NZLII Home | Databases | WorldLII | Search | Feedback

Canterbury Law Review

University of Canterbury
You are here:  NZLII >> Databases >> Canterbury Law Review >> 2008 >> [2008] CanterLawRw 1

Database Search | Name Search | Recent Articles | Noteup | LawCite | Download | Help

Messent, Alana --- "Uprooting a Child - Again: The Case for a Child-Oriented Approach to the Settlement Exception Under the Hague Convention on International Child Abduction" [2008] CanterLawRw 1; (2008) 14 Canterbury Law Review 1


UPROOTING A CHILD - AGAIN: THE CASE FOR A CHILD-ORIENTED APPROACH TO THE SETTLEMENT EXCEPTION UNDER THE HAGUE CONVENTION ON INTERNATIONAL CHILD ABDUCTION

ALANA MESSENT*

The web of our life is of a mingled yarn, good and ill together.

William Shakespeare

I. INTRODUCTION

There is no denying the emotion involved in international child abduction: in the upheaval of removal; the anger of abandonment; and the pain in the breakdown of family relationships. The ill is all apparent. Yet behind the image of abductor-on-the-run, there often rests the ironic calm of a settled child who has put down roots in the midst of this parental storm. Integrated into his new environment, he has friends, family, a school and a home, none of which he wants to leave. What was left behind, is now but a memory, too often tinged with the pain of abuse. The thought of being forced to move, again, is distressing.

The notion of a happy, settled child sits uncomfortably in the international legal framework designed to deal with abduction disputes. Under the Hague Convention on the Civil Aspects of International Child Abduction1 (the Convention), procedural mechanisms have been established to secure the prompt return of abducted children to the state from which they were taken. These mechanisms are premised on the assumption that return is in the interests of children, as abduction is a 'universal evil' the effects of which must be promptly undone. The image of a settled child presented above, however, challenges this assumption, as it blurs the distinction between ill effects and good, and raises the uneasy potential for return of the child to in fact result in further harm. In recognition of the need to account for the circumstances of the child, the Convention itself provides exceptions to the policy of prompt return. Settlement itself forms the basis of one of these exceptions, providing that an abducted child need not be returned where more than a year has passed since the abduction, and he or she is now settled in the new environment.

This paper focuses on the issues that have arisen in relation to the settlement exception. More specifically, it considers whether there is a residual discretion to return a settled child and, if so, how it is to be exercised.

While the exceptions have attracted a plethora of litigation and commentary, both literature and case law specific to the settlement exception are sparse.2 However, recent decisions of the highest appellate courts in both New Zealand and the United Kingdom have shed light on this exception, and it is these developments that this paper will address.

This paper is divided into four parts. Part II provides the background to the Convention, highlighting its operation and objectives. Part III then focuses on the settlement exception itself, including discussion as to whether a residual discretion exists. In light of a finding that such a discretion does exists, Part IV traces the developments in judicial approach, highlighting the more child-centric focus that can be seen to have emerged in the recent Supreme Court decision Secretary for Justice v HJ. 3 Particular attention is paid to the impact of concealment on the exception and to how the courts in New Zealand and the United Kingdom have struggled to reconcile the Convention's objectives of prompt return and deterrence with the potential for significant harm to be caused to the individual child involved. Finally, in Part V, the paper addresses the divergence in approach in the decision of HJ. This paper respectfully argues that the majority judgment in HJ fails to convincingly deal with the issue of concealment. While it ostensibly gives pride of place to considerations of the best interests of the child, it continues to leave open the door for them to be outweighed by the policy objective of deterrence. Instead, the approach of Elias CJ that the interests of the child are determinative once the grounds for the exception are established is preferred. It is argued that such an approach does not undermine the effectiveness of the Convention, but results in a more discerning assessment of the 'good' and the 'ill' so that return is ordered only in appropriate cases.

II. THE HAGUE CONVENTION: THE ANSWER TO A UNIVERSAL ILL

History and Operational Aspects of the Convention

The Convention was designed to counter the increasing number of child abductions occurring internationally and also to respond to the need for consistency and cooperation in approach across jurisdictions.4 It seeks to achieve these objectives by establishing a procedural mechanism for prompt return, ensuring the restoration of the status quo ante by depriving the abductor's actions of any legal consequence.5 The simplicity of its aims and procedures saw the Convention applauded as a 'major breakthrough' in what had previously been a complex and contentious area of law.6 The Convention also addresses the issue of access rights, however, this paper is limited to a discussion of the most common Convention application, that of a left-behind parent in relation to custody rights.7

The Convention came into force in New Zealand under the Guardianship Amendment Act 1991. Today, it is incorporated through the Care of Children Act 2004 (the Act, or COCA).8 It is important to note that the incorporation into domestic law was not wholesale, but that the structure and wording of several articles were altered. The purpose of this re-working was to facilitate the Convention's requirement of expeditious proceedings. It is argued to provide a form more familiar and accessible to judges, lawyers and officials, whilst also allowing the legislature to address several interpretation difficulties apparent in international jurisprudence.9 For the purposes of this paper, the most relevant changes occurred in relation to the exceptions laid down in arts 12, 13 and 20. In order to assist understanding, all the exceptions contained in these articles were grouped together under what is now s 106 of the COCA.10

Jurisdictional Requirements, Terminology and Procedure

This paper focuses on the exercise of the residual discretion in relation to return under the settlement exception. However, before an analysis of this exception can occur, a cursory overview of the Convention's general operation, application and terminology is required. Application of the Convention is dependent on three jurisdictional requirements. First, the child must be under the age of sixteen;11 secondly, there must have been a wrongful removal or retention in breach of the applicant's custody rights;12 thirdly, he or she must have been habitually resident in a Contracting State immediately prior to this event.13 For the purposes of this paper, the term 'removal' should be read as including retention.

Where these jurisdictional requirements are met, and proceedings are commenced within one year of the wrongful removal, return of the child forthwith is mandatory under art 12.

The Exceptions

The Convention does, however, provide six exceptions to the 'basic principle' of prompt return in art 12.14 A court may refuse to order return where either: 1) the applicant was not actually exercising custody rights at the time of removal; 2) the applicant consented or acquiesced to removal; 3) the return poses a 'grave risk' of exposing the child to physical or psychological harm or an intolerable situation; 4) return is not permitted by the fundamental principles relating to human rights and fundamental freedoms of the requested state; 5) the child objects to returning and is of an appropriate age and maturity to have their views considered; and 6) the child is settled in his or her new environment. These exceptions provide the only grounds for non-return under the Convention. Their exceptional nature is further reinforced by the fact that arts 13 and 20 expressly grant the court a residual discretion to order the child's return, notwithstanding the grounds for the exception having been met. The lack of an explicit discretion in art 12(2) has been the subject of considerable debate, the arguments of which shall be canvassed below.

The inclusion of these exceptions allows the Convention to take a more 'measured' response to the harmful effects of abduction. They also highlight the possibility that abduction can, in limited circumstances, be justified by objective reasons that better serve the interests of the child.15 While these issues are explored in depth below, it is important at the outset to note that the very existence of the exceptions was contested. There was, and continues to be, significant concern as to their ability to undermine the Convention's principal aim of prompt return by opening up usually summary proceedings to a merits-based investigation into the best interests of the child.16 As Professor Pérez-Vera, the author of the Convention's Explanatory Report warned, 'a systematic invocation of the said exceptions ... would lead to the collapse of the whole structure of the Convention'.17 In light of this concern, the courts have consistently held that these exceptions are to be severely and stringently construed.18

Principles of Interpretation

A commitment to uniform interpretation is key to the Convention's success, particularly in light of the number and diversity of jurisdictions in which it operates.19 However, the diverse means by which the Convention has been introduced into domestic law have lead to significant potential for differences to emerge.20 To facilitate uniformity, the 'classic rule' of treaty law applies: the terms of the Convention are interpreted in 'accordance with the ordinary meaning … in their context and in the light of its object and purpose'.21 Their meaning is not dependent on any single legal system, but on the definitions, structure and purposes of the Convention itself.22 It is to these purposes that this paper shall now turn.

Aims and Objectives of the Convention

The twin objects of the Convention are clearly outlined in art 1. The first is to secure the prompt return of children wrongfully removed to or retained in any contracting state. The second, is to ensure that rights of custody and of access under the law of a contracting state are effectively respected. In the Explanatory Report to the Convention, Pérez-Vera highlights that these two ostensibly distinct objectives are, in reality, 'one single objective considered at two different times'. The first is remedial in that it is designed to re-establish the status quo and undo the effects of abduction, while the second is preventative. In ensuring the effective respect for rights of custody amongst contracting states, the Convention eliminates one of the most frequent causes of child abduction: the search for a more favourable forum.23 These objectives are both considered to be achieved under the basic principle of prompt return.

Underlying these objects, however, rest several further important assumptions. The first is that the interests of children generally (that is, as a class) are best served by a policy of prompt return. This notion rests on the further assumption that the state of habitual residence is the most appropriate forum to determine the merits of the custody dispute.24 These implicit assumptions reflect the fact that both family and private international law principles underlie the Convention's objectives.25 While the family law objective is that of protecting children from the harmful effects of child abduction, private international law principles of jurisdiction, recognition and enforcement focus on the appropriateness of forum and the effective respect of custody rights.26

Beaumont persuasively argues that, standing on their own, the aims set out in art 1 represent a 'very uncompromising image' that is removed from the traditional family law focus on the individual child and inconsistent with the more 'measured' response actually envisaged by the Convention.27 The necessary counterbalance, he contends, is found in the preamble and the exceptions to mandatory return as these focus attention on the interests of the individual child. In referring only to the need to protect children from the 'harmful effects' of wrongful removal, the preamble recognises that a prima facie wrongful removal can in fact actually serve a child's interests, and may not only result in harm to the child.28 As Pérez-Vera notes, despite the deterrence and policy-oriented focus of art 1, the Convention itself is underpinned by the philosophy and conviction that:29

[T]he struggle against the great increase in international child abductions must always be inspired by the desire to protect children and should be cased upon an interpretation of their true interests. (emphasisadded)

The Convention's Approach to the Best Interests of the Child

The principle that decisions relating to a child should be based on the child's best interests is widely accepted in the Western world, both in domestic and international law. It was, in fact, the principle under which cases were decided prior to the Convention's entry into force.30 However, in its assertion that the 'interests of children are of paramount importance in matters relating to their custody',31 the Convention departs from the traditional family law focus on the individual child. In light of the Convention's normative role, it is the interests of children generally, not individually, with which the Convention is concerned.32 As abduction causes harm to a child, children generally should be protected from this potential through a policy of prompt return.33 Thus, unlike domestic legislation, the Convention aims to protect children through the application of a universal principle, rather than on a case-by-case basis. Prompt return is assumed to protect the best interests of children in three ways. First, it seeks to restore the status quo expeditiously, thus reversing the ill effects of abduction as quickly as possible. Secondly, return to the state of habitual residence ensures that the merits of the dispute are heard in the most appropriate forum. Finally, it works to deter abduction under the theory that where an abductor knows their actions will not affect the status quo, but only result in return of the child, they are less likely to abduct in the first place.34

While Convention jurisprudence clearly states that the best interests test is not to be applied in Convention proceedings, it is however accepted that the interests of a particular child are relevant in the case of the exceptions.35 While the need to uphold the Convention remains a powerful argument, the exceptions recognise that, in limited cases, the Convention's policies cannot be allowed to exact 'too high a price on [children]'.36 The question of when such a case arises, and how the interests are to be taken into account shapes the central discussion of this paper.

