to co-operate in the procedures in Denmark which
would have enabled the Danish Court to have independent
reports before it as to her allegations in respect of the.
father. Mr Standring’s report may well have been given
greater weight if the Court had been a first instance Court
dealing with an application for interim custody pending the
further investigation of the case concerned to assess
whether the child was at risk and the gravity of any such
risk. It could then perhaps be of significance that in the
New Zealand context the first instance Court gave Mr
Standring’s report was not discounted in any way by the
Judge of the High Court, notwithstanding that he took a
different view upon the proper outcome of the case.
The decision under appeal
024 Fraser J addressed the basis upon which his
jurisdiction was to be exercised and adopted the following
passage from a decision of the High Court in Clarke v Carson
[1996] 1 NZLR 349, 351; [1995] NZFLR 926, 928:
Section 13 sets out the only circumstances which
constitute grounds for the refusal of the order
for return. Where those grounds are made out to
the satisfaction of the Court by the person
resisting the order for return (here, the
mother), the consequence is not that the order
will be refused but that the Court is not longer
obliged to return the child but has a discretion
whether or not to do so. That discretion must be
exercised in the context of the Act under which
it is conferred and the Convention which it
implements and schedules. (See in In re A
(Minors) (Abduction; Custody Rights) [1992] 2 WLR
536 at 550 per Balcome LJ.) It therefore
requires assessment of whether decisions
affecting the child should be made in the Court
of the country from which the child has been
wrongfully removed or the country of the Court in
which it is wrongfully retained. That requires
consideration of the purpose and policy of the
Act in speedy return and consideration of the
welfare of the child in having the determination
made in on country or the other. (See In re A
(Minors) (Abduction: Custody Rights)(No 2) [1992]
3 WLR 536, at 547 per Sir Stephen Brown P, at 548
per Scott LJ. Some balancing may be required, as
is indicated by the fact that Art. 13 of the
Convention (from which s 13 of the Act is
derived) requires consideration of “information
relating to the social background of the child.”
025 No challenge is made to that statement. He went on to
say that that approach was consistent with various
observations in American, Scottish and Australian cases
cited to him.
026 Fraser J then traversed with care the information
before him as to the legal position in Denmark, noting in
conclusion under this heading that the mother had made no
fresh application for permanent or temporary custody of S in
Denmark, nor any application for immunity or psychological
assessment, and that those procedures appeared to be still
open to her in Denmark. He then went on to review what had
occurred in New Zealand. Whilst some criticism is made of
the language used by the Judge, within context it was
entirely appropriate and it is unnecessary to state it here.
027 The Judge noted that the critical area of concern
related solely to the period between S’s return to Denmark
and the hearing of any fresh custody application by the
mother. He noted that at an carrier time the father had
offered to see S put temporarily into the custody of a local
authority but that option was not taken up by the mother.
028 He then noted the crux of the difference between him
and the Family Court Judge. The Family Court Judge found
there was no guarantee that if S was returned to Denmark she
would not be placed, at least temporarily, in the care and
custody of The father. To Fraser J that was not a foregone
conclusion as he was satisfied that with appropriate
evidence before the Danish Courts the Danish law could
protect the child if a sufficient case was made out for
protection on an interim basis. There is no dispute that
that can occur in Denmark. However, for the mother it is
said that there must inevitably be the risk of a time lapse,
and, as no guarantee can be given against such risk, S must
be at risk during any such period. Fraser J, after reaching
the conclusions already traversed above, reserved leave to
make application for any ancillary orders or directions
which might be found necessary.
Argument and reasons for decision
029 It is said for the appellant that Fraser J adopted an
unduly narrow approach to the nature of the appropriate
inquiry relative to the grave risk defence under s 13, did
not appropriately consider the evidence relating to that
risk, and misdirected himself in various ways to the
evidence. Submissions were also made that the Judge should
have given greater weight to the best interests of the child
and addressed issues relating to the safe return of S to
Denmark.
030 It is not helpful to address separately each of the
matters raised on behalf of the appellant. Notwithstanding
the careful submissions on behalf of the mother, it is clear
Fraser J not only adopted the correct lad but properly
applied it to the facts before him.
031 Fraser J did not apply a narrow view to the Act or the
Convention. The New Zealand cases and cases in other
jurisdictions make plain that the Convention is concerned
with the appropriate forum for determining the best
interests of a child. In cases where a grave risk to the
child is alleged under Art. 13, our s 13(1)(c), the Court of
the country to which the child has been abducted will only
be the appropriate Court if it is established The child’s
return to the country of habitual residence will give rise
to a grave risk and the Court exercises its discretion in
favour of retaining The child in the country to which the
child has been abducted. Where the system of law of the
country of habitual residence makes the best interests of
the child paramount and provides mechanisms by which the
best interests of the child can be protected and properly
dealt with, it is for the Courts of that country and not the
country to which the child has been abducted to determine
the best interests of the child.
