New Zealand Law Students Journal
Last Updated: 14 January 2013
THE HAGUE CONVENTION
ON INTERNATIONAL CHILD ABDUCTION: POLICY, ISSUES AND FUTURE REFORMS
The aim of this paper is to examine the policy problem of international child
abduction. International child abduction involves
the abduction of a child
by a parent from their home country (place of habitual residence) to
another state. Prior
to the establishment of the Hague Convention, the
legal position regarding international child abduction was
unsatisfactory.1 An overseas custody order was unlikely to be
recognised and enforced in another state and the only real remedy
was for the parent left behind to attempt to gain a custody order
in the country where the child had been abducted to.
This provided a
very unjust situation, as the legal proceedings were normally lengthy and at a
high cost and placed the left behind
parent at a disadvantage of having to fight
a court case in unfamiliar surroundings. Furthermore, there were potentially
situations for courts in which two jurisdictions would reach
different decisions on the custody of a child and would appear
questioning the law in the other jurisdiction. The response from the
international community saw the Hague Conference on Private
propose the Hague Convention on the Civil Aspects of International Child
Abduction (the Convention) in 1980.
The Hague Convention was essentially a compromise as it was not
possible for all states to agree to the harmonisation
of the rules of
jurisdiction or criteria for the recognition and enforcement of existing
custody orders.2 Instead of using traditional private law
* Candidate for LLB (Hons); BA, University of Auckland.
1 David McClean, The Hague Convention on the Civil Aspects of International Child Abduction
Explanatory Document (Commonwealth Secretariat, Britain, 1997), 2.
2 Paul R. Beaumont and Peter E. McEleavy, The Hague Convention on International Child
Abduction (Oxford University Press, New York, 1999),
The New Zealand Law Students’ Journal (2007) 1 NZLSJ
Hague Convention provides a procedural framework that operates through
Central Authorities in each state, and is based on the
summary return mechanism.
This mechanism automatically returns an abducted child to their place of
habitual residence.3 The basis for the summary return mechanism is
the assumption that automatic return is in the best interests of the
child.4 At the time of the drafting of the Convention, international
child abduction cases were based on the paradigm abduction
that involved the non-resident and non-custodial parent (usually the father)
abducting his child in order to gain
a more favourable custody order
in another jurisdiction.5 In the situation of the paradigm
abduction case, automatic return is in the child’s best interests
as the child
is returned to their primary carer, to an
environment that they are familiar with and allows the custody dispute to
heard in the place of habitual residence.6 The compromise
evident in the Convention was between states’ original reluctance
to cede their ability to look into
the merits of individual cases and
the simplicity that the summary return mechanism provides.7
Since 1980, socio-legal and technical developments have led to change in the
profile of the child abductor. It is now more common
for the abductor to be
female, the primary caregiver, and to be returning to their country of
origin to escape domestic violence.8 The change in the paradigm
abduction case has led to inevitable difficulties in the assumption
that summary return is
in the child’s best interests. There is a tension
between the summary return mechanism that does not consider the
individual welfare of the child, the fundamental principles of New Zealand
family law, and the United Nations Convention on the Rights
of the Child (UNCRC)
which holds the welfare of the child as of paramount importance. This
tension was recognised with
the passage of the Guardianship Amendment Bill
1991, which incorporated
3 Beaumont and McEleavy, above n 2, 21.
4 Margaret Casey and Lex de Jong, ‘Hague Convention on Civil Aspects of Child
Abduction’ Seminar presented to the New Zealand Law Society, New Zealand, March
5 Beaumont and McEleavy, above n 2, 3.
6 Elisa Pérez- Vera Explanatory Report (1982) Hague Conference on Private International
Law <http://hcch.e-vision.nl/upload/expl28.pdf> (at 20 May 2006).
7 Beaumont and McEleavy, above n 2, 20-21.
8 Mary O’Dwyer, “Current Issues in Hague Convention Cases: A New Zealand
Perspective” (2002) 4 BFLJ 5.
The Hague Convention: Policy, Issues and Future Reform 201
the Convention into New Zealand law, yet little was understood as to its
implications. The policy process regarding the Convention
seems to have been
driven by public perception of the need for the government to act after highly
publicised international child
abduction cases. The context of domestic
violence also poses conceptual difficulties for the summary return mechanism.
of these tensions, New Zealand has remained steadfast in its
application of the Convention. However, New Zealand has been prepared
extend the scope of the Convention to allow not just parents with rights of
custody to seek an order for return, but also
those with rights of
access. It is evident that the Convention needs to adapt to the changing
context of child abduction.
The difficulty is to attain reforms that do not
undermine the entire functioning of the Convention. The focus of this
paper is on the tensions between the Convention, the best interests of
the child, domestic violence and the New
Zealand interpretation of
rights of custody.