The difficulty of this deterrent-focused interpretation of the best interests is that it permits the welfare of a child to be sacrificed in the future interests of an indeterminate group of children, or as the consequence of punishing an abductor. In the oft cited words of Waite J in W v W, it advocates stability for the mass of children at the price of tears for some.37 Such a possibility is anathema not only to most domestic Western legal systems in which welfare of the individual child is paramount,38 but also to the similar principles that exist in international child law, such as in the United Nations Convention on the Rights of the Child.39 The contentious subordination of the welfare of the child is particularly evident in the context of the residual discretion to return a settled child as inherent features of the exception undermine several of the assumptions that support this generalist approach. The remainder of this paper will focus on the courts' approach to this issue.

III. THE POTENTIAL FOR GOOD: THE SETTLEMENT EXCEPTION - A CHANCE AT A NEW LIFE -

The 'basic principle' of mandatory return under art 12 extends for a period of one year after the wrongful removal. While, under art 12(2) return is possible beyond this time frame, it is subject to the key proviso that the child must not be 'settled in its [sic] new environment'.40 The settlement exception comprises two elements. First, a factual basis must be established for the defence: a period of 12 months must have passed from the date of wrongful removal, and the child must be settled in its new environment. The second, and more controversial element, is the existence of a residual discretion to return the child, even where the grounds of this first element are met.

The Parameters of the Exception

As with all of the exceptions under the Convention, the settlement exception recognises the possibility that the interests of the individual child are not always best served by return, and that there may in fact be occasion for the individual interests to override the Convention's policy of protecting children generally from the harm of child abduction.41 Specifically, the settlement exception highlights that return may no longer be desirable once a child has spent considerable time in a new environment and has put down roots. Furthermore, given the context of delay and settlement, the child may be occasioned significant harm by further upheaval.42 This potential for harm gives rise to the argument that summary return would be inappropriate and should not be ordered without an examination of the merits of doing so. This is a particularly cogent argument in light of the fact that the Convention's remedy, and its summary nature, are designed to be one of 'hot pursuit'.43 Given the inherent delay in settlement exception cases, they can hardly be described as falling within the parameters of 'prompt' envisaged by the Convention.44 Moreover, prompt return is inappropriate in a context of considerable delay as delay risks the state of refuge, and not the original state of habitual residence, becoming the more appropriate forum in which to determine the merits of the dispute. Significant delay is likely to have weakened any connections the child had with the original state and also increases the likelihood that evidence as to the child's welfare is now more readily available in the state of refuge.

These considerations demonstrate the extent to which delay and settlement strike at the fundamental aims and assumptions of the Convention. The exception challenges the conventional understanding of the 'good' and 'ill' involved in abduction, recognising that return can, somewhat ironically, lead to the very ill against which the Convention was designed to protect. Furthermore, it highlights that not all the effects of abduction are harmful, but that a measure of 'good' can result: the child may be left in a more stable and secure environment with a chance at a new life. Despite the support this lends to an exception approach focused on the individual child, the potential for a liberal application of art 12(2) to frustrate the deterrent purpose of the Convention must be recognised. The unrestrained application of any of the exceptions can be seen to encourage abduction in that it prevents restoration of the status quo. However, the problems underlying art 12(2) are argued to be particularly egregious given their perceived ability to encourage concealment and deceit on the part of the abductor in order to bring about grounds for non-return. As will be discussed below, these concerns have dominated art 12(2) jurisprudence in the past and have proved an insuperable barrier to a child-oriented approach, not only in relation to the exercise of the residual discretion, but also by making it difficult to establish the grounds for the exception.

Grounds for the Exception

As previously noted, the focus of this paper is on the exercise of the residual discretion, thereby rendering possible only a brief overview of the grounds themselves. However, such an analysis remains valuable in that it provides a fuller picture of the nature of the judicial approach to the exception.

The Time Periods Involved

The 12-month period of delay begins on the date on which the child was wrongfully removed, or, in the case of a wrongful retention, the date on which the child ought to have been returned.45 Article 12(2) clearly refers to the date of commencement of the proceedings as the cut-off date for the year-long period after removal. This date was chosen so as to avoid any prejudice to the applicant that may result from delays on the part of Convention authorities in hearing the proceedings.46 However, it does not protect the applicant from any delays that may arise after proceedings are actually commenced.47 This indicates an adult-focussed approach to the setting of the time period in that it is based on reducing injustice to the left-behind parent.

A further issue of timeframe arises in relation to the date for determining when a child is settled. Here, a desire to protect the applicant from potential delays in proceedings risks disadvantaging the child who becomes settled between this period and the date of the actual hearing. The Supreme Court in HJ acknowledged this potential and highlighted the artificiality of ignoring changes in the child's life. As a result, their Honours considered that the 'proper focus should usually be on the date of hearing the application [as this] best accommodates the necessary consideration of the best interests of the child'.48 This approach aligns with the Australian position that the relevant date will depend on the context of the particular case.49 The English approach, however continues to assess the child's settlement on the date that proceedings commence.50 In light of this comparison with English cases, the majority's approach in HJ demonstrates a greater willingness to interpret ambiguity in the Convention in favour of the interests of the child. It gives weight to the exception by recognising the seriousness of the harm in disturbing a settled child.

Settlement

The definition of 'settled in its new environment' has also been the subject of ongoing judicial debate. Its interpretation is important because of the role it plays in setting the threshold for the exception: where its requirements are onerous, the defence is less likely to succeed. Settlement is to be determined objectively, although the perception of others, and of the child him or herself, are also important considerations.51

The New Zealand position on this phrase was confirmed in HJ52 in favour of the more restrictive English approach laid down in Re N (Minors) (Abduction).53 It involves a consideration of 'physical, emotional and social issues [as], not only must a child be physically and emotionally 'settled' in the new environment, he or she must also be socially integrated'.54 As captured previously by McGechan J in B v B, the analogy is that of 'a plant, newly planted which has put out lateral roots'.55 These roots must extend beyond the immediate relationship with the abducting parent to encompass 'place, home, school, people, friends, activities and opportunities'.56 Furthermore, settlement cannot attach to something 'transient.' It requires 'a long-term settled position' that 'imports stability when looking to the future and is permanent insofar as anything in life can be said to be permanent'.57

The courts in Australia argue that this approach imports an 'improper gloss' on the ordinary meaning of the Convention and that the test is simply whether the child is settled in its new environment.58 However, it is doubtful that a liberal approach to settlement is justifiable within the context of the Convention, in light of the considerable emphasis placed on the need for a narrow approach. Overall, the degree of settlement must be great, as ultimately the court must be satisfied that settlement is of such an extent that it justifies overriding the otherwise mandatory obligation of return.59 While a restrictive approach to settlement is not prima facie child-oriented, in setting a high threshold for settlement, the courts can ensure that the exception applies only where the interests of the individual truly demand it, assuaging fears as to its liberal application. As will be developed below, this allows for greater weight to placed on these interests when the courts engage in the exercise of the residual discretion.

The Existence of a Residual Discretion to Return

The legislative position in New Zealand as to whether there is a residual discretion to return a child even where the above grounds are established is clear. The permissive language of s 106 expressly states that the court 'may' refuse to order return. The position in the Convention itself, however, is less explicit. Unlike art 13, art 12(2) itself does not expressly adopt the permissive language that the authorities 'are not bound' or 'may refuse to order' return where a relevant ground is made out. Instead, it states only that return 'shall also' be ordered 'unless' the child is settled. This difference in wording has resulted in considerable debate in other Convention jurisdictions as to whether or not a residual discretion exists, what its origins are, and how it is to be exercised.

A residual discretion under art 12(2) can arise in two ways. The first is as a matter of interpretation of the wording of art 12(2) itself. In Re M, Lord Hope contends that, as a 'matter of language,' art 12(2) does in fact leave open the possibility of a discretion in the absence of any explicit indication to the contrary.60 Such an interpretation, it is argued, is bolstered by its consistency with the existence of discretions in arts 13 and 20 as well as the Convention's overall emphasis on return. It ensures that 'full weight [is] given in a variety of circumstances to the interests of the child', as the absence of a discretion could result in an uneasy finding that the child must remain in the country of refuge even where return is in its best interests.61

Despite these observations, art 12(2) can also be read as providing an absolute defence. This was the position taken by Singer J in Re C (Abduction: Settlement).62 Singer J highlighted the unique absence of discretionary wording under art 12(2), arguing that by using the word 'unless', art 12(2) 'not only removes the obligation to order return but renders it impermissible to do so'.63 As such, Singer J argues, the 'ordinary meaning' of art 12 removes the settled child from the ambit of the Convention. The position in Australia, however, is less clear. While the Full Court of the Family Court have left open the question of the existence of a discretion, a similar approach to Singer J was taken by Kay J in State Central Authority v Ayob.64 Kay J held that there was no such discretion as the Convention had no further application to a child found to be settled under art 12(2) where one year had passed since its removal.65

Academic commentary on art 12(2) also supports the interpretation that no residual discretion exists. Lowe, Everall and Nicholls rely on the difference in wording between arts 13 and 12(2), the history of art 18 (discussed below) and, on what they consider to be the 'clear view' in the Explanatory Report that no discretion exists as:66

...[i]t is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it — something which is outside the scope ofthe Convention.

