NEW ZEALAND – NARAINE – 1997 (Return ordered) (13b, grave risk) (Age of maturity) NARAINE v NARAINE. The mother took the children to New Zealand for a visit. The mother alleged abuse by the father. The father applies for return under the Hague Convention. The court, after testimony by a clinical psychologist, determined that the children, who have reached an age of maturity, in the courts opinion, objected to the return to the father rather than a return to England. The court ordered the return to the English Central Authority in order to secure the safety of the children until the matter was heard by the English authorities.
===========================================================
Naraine and Naraine (New Zealand 1997)District Court Number FP 087/155/97
10 International Abduction [NEW ZEALAND 1997]
===========================================================
IN THE DISTRICT COURT
HELD AT WHAKATANE FP 087/155/97
COLBERT KHANTA NARAINE
Applicant
BARBARA LORRAINE NARAINE
Respondent
COUNSEL: T Fitzgerald for the Applicant
M Callander for the Respondent
HEARING: 14 October 1997
DECISION: 14 October 1997
ORAL JUDGMENT OF H1S HONOUR JUDGE B H S NEAL
001 This is an application pursuant to the Guardianship
Amendment Act (which brings into force the Hague Convention
in New Zealand) for the return to England of the two
children of the parties, Chantelle who is aged 11 being born
on 4 November 1986 and Janine who is aged 8 being born on 10
March 1989.
002 The mother and father were married on 7 August 1976
The mother is of New Zealand descent and the father of West
Indian descent. The parties, since their marriage, have
lived with the children in England until July of this year
when the mother brought the two children to New Zealand
where she has family support. The father understood at the
time that she was traveling to New Zealand for three weeks
and then returning with the children. It appears that in
fact the mother in leaving was not sure of her intentions
but when she arrived in New Zealand she decided to stay and
the father was informed.
003 On 30 July, the mother applied for and obtained,
without notice to the father, a temporary protection order
under the Domestic Violence Act 1995 and also an interim
custody order in respect of the children. That is from the
New Zealand Family Court. Those applications were based on
alleged abuse by the father of both the mother and the
children and her fears. The father subsequently applied
pursuant to the Hague Convention for the return of the
children and it is this application that is now before the
Court.
004 The mother has defended the applications. Her defence
was initially on three grounds, firstly, under Section
13(1)(b)(ii) of the Act that the father consented or
subsequently acquiesced to the removal of the children to
New Zealand. At the hearing today, that ground has been
withdrawn. The further grounds which have remained are those
contained in Section 13(1)(c) and Section 13(1)(d) that is
that there is a grave risk with the children’s return, in
that, it would expose them to physical or psychological harm
or would otherwise place the children in an intolerable
situation. Secondly, that the children object to being
returned and have attained an age and a degree of maturity
at which is appropriate to take account of their views.
005 The evidence before the Court is by way of affidavit.
Because of the defences that were raised with respect to the
children, a clinical psychologist, Mr Laven, interviewed the
children and reported to the Court pursuant to Section 29A
of the Guardianship Act He has today given evidence
confirming his report and has been cross-examined by
Counsel. Further, an audio tape taken by the mother of an
incident between the father and the children back in 1993,
was produced. It is the original of a transcript that was
annexed to the mother’s affidavit. Mr Fitzgerald objected
to the production of the tape and also to a late affidavit
filed by the mother in response to the father’s affidavit.
His objection to the tape, apart from on general grounds
relating to the tape, was on the basis that the father had
not had a chance to hear the tape and that accordingly its
production was unfair. Given that the onus in this case is
on the mother to establish her grounds of defence, I have
admitted both the affidavit and the tape. The mother’s
affidavit takes matters little further for the purpose of
today’s hearing. In considering the weight to be attached to
the tape, various matters must be taken into account
including the inherent dangers involved with tapes, although
the mother disposes that she was present when the tape was
recorded and that it is of the father and the children. The
second matter that needs to be taken into account is that
the father has not heard the tape although, of course, he
has had a copy of the transcript which is not full.
Thirdly, I have to take into account that there has not been
any cross-examination. It further has to be said that the
tape itself adds really little to the transcript that is
before the Court which is explicit in nature.
006 The parties and their witnesses, apart from, as I have
already stated, have not been examined.
007 The evidence of the mother sets out an abusive
relationship by the father to both herself and the children.
A lot of that relates to his treatment of the children, both
verbally and physically. There are various incidents set out
by the mother including problems at school, involvement of
social services, her inability to tell the full story when
social services were investigating, her obtaining of an
injunction against the father in November of 1993, generally
her being overborne by the father, an incident reported by
one of the children that the father has thrown a pen-knife
in September 1994 and the incident, which formed the basis
of the tape and transcript.