A. The Hague Convention
1. Provisions of the Convention
The preamble of the Hague Convention states that the purpose of the
Convention is “to protect children internationally
harmful effects of their wrongful removal or retention...”9
This purpose is principally met through the objectives of the Hague
Convention as set out in Article 1. They include the prompt return
wrongfully removed or retained in any Contracting State and to ensure that
rights of custody under the law of one Contracting
State are respected in the
other Contracting State.10 In order to invoke the Hague
Convention and obtain the return of an abducted child there are four
requirements. Firstly, that the
child was removed from the child’s place
of habitual residence to a Contracting State. Secondly, that the removal of the
breached the parent in the home country’s rights of custody.
Thirdly, at the time of the removal, those rights of custody
9 Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 1980, 19 ILM 1501, preamble, (entered into force November 1980) (“Hague Convention”).
10 Nigel Lowe, Mark Everall and Michael Nicholls, International Movement of Children
(Jordan Publishing Limited, England, 2005) ch 12, 198.
been exercised by the parent in the home country. Lastly, that the child was
habitually resident in the home country immediately before
The Convention provides five defences that may defeat an order for return. Firstly, the application was made more than one year after the removal of the child and that the child is now settled in the new environment.12 Secondly, that the applicant was not exercising custody rights at the time of the removal or that the applicant consented to the removal.13 Thirdly, that there is a grave risk that the return would expose the child to physical or psychological harm or would place them in an intolerable situation.14 Fourthly, that the child objects to being returned (often called the “child objects” defence), if at an age and degree of maturity that it is appropriate to give weight to their view.15
Lastly, that the return of the child is not permitted by the fundamental
principles of New Zealand law relating to the protection
of human rights
and fundamental freedoms.16
2. Underlying Assumptions
The Convention is designed to minimise the effects of abduction upon the child and provide a deterrent to parents contemplating abduction.17
These goals are met through the summary return mechanism.18 These
goals and the summary return mechanism reflect two underlying assumptions. The
first assumption is that summary return is in
the best interests of the child.
This assumption is only true in the context of the paradigm abduction case as
envisaged in 1980.
The difficulty with this assumption is that developments in
society since the time of drafting have led to a change in the prototype
abductor. The second assumption
11 Care of Children Act 2004, s 102. The Care of Children Act 2004 replaced the
Guardianship Amendment Act 1991.
12 Care of Children Act 2004, s 106(1)(a).
13 Care of Children Act 2004, s 106(1)(b)(i)-(ii).
14 Care of Children Act 2004, s 106(1)(c)(i)-(ii).
15 Care of Children Act 200, s 106(1)(d).
16 Care of Children Act 2004, s 106(e).
17 Anne- Marie Hutchinson, Rachel Roberts and Henry Setright, International Parental Child
Abduction (Family Law, United Kingdom, 1998), 4.
is that child abduction is harmful. The change in the profile of the child
abductor has revealed the high incidence of child abduction
in order to escape
domestic violence.19 In the context of domestic violence, the
abduction may actually remove the child from harmful circumstances. Therefore,
that summary return is in the best interests of the child and
that the abduction is harmful are questionable in the context of the
prototype abduction and domestic violence.
2. Compromise and Tensions
At the drafting of the Convention, the summary return mechanism was decided
upon as a compromise.20 This mechanism provided a simple
alternative to harmonising rules and received a great deal of political
support.21 It also resolved the problem of conflicting custody
orders being made by different jurisdictions and the subsequent disregard
the principle of comity that requires respect for the laws of other states. The
main debate between states centred on the exceptions
to summary return.22
There was significant support by some states for only allowing narrow
exceptions to summary return to prevent the Convention being
The summary return mechanism was a novel idea and represented a major
change, as the courts would no longer be able to determine
abduction cases on
the basis of the best interests of the individual child.24
Therefore, some states were hesitant to accept the summary return
mechanism and successfully advocated for the
inclusion of a public
policy clause. This clause allowed states to refuse an order for return if
it was incompatible with
its fundamental principles of the law relating
to the family and children.25 This clause would have resolved
the tension between the summary return mechanism and the fundamental
New Zealand family law. However, there was fierce opposition to
this clause, as it was seen as
19 O’Dwyer, above n 8, 9.
20 Beaumont and McEleavy, above n 2, 21.
21 Ibid 21.
22 Ibid 22.
25 Ibid 23.
weakening the Convention, and it was eventually replaced with a more
The political momentum that followed the Hague Convention
facilitated the making of concessions in order to reach a
The concessions made were that courts would no longer be able to inquire
into the individual merits of child abduction cases
and that the
exceptions to summary return were very narrow. Accordingly, states gave
up the right to refuse an order for
return on the basis that it was not in the
best interests of the child. Consequently, the operation of the Convention has
tensions between the assumption that summary return is in the best
interests of the child and an individualistic approach
the best interests of the child on a case by case basis. It has been noted that
the Convention emphasises the
good of children generally by seeking to
deter parents from unlawfully abducting a child and, as a result, the
is a step removed from an individualistic child-centred
approach inherent in the best interests of the child philosophy
family law.”28 This tension is highlighted by the paramountcy
of the best interests of the child in the UNCRC and New Zealand family law and
subordination of the best interests of the individual child in the
Convention. As noted above, particular focus will be
placed on the tension
between summary return and the best interests of the child and the context of
domestic violence. In addition,
this paper will discuss the tension between New
Zealand’s rigid application of the Convention generally, and the liberal
New Zealand has adopted towards rights of custody.