Interestingly, Tipping J accepts that there is 'some credence' in the view that settled children should not be returned beyond 12 months. However, despite this drafting history, he notes that the presence of art 18 and the general policy of the Convention led to the position adopted in s 106(1)(a) that return would still be possible.67 It is to this second alternative explanation, the context of the Convention itself, that we shall now turn. Article 18 states that:

The provisions of this Chapter [arts 3 - 20] do not limit the power of a judicial or administrative authority to order the return of the child at anytime.

This overarching power of return undoubtedly renders possible the return of a settled child, regardless of the language of art 12(2). However, there are two possible interpretations as to how such a power arises, and each accord different weight to the child's welfare and best interest in the decision. Under the first interpretation, art 18 confers a general, overarching discretion to order return that arises from the Convention itself. Given its source in the Convention, such discretion is to be exercised within the context and purpose of the Convention, akin to the residual discretion under art 13. The second available interpretation is that art 18 merely preserves the application of any domestic powers that arise outside the Convention and enable an authority to order return. Under this interpretation, the discretion is jurisdiction-specific: such a power may not exist in every case of a settled child, and the factors relevant to the discretion are determined by domestic law and not the Convention. In countries which subscribe to the paramountcy principle, the best interests of the child would become the paramount concern.68

The travaux preparatoires associated with the Convention support the latter view that art 18 simply affirms the non-exhaustive and complementary nature of the Convention and preserves any domestic powers of return.69 The decision of Singer J in Re C (Abduction: Settlement) (above), also comprehensively argues for a domestic-power interpretation. His Honour held that, given the wording and history of art 18, the return of a settled child is only possible in accordance with powers available through domestic law, which, in the case of the United Kingdom, would fall to be exercised in accordance with the best interests of the child.70 However, on appeal to the English Court of Appeal this interpretation was rejected. The Court held that 'the global judicial community in the main construes art 18 to confer upon the court a discretion nevertheless to order return'.71 This was also the position taken by the majority in HJ, and has recently been confirmed by the House of Lords in Re M.72 As such, the decision whether to return a settled child falls to be decided in the same manner as under art 13; a court may take the child's welfare into account, but it is not paramount. Instead it must be balanced against the fundamental purpose of the Convention: to order the return of abducted children.73

Despite the tendency of international jurisprudence towards the view that art 18 provides a general discretion, judicial support for Singer J's argument does exist. Agreement was expressed by both Kay J in Ayob74 and Elias CJ in HJ.75 This position is also supported by a majority of commentators and the Explanatory Report itself, including Beaumont, who argues that 'Art 18 should be ignored entirely' in the context of settlement.76

As discussion turns to the exercise of the discretion itself, it is important to remember the highly contested nature of its existence highlighted above. The international debate as to whether a residual discretion to return a settled child exists continues to be of relevance in New Zealand, despite the permissive language in s 106. The uncertainty surrounding its existence has shaped international jurisprudence on its scope. As Beaumont insightfully notes, the possibility that such discretion was never intended by the Convention's drafters highlights the particularly child-centric nature of the exception itself.77 This supports a more restrictive approach to its exercise. Given the need for uniform interpretation amongst contracting states, the settlement exception in New Zealand should reflect these concerns and developments in international jurisprudence.

IV. ASSESSING THE 'GOOD' AND THE 'ILL': THE RESIDUAL DISCRETION AT WORK

How the Discretion has been Interpreted in the Past

The residual discretion to return a settled child has traditionally been treated as analogous to that arising under art 13, that is, by adopting a narrow approach in light of the 'context of the approach of the Convention'.78 The concern that a liberal interpretation would 'drive a coach and four' through the purposes and integrity of the Convention has resulted in only cursory regard being paid to the interests of the child.79 This danger has been perceived as particularly acute in the context of art 12(2). An approach that condoned concealment, it was argued, would not only thwart the Convention's remedial role in returning the particular child, but also hinder its normative objective, by encouraging abducting parents to conceal their children's whereabouts for as extended a period as is possible.80 Thus the discretion has been consumed by the deterrent purpose of the Convention, with the Courts quick to distance themselves from an approach that could be seen as endorsing such behaviour.81 The focus was very much on the conduct of adults, and the best interests of the individual child are accorded little meaningful weight in the discretion.

While in the past the courts paid lip-service to the argument that the exceptions were intended to have a meaningful role by providing an important opportunity to consider the manifest needs of the child concerned, in reality the settlement exception was rendered 'all but redundant'.82 This was achieved not only through adopting a narrow approach to the establishment of the settlement ground, but also by applying an equally return-oriented approach to the residual discretion. As noted in Re M, the courts placed an additional gloss on the residual discretion, allowing it only to be exercised in 'exceptional' cases.83 Therefore, in essence there remained a presumption in favour of return, despite the establishment of the grounds of an exception.84 This approach was facilitated by two factors: first, a failure to recognise the harm protected by the exception as significant; and secondly, by a focus on the nature of the abductor's conduct.

The failure to recognise the true potential for harm occasioned by uprooting a settled child deprived the exception of substance.85 Cases tended to reject submissions that the harm was of any long-term or substantial effect so as to offset the belief that a policy of return was in the child's best interests. Further, even where the child's welfare was accepted as not being served by return, the harm suffered was not such that it outweighed the welfare of other children in ensuring deterrence.86 Thus settlement in itself was considered unlikely to ground a successful defence as it was perceived as insufficient to distinguish a case from being a 'plain case for return' in and of itself.87 Such an approach is illustrated by the High Court's decision in U v R where Judge Green considered that the technical settlement of the child was not in itself sufficient grounds to refuse return where the mother had concealed the children.88 Thus, the focus was clearly on the adult and not the impact upon the child.

The emphasis on the conduct of the abducting parent is made apparent in the words of Butler-Sloss LJ that it would be a 'rare' case in which the potential for harm to the child 'is of greater consequence than the importance of the court marking its disapproval' of the mother's behaviour.89 The focus was on securing the deterrent purpose of the Convention by ensuring that an abductor could not benefit from his or her wrongful behaviour by relying on his or her own deceptive actions, as 'clean hands' were required for reliance on defence.90 Concealment was therefore considered crucial and 'in most cases determinative' of the situation, given its potential to frustrate the purpose of the Convention.91

In the context of settlement, the courts were reluctant to find the ground established where based on concealment. In the words of Bracewell LJ, 'time in hiding [could not] go to establish settlement'.92 The courts justified such an approach on the basis that a child could not be settled in an environment that had merely been a 'good hiding-place'.93 However, its proximity to the American doctrine of 'equitable tolling', under which the 12 month limitation period begins only once the whereabouts of the child is known in line with the principle that an abductor should not be able to benefit from his or her own wrongdoing, sheds light on its normative undercurrent.94 Thus, there was the impression that settlement and concealment were mutually exclusive. This approach betrays a particularly adult-focus in that it, linked to the notion above, demonstrates a failure to appreciate the impact of settlement on the child as an important and independent factor irrespective of the parent's conduct. The courts also seemed to consider that the deterrent purposes of the Convention required such behaviour to be punished, even if this occurred at the price of tears to the child.95

Further weight was given to the conduct of parents by adopting a liberal interpretation of what constituted concealment. The simple act of not informing the left-behind parent was alone enough to constitute 'concealment', despite the absence of any vitiating factors of deliberate concealment or subterfuge.96 This broad definition can be seen at work in the Family Court decision in HJ where the mother failed to inform the father of their whereabouts for more than a year after leaving. Judge von Dadelszen held that the mother's failure to inform the father of their whereabouts for more than one year after moving was sufficient 'concealment' to mean that the mother did not come to the Court with 'clean hands'.97 It did not matter that she had not concealed the children's identities and that the father knew of her associations with New Zealand and had the contact details of the mother's brother in New Zealand at all times but failed to use them immediately.98 This is arguably a particularly harsh conclusion, heavily dependent on apportioning blame on the mother without accounting for any contribution to the delay by the father himself.

A Change in Approach

The change in judicial approach to the exercise of the discretion is most aptly captured in the words of Tipping J in HJ. In stark contrast to the approach outlined above, he considered that:

We do not find convincing the proposition that it is necessary for Convention reasons to unsettle these children again, simply on account of a concern that their non-return may constitute general encouragement of wrongful removal. The potential harm to the Convention, and thereby to children generally, must be compared with the potential harm to these twochildren.99

This section highlights the developments that point to this change in judicial attitude towards the exception, highlighting the shift in focus to the child.

The Emerging Trend

The change in approach to the discretion stems from the courts' acceptance that '[r]ecognition of the exceptions is as much an exercise in upholding the Convention as is the enforcement of its primary thrust'.100 Moreover, in the context of the settlement exception, the courts have also been willing to acknowledge that the Convention is intended for the welfare of the child to come particularly into play, and that its very purpose was to assess the impact of delay from the point of view of the child, not the applicant parent.101

A shift in focus to the individual child has led to a reconsideration of the weight traditionally placed on the abductor's conduct. First, as was recognised by the House of Lords in Re D, the discretion is inevitably exercised against a backdrop of wrongdoing, which alone cannot be determinative.102 Secondly, a more measured response to concealment has emerged, recognising that the fact of concealment does not prevent an abductor relying on the exception, as the two concepts are not mutually inconsistent.103 This is associated with the acknowledgment that there are degrees of concealment. At one end, an abductor simply may not inform the left-behind parent, or, at the other end of the scale, there may be manipulative delay and a deliberate intention to frustrate the purposes of the Convention. These different scenarios were highlighted in Cannon v Cannon, where Thorpe LJ recognised that each attracted a different approach in light of the varying degree of 'turpitude' involved in the abductor's actions.104 According to Thorpe LJ, concealment is not determinative in any of these cases, but is a circumstance to be weighed in the balance. However, he argued that the greater the gravity and deliberation of the actions, the closer the approach came to a principle of disregard. This balancing forms the basis of the majority's approach in HJ, and will be returned to below.

