NEW ZEALAND – ESCOBAR – 1993 (Return ordered) CHILD ABDUCTION UNIT, DA’s OFFICE, CALIFORNIA (For the Father) v MOTHER. The mother took the child to New Zealand with the permission of the father and the courts. She decided not to return. The Court in California ordered the Child Abduction Unit of the DA’s Office to secure the return of the child. Acting on behalf of the father, the Child Abduction Unit applied for the return of the child under the Hague Treaty. The court ordered the child returned to the jurisdiction of the California courts.
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In the Matter of Escobar (NZ 1993)Family Court at Napier No FP 041 153 93
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THE FAMILY COURT AT NAPIER
FP 041 153 93
IN THE MATTER of the Guardianship Amendment Act 1991
AND
IN THE MATTER of JAMES MICHAEL ESCOBAR
(Child Abduction)
Hearing: 20, 21 September 1993
Counsel: Penny Clothier for the Child Abduction Unit,
District Attorney’s Office, Modesto, California,
USA
Bryan King for mother
Garth Thomton, appointed to represent child
Judgment: 21 September 1993
___________________________________________________________
(ORAL) JUDGMENT OF JUDGE INGLIS Q C
___________________________________________________________
This is an application, properly made through the proper
channels in terms of the Guardianship Amendment Act 1991,
for an order for the return to the State of California of
James Michael Escobar (born 9 December 1990), a child who in
terms of the Act has been abducted to New Zealand. The 1991
statute was enacted to give effect to the Hague Convention
on the Civil Aspects of International Child Abduction. The
objective of that international Convention was to combat
what had for many years been seen as the evil of children
being taken from their normal home and transported across
international borders in an attempt to defeat the other
parent’s guardianship rights or to evade the orders of the
Courts of the country of the child’s normal residence, and
in the expectation that the Courts of the country to which
the child had been taken would allow the abducting parent to
profit from the abduction. In the past it often happened
that in the extended period of time occupied in the legal
process of bringing a custody case to a conclusion in the
country to which the child had been abducted, the child had
settled there, so that it became possible for the Court,
applying the local statutory rule that the welfare of the
child was the first and paramount consideration, to hold
that the welfare of the child prevented the child’s return
to his or her country of origin.
In simple terms the 1991 Act and the Hague Convention
require that, where a child who is present in New Zealand
has been removed from the contracting state of his habitual
residence and retained in New Zealand in breach of the
exercised custody rights of the other parent, the Court must
on application made for the purpose order the child’s
return: s 12(1), (2). The section speaks of the child’s
‘removal’, but ‘removal’ is defined as wrongful removal or
retention in terms of Article 3 of the Convention. However
s 13 enables the Court to decline to order the child’s
return if the party opposing the child’s return proves,
inter alia —
‘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.’
That is the main ground relied upon here for opposing the
child’s return. Although the mother’s opposition to the
child’s return was abandoned by the end of the hearing the
abandonment was hedged with conditions and in order to
preserve and protect the integrity of the Hague Convention
and the 1991 Act it is right that I should record the
Court’s full reasons for arriving at the view that in the
circumstances of this case the child’s return to California
had become inevitable.
It is provided by s 14 that applications for the return of a
child must be dealt with expeditiously. It should be noted
that the application was forwarded to this Court by the
Central Authority in New Zealand on 8 September 1993 and
that the full hearing of the application started 12 days
later.
The factual background can be stated very briefly. The
father is a United States citizen who is self-employed and
who lives in Turlock, California, near Modesto which is east
of San Francisco and Sacramento. The mother is a New
Zealand citizen, a registered nurse, who met the father
while working in the United States. When it was discovered
that she had become pregnant with James, they married on 7
July 1990. The following year, exactly a week after their
first wedding anniversary, they separated, and in February
of the following year the mother commenced proceedings for
divorce in the local registry of the Superior Court of
California. In terms of the practice of that Court the
mother’s proceedings were referred first for mediation by a
Court mediator. That process resulted in an order made by
Judge Girolami on 8 April 1992 in which it was ordered that
the parents should have joint legal custody and shared
physical custody of James, the mother being designated as
James’ primary caregiver. The order went into considerable
detail about what we in New Zealand would describe as
guardianship arrangements.