008 The affidavit of the school headmistress sets out the
pressures upon the children and the removal of Chantelle
from schooL There are affidavits from a friend and also a
nephew of the father’s, which tend to confirm the mother’s
story. There is also a note from her doctor, again, tending
to confirm her story. In addition, there is the evidence of
Mr Laven, to whom the children talked and told a story of
physical and psychological abuse.
009 The father’s affidavit denies the abuse and states that
the family unit was happy. He produces as exhibits a number
of documents which he says explain a number of incidents,
including the final result of the social services
intervention and his dealings with the schools.
010 The issue in this hearing is not the welfare of the
children except to the limited extent that is set under
Section 13 of the Act. It is about the forum for the
determination of the substantive issues. Whether that
should be in England or in New Zealand. Prima facie one
would have thought that the appropriate forum was England
that being the country in which the children have lived all
their lives until July of this year. The mother, as I
understand it through Counsel, concedes that the grounds are
made out under Section 12 for the return of the children
subject to the defences she raises.
011 I now turn to deal with the first of those defences.
That is whether the mother has established to the
satisfaction of the Court, that there is a grave risk that
the children’s return would expose them to physical or
psychological harm or would otherwise place them in an
intolerable situation. It is clear that the Court has the
power to return the children, in respect of whom the
application is made, to such person or countries as
specified in the order. It is now established that for this
defence to succeed, the harm must relate to a return to
England rather than to the father. Lord Donaldson of
Lymington MR in C v. C [1989] 2 All ER 465 at 473 stated:
“It will be the concern of the Court of the Court
to which the child is tO be returned, to minimise
or eliminate [the psychological harm] and in the
absence of compelling evidence to the contrary or
evidence that is beyond the powers of those caught
in the circumstances of the Case, the Courts of
this country shall assume this will be done. Save
in an exceptional case our concern, i.e. the
concern of these Courts, should be limited to
giving the child the maximum possible protection
until the Courts of the other country, Australia
in this case, can resume their normal role in
relation to the child”.
012 Further, it was stated in the Family Court of Australia
In the Marriage of Murray and Tam, Director of Family
Services (ACT) (1993) 16 Fam LR 982 at 1001 and 1002 the
following:
“It must be remembered that the applicant for the
purposes of the Regulations is not the husband but
the New Zealand Department of Justice and the
children are proposed to be returned to it and not
to the husband. Their disposition in New Zealand
will be a matter for the New Zealand Courts if
they arc returned to that country and if the
wife’s allegations are accepted it would appear
unlikely that they would be returned to the
husband”.
Further:
“That is it open to her to return to another part
of New Zealand where the danger to her may be less
and it is, of course, open to her to seek orders
from the New Zealand Courts, both for personal
protection and interim and final custody
immediately upon her arrival in New Zealand. She
also can if she wishes seek leave from the New
Zealand Court to take the children to Australia”.
And further:
“It would be presumptuous and offensive in the
extreme for a Court in this country to conclude
that the wife and the children are not capable of
being protected by the New Zealand Courts or that
relevant New Zealand authorities would not enforce
protection orders which are made by the Courts”.
013 The Court of Appeal in New Zealand in A v A 1996, 14
FRNZ 348 has confirmed the narrow interpretation as the
correct interpretation and that the Convention is concerned
with the appropriate forum for determining the best
interests of the child. That 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 returning the child in the country to which the
child has been abducted. Also that 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 to
determine the best interests of the child.
014 In this case, there is evidence before the court which
gives concern as to the return of the children to their
father. Whilst, ultimately, those concerns will have to be
the subject of a substantive hearing, the evidence as it
presently stands leaves a clear concern for the children;
particularly given the evidence of Mr Laven.
015 The real question, however, is not whether they will be
at grave risk from a return to him but rather to En&land. I
am satisfied, subject to a matter that I will deal with
shortly, that the English Laws, Courts and system are able
to properly protect the children. There has been filed
evidence of new laws that have come into effect on the first
of this month, that are similar to laws in New Zealand.
016 Mr Callander, for the mother, however, sought to show
that the father’s influence has been pervasive and that
combined with the mother’s inability when she was in
England, to appropriately protect the children as a result
of what might be described as the “battered spouse syndrome”
leads to a situation where, notwithstanding that laws are
capable in England, that the children may not be able to be
properly protected, that is that the mother may well, under
the influence of the father, return the children to a
position of risk. He relies, in this submission, on the
evidence of the mother that she was unable to remove herself
and the children from the situation she was in until she
received the support of her family to come to New Zealand
and asks the Court to find from that, that the children are
at grave risk.