B. Incorporation of the Hague Convention into
New Zealand Law
The Hague Convention was incorporated into New Zealand law through
the Guardianship Amendment Act 1991 that implemented
the particulars of the
Convention through legislative provisions rather than incorporating the
Convention directly. At the time
the Guardianship Amendment Bill 1990 (the
Bill) was introduced, politicians were aware of the unsatisfactory legal
child abduction as there
27 Beaumont and McEleavy, above n 2, 21.
28 Ibid. 13.
had been highly publicised international child abduction cases in New
Zealand.29 In the Morgan/Foretich case, an American woman claimed
her husband had abused her child and abducted the child to New Zealand.30
Despite an American court finding that there was
inconclusive evidence of abuse, the mother was able to gain a custody
her favour in New Zealand.31 This case was seen as
epitomising the fact that New Zealand had become a safe haven for child
abductors and highlighted
the need for New Zealand to ratify the Hague
As is common in the policy process, often a highly publicised event
forces the government to legislate to rectify a situation.
In the case of child
abduction, it is probable that the heightened publicity of the Morgan/Foretich
case meant that the Government
needed to be seen to be doing something and was
a strong motivation behind the incorporation of the Convention. Therefore,
is questionable as to whether the ratification of the Convention by
the Government was driven by the impact of the problem
of child abduction on
public consciousness, rather than the desire to resolve the problem of child
1. Policy Considerations
The arguments for and against the Hague Convention were evident
during the Parliamentary Debates. The general focus of the
debates was over the
adequacy of the exceptions to summary return. Paul East was concerned that the
discretion to refuse to return
a child was not wide enough to prevent a
court from having to return a child to a detrimental situation.33
He recognised that the discretion is very limited and not as wide as the
basic and fundamental principle of New Zealand family law
that the welfare
of the child is always paramount.34 This highlighted that there
was recognition during the policy process of the
29 (1990) 507 New Zealand Parliamentary Debates 1544 (Warren Kyd).
30 Re the M Children (2002) 21 FRNZ 67.
31 Re the M Children , above n 30, 67.
32 Sarah Prestwood, ‘Child abduction: hide and seek’ The Dominion (Wellington, New
Zealand, 3 November 2001) 1, 4.
33 (1990) 507 New Zealand Parliamentary Debates 1541 (Paul East).
tension between the Convention and New Zealand family law. However, this is contradicted by Lianne Dalziel’s comment that New Zealand family law is very much focused on the interests of the child and “that, of course, is the priority being adopted in the Bill tonight”.35
The Convention does not prioritise the interests of the child, as is done so
in New Zealand family law. The initial concern
expressed by members of
the opposition and Paul East, were resolved through acceptance that the
exceptions to summary return
must be narrow in order to prevent a full
custody hearing after every application for a child to be
In submissions to the Justice and Law Reform Select Committee, the New
Zealand Law Society and Professor Angelo of Victoria University
concern over section 23 of the Guardianship Act which required courts to
“regard the welfare of the child
as the first and paramount
consideration” and the possibility that this section could defeat
the Convention.37 This shows that the tension between the Convention
and the best interests of the child that are fundamental to New Zealand family
law is again recognised. The Select Committee clarified, that, although the
Hague Convention is based on the premise that the
best interests of the child
are of paramount importance, this is qualified by the fact that in
international child abduction
cases the interests of the child are best met
through summary return.38 The assumption that summary return is
in the best interests of the child continued to be a major justification
procedures within the Hague Convention and has later proven to be
problematic in some situations. At the time the Bill was introduced,
not appear to be any international obligations that the Convention needed to be
reconciled with. Although there
are inconsistencies between the
UNCRC and the Convention, New Zealand did not ratify the UNCRC until
35 (1991) 513 New Zealand Parliamentary Debates 1201 (Lianne Dalziel).
36 (1991) 513 New Zealand Parliamentary Debates 1202 (Paul East).
37Carolyn Pritchett, Summary of Issues Raised During the Hearing of Evidence and in Written
Submissions to the Justice and Law Reform Select Committee on the Guardianship Amendment Bill
1990 (24 July 1990), 4.