The following year the mother wished to return to New
Zealand for her brother’s wedding. As she was obliged to do
by the terms of the earlier order she applied to the
Superior Court for an order permitting her to take James out
of the United States so that he could accompany her. On 20
April 1993 Judge Lacy ordered that —
‘The petitioner’ — that is, the mother ‘may
take the minor child to New Zealand for
vacation, to return to California on May 16,
1993. Respondent’s Counsel shall prepare the
formal order which shall include language
pursuant to the Hague Convention. Respondent
shall provide petitioner with a notarized
letter for immigration purposes, giving his
permission for her to take the child to New
Zealand for vacation ‘
The mother left for New Zealand with James on 2 May 1993.
Five days later the US Immigration Service granted her
residential status, so clarifying her status for immigration
purposes on her expected return. She did not return with
James on 16 May l993, but on 8 June 1993 her solicitors in
Napier wrote to the father saying in effect that she did not
intend to return but instead proposed to file proceedings
for custody in this Court, which she did on the same day.
The indication that she did not intend to return was more
delicately phrased, but the evidence satisfies me beyond
doubt that she had reached a firm attention not to return.
Her affidavit in those proceedings has been treated as her
evidence in the present proceedings.
The mother’s custody application came before His Honour
Judge Ellis in this Court on 15 June 1993. Anticipating that
issues under the Hague Convention were likely to arise, His
Honour ordered that the child not be removed from this
Court’s jurisdiction and that he remain living in this area.
His Honour gave directions for service of the mother’s
application and other directions.
In the meantime the father, in Modesto, California, went
back to the Superior Court and on 23 June 1993 Judge Lacy
made a further order determining that the mother was in
violation of his earlier order. As a result the Child
Abduction Unit attached to the District Attorney’s office
became involved on the father’s behalf and is the applicant
in the proceedings now before this Court (see s 12(1)). As
its name suggests, the Unit was set up to investigate and
handle both international and interstate child abductions.
As a result of the Unit’s intervention Judge Lacy further
ordered the Unit to ensure that James was returned to
California so as to be available to the Superior Court on 15
October 1993. That is the date set for further mediation. In
evidence before this Court it was explained that if
mediation, as a first step, fails, the Superior Court itself
will undertake a hearing to determine James’ future, and
that such a hearing is likely to take place within a matter
of weeks of the mediation session. By the law of the State
of California, as in New Zealand, in a domestic custody
dispute the welfare of the child is treated as the first and
paramount consideration.
In the present proceedings in this Court there can really be
no dispute that the mother intends, if she can, to retain
James in New Zealand in violation of the orders of the
Superior Court of California and in violation of the
father’s guardianship rights and responsibilities which he
wished to exercise in regard to his only child. In her
affidavit filed in her custody proceedings in this Court she
gives a number of reasons for her decision to retain James
in New Zealand, including dissatisfaction with the father’s
conscientiousness in caring for the child and
dissatisfaction with aspects of his personal lifestyle.
Notwithstanding those concerns she proposed in her affidavit
to spend three weeks in each year in the United States for
the purpose of enabling the father to exercise visitation
rights on those occasions, though in her oral evidence she
suggested that those visitation rights were likely to be of
a limited kind. Of course this Court is not concerned to
determine in general terms whether it is in the best welfare
and interests of James to live in New Zealand or to live in
California, or whether it is in his best welfare and
interests that his mother or father should be his primary
caregiver: see Wolfe v Wolfe [1993] NZFLR 273, 277. In
terms of the l991 Act the only issue for this Court is
whether grounds have been made out to justify the Court in
declining to order James’ return to California. The starting
point is that he must go back unless the Court can be
satisfied that a different result is required by any of the
elements of s 13.
I have already stated the provisions of s 13(1)(c) which are
the principal grounds relied upon on behalf of the mother.
In the present case subss (2) and (3) have no application as
to the remaining provisions of subs (1), para (a) does not
apply; in terms of para (b)(i) the father was exercising his
custody rights and wishes to continue to exercise them; in
terms of para (b)(ii), while he consented to the child being
taken out of the United States for a short vacation visit to
New Zealand he certainly did not consent to the child
remaining here indefinitely. While para (b)(ii) speaks of
the child’s removal, I draw attention again to the
definition of ‘removal’ which includes retention. The
father has not consented to or acquiesced in the child’s
retention in New Zealand. In view of James’ age it cannot be
determined in terms of para (d) whether or not he ‘objects’
to being returned. The provisions of para (e) do not apply.