A more discerning approach to the abductor's conduct is also demonstrated by the courts' eschewing of the role of moral arbitrator. There is a greater appreciation of the complexities of the situation and the difficulties (and inability of the courts) to apportion blame.105 The courts' role is no longer that of punisher, as the ultimate focus is on the child.106

The courts have also accepted that the complex realities of settlement challenge the implicit assumptions and policies underlying the Convention that have traditionally supported the argument for non-return. As was noted by Lady Justice Hale (as she then was), in TB v JB, the policy of the Convention 'weighs rather less heavily when the children wish to remain with their primary carer, particularly where ... the child has had no contact with the other parent for such a long time'.107 Furthermore, the courts are also astute to the fact that delay renders swift, summary return impossible, as settlement exception cases are no longer ones of 'hot pursuit'.108 The effect of the erosion of these assumptions will be discussed in the proceeding Part, where it is argued they provide a justification for a child-oriented approach.

The Discretion as Laid Down in Secretary for Justice v HJ

The New Zealand Supreme Court decision in HJ recognises these developments in both New Zealand and the United Kingdom, bringing together the strands from several key cases.

The facts and proceedings below

The case of HJ involved the wrongful removal of two young children by their mother from Australia in February 2002. While she did not inform the father that the children were being taken to New Zealand, neither did she attempt any concealment in either removing them or while living in New Zealand. The whereabouts of the children was not confirmed until May 2003, despite the father's knowledge of the mother's family contact details in New Zealand. The mother alleged a background of violence and abuse by the father, who ceased contact with the family in September 2001 when he wrote that he would 'see them again one day. I don't know when I'll be back'.109

The Family Court held that the grounds for the settlement exception were met, however, Judge von Dadelszen exercised his residual discretion to return based on the belief that an abductor should not 'be given the benefit of a discretion in circumstances where he or she cannot be said to come to the Court with clean hands'.110 The Judge placed the onus on the mother to satisfy the Court that the father would have known, or could have found out, the whereabouts of the children within the one year period — an onus he considered she had not discharged.111 On appeal to the High Court, France J agreed with the Family Court finding. Her Honour emphasised that the discretion had to be exercised in light of the normative function of the Convention in promoting the interests of 'other children' by demonstrating to potential abductors that 'there is no future in interstate abductions'.112 The Court of Appeal, however, upheld the appeal and dismissed the father's application for return. Taking a more restrictive view of concealment, their Honours reversed the focus from the abductor to the applicant, holding that the applicant had failed to show good reason for an exercise of the discretion in favour of return. The Court held that, when exercising the discretion, 'cases in which an order for return will be made will be the exception and not the rule'.113

The Supreme Court upheld the decision of the Court of Appeal in unanimous agreement that when grounds for the settlement exception were established, there remained no presumption in favour of return.114 However, the Court was divided as to the how the discretion should be exercised, once the ground for resisting mandatory return was established. Both Elias CJ and McGrath J delivered separate judgments.

The decision of the majority

The approach of the majority of the Supreme Court draws significantly from the approach of Thorpe LJ in Cannon,115 laying down a balancing test between the best interests of the child and any competing policy factors. Under this approach, where return is not in the best interests of the child, it can only be ordered where:116

some feature of the case, such as concealment ... nevertheless requires that the s106(1)(a) discretion be exercised in favour of return so as to avoid the perverse incentive inherent in refusing [such anorder].

Tipping J (delivering the judgment for the majority) outlined a holistic approach to the assessment of the child's interests, inclusive of 'everything logically capable of bearing on whether it is in the best interests of the child to be returned'. This included consideration of the current circumstances of the child, the circumstances of the removal and the degree of harm that would be suffered by return and the likely outcome of the dispute.117

In light of the context of inevitable wrongdoing, the Court adopted a restrictive view of concealment that focused on any deliberate intention on the part of the mother to frustrate the aims of the Convention. This resulted in the finding that the case could 'hardly be described as one of concealment at all.' Given that her actions involved no more than a unilateral removal and failure to advise the father of it, the Court considered it was 'not a case in which concealment issues added any significant weight to the case for return' as they were not 'causative' of her reliance on s 106(1)(a).118 There was therefore no reason which could outweigh the children's interests in remaining in New Zealand.119

The majority also looked to the conduct of the left-behind parent and placed on him a level of responsibility in locating the child. The father was aware of the mother's strong family connections in New Zealand, and at all times had her brother's contact details. He could not, therefore, rely on a lack of knowledge as to the whereabouts of the children to explain the delay in bringing proceedings. Tipping J considered this to be so particularly in light of the fact that applications can be made to central authorities without exact details of the child's location, providing there is a reasonable belief that a child is living in that state.120

Turning to the relationship between concealment and settlement, the Court considered that the circumstances of concealment were relevant only in a purely factual way.121 To this extent, they departed from the approach of Thorpe LJ in Cannon that judges should look critically at any settlement based on concealment or deceit.122 The majority considered that the policy objective was better achieved 'by means of the exercise of the discretion rather than indirectly via the settlement assessment'.123

The majority decision in HJ affirmed the child-focused approach that emerging in previous cases and confirms that the exercise of the discretion should not be primarily focused on the conduct of the abductor and the policy objectives of the Convention.124 Instead, the focus has shifted to the child.125 While described as a balancing test, the majority arguably give the child's interests the upper hand as they provide the starting point for the exercise. Furthermore, the test asserts that it is the policy objectives that must be found to clearly outweigh the best interests of the child. However, the interests of the child are not determinative and the door remains open to the possibility of their being subordinated to the welfare of the 'mass'.

The approach of Chief Justice Elias

The approach of Elias CJ adopts a genuine child-oriented approach. In a separate minority judgment, her Honour considers that the exercise of the residual discretion should be determined in accordance with the welfare and best interests of the child. This conclusion is based on her Honour's interpretation of s 4(7) of the COCA which states that the paramountcy principle articulated in s 4(1) does not 'limit' the application of the abduction provisions. Whereas the majority considered that this prevents the application of the paramountcy principle to art 12(2), Elias CJ contended that it did not. In light of the fact that return is no longer mandatory once an exception is established, her Honour reasoned that a consideration of welfare would not 'limit' the decision whether to return a child. As her Honour notes, such an interpretation is further supported by the existence of the exception itself. Its very inclusion is based on a concern for the interests of the child and accepts that these should no longer be 'conclusively treated as ... served by prompt return'.126 Her Honour goes on to recognise that, where settlement occurs, the harmful effects of wrongful removal dissipate significantly.127 In this light, the best interests principle need not be modified by the deterrent policy of the Convention under s 4(7) as, once the grounds for non-return are made out, no conflict exists as to its application.

In relation to the impact of concealment and the actions of the parents concerned, Elias CJ draws on s 4(3) of the COCA that a parent's conduct is a factor 'only to the extent (if any) that it is relevant to the child's welfare and best interests'. Her Honour perceptively warns that the exercise of the discretion should not result in a comparison as to the relative responsibilities of the parents for bringing about the delay. As her Honour notes, such an outcome inevitably results from the majority's desire to balance against the interests of the child the concern 'not to send the wrong message to potential abductors'.128 These 'wrong messages' are relevant only where return would not be adverse to the best interests of the child.129

The relative merits of the majority and minority approaches shall be expanded upon below. It is contended, however, that in the 'typical' case under the settlement exception, these conceptual differences are likely to be of little practical import. As demonstrated by the outcome in HJ, both are likely to reach the same position in light of the narrow definition of concealment adopted by the majority and their Honours subtle favouring of the interests of the child. While HJ itself did not test the majority's resolve to protect the individual child in the face of deliberate concealment, the English case of Re C (Abduction: Residence and contact) demonstrates, even in the face of 'extreme' concealment return is still unlikely. Here, despite the five year delay brought about by the assumption of false identities, Mostyn J highlighted the 'futility' of the father's claim as it was 'inconceivable' that the general policy concerns would be allowed to occasion such harm to a child.130

Cases Since HJ

Since the Supreme Court decision in HJ, the New Zealand courts have shown greater acceptance that the abductor's wrongdoing has no influence on a principled assessment as to whether an exception is established.131 It has been made clear that something more concrete and causative than the 'anti-abduction purpose' of the legislation is required before the discretion can be exercised in favour of return.132

United Kingdom Cases Indicating Change

This shift in approach is also evident in the 2007 House of Lords decision in Re M.133 Delivering the judgment for the House, Baroness Hale accepted the approach of Thorpe LJ in Cannon. The House held that where there is no 'active' or manipulative concealment, the discretion is at large: the court gives due regard to the policy objectives of the Convention, but also acknowledges the importance of the child's welfare.134 Her Ladyship's focus was clearly on the effect of the delay on the child, making it clear that no additional test of exceptionality applied to the exercise of the discretion.135

Re M refers only to HJ in passing, noting that the New Zealand approach to the existence of a discretion is the result of the domestic legislative position; the House does not refer to the majority's test. While both the decision of the House of Lords and the Supreme Court place significant weight on the need to consider the interests of the child, it is arguable that subtle differences render the approach of the Supreme Court more child-friendly. As outlined above, the Supreme Court makes clear that the child's interests are the starting point, and that they must be clearly outweighed.136 While her Ladyship rejects a description of the policy objectives as 'overriding', she simply states that the court can take into account both the policy aspects of the Convention and the 'wider considerations' of the child's welfare, without particular emphasis on the welfare considerations.137

V. THE CHILD-ORIENTED APPROACH

Problems with the Majority Approach

A level of inherent uncertainty remains in the approach of the majority of the Supreme Court. The very act of 'balancing' and of allocating weight to factors leaves the majority's subtle interest-oriented emphasis open to misinterpretation, or worse, attack. This is particularly so in light of the appeal that policy concerns have held in the past. The potential for misinterpretation has arguably already been realised in the Family Court decision J v M, where a subtle, but significant restatement of the test was applied. The Court in J v M makes clear that the focus is now on the child, and that the abductor's wrongdoing does not influence a principled assessment of the exception's grounds.138 However, in outlining the balance that must be undertaken, the interests of the child appear not to be given the subtle upper hand that they were in HJ. Instead, Judge Green held that it was the welfare considerations of the child that had to clearly outweigh the policy objectives, rather than be outweighed by them.139 It is unclear whether this difference results from a reluctance to accept the interests of the child as the starting point, or simply a misinterpretation of the majority's test. In either case, the difference is important. It demonstrates that under a balancing test, any advancement made towards emphasising the interests of the child can nonetheless be eroded by familiar calls to uphold the Convention's integrity, particularly in a case where the competing factors are more salient.