38 Secretary for Justice to Justice and Law Reform Committee, 24 July 1990.
39 Peter Boshier, ‘Care and Protection of Children: New Zealand and Australian
Experience of Cross-Border Cooperation’ (2005) 5 NZFLJ
The incorporation of the Hague Convention into New Zealand
domestic law was characterised by acceptance of the
the Convention. Particularly, the assumption that summary return was
in the best interests of
the child and that the prototype abductor was
true for New Zealand.40 Although there was no national interest
analysis done for this time period, a memorandum for the Cabinet
shows that, firstly it was accepted that the Convention
was aimed at the prototype abductor and that this was not questioned. Secondly,
that the Convention met the best interests of the child through summary
return.41 Furthermore, this memorandum states that the Bill
provides no areas of contention or policy implications that
further analysis.42 During the policy process, there was no
discussion over whether these assumptions and the framework the Hague Convention
within are relevant for New Zealand. The underlying tension between the
paramountcy of the best interests of the child and
the operation of
the summary return mechanism in the Convention has been recognised
in the Select Committee stage
and specifically legislated to prevent any
confusion. However, during the parliamentary debates, it is clear that some of
politicians did not understand that the Convention is not in line with New
Zealand family law. It was concluded that summary
return with limited
exceptions was necessary to prevent a full custody hearing from occurring after
every application for a child
to be returned.43
2. Subsequent Developments
Since the implementation of the Bill, the legislation has not significantly
changed. It was necessary to amend the Act in 1994, as
the definition of
“rights of custody” in the Guardianship Amendment Act 1991 was
narrower than the definition in the
Convention. There has been a wide range of
case law involving the Convention and common issues that the courts have
with include questions regarding habitual residence, rights of
custody and the established defences to an order for return.
It appears that the
driving force behind the development of the
40 New Zealand Parliamentary Debates, above n 33, 1540.
41 Minister of Justice Memorandum for Cabinet Legislation Committee (1989), 1.
43 (1991) 513 New Zealand Parliamentary Debates 1202 (Paul
law in this area is a strong desire to continue to uphold the spirit of the
Convention and the summary return mechanism. In
addition, the principle
of comity continues to restrain judges from making decisions that appear to
criticise another state’s
legal system. For example, judges are reluctant
to allow the establishment of the grave risk defence in the situation of
violence as it is seen to be saying that the legal system of the place
of habitual residence is unable to protect the victim and
C. International Child Abduction and the
Best Interests of the Child
The Convention assumes that the best interests of the child are met
through the summary return mechanism. As the Convention
is based on the
prototype abductor, it is presumed that the child will be returned to their
primary carer, their home and that that
the custody dispute will be heard in an
environment that is familiar. However, this approach to child abduction allows
child’s best interests to be subordinated to the interests
of children collectively.44 The Court in S v S summarised
this position by saying:
The provisions of the Act and the Convention also make it clear that the
issue before the Court is not the best interests of the
children as such, but
rather the choice of forum where those best interests are to be
Essentially, the Convention is about determining the forum for the
custody dispute to be heard rather than ascertaining
the best interests of the
child on a case by case basis. A strong criticism of the Convention
is that this approach
will at times lead to the return of a child when it is
not in their best interests and may cause harm. The difficulty with the
approach in the Convention was evidenced in KS v LS46 and
A v A,47 which are discussed below. As has been discussed,
the Convention’s approach to the best interests of the child
is inconsistent with New Zealand family law in general and the
44 Beaumont and McEleavy, above n 2, 29.
45 S v S  3 NZLR 528, 530 (CA).
46  NZFLR 817.
47 (1996) 14 FRNZ 348.
In KS v LS, 48 a mother abducted her daughter to New
Zealand from Australia. The Family Court in New Zealand found that in the
circumstances a return
order would expose the child to grave risk of
psychological harm and place the child in an intolerable situation, as the
had been diagnosed with breast cancer and was unable to return
to Australia with the child.49 The Family Court held that it was in
the best interests of the child that the mother and child were not
separated.50 The High Court overturned this decision on the basis
that the judge in the Family Court had erred in the emphasis placed on the
illness and had not displaced the presumption of summary
return, nor met the high threshold for the defence.51 The High Court
continued with the approach that the best interests of the child are met through
summary return and determination
of the custody dispute in the place of
Another controversial case was that of A v A52, in which
the mother abducted her child from Denmark to New Zealand. The mother
claimed that the father had sexually abused
the child. Despite evidence that
the child had a real fear of returning to Denmark because the abuse
may continue, an
order for return was still made. The mother then took the
child into hiding, as she was so concerned for the welfare of the child
order for return was made.53 These cases highlight the tension
between the summary return mechanism and the best interests of the child, which
may not warrant
an order for return.
1. New Zealand Family Law
In New Zealand, the consideration of the welfare and best interests of the child is a fundamental basis and guiding principle in family law.54 In section 4(1)(a)-(b) of the Care of Children Act 2004, it states that the welfare and best interests of the child should be the first and
48 KS v LS, above n 46, 817.
50 KS v LS, above n 46, 818.
52 A v A, above n 47, 348.
paramount consideration in the administration and application of this Act
and in any other proceeding involving the guardianship
child.55 Similarly, the Child, Young Persons and Families Act
(CYPF Act) states that one of the guiding principles it applies to achieve
objectives is that the welfare and best interests of the child is
the primary consideration and that young people
must be protected from harm,
their rights upheld and welfare promoted.56 However, the Care of
Children Act 2004, in section 4(7), expressly prevents the
paramountcy principles in section
4 from overriding the provisions
relating to child abduction. It is clear that there is an inconsistency
paramountcy of the best interests and welfare of the child that is
fundamental to New Zealand family law and the operation of the
was recognised by legislators in section 4(7).
During the incorporation of the Convention into New Zealand law, this
tension between the Convention and New Zealand family
law was partly recognised.