That leaves, as the only remaining issues, whether it has
been proved in terms of para (c) that there is a grave risk
that the child’s return to California would expose James to
physical or psychological harm or would otherwise place him
in an intolerable situation. The risk of these things
happening must, as the statute says, be ‘grave’. As His
Honour Judge Boshier has illustrated in Damiano v Damiano
[1993] NZFLR 548 with extensive reference to overseas case
law of high authority, the burden cast on an abducting
parent by s 13(1)(c) is a heavy onus indeed. In a situation
where the Hague Convention is relevant some psychological
harm to the child is unavoidable, whether or not the child
is returned, and the words ‘or otherwise place the child in
an intolerable position’ give emphasis to the gravity of the
degree of risk of harm that is required.
The father’s evidence comes before the Court by notarised
deposition but he has remained in Modesto and there has been
no opportunity to cross-examine him. The mother has given
quite extensive oral evidence about her fears for James’
psychological state if he has to be sent back. One of the
two representatives of the Child Abduction Unit who came to
New Zealand for the hearing and who gave evidence had
personally investigated the father’s situation, both on the
ground as it were and by consulting police and other
records. Both representatives of the Unit had long
expierence as peace officers (or, as we would say, police
officers). In their evidence they demonstrated a
child-centered approach, absolute fairness and impartiality,
and a high degree of professionalism. Of course their duty
is to uphold and enforce the orders of the Superior Court of
California and that is why they are here, but they were able
to give valuable and up to the minute evidence about local
conditions in Modesto and its area and the facilities that
are and can be made available to ensure James’ safety and
welfare if he is returned.
The investigation of the father, which I am satisfied was
thorough and meticulous, discloses no basis on which it can
be said that he is undesirable or disqualified as a parent.
The investigator paid an unannounced home visit and produced
photographs of a well-maintained and comfortable home with a
bedroom suitably set up for the needs and entertainment of a
small child. The investigator’s evidence was that in talking
to the father then and at other times he had noticed nothing
that was inappropriate in the father’s attitude to either
James or the mother, and in particular noticed nothing that
would indicate that the father felt any particular degree of
malice or vindictiveness towards the mother. I am sure that
this investigator, from long experience, was well able to
pick up and identify the messages that are sometimes more
clearly conveyed by body language than by words. That
investigator’s evidence, carefully and thoughtfully
presented, satisfied me that there is no grave risk of
physical or psychological harm to James in the company of
his father. The risk of psychological harm comes more from
the situation of discord between the two parents.
I have carefully considered the mother’s evidence which
suggests that the father may sometimes be careless over
matters of child care, may not always be fully aware of the
needs of a child of this age, and may not always be
absolutely truthful. I deliberately refrain from any finding
on any of these matters because the father is not here to
defend himself and what has been said against him goes to
welfare issues generally rather than to the particular issue
which the Court is obliged by the 1991 Act to
address. I accept that there are features which may — I
emphasise ‘may’ — make the situation for James and the
mother in Modesto less satisfactory for them than their
present situation in New Zealand; but again that goes to
welfare issues generally rather than the issue to which the
Court is confined. However I am satisfied that the mother’s
view of the total situation is coloured to a considerable if
not overwhelming degree by how it affects her personally,
and I am not sure that she is sufficiently detached to
understand how it might affect James. She has told the Court
that it would be intolerable for her to return to Modesto
and she implied that because of the impact on her it would
make it intolerable for James as well. One must have a
great deal of sympathy for that viewpoint, but it overlooks
the fact that James has rights which are independent of both
his mother and his father, and it cannot be assumed that
James’ welfare and happiness necessarily march in tandem
with how the mother sees her own welfare and happiness.
The mother is a very determined and strong-minded person.
For reasons which are perfectly understandable she has
substantially closed her mind to the benefits which James is
likely to gain from his own father’s upbringing and
influence. In some of her evidence she tended to be evasive
and that evasiveness on some crucial issues satisfies me
that at a relatively early stage following her return with
James to New Zealand she determined to rebuild her own life
here, assuming that it would be in James’ best interests to
be cut off from his father’s company, and led herself to
believe that she was sufficiently remote from California to
violate with impunity the Superior Court’s orders, to
violate the father’s guardianship rights, and — it has to
be said — to violate James’ own right to know and have the
company and companionship of his father. I am satisfied that
the mother’s evidence about the risks to James if he were
returned to California was largely rationalisation and an
attempt to justify her own decision to remain in New
Zealand.