It is also possible to argue that, in reality, the majority's approach is not convincingly child-focused, as it guarantees the interests of the child only in the most unchallenged cases. In the face of a deliberate intention to frustrate the Convention's purposes, the majority's interest-oriented pre-disposition becomes unstuck. Little guidance is given as to the level of manipulative behaviour required to outweigh the interests of the child, but it is at least notionally clear that such a potential exists under the balancing test. In light of this uncertainty, it is respectfully submitted that the majority approach does not persuasively deal with the issue of concealment in its more invidious forms. It fails to leave future courts in a significantly better position to deal with the true concerns of concealment beyond cases like HJ which, in reality, are hardly concealment cases at all.

In light of this uncertainty and the potential for developments that recognise the substance of the child's interests to be undermined, the approach of Elias CJ is to be preferred. It is only when the interests of the child principally determine the exercise of the residual discretion that meaningful weight is given not only to the welfare of the child, but also to the exception itself. It is recognised that such an approach departs from the general run of cases and challenges traditional interpretations of the Convention's context and approach. However, as the remainder of this paper will demonstrate, significant justifications exist for such an approach and demonstrate that it does not risk undermining the integrity of the Convention. Both the wider context in which the discretion falls to be exercised, and the context of the Convention itself, assists in reconciling the normative aspects of the Convention with an approach focused on the individual child.

Factors that Support a Child-oriented Settlement Exception

The very existence of the settlement exception acknowledges that the welfare of the individual child can take primacy over concerns of concealment and deterrence and that these interests were intended to have a meaningful role.140 While this undoubtedly supports a shift in focus to the child, further justification is necessary to successfully advocate an approach in which the child's interests are determinative. In looking at the nature of settlement, the abduction problem and the exception itself, a persuasive argument can be made demonstrating that a child-oriented approach does not undermine the effectiveness of the Convention.

Developments in the Context in Which the Convention Operates

The overall context in which abduction cases arise has changed significantly since the Convention's inception in 1980. Developments in international and domestic law in relation to the child and in the very nature of the abduction paradigm itself not only support a child-oriented approach, but require one.

Developments in international law and family law generally

Significant developments in the legal and normative frameworks against which the Convention operates have occurred at both an international and domestic level. In New Zealand, the COCA has ushered in a change of emphasis in family law, recognising that parenting is about responsibilities towards the child, and not the rights of adults vis-à-vis each other.141 This approach is clearly in line with a child-oriented approach, as it requires that 'children are to be put first, [with] considerations of the parents' conduct only to be taken into account so far as it is relevant to the welfare and best interests of the child'.142 Similar recognition is also evident at the international level in light of the United Nations Convention on the Rights of the Child adopted in 1989 (UNCRC). As the 'overarching' international instrument for the care and protection of children, its recognition of child rights and the autonomy of the child highlight the need for an approach to the Convention that addresses these concerns.143 Article 3 of the UNCRC itself requires the interests of the child to be a primary consideration in the determination of matters affecting them.144 As Tapp summarises, the effect of these developments in perceptions of childhood and shared parental responsibility have lead to greater recognition of the child 'as a 'person' rather than just an adjunct of its parents'.145 These developments clearly point towards a child oriented approach to the exercise of the residual discretion, as the child is seen as an individual of equal worth whose wellbeing should not be sacrificed in order to punish a parent or protect the future interests of an indeterminate group.

The new face of the abduction profile

Changes have occurred not only in the legal background against which the Convention operates, but also in the nature of international child abduction itself. These changes require new understandings of, and approaches to, the challenges abduction raises. At the Convention's inception, the general perception of negotiating states was that the archetypal abduction case involved removal by a non-custodial father who, frustrated at being denied access, 'stole the child, went abroad, and then underground' in a foreign and unfamiliar country.146 A survey of studies by Lowe, Everall and Nicholls, supports this perception, indicating that the father was the abductor in 71-76% of the cases.147 Today, however, it is argued that this 'stereotype of the non-custodial father removing his children bears no resemblance to reality in the context of the Hague Convention'.148

Statistics available support the contention that abductions are no longer primarily characterised by fathers taking children.149 A review of applications in 1999 found that 69% of abductions were carried out by females, virtually all of whom were likely to be mothers.150 Research also challenges the notion that removal is to a foreign, unfamiliar state of refuge. Although harder to verify, by analysing the nationality of abductors, some 52% were found to have the same nationality as the requested state and 'could therefore be presumed to be going home'.151

The underlying motivation for abduction is also contended to have changed. Traditionally, abduction was perceived to be motivated by 'forum-shopping', where an abductor searches for a jurisdiction more favourable to their demands. However, Kaye argues that today, increasing numbers of child abductions are the result of a flight from domestic violence. While the reasons for abduction have proved particularly difficult to ascertain, Lowe and Perry admit a level of support comes from the finding that mothers were more likely than fathers to remove their children from 'intact' family arrangements. They accept that this finding is 'in line with', although not conclusive of, the theory that women tend to abduct to escape domestic violence.152 This change is important because it recognises the invidious position of the abductor, highlighting that concealment is most often not the result of a manipulative mother, but of a perceived lack of choice.153

While a level of dispute as to these conclusions exists,154 an overwhelming majority of commentators and judges alike recognise the 'serious doubt' they cast on the image of the abductor as a non-custodial father.155 These changes are of great consequence to the Convention's operation as they challenge the implicit assumptions, policies and purposes that were negotiated in light of the picture prevailing at the time.156

These changes lend credence to the argument that the new environment in which the child finds him or herself may in fact be more meaningful than the one left behind. The child remains with his or her primary carer, often has the familiarity of the mother's family and has escaped a potentially harmful situation in the state of habitual residence. This new pattern challenges the Convention's assumption that the best interests of the child (and children generally) are served by prompt return as such an assumption was, inter alia, premised on the notion that the state of refuge offered little in the interests of the child. Given that this is no longer the situation faced by a majority of abductees today, a case can also be made for the argument that the best interests of children generally are no longer best served by a policy of return without an assessment of their individual interests.

By challenging the strength of the Convention's concepts of best interests and deterrence traditionally found to outweigh a child's interests, the changes in the nature of abduction support a child-oriented approach. They create space for the interests of the individual child to play a greater role in the courts' discretion. Furthermore, in highlighting that the distinction between 'good' and 'ill' is not always apparent in the context of settlement, these changes emphasise the need to consider the interests of the particular case.

The Inherent Qualities of Art 12(2) that Justify a Child-oriented Approach

Several of the traditional assumptions and policy concerns of the Convention are further weakened by the inherent characteristics of delay and settlement involved in an art 12(2) case. One such example is that the inherent period of delay involved in the settlement exception case undermines the Convention's aim of 'prompt' return. Therefore, as it is no longer a case of 'hot pursuit', the weight of this policy concern is significantly reduced.157 As was noted in Re HB (Abduction: Children's objections) (No 2),158 the fact that the opportunity and obligation to return a child 'forthwith' have passed, allows for longer, more detailed proceedings.159 This departure from the normally summary approach to Convention cases highlights the particular leaning of the settlement exception towards a more child-oriented focus.

Delay also threatens to undermine the assumption that a policy of prompt return ensures that the dispute is heard in the most appropriate forum. Not only has this delay provided time for the child to put down roots and settle, but it is also likely to have weakened his or her ties to the requesting state. The child may therefore have more meaningful ties to the state of refuge, and evidence relating to his or her welfare and situation are also more likely to be easily available in this state.160 This is particularly the case in light of the changing profile of abduction where the child is more likely to be removed by his or her primary care-giver to a country in which some family and cultural ties exist. As Schuz aptly observes, the inflexibility of the Convention in this regard leads to potential conflict with the private international law principles underlying the Convention. Moreover, where this closer connection exists, the assumed ill-effects of placing a child in a foreign environment may no longer exist, so that it may not in fact be desirable, or possible, to restore the status quo.161

The challenge raised by art 12(2) to several of the Convention's key policies and assumptions reduces the weight that such factors would normally receive in the exercise of the residual discretion.162 They further highlight the need to take into account the true interests of children in light of the changing nature of the problem at hand.

Reconciling a Child-oriented Approach with the Normative Aspects of the Convention

The factors listed above lend significant support to a child-oriented approach as they highlight the case for the child's interests to be accorded paramount weight. However, alongside these justifications, a case also needs to be made to demonstrate that the approach of Elias CJ can be reconciled with the normative aspects of the Convention. This can be achieved in two ways: first by distinguishing between approaches to establishing the grounds for the exception and approaches to the exercise of the residual discretion; and second, by recognising the impact of the change in the abduction profile on the Convention's normative goals.

Distinguishing Between the Establishment of the Exception and the Exercise of the Residual Discretion

It is important to note that the child-oriented approach advocated by Elias CJ does not require the interests of the child to be determinative in every aspect of the settlement exception; it applies only to the exercise of the residual discretion. This distinction is important because it enables the approach to realise both normative and child welfare objectives.