032 In most instances where the best interests of the
child are paramount in the country of habitual residence the
Courts of that country will be able to deal with any
possible risk to a child, thus overcoming the possible
defence of the abducting parent. That does not gainsay the
fact that in some instances there will be situations where
the Courts of the country to which the child has been
abducted will not be so satisfied. This will not
necessarily be limited to cases where there is turmoil or
unrest in the country of habitual residence. There may well
be cases, for example, where the laws of the home country
may emphasise the best interests of the child are paramount
but there are no mechanisms by which that might be achieved,
or it may be established that the Courts of the country
construe such provisions in a limiting way, or even that the
laws of that country do not reflect the principle that the
best interests of The child are paramount.
033 Fraser J did not ignore the correct approach to s
13(1)(c). He was entitled to find as he did that any risk
in the return of S to Denmark could be protected by the
Courts of Denmark. When the laws of Denmark and New Zealand
are similar in all material respects, Fraser J was no doubt
satisfied that that could be achieved because he knew if the
position was reversed it could have been achieved in New
Zealand. The Family Court Judge’s doubt as to that elevated
the risk to S to a grave risk in her mind. However, Fraser J
was entitled to take the different view that he did.
034 Fraser J properly held, in terms of s 12 of the Act,
that S be returned to Denmark forthwith. However, leave was
reserved to the parties to apply in respect of any matters
which might arise in relation to her return. S’s safe return
to Denmark was adequately protected by this step. In the
first instance it is for the Central Authorities, both of
New Zealand and of Denmark in terms of Art. 7(b) and 7(h) of
the Convention, to take steps to ensure that this occurs,
and accordingly it was not necessary for Fraser J to further
address that issue at the time of judgment. The Family Court
of Australia in Cooper v Casey (1995) FLC 8l,692 expressed
reservations as to the extent that receiving States accept
the obligation imposed by Art. 7, but there is nothing
before this Court to indicate the Central Authorities of New
Zealand and Denmark will not act in S’s best interests. It
is clear from Mr Howman’s submissions for The Central
Authority of New Zealand that the Central Authorities will
co-ordinate transfer arrangements to ensure the child’s safe
arrival and reception in Denmark. Thus Fraser J was entitled
to take the view that the necessary administrative and legal
steps would be taken and that S was as capable of being
protected by the Courts of Denmark as by the Courts of New
Zealand. To take a different view would have involved an
implied criticism of both Central Authorities and the Courts
of Denmark for which there is no foundation whatever.
035 Ultimately it is a question of whether the appropriate
steps will be taken to ensure that upon S’s return to
Denmark the Danish Courts will be fully appraised of the
matters which were of such concern to the Family Court Judge
and which led her at first instance to uphold the s 13(1)(c)
defence. Unless the mother is prepared In cooperate with
the Central Authorities to erasure that these matters are
brought before the Danish Court, it may be that difficulties
could arise. However, that is something within the control
of the mother herself. It is for the Central Authorities of
New Zealand and Denmark to abide by their duties under the
Convention and act properly in The best interests of S. Thus
Fraser J was entitled to conclude the Courts of Denmark are
the proper Courts to determine S’s best interests and she is
not at risk if she is returned to Denmark.
Supplementary issues
036 The New Zealand Courts have been concerned with the
possible risk to S on her return to Denmark before the
Danish Courts have an opportunity to consider her position
further. Consideration was given in the course of argument
as to whether a Court had power to attach conditions to any
order made by it. It seems reasonably clear there can be no
power to attach conditions to an order under s 12 in the
absence of a finding in favour of a defence under s 13. On
the other hand, if such a defence has been made out and the
Court is concerned solely with the exercise of his
discretion under s 13 of the Act, then it may be possible
that conditions could be attached, unless the statutory
provisions dealing with conditions in the Act, ss 26, 27 and
28 imply no authority for the imposition of other
conditions. See H v H (1995) 12 FRNZ 498. Nevertheless, as
has already been stressed in this judgment, it is not the
role of a New Zealand Court to interfere with the functions
and responsibilities of the relevant Central Authorities and
the courts of another jurisdiction. It would be an unusual
case which might give rise to the consideration of
conditions. No finding is made on this issue.
037 An order returning a child to another jurisdiction is
not an order returning a child to a parent, and the child
remains the responsibility in the first instance of the
Central Authority of that other jurisdiction. All a Court
appropriately can do in a case such as the present is too
draw to The attention of the Central Authorities and the
Courts of the other jurisdiction the particular matters of
concern relevant to the best interests of the child of which
it is aware. It will be obvious, for instance, from this
judgment that all three New Zealand Courts accept there is
evidence before the New Zealand Courts which suggest that,
despite the contrary findings by the Danish Courts, S may be
at risk from her father and that the New Zealand Courts hope
that that issue can be dealt with again, de nova, before he
next exercises his present right of custody in respect of
her.
Decision
038 The application for leave to appeal and for a stay of
execution of the judgment of Fraser J is dismissed. There
will be no order as to costs.
Solictors for the appellant Chris King Family Law
(Christchurch)
Solictors for the respondent Simpson Gierson (Wellington)