For those reasons I am satisfied that there is nothing in s
13 to impede James’ return to California where the matters I
have mentioned will no doubt be considered de novo by the
Superior Court, which is the appropriate tribunal to decide
James’ future in a definitive way. It follows, in terms of
the l991 Act, that this Court has no option but to order
James’ return to California forthwith.
Recognizing by the end of the hearing that such a
determination had become inevitable, the parties met during
the lunch adjournment on the second day to discuss what
measures might be appropriate on the making of such an
order. I was informed that it had been agreed (1) That James
should return to California in the company of his mother;
(2) That his return to California would not be required
before 12 October 1993 (that is, 12 October according to the
United States calendar); (3) That the air ticket for James’
return presently held by the Child Abduction Unit be
made available to the mother; (4) That there would be no
objection to the mother staying with James at Pleasanton,
California (a town not far from Modesto but outside the
Stanislaus County limits); (5) That the Child Abduction Unit
would use its best endeavours to set up a mediation
conference by telephone link involving the father, the
mother, the Modesto Court mediator (Lynne du Bois) and
counsel; (6) If the matter were not resolved by mediation
(either by teleconference or in Modesto) the Child Abduction
Unit would use its best endeavours to have the parties’
dispute set down urgently for a long cause hearing in the
Superior Court; (7) That Mr Harter, the supervisor of the
Child Abduction Unit, continue to monitor the situation and
be ready to assist in any way he can, (8) That the Child
Abduction Unit would not commence proceedings against the
mother in the Superior Court of California for contempt, (9)
That the Child Abduction Unit will immediately activate such
enforcement proceedings for child support as may be
appropriate; (10) That there be a direction that the New
Zealand Police assist the Child Abduction Unit in any
appropriate way.
These matters of agreement are noted, and it is necessary to
add the following observations of my own. First, on my
reading of the 1991 Act the Court has no discretion to make
its order for the return of James conditional on compliance
with any of the above heads of agreement. Second, it is of
concern that an attempt to mediate by teleconference may
place unfair pressure on the father to waive his right to
insist on James’ return to California. I wish to record that
I am by no means satisfied that it is in James’ best welfare
and interests to remain in New Zealand where the siege
mentality which these proceedings has produced is more
likely than not to be encouraged. As the case stands —
though I readily concede that the final decision must be
made by the Superior Court in Modesto — I consider it
likely that James will benefit if he has real contact with
both his parents. One must bear in mind a child’s sense of
time, and there is nothing in the case that persuades me
that what would be really no more than token visitation at
long spaced out intervals will be of true benefit to the
child. My own view is that it is better that the law should
take its course and that James’ future should be settled in
Modesto, with both parties present.
Third, I have doubts about any suggestion that James’ return
should be linked to recovery of child support or arrears of
child support. Since not long after her arrival in New
Zealand the mother applied for and was granted a domestic
purposes benefit and to that extent has not required child
support from the father. Her action in abducting the child
in response to what were essentially her own needs may be
highly relevant to any issue of recovery of child support to
be considered by the Superior Court of California.
Fourth, and finally, further delay may lead to a situation
which the Hague Convention and the 1991 Act were clearly
designed to avoid, that is, that there might remain some
hope that the longer negotiations last, the more the child
will become settled, and the harder it will be to move him.
Whatever result outside the confines of the 1991 Act I might
myself have preferred is beside the point. The Court is
required to apply and enforce the Act by making an order for
the return of James to California forthwith. Any private
arrangements which the Child Abduction Unit may be prepared
to make with the mother must be their responsibility. I am
not prepared, nor is there power, to impose conditions.
For the reasons given the mother’s custody application filed
in this Court will be dismissed, so that the orders of the
Superior Court of California are fully recognised and remain
effective until varied by that Court There will be an order
that James be returned to California and to the jurisdiction
of the Superior Court forthwith. No order for costs is
sought by the Child Abduction Unit, whose assistance in
these proceedings is gratefully acknowledged by the Court,
and no order for costs is made. The question whether there
should be a contribution towards the costs of counsel
appointed to represent James is reserved for further
consideration.
A copy of this judgment is to be furnished as a matter of
courtesy to the Superior Court of California at Modesto.
Solicitors:
Loughnans, Palmerston North, for Child Abduction Unit,
Modesto Cal.
Langley Twigg, Napier, for mother