017 There may well be something in that submission, from
the history of this matter, however, given that a stand has
now been made by the mother and given the protection that no
doubt she is either now aware of or will be made aware of,
that can be put in place through the Court and indeed no
doubt the help that social services in England could bring
to bear in the matter, I am not satisfied that circumstance
is such to make out the ground. I find accordingly that
that ground is not made out.
018 The children, in discussing the matter with Mr Laven,
appear not to see England as the problem but rather their
father. I will refer to that when dealing with the next
ground because their views are relevant to the question of
grave risk and I have taken Mr Laven’s evidence and their
views into account in coming to the view that the ground is
not made up
019 As to the ground that the children object to being
returned and have attained an age and degree of maturity at
which it is appropriate to take account of their views, I
find immediately, given Mr Laven’s evidence and the views
taken in previous cases, that the children aged 8 and 11 and
both being intellectually above average, have attained an
age and degree of maturity at which it is appropriate to
take account of their views. It is a question of whether in
fact they object.
020 Mr Laven’s evidence, and I set out in particular that
part of his report which is headed “England versus the
Father as Significant Issue”.
“Both girls saw New Zealand as a more desirable
place to live than England because of the warmer
weather and the prospect of playing on the beach.
A number of other perceived advantages of New
Zealand life were described by the girls, but
these seemed inextricably bound up with their
dissatisfactions concerning their father’s
treatment of them. Janine stated that she
preferred her school in England although she had
no problems with her New Zealand school. Chantelle
stated that she missed her friends in England and
writes to them regularly. Chantelle also misses
the snow, the shop window displays at Christmas
and the products able to be seen in the shops. She
would be keen to return to England just for a
holiday to see her friends, but only if it did not
involve having to see her father.
For both girls, their fear of their father and
their wish to not return to him appeared to be
both independent from and more significant than
their preference to stay in New Zealand per se.
Their view of their father appeared to contribute
significantly to their favourable view of life in
New Zealand but there was no evidence that their
evaluation of England, relative to New Zealand,
contributed significantly to their view of their
father”
021 When examined, Mr Laven stated further that both
children had a positive view of New Zealand. He further
stated that his impression of both girls was that they had
no objection to a return to England but rather to their
father. Whilst he said that his impression was that they
preferred to stay in New Zealand and accordingly he would
imagine that they would object to return to England, he
agreed that preference was different to objection and that
was the way that he had stated it in his report. He did,
when he was examined by Mr Callander, give the opinion that
if they were to come into chance contact with their father
in England, that would be traumatic for them.
022 In considering whether the children object to a return,
I deal with it on the basis that it is a return to England
rather than to their father and that the questions of
whether they object is a factual one, following the view of
the Court of Appeal in R v S (a minor) (abduction) 1993 2
All ER 653. I unable, however, to find from the evidence of
Mr Laven, that the children do object to a return to
England. Whilst they might have a preference to remain in
New Zealand, they show positive feelings about England as
opposed to seeing their father. AccordingLy, I find that
the ground is also not made out.
023 The result of those findings means that I am bound to
make an order that the children be returned. Before doing
so, I invite Counsel to further address me as to any further
steps that should be taken prior to the order being made.
024 I have discussed with Counsel as to whether any steps
need to be taken at this stage to further secure the safety
of the children on their return to England. I have in mind
that there does not appear, having regard to Court of Appeal
decision in A v A to be jurisdiction to make conditions but
also that the father was offering undertakings which may or
may not now be sufficient in light of the evidence of Mr
Laven and that Counsel need some time to inquire as to what
immediate steps might be taken by the mother in England and
or by the Central Authority in that country to procure the
safety of the children until the substantive matter is
heard.
025 I accordingly, after discussion with Counsel, make an
order that the children be returned forthwith to the Central
Authority in England.
026 That the order is to lie in Court until 2.l5pm this
Friday, 17 October, to enable Counsel to make those further
inquiries and make further representations regarding those
matters, if necessary.
027 The costs of the return of the children will be met by
the mother who already has open return tickets. I have
heard submissions from Counsel as to contributions to the
costs of the 29A Report and of the report writer. It is
clear that the mother is of limited means and in fact is
being supported by her family here in New Zealand and for
the return to England and that she will face expenses. In
the circumstances, I do not intend to order any
contribution.
/s/ B H S Neal
____________________
B H S Neal
Family Court Judge