At the Select Committee stage, a specific clause was inserted into the Bill to
prevent the fundamental
principles of family law from overriding the
Convention. However, the Parliamentary Debates show that some of the
politicians did not understand the tension between the Convention and New
Zealand family law. During the drafting of the Convention,
states were concerned
that they would no longer be able to refuse to return a child if it was not in
the child’s best interests.
This tension was not resolved, as a wide
discretion to refuse an order for return was problematic as it would defeat the
It would have been difficult to agree to harmonise family law rules,
and the procedural framework in the Convention was a pragmatic
required concessions in order to reach a workable solution. Within New
Zealand, there was no discussion
on how the Convention was a compromise
and the implications that resulted.
The situations that have arisen in KS v LS and A v A highlight
that the policy process in New Zealand did not contemplate that the application
of the Convention would lead to the return
of children in extremely
detrimental situations. There was a general acceptance that the
Convention was a step
forward in the area of child abduction and it
55 Care of Children Act 2004, s 4(1 (a)-(b).
could not be rendered unworkable by allowing substantive hearings
every time an application for return was made. There
criticism towards the Convention for placing the interests of children as a
class above the interests of the individual
child through the summary return
mechanism.57 In light of the emphasis on the welfare and best
interests of the child in both New Zealand family law generally and the CYPF
the Convention places the interests of the child in a contrary
2. United Nations Convention on the Rights of the Child
Since the drafting of the Convention, there have been significant
developments in the law relating to children’s rights.58 The
Convention is based on traditional notions of parental rights and the welfare of
the child rather than specific children’s
Convention sought to balance the welfare of the individual child with the
welfare of children generally by adopting the summary
mechanism.60 In recent times, there has been increasing criticism
that the summary return mechanism is inconsistent with the UNCRC. The UNCRC
details the rights of children as being entitled to the same basic human rights
as adults and additional rights as a result of being
Article 3 of the UNCRC states that the best interests of the child shall
be a primary consideration in all actions concerning children.
It is apparent
that there is a tension between the approach to the best interests of the child
in the Convention and article 3 of
The main judicial attempt to reconcile the Convention and the UNCRC is that
the best interests of the child are only relevant to
disputes and not Hague Convention applications, as they are only concerned
with establishing the best forum
for the custody dispute to be heard and not the
individual merits of the case.62 Accordingly, it is said that the
jurisdiction to determine the child’s best interests is simply
57 O’Dwyer, above n 8, 9.
58 Rhona Schuz, ‘The Hague Child Abduction Convention and Children’s Rights’ (2002)
12 Transnat’l L. & Contemp. Probs. 393, 397.
61 Ibid 401.
62 Ibid 436.
transferred to the state where the child was abducted from.63
This is not a compelling argument as it does not accord with Article 3
where the best interests of the child must be the primary consideration.
There are two further criticisms to this argument. Firstly, the actual return of
the child itself can impact on a child’s
welfare as it may expose the
child to harm. Secondly, after the return of a child, the courts are reluctant
to allow a child to be
moved again. The child’s need for stability is
likely to override a decision that it is in the best interests of the child
to be permitted to leave the country.
Furthermore, this argument requires that the courts in the home
country apply the principle that the best interests of the
child are paramount
in determining the custody dispute. During the drafting of the Convention, it
was noted that the summary return
mechanism may not be appropriate as states
have different levels of social and legal development.64
However, the state hearing the application for return is unlikely to
refuse the return if the legal system in the state the child
is to be returned
to does not determine custody disputes on the basis of the best interests of
the child. This is because judges
are reluctant to make decisions that appear
to be criticising the legal system of another jurisdiction as this is highly
The argument that the summary return mechanism is consistent with
the best interests of the child is very weak. It cannot be guaranteed
return is in the best interests of the child and that the subsequent custody
dispute will be determined in accordance with the
best interests of the
There is also increasing awareness that the policy of expediency in the Convention which requires the child to be returned as quickly as possible and which does not allow expert reports, oral evidence, cross examination or counsel for the child is inconsistent with the UNCRC. Article 12 of the UNCRC states that parties must ensure that a child who is capable of formulating his or her own view, is given the right to express those views freely in all matters affecting the child, and have their views given due weight according to their age and maturity.65
There is a tension between the perception of the child as dependent under
the Hague Convention (as was the general perception
64 Beaumont and McEleavv, above n 2, 19.
65 O’Dwyer, above n 8, 10.
child at the time of drafting the Convention), and the notion that the child
is a unique individual, who is entitled to participate
in matters that affect
them.66 Article 12 of the UNCRC requires proceedings under the Hague
Convention to adopt a procedure that allows a child the information
and support required to form and express their view and have it understood
properly.67 Accordingly, in VP v A, 68 Judge
Doogue accepted that legal and social changes since 1980 required the courts to
take a more child-focused interpretation of
the Hague Convention. He ordered
that in the situation of the “child objects” defence being raised,
the child has the
right to counsel.69 Accordingly, the development
of children’s rights as evidenced in the UNCRC is beginning to affect the
application of the Convention.