First, a narrow approach to the exceptions does not require a narrow approach to the residual discretion.163 Indeed to do so arguably deprives the exceptions of their meaningful role in the Convention. The concern that a liberal application of the exceptions can undermine the integrity of the Convention can be adequately addressed by adopting a restrictive approach to the establishment of the grounds for the exception alone. In the context of art 12(2), this entails focusing on the assessment of the child's settlement as the threshold requirement for a child-oriented approach. Once settlement (and the 12 month period of delay) are established, the interests of the child become the controlling factor. As identified by Justice McGrath in HJ, the Convention itself envisages a policy shift at this point.164

It is acknowledged that such an approach leaves room for issues of concealment to be considered only in relation to the question of settlement, and then only in a factual manner.165 This exclusion of policy concerns can be justified on two grounds. First, it is contended, to allow policy concerns to impact on a finding of settlement reverts to an approach that undervalues the substantive nature of the harm to the child in favour of a more adult focus. Secondly, it is also arguable that the drafters themselves envisaged such an approach in light of the fact that they included the exception despite recognising the potential for such an exception to encourage concealment. As noted by Singer J in Re C (Abduction: Settlement), the finding of settlement can therefore be seen as the drafters' indication of the line beyond which policy factors should no longer cross.166 Support for this contention can also be drawn from the comments of Pérez-Vera that, although somewhat arbitrary, the agreement on a 12-month time limit offered the best solution to the negotiating states' concerns.167

The adoption of a restrictive approach to the establishment of the exception does not require an equally policy-oriented approach to the residual discretion. In fact, it allows for a shift in policy, as it ensures that policy concerns are adequately addressed by the court. Such an approach does not undermine the effectiveness of the Convention, but provides a middle ground between its normative aims and the desire to protect the individual child involved. Furthermore, a high threshold also ensures that the harm being protected against is a significant one, as the degree of integration required of the child is considerable.168

The Change in the Abduction Profile and the Impact on the Normative Objectives

The second way in which the normative aims of the Convention can be reconciled with a child-oriented approach is through assessing the impact that the changed nature of abduction has on the effectiveness of the Convention's deterrent policies. Particular attention should be paid to the change in the prevailing motive for abduction: the flight from domestic abuse. The shift from a calculated attempt to gain custody to an emotional appeal for help challenges the Convention's deterrence mechanism, the policy of prompt return. Prompt return specifically targeted the motive of 'forum-shopping' as it deprived the abductor of the ability to alter the status quo ante by denying the courts in the state of refuge the jurisdiction to determine the dispute. The deterrent effect is, however, arguably weakened in the context of the emotion and fear involved in fleeing abuse as rationality and legal niceties are less likely to hold sway in the mind of the abductor.169 A level of support for this contention can be garnered from the fact that the number of abductions by women grows exponentially while those by males are proportionately rare. This lends weight to the argument that the deterrence effect of the Convention is successful only in the context of the traditional case of the non-custodial father.

The argument that the changing nature of abduction weakens the Convention's deterrence policy casts an interesting shadow over the issue as to whether a child-oriented approach undermines the effectiveness of the Convention. In light of the above possibilities of reconciling the normative and child-focused aims of the Convention, arguably it does not. When assessing the 'effectiveness' of the Convention a change in the predominant perception that a 'good' decision is one in which the child is returned is required. As Schuz observes, success should not only be measured in numbers of return, but more importantly, in terms of whether or not return is in fact appropriate. Where the traditional arguments in favour of return no longer apply, and the harm occasioned to the child is significant then their interests must prevail.

The Implications for Other Exceptions

The Implications of HJ

While Tipping J was careful to note the unique features of each exception and the need for a judicial approach tailored to its particular requirements, the implications of the majority decision in HJ are already evident outside the settlement exception.170 In Smith v Adam, for example, the Court of Appeal applied the balancing test that competing policy factors must clearly outweigh the interests of the child to the grave risk exception.171

Recognition of the validity of the child's interests, and of the significance of the harm occasioned by delay could also have wider impact beyond the settlement exception. While delay in itself has been rejected as a stand-alone defence, it has been recognised as a component to which the court must have regard when exercising its residual discretion under the other exceptions.172 By emphasising the substantive nature of the harm occasioned to a child by delay and by uprooting a child following settlement, HJ highlights the need to pay particular attention to the interests of the child where return is contemplated after a lengthy period of time.

More specifically, this enlightened understanding of the effects of uprooting a settled child could have impact upon the grave risk defence through arguments of psychological harm or an intolerable situation. The vast quantity of jurisprudence on the grave risk exception prevents detailed analysis of this potential here, but it should, as a minimum, be noted that the courts do not consider the inevitable harm caused in removing and re-removing a child sufficient to establish the exception.173 However, recognition of the substantive harm caused by uprooting a settled child underscores the need for a more holistic approach to the child's situation. The arguably blinkered focus of the courts under s 106(1)(c) on the situation on return fails to acknowledge not only the significance of the harm, but also that it is not an eventuality able to be protected against by undertakings or the capacity of the courts in the state of return.174

Ultimately, the child-oriented approach recognises that the context of the Convention does not require an unduly restrictive approach to the exercise of the discretion itself. It makes way for the court to probe the realities of the situation, identifying how changes in the profile of abduction impact upon the policies and assumptions underlying an exception. This potential exists for other exceptions as well. However, this paper's support for a child-oriented approach to the settlement exception rests on the belief that it is the most child-centric of the exceptions.175 Any attempts to apply its reasoning beyond art 12(2) must be aware of these exception-specific qualities and build an independent case, in light of the unique features of the exception.

VI. CONCLUDING REMARKS

The traditional approach to the settlement exception has been that a 'good' decision is a return decision, that is, one where the welfare of the individual child subordinates to the normative goal of protecting children generally. This paper has traced the developments in judicial attitudes that have led to the child's interests taking a more prominent role. Two alternatives emerged. The first was a balancing approach in which the competing policy factors had to clearly outweigh the interests of the child in non-return. The second, and ultimately preferred approach, was that the residual discretion is to be exercised principally in accordance with the welfare and best interests of the child.

A child-oriented approach to the settlement exception does not reflect a softening in judicial approach. In setting a high threshold for the establishment of the exception, it ensures against a liberal application that could undermine the Convention's policy of prompt return. Further, the challenge to the Convention's implicit assumptions, policies and effects that arise from the changed nature of abduction and from the inherent characteristics of the settlement exception itself, present a strong case for a child-oriented approach to the exercise of the residual discretion. Where even the deterrence effect of the Convention can be doubted, the traditional interpretation that the 'context and purpose' of the Convention outweigh the interests of the settled child is clearly thrown into doubt. A myopic focus on policy risks cultivating an environment based on the needs of adults and an altogether hollow network of relationships. It ironically risks exacerbating the very 'ill' against which the Convention was designed to protect.


[*] LLB(Hons)/BA. Alana is currently working at the Ministry of Foreign Affairs and Trade. This paper was awarded the Canterbury Law Review prize for the best undergraduate Honours paper completed in 2007.

[1] The Hague Convention on the Civil Aspects of International Child Abduction was adopted on 25 October 1980 (Hague Convention). See generally E Pérez-Vera, Explanatory Report on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child [1]. For a list of contracting states see <http://www.hcch.net.html> .

[2] M Everall, N Lowe and M Nicholls, International Movement of Children: Law, Practice and Procedure (2004) 295. A 2001 statistical study indicates that of applications made globally in 1999, only 11% of all refusals were based solely on this ground: Lowe, Armstrong and Mathias, 'A Statistical Analysis of Applications made in 1999 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction', Preliminary Document No 3 (Revised Version, November 2001) available on the Hague convention website: <http://www.hcch.net/index_en.php?act=text.display & tid=21.html> .

[3] Secretary for Justice v HJ [2007] NZFLR 195.

[4] Pérez-Vera, above n 1, [10]. For a discussion of the reasons for the increase in international child abduction see P Beaumont and P McEleavy, The Hague Convention on International Child Abduction (1999) 2. Emphasis on the need for comity and cooperation is also evident in Clarke v Carson [1996] 1 NZLR 349, 351.

[5] A Anton, 'The Hague Convention on International Child Abduction' (1981) 30 International and Comparative Law Quarterly 537, 541. Compare the focus on custody 'decisions' as opposed to 'rights' in the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, Luxembourg 20 May 1980.

[6] A Cornec, 'The Hague Convention on abduction and beyond: conflicting aims, different solutions — the French practice' (1993) 23 Family Law 148, 148. See also Nicholls, International Movement of Children 198; A Dyer, 'Hague Convention on the Civil Aspects of International Child Abduction — towards global cooperation: Its success and failures' (1993) 1 International Journal of Children's Rights 273, 275.

[7] Lowe, Armstrong and Mathias, above n 2, 34: in 1999, 83% of applications related to protecting rights of custody. See also N Lowe and A Perry 'International Child Abduction — The English Experience' (1999) 48 International and Comparative Law (Quarterly 127, 130.

[8] For the purposes of this paper the domestic provisions referred to will relate to the Care of Children Act 2004, whether or not the cases involved were decided under the Guardianship Amendment Act 1991.

[9] M Nixon, 'Legislation and the Hague Convention' [2007] New Zealand Law Journal 91, 93.

[10] The Hon Douglas Graham, Minister of Justice Parliamentary Debates, Vol 513, 1991, 946, cited in M Nixon, 'Legislation and the Hague Convention' [2007] New Zealand Law Journal 91, 93.

[11] Hague Convention, art 4; Re H (Abduction: Child of 16) [2000] 2 FLR 51.

[12] Hague Convention, art 3.

[13] Hague Convention, art 4.

[14] For general discussion of the defences see J Caldwell, 'Child welfare defences in child abduction cases — some recent developments' (2001) 13 Child and Family Law Quarterly 121; and for recent developments see L De Jong, 'Hague Convention of the Civil Aspects of International Child Abduction' Family Law — Flying High (New Zealand Law Society, Family Law Conference, 2007), 298-304.

[15] Pérez-Vera, above n 1, [25]; R Schuz, 'Hague child abduction convention: family law and private international law' (1995) 44 International and Comparative Law Quarterly 771, 776.

[16] These concerns were noted by Anton, above n 5, 550.

[17] Pérez-Vera, above n 1, [34].

[18] Everall, Lowe and Nicholls, above n 2, 292.

[19] As highlighted by Lord Browne-Wilkinson in Re H (Abduction: Acquiescence) [1997] 1 FLR 872, 881H.

[20] J Kay, 'The Hague Convention — order or chaos?' (2005) 19 Australian Journal of Family Law 245, 246. In Australia the Convention is not directly incorporated, but implemented through the Family Law (Child Abduction Convention) Regulations 1986. In the UK the Convention is itself directly incorporated into domestic law through the Child Abduction and Custody Act 1985.