3. Policy Recommendations
The summary return mechanism was a compromise between protecting the
interests of the individual child, and protecting the
children generally.70 The result was that an inevitable
tension arose between the summary return mechanism, and the best interests of
child which is prevalent in New Zealand family law, and the
UNCRC. Prior to the Convention, abduction cases could be decided upon
best interests of the child in the state the child had been abducted
to. The problem was that the concept of “best
indeterminate, with a wide range of factors being considered.
Therefore, judges had a wide
discretionary power in custody dispute
cases.71 This wide discretionary power led to great
uncertainty and varied decisions, meaning that abductors may have gained a more
favourable outcome in another jurisdiction.72 Part of the
function of the summary return mechanism is to protect children
66 Emma Parsons and Pauline Tapp, ‘Case Note: The Hague Convention in the 21st
Century -An Issue of Process: VP v A’ (2005) 5 NZFLJ 23, 25.
68  FRNZ 141.
69 V v A, above n 69, 141.
70 Beaumont and McEleavy, above n 2, 21.
71 Jude Reddaway and Heather Keating, ‘Child Abduction: Would Protecting Vulnerable Children Drive a Coach and Four through the Principles of the Hague Convention’ (1997) Int’l J. Children’s Rts. 77, 79.
72 Ibid 84-85.
deterring parents from abducting their child to another state in an
attempt to gain a more favourable custody order. The
summary return mechanism
avoids an embarrassing situation, where a court decides a custody dispute
differently from another jurisdiction.73
The use of the summary return mechanism in the Convention has led to a
tension between the fundamental principles of New Zealand family
law and the
UNCRC. Both New Zealand family law and the UNCRC place the welfare of the child
as the paramount consideration in determining
custody disputes. The assumptions
within the Convention focus on the best interests of the child being met through
the summary return
mechanism. In this approach, the best interests of the child
are often subordinated in order to ensure the Convention
not undermined. The implications of this tension were seen in KS v LS and
A v A. In these cases, the New Zealand courts were forced to return a
child when it is not in their best interests. As has been
actual return may cause harm to the child and it cannot be guaranteed that other
states will determine custody disputes
on the basis of the best interests of
In order to conform to the UNCRC and general family law principles, the
courts should move towards an approach that would allow for
situations in which
an order for return can be refused where it is clearly not in the best interests
of the child. This more child
focused approach would allow the courts greater
scope to refuse an order for return when it could result in harm to the
This child-focused approach is criticised because it may
marginalise the deterrent effect of the Convention and
purpose of the Convention.74 However, this is a weak argument as
the courts would only utilise this approach in limited situations.
Furthermore, this approach
would not require the courts to look into the
merits of each individual case as this would defeat the purpose of the
In reality, there is little political will to bring about significant changes
to the application of the Convention. New Zealand has
often stated the need to
uphold the Convention when faced with the tension between
73 Ibid 86.
74 Schuz, above n 58, 397-398.
75 Ibid 451.
the best interests of the child and the summary return mechanism. In order
to remain effective in protecting children and
combating the practice of
child abduction, there is a need for the application of the Convention to
continue to adapt to developments
D. International Child Abduction and Domestic Violence
Increasingly, child abduction situations involve a mother who has
custody, returning to her country of origin in order to
violence.76 Domestic violence poses conceptual difficulties
for the Hague Convention, as the summary return mechanism may return
child to a situation of domestic violence. This was seen in M v M77
and H v C,78 where an order for return was upheld
despite serious domestic violence. Originally, it was thought the summary return
protected domestic violence victims. This was based on the
assumption that the batterer would be the father and the abductor and
the return of the child would be the safest option.79 The
Hague Convention does provide for the “grave risk” defence,80
which prevents the return of a child. However this defence has been
narrowly interpreted by the courts.81
The “grave risk” defence is often unsuccessful, because courts
prefer to continue to opt in favour of summary return
where the Contracting
State that the child is to be returned to can adequately protect the
child.82 This dilemma raises questions over whether New
Zealand should continue to apply the summary return mechanism in the context
domestic violence, especially given the inadequacy of the “grave
risk” defence. Undertakings and mirror
orders are policy
76 Merle H Weiner, ‘International Child Abduction and the Escape from Domestic
Violence’ (2001) 69 Fordham L. Rev. 593, 595- 596.
77  NZFLR 769.
78 [15 February 2001] Family Court, Wellington.
79 Roxanne Hoegger, ‘What if She Leaves? Domestic Violence Cases under the Hague Convention and the Insufficiency of the Undertakings Remedy’(2003) 18 Berkeley Women’s L.J. 181, 187.
80 Care of Children Act 2004, s 106(1)(c)(i)-(ii).
82 Merle H Weiner, ‘The Potential and Challenges of
Transnational Litigation for Feminists Concerned About Domestic Violence Here
and Abroad’ (2003) 11 Am. U.J. Gender Soc. Pol’y & L. 749,
that are frequently used to protect the child upon return.