[21] Vienna Convention on the Law of Treaties 1969, art 31; Pérez-Vera, above n 1, [84].

[22] See the conclusions of the Permanent Bureau of the Hague Conference on Private International Law Report of the Second Meeting of the Special Commission to Review the Operation of the Hague Convention, 18-21 January 1993, 4. The report can be accessed at <http://www.hcch. net/index_en.php?act=conventions.publications & dtid=2 & cid=24.html> .

[23] Pérez-Vera, above n 1, [17]; P Brodkin, 'The application of the Convention — from the practitioner's perspective' (2005) 23 Canadian Family Law Quarterly 219, 221; T Harper, 'The Limitations of the Hague Convention and Alternative Remedies for a Parent Including Re-Abduction' (1995) 9 Emory International Law Review 257, 259.

[24] S v S [1999] 3 NZLF 513, 519.

[25] See generally Schuz, above n 15.

[26] Ibid 796: further private international law principles of recognition and enforcement and choice of law rules play a lesser role in the Convention.

[27] Beaumont and McEleavy, above n 4, 29.

[28] Ibid.

[29] Pérez-Vera, above n 1, [24].

[30] D McClean, 'International child abduction — back to common law principles' (1995) 7 Child and Family Law Quarterly 128, 128; see K Beevers, 'Child abduction — welfare or comity?' (1996) 26 Family Law 365 as to the application of the principle in non-Convention cases; Pérez-Vera, above n 1, [21] as to the 'vagueness' of the principle and the difficulties it caused to a uniform approach.

[31] Hague Convention, preamble.

[32] Thomson v Thomson (1995) 119 DLR (4th) 253, 273 (La Forest J); B v B [1998] NZFLR 337, 348.

[33] P Boshier, 'Care and protection of children: New Zealand and Australian experience of cross-border cooperation' (2005) 5 New Zealand Family Law Journal 63, 66.

[34] Schuz, above n 15, 775-6.

[35] Thomson v Thomson (1995) 119 DLR (4th) 253, 273 (La Forest J).

[36] Re T (Abduction: Child's objections to return) [2000] 2 FLR 192, [21].

[37] See the oft cited quote of Waite J that stability for the mass of children may have to come at the price of tears in some individual cases: W v W [1993] 2 FLR 211, 220.

[38] For example, s 4(1) COCA.

[39] For example, United Nations Convention on the Rights of the Child 1989, art 3.

[40] While the second paragraph of the article is not explicitly numbered, it is commonly referred to as art 12(2). This paper also adopts such an approach.

[41] Schuz, above n 15, 776.

[42] Everall, Lowe and Nicholls, above n 2, 294; Schuz, above n 15, 778.

[43] Re C (Abduction: Grave risk of physical and psychological harm) [1999] 2 FLR 478, 488 (Thorpe LJ).

[44] Beaumont and McEleavy, above n 4, 209.

[45] Pérez-Vera, above n 1, [108].

[46] Ibid.

[47] See, for example, Wojcik v Wojcik 959 F Supp 413 (ED Mich 1997), cited in Everall, Lowe and Nicholls, above n 2, 296.

[48] Secretary for Justice v HJ [2007] NZFLR 195, [57] (Tipping J).

[49] Director General, Department of Community Services v M and C [1998] 24 FLR 168, [91].

[50] See, for example, Re N (Minors) (Abduction) [1991] 1 FLR 413.

[51] B v B [1998] NZFLR 337, 344; Everall, Lowe and Nicholls, above n 2, 298.

[52] This followed the previous approach of the High Court in B v B [1998] NZFLR 337.

[53] Re N (Minors) (Abduction) [1991] 1 FLR 413 (Bracewell J).

[54] Secretary for Justice v HJ [2007] NZFLR 195, [55] (Tipping J).

[55] B v B [1998] NZFLR 337, 344.

[56] Re N (Minors) (Abduction) [1991] 1 FLR 413.

[57] Re N (Minors) (Abduction) [1991] 1 FLR 413.

[58] Director General, Department of Community Services v M and C [1998] 24 FLR 168.

[59] Everall, Lowe and Nicholls, International Movement of Children, above n 2, 300.

[60] Re M (FC) and another (FC) (Children) (FC) [2007] UKHL 55, [4]-[5] (Lord Hope).

[61] Ibid.

[62] Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam) (Singer J); See also State Central Authority v Ayob (1997) 21 FLR 567 (Kay J).

[63] Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [16] (Singer J).

[64] State Central Authority v Ayob (1997) 21 FLR 567. Cf the Full Court of the Family Court in Director General, Department of Community Services v M and C [1998] 24 FLR 168. Later cases have since assumed that a discretion existed, see, for example, Director General, Department of Families, Youth and Community Care v Moore (1999) 24 FLR 475; Director General of the Department of Community Services v Apostolakis [1996] FamCA 57; (1996) FLC 92-718.

[65] State Central Authority v Ayob (1997) 21 FLR 567.

[66] Everall, Lowe and Nicholls, above n 2, 304 citing Pérez-Vera, above n 1, [107].

[67] Secretary for Justice v HJ [2007] NZFLR 195, [99].

[68] As would be the case in New Zealand under s 4(1) COCA. See also recognition that this would be the case in the UK in Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [36].

[69] Pérez-Vera, above n 1, [112]; Everall, Lowe and Nicholls, above n 2, 293; see also Chairman of the First Commission in charge of drafting the Convention, Professor A Anton, in Anton, above n 5, 555.

[70] Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [36].

[71] Cannon v Cannon [2005] 1 FLR 169, [48].

[72] Everall, Lowe and Nicholls, above n 2, 294. See, for example, Re S (a Minor) (Abduction) [1991] 2 FLR 1, (Court of Appeal); Re N (Minors) (Abduction) [1991] 1 FLR 413; and Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433. Cf prior comments of P Tapp, 'Welfare of the child and abduction' [2007] New Zealand Law Journal 77, 78-9.

[73] Armstrong v Evans [2000] NZFLR 984; Everall, Lowe and Nicholls, above n 2, 294. See, for example, in the UK Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433.

[74] State Central Authority v Ayob (1997) 21 FLR 567.

[75] Secretary for Justice v HJ [2007] NZFLR 195.

[76] Beaumont and McEleavy, above n 4, 209; Pérez-Vera, above n 1, [112]; Everall, Lowe and Nicholls, above n 2, 293; Anton, above n 5, 555; P Nygh 'The International Abduction of Children' in J Doek and H van Loon (eds), Children on the Move (1996).

[77] Beaumont and McEleavy, above n 4, 209.

[78] Re A (Minors) (Abduction: Acquiescence) [1992] 2 FLR 12, 28F (Lord Donaldson); Clarke v Carson [1996] 1 NZLR 349, 351; Armstrong v Evans [2000] NZFLR 984.

[79] Balcombe LJ in Re E (a Minor) (Abduction) [1989] 1 FLR 135, 144-5; see also Re C (Abduction: Grave risk of psychological harm) [1999] 1 FLR 1145, 1554. See, for example, Pérez-Vera, above n 1 and report of the Permanent Bureau of the Hague Conference on Private International Law Fourth Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 22-28 March 2001, 12. The report can be accessed at <http://www.hcch.net/index_en.php?act=conventions.publications & dtid=2 & cid=24.html> .

[80] Coates v Bowden [2007] (High Court, Auckland CIV 2006-404-7028, 30 May 2007, Winkelmann J), [93].

[81] For example U v R [1998] NZFLR 385, 395.

[82] S v S [1999] 3 NZLR 513, 519 (High Court); Re M (Abduction: Psychological harm) [1997] 2 FLR 690, 699; see also Judge Boshier, 'Care and protection of children: New Zealand and Australian experience of cross-border cooperation' (2005) 5 New Zealand Family Law Journal 63, 67 in relation to the grave risk exception.

[83] S v S [1999] 3 NZLR 513, 519 (High Court).

[84] See comments in describing the approach of the Family Court to this effect: Secretary for Justice v HJ [2007] NZFLR 195, [21].

[85] For example the extra-judicial comments of Judge Boshier, above n 82, 65 that only the grave risk defence opens up the hearing to consideration of the merits.

[86] See, for example, M v M [2001] NZFLR 961, 965; Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433, 441; see also the emphasis placed on the normative role in S v S [1999] 3 NZLR 513, 519.

[87] Re N (Minors) (Abduction) [1991] 1 FLR 413, 419.

[88] See also M v M [2001] NZFLR 96, [8].

[89] Re M (Abduction: Psychological harm) [1997] 2 FLR 690, 699.

[90] Secretary for Justice v HJ (Family Court, Hastings, No 372/02, 15 April 2004, Judge von Dadelszen), [33]; Re H(Abduction: Child of 16) [2000] 2 FLR 51.

[91] Re M (Abduction: Psychological harm) [1997] 2 FLR 690, 699.

[92] Re H (Abduction: Child of 16) [2000] 2 FLR 51, 54.

[93] Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433, 441 (Wilson J).

[94] This similarity was noted by Singer J in Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam). See Furnes v Reeves 362 F.3d 702 (Fla. 2004).

[95] See, for example, Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433, 441; W v W [1993] 2 FLR 211, 220.

[96] Ibid.

[97] Secretary for Justice v HJ (Family Court, Hastings, No 372/02, 15 April 2004, Judge von Dadelszen), [33]. Affirmed by the High Court in HJ v Secretary for Justice (High Court, Wellington, CIV 2004-441-263 16 June 2004, Justice France).

[98] Secretary for Justice v HJ (Family Court, Hastings, No 372/02, 15 April 2004, Judge von Dadelszen), [34].

[99] Secretary for Justice v HJ [2007] NZFLR 195, [115] (Supreme Court).

[100] B v B [1998] NZFLR 337, 348; see also P v B (Hague Convention) [2002] NZFLR 353, 355.

[101] P v B (Hague Convention) [2002] NZFLR 353, 379, B v B [1998] NZFLR 337, 348; this was shown in P v B (No 2) (Child abduction: Delay) [1999] IESC 32; [1999] 4 IR 185 (Supreme Court).

[102] Re D (Abduction: Rights of custody) [2006] UKHL 51, [56].

[103] Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [57], [84].

[104] Cannon v Cannon [2004] EWCA Civ 1330; [2005] 1 WLR 32; [2005] 1 FLR 169 [53] - [56] (Thorpe LJ).

[105] Re C (No2) [2005] 1 FLR 938 at [52], [58]; adopted in Re C (a Child) (Abduction: Settlement) [2006] EWHC 1229 (Fam), [47]; and Re D (Abduction: Rights of custody) [2006] UKHL 51, [56].

[106] Re D (Abduction: Rights of custody) [2006] UKHL 51 at [56] This was also recognised in Re C (a Child) (Abduction: Settlement) [2006] EWHC 1229 (Fam); [2007] 1 FCR 649, [59].

[107] TB v JB (Formerly JH) [2000] EWCA Civ 337, [56].

[108] Re C (Abduction: Grave risk of physical and psychological harm) [1999] 2 FLR 478, 488; Re C (No 2) [2005] 1 FLR 938, [46] (Mostyn J).

[109] Secretary for Justice v HJ [2007] NZFLR 195, [11].

[110] Secretary for Justice v HJ (Family Court, Hastings, No 372/02, 15 April 2004, Judge von Dadelszen), [20].

[111] Secretary for Justice v HJ (Family Court, Hastings, No 372/02, 15 April 2004, Judge von Dadelszen), [25].

[112] HJ v Secretary for Justice (High Court, Wellington CIV 2004-441-263, 15 June 2004, Ellen France J).

[113] HJ v Secretary for Justice [2006] NZCA 400; [2006] NZFLR 1005, [57].

[114] Secretary for Justice v HJ [2007] NZFLR 195, [21] (Elias CJ) and [68] (Tipping J).

[115] Cannon v Cannon [2005] 1 FLR 169.

[116] Secretary for Justice v HJ [2007] NZFLR 195, 195.

[117] Secretary for Justice v HJ [2007] NZFLR 195, [86].

[118] Ibid [111].

[119] Ibid [112].

[120] Ibid [100]-[104]. See, for example, COCA, s 103 and Hague Convention, art 8. See also P v B (No 2) (Child abduction: Delay) [1999] IESC 32; [1999] 4 IR 185 (SC) recognising the 'extraordinary' and 'inappropriate' delay of the applicant father.

[121] Secretary for Justice v HJ [2007] NZFLR 195, [69].

[122] Cannon v Cannon [2005] 1 FLR 169, [61].

[123] Secretary for Justice v HJ [2007] NZFLR 195, [69].

[124] Noted in Coates v Bowden [2007] (High Court, Auckland CIV 2006-404-7028, 30 May 2007, Winkelmann J), [97].

[125] Andrews v The Secretary for Justice [2007] NZCA 223; [2007] NZFLR 891, [23] (Court of Appeal).

[126] Secretary for Justice v HJ [2007] NZFLR 19, [25].

[127] Ibid [23]-[25].

[128] Ibid [26]-[27] citing the majority reasons at [50].

[129] Ibid [28].

[130] Re C (Abduction: Residence and contact) [2005] EWHC 2205 (Fam).

[131] J v M (Family Court, North Shore FAM-2004-004-1857, 25 June 2007, Judge Ryan), [5].

[132] Coates v Bowden [2007] (High Court, Auckland CIV 2006-404-7028, 30 May 2007, Winkelmann J) [97], [98]; also Andrews v Secretary for Justice [2007] NZLR 891, [12].

[133] Re M (Children) [2007] UKHL 55, confirming the more liberal approach to concealment that had developed in cases such as Re C (Abduction: Residence and contact) [2005] EWHC 2205 (Fam).

[134] Re M(Children) [2007] UKHL 55, [43].

[135] Re M (Children) [2007] UKHL 55, [40].

[136] Secretary for Justice v HJ [2007] NZFLR 195, [85] - [87].

[137] Ibid [43].

[138] J v M (Family Court, North Shore FAM-2004-004-1857, 25 June 2007, Judge Ryan), [5].

[139] Ibid [21].

[140] P v B (Hague Convention) VP v A [2002] NZFLR 353, 355; B v B [1998] NZFLR 337, 348.

[141] Caldwell, above n 14, 121.

[142] Judge Boshier, above n 82, 65; see for example COCA, ss 4(3) and 4(1).

[143] See generally P Mahoney, 'Aspects of International Treaty Law on the Protection of Children: the Hague Conventions' (Paper presented at the New Zealand Law Society Family Law Conference, Christchurch, 31 August - 2 September 1998) 297.

[144] Judge Boshier, above n 82.

[145] P Tapp, 'Use of the United Nations Convention on the Rights of the Child in the Family Court' (New Zealand Law Society Family Law Conference 1998), 267.

[146] Beaumont and McEleavy, above n 4, 219. For a judicial picture of the stereotype see Re L [1974] All ER 913, 925-6 (Buckley LJ). The lack of comprehensive statistics was highlighted in Anton, above, n 5, 537.

[147] Everall, Lowe and Nicholls, above n 2, 218 citing for example Agopian, 'Parental Child Stealing: Participants and the Victimisation Process' (1980) 2-4 Victimology: An International Journal 5; D Finkelhor, G Hotaling, and A Sedlak, 'Children Abducted by Family Members: A National Household Survey of Incidence and Episode Characteristics' (1991) 53 Journal of Marriage and the Family 805.

[148] Beaumont, and McEleavy, above n 4, 10; see also J Reddaway and H Keating, 'Child Abduction: Would Protecting Vulnerable Children Drive a Coach and Four Through the Principles of the Hague Convention?' (1997) 5 International Journal of Children's Rights 77, 443.

[149] See also N Lowe and A Perry 'International Child Abduction — The English Experience' (1999) 48 International and Comparative Law Quarterly 127.

[150] Lowe, Armstrong and Mathias, above n 2.

[151] Everall, Lowe and Nicholls, above n 2, 220. The statistic is similar for males.

[152] Lowe and Perry, above n 149, 136. Noted in cases such as Murray v Director, Family Services (ACT) [1993] FamCA 103; (1993) FLC 92-416, 80 (Nicholson CJ) as referred to in M Kaye, 'The Hague Convention and the Flight from Domestic violence: How Women and Children are Being Returned by Coach and Four' (1999) 13 International Journal of Law, Politics and the Family 191, 193. See for example Everall, Lowe and Nicholls, above n 2, 221 as to the disputed nature of the claim.

[153] Kaye, above n 152, 197.

[154] This argument is disputed in Girdner, Chiancone and Johnston 'International Child abductors: Profile of the Abductors Most Likely to Succeed' (Paper presented at the 2nd World Congress on Family Law and the Rights of Children and Youth, San Fancisco, 3 June 1997), cited in Lowe, Armstrong and Mathias, above n 2, which suggests that both mothers and fathers are equally as likely to abduct children.

[155] For example, P Tapp, 'Welfare of the child and abduction' [2007] New Zealand Law Journal 77, 80. The change in the profile of abductors was noted in TB v JB (Formerly JH) [2000] EWCA Civ 337, 340.

[156] See, for example, the report of the Permanent Bureau of the Hague Conference on Private International Law Third Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 17-21 March 1997, [59]. The report can be accessed at <http://www.hcch.net/index_en.php?act=conventions.publications & dtid=2 & cid=24.html> .

[157] Re C (Abduction: Grave risk of physical and psychological harm) [1999] 2 FLR 478, 488.

[158] Re HB (Abduction: Children's objections) (No 2) [1998] 1 FLR 564, 568.

[159] A possibility also recognised by Pérez-Vera: Pérez-Vera, above n 1, [109].

[160] See generally Schuz, above, n 15.

[161] Ibid 802.

[162] Secretary for Justice v HJ [2007] NZFLR 195, [137].

[163] It is noted that a preference has been shown for the approach in KS v LS [2003] 3 NZLR 837 that the exception in art 13(b) should not receive a wide interpretation, thus rejecting the approaches in El Sayed v Secretary for Justice [2003] 1 NZLR 349 and DP v Commonwealth Central Authority (2001) 206 CLR 401, however this was in relation to the definitions of 'grave risk' and 'intolerable', and not the exercise of the discretion. The approach advocated above does not support a broad definition of settlement.

[164] Secretary for Justice v HJ [2007] NZFLR 195, [137].

[165] This approach to the impact of settlement and concealment is also the approach adopted by the majority, see Secretary for Justice v HJ [2007] NZFLR 195, [69]; cf Cannon v Cannon [2005] 1 FLR 169 (Thorpe J).

[166] Re C (Abduction: Settlement) [2004] EWHC 1245 (Fam), [36].

[167] Pérez-Vera, above n 1, [107].

[168] The concept of setting a 'high threshold' was recognised in U v R [1998] NZFLR 385, 395.

[169] P Tapp, 'Welfare of the child and abduction' [2007] New Zealand Law Journal 77, 77. The increase in abductions by mothers attempting to escape domestic violence was also discussed in the report of the Permanent Bureau of the Hague Conference on Private International Law Third Meeting of the Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, 17-21 March 1997, [59]. The report can be accessed at <http://www.hcch.net/index_en.php?act=conventions.publications & dtid=2 & cid=24.html> .

[170] Secretary for Justice v HJ [2007] NZFLR 195, [39].

[171] Smith v Adam [2006] NZCA 494; [2007] NZFLR 447, [13] (Court of Appeal).

[172] P v B (No 2) (Child abduction: Delay) [1999] IESC 32; [1999] 4 IR 185; Coates v Bowden [2007] (High Court, Auckland CIV 2006-404-7028, 30 May 2007, Winkelmann J), [99] that delay and settlement can go to the weight of the residual discretion even if not exceptions in their own right; Butler v SJ [2007] NZCA 210; [2007] 3 NZLR 447, [21].

[173] Butler v SJ [2007] NZCA 210; [2007] 3 NZLR 447, [23]; Re C (No 2) [2005] 1 FLR 938 (Fam), [60]; cf. the traditional position as to how grave risk is assessed in A v Central Authority [1996] 2 NZLR 517, 522.

[174] Cf Re L (Abduction pending criminal proceedings) [1999] 1 FLR 433.

[175] Re M (Children) UKHL 55, [57] (Hale LJ).


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/journals/CanterLawRw/2008/1.html