In M v M, 83 the mother abducted her four
children from the United States to New Zealand. The mother objected to returning
to the United States
on the basis that the return would expose the children to
grave risk of psychological harm and would place them in an
situation as the father had been convicted of sexual assault against
two of the children, and of assaulting the mother.84 Despite
Bisphan FCJ concluding that there was evidence that returning to the United
States would expose the children to psychological
harm, the decision
was made that the harm would be of a limited nature and extent and,
therefore the children
were ordered to be returned to the United
States.85 Similarly, in H v C 86, an order was
made for return of the children to Australia despite evidence of very
serious domestic abuse including wounding
with a knife. The mother was also
suffering from depression as a result of the violence and there was evidence
that if she was returned
to Australia the depression and further drug abuse
would be likely to occur.87 The Court held that the defence of grave
risk was not established and that there was adequate protection available in
driving force behind these decisions would appear to be the
desire to uphold the Convention and not allow the high threshold for
establishing the “grave risk” defence to be lowered. There has
consistently been a genuine concern that allowing
more discretion when
making orders for return will render the Convention unworkable.
1. Best Interests of the Child
Within the Convention, the emphasis on the mechanism of summary return
being in the best interests of the child is
based on the assumption
that the effects of child abduction are always harmful to the child. However,
with domestic violence,
the abduction by the fleeing parent may have removed
the child from a dangerous situation. Merle Weiner, states that most
relating to the effects of domestic violence is based on negative
effects upon the child as a result of living
83 M v M, above n 78, 769.
85 M v M, above n 78, 779-780.
86 H v C, above n 79.
in secrecy after being abducted.88 It has been said
that a true representation of the effects of child abduction is
more like a continuum, with
the effects being dependent on the particular
circumstances.89 For example, a child being abducted and
removed from a harmful environment is unlikely to be as negatively affected as a
who is abducted by a batterer and forced to live in hiding.
Given the nature of domestic violence, the summary return mechanism is
inconsistent with the best interests of the child. Children
are affected by
domestic violence in numerous ways and the effects of domestic violence
cannot be separated from custody issues.90 It has been found that if
a parent abuses the other parent, there is a high likelihood that they will also
abuse the child.91 There is often an incorrect assumption in
domestic violence cases that parental separation will stop a child from
detrimentally affected by domestic violence. Domestic violence
still affects children if they no longer see it happening,
as the victim’s
emotional distress is evident. There are also concerns that a batterer may
continue to harass the other
parent once the child and abductor have
returned and use the child as a means to facilitate violence. It is
that the summary return mechanism is inconsistent with the
best interests of the child and does not fit with the nature
2. “Grave Risk” Defence
The “grave risk” defence allows an application for the return of
a child to be refused where there is a grave risk that
his or her return would
expose the child to physical or psychological harm, or otherwise place the
child in an intolerable situation.
This defence was drafted to accommodate
situations in which summary return would be detrimental to the child, yet
were careful to avoid a general public policy or welfare
defence that would defeat the overall purpose of the Convention to
abductions and provide a fast return mechanism.92
88 Weiner, ‘International Child Abduction and the Escape from Domestic Violence’,
above n 77, 619.
89 Ibid 620.
90 Hoegger, above n 80, 184.
91 Ibid 185.
92 Schuz, above n 55, 441.
The onus is on the person trying to claim the defence. This was
intended to put the dispossessed person in the same
position as the
abductor.93 However, in the situation of domestic violence, the
victim who has abducted their child to escape violence will
at a disadvantage and the batterer will be given the upper hand.
The courts have been faced with the dilemma of a Convention that is aimed at
abductions by non-custodial parents and the changed
profile of the typical
abductor. They, have thus tended to protect the integrity of the Convention and
allow summary return even
in questionable circumstances.94 In order
to establish the defence, the abductor must show that the place of habitual
residence is unable to provide for the protection
of the child upon
return.95 The courts are hesitant to say that another state cannot
provide for the protection of a victim of domestic violence, as this is seen
offensive and indicative that the other legal system is inadequate. In El
Sayed v Secretary for Justice96, the defence of grave risk was
established in the situation of serious domestic violence. The High Court
held that the grave
risk defence did not require a narrow
interpretation and that the harm did not have to relate to the return to the
of habitual residence.97 Although the High Court in KS v
LS98 agreed that the defence was established in El Sayed,
it was clarified that the correct approach to the defence of grave risk is
still to focus on the ability of the place of habitual
residence to protect
the child upon return.99 In addition, the defence is still intended
to be given a narrow interpretation.100
Recently, the Court of Appeal in HJ v Secretary for Justice 101
quashed an order for return and held that the defence of grave risk was
established in the situation of serious domestic violence.
93 Pérez, above n 6, 460.
94 Schuz, above n 55, 443.
95 John Caldwell, ‘The Hague Convention and a grave risk to children: recent developments’ (2003) 4 BFLJ, 191.
96  1 NZLR 349.
98  NZFLR 817.
99 Ibid 193.
101  2 NZLR 289.
major change to the approach taken by the courts to Convention cases and
domestic violence. Remarkably, this decision does not
appear to have been
criticised for its potential to weaken the Convention. This decision showed
that domestic violence is being
taken seriously and is authority for the
presumption that return is not to replace an evaluative analysis of the facts
when the defence
is raised. The approach in HJ and approval of the use of
the defence in El Sayed by the High Court in KS v LS shows that
there are some circumstances of domestic violence in which the courts will
be prepared to reject the presumption
of automatic return. This is
because the potential harm to the child is so serious that an inquiry into
whether the home country
can protect the child is almost irrelevant.102
The interesting question is whether New Zealand will be criticised for
weakening the approach under the Convention.
3. Undertakings and Mirror Orders
Given the high threshold required to meet the “grave risk” defence, undertakings provide a means for the court to protect the child upon return. Undertakings include actions such as restraining orders, temporary custody arrangements, provision of costs for the return and possible assurances to go straight to the Family Court upon return.103
The use of undertakings is designed to provide protection for the child until the receiving jurisdiction takes over responsibility for the child.104
The difficulty with undertakings is the inability of the state issuing them
to ensure that they are enforced in the state the child is returning to. In
an attempt to deal with this difficulty, courts have begun
to use mirror orders.
Mirror orders provide that measures such as protection orders are granted in
both the state hearing the Hague
Convention application and the state in which
the child is to be returned to.105 In addition to this, Hague
Convention liaison judges are used to facilitate communication between
the two jurisdictions
and ensure that protection measures are
adequate pending the return of the child. The
102 KS v LS, above n 99, 193.
103 Joseph Kay, ‘The Hague Convention - Order or Chaos?’ (2005) 19 AJFL 245, 279-
104 Danny Sandor, ‘Review of the Hague Child Abduction Convention: protecting both children and adults until and upon return?’ (2001) 15 AJFL 80, 82.
105 Ibid 83.
Special Commission Report of the Permanent Bureau in 1997 recommended that
Article 7(h) of the Hague Convention place an obligation
Authorities to protect the welfare of the child upon his or her
A strong criticism is that often the perpetrator of domestic violence will not obey measures such as restraining orders and no matter what protection is ordered the child will still be in danger upon return. In a study done by ‘reunite’ (a child abduction charity) it was found that in
66.6 percent of the cases studied, undertakings were not honoured by the
left behind parent upon the return of the child.107 It has been said
by some commentators that undertakings and mirror orders represent an
effective compromise between the need to
maintain the principle of summary
return that is fundamental to the philosophy of the Convention,
and finding a
means to protect victims of domestic violence.108 This
is questionable, as the courts seem to be forfeiting the need to guarantee
the safety of the child in order to uphold
the Convention. It is
clear that undertakings and mirror orders are a dubious compromise
that allows the summary
return principle to continue and seemingly
still provide protection to domestic violence victims. This is an area that
reform in order to address the nature of domestic violence in relation to
child abduction situations.
4. Policy Recommendations
In 1997, the Special Commission, which reviews the Convention, first
recognised the connection between domestic violence and the
changed profile of
the abductor. Despite this finding, little reform has been made to the
Convention to deal with this
issue.109 The difficulty is that the
recognition of domestic violence in situations of child abduction seems to
warrant a different remedy.
This is because the abduction is less morally
reprehensible. However, there is a tension between the philosophy of the
that assumes that the best interests of
106 Ibid 87.
107 Marilyn Freeman, ‘Outcomes for Abducted Children’  IFL 171, 174.
108 Hoegger, above n 80, 196.
109 Permanent Bureau Report of the third Special Commission
meeting (1997) Hague Conference on International Private Law
<http://hcch.e- vision.nl/index_en.php?act=publications.details & pid=2271 & dtid=2>
3 August 2006).
the child warrants automatic return, and the recognition that
in situations of domestic violence, summary return may
expose the child to harm.
The current situation requires rectification, as the Convention works in
favour of the abuser.110 The victim is at a disadvantage
because in most situations, the child will have to be returned, and the child
is likely to
be placed in close proximity to the abuser.111
The recent decision in HJ v Secretary for Justice, to allow
serious domestic violence to defeat an order for return, may initially resolve
this tension between summary return
and domestic violence. However,
this decision is likely to eventually attract criticism, as it undermines
It is still necessary to resolve the tension within
the operation of the Convention towards domestic violence.
policy options to address the problem of domestic violence include a specific
domestic violence defence and the extension
or codification of undertakings and
A specific domestic violence defence would allow an order for return to be
defeated, upon the establishment of domestic violence,
substantive hearing on the custody dispute to occur. This is
advantageous because the victim is not subjected
to having the child removed
from them, and the child is likely to remain with the primary carer.112
A specific domestic violence defence is the most straightforward
method of addressing this issue, and would send a
concerning potential harm to children from domestic violence.113
The use of a domestic violence defence is criticised in two ways. Firstly,
it is seen as contradicting the deterrence aim of the Convention.
because it would potentially make it possible for abductors to gain a better
custody order, than before they abducted the
child.114 Secondly, such
a defence may diminish the effectiveness of the Convention. This is
because application procedures would
be lengthened, and courts would
be able to delve further into substantive
110 Weiner “International Child Abduction and the Escape from Domestic Violence”,
above n 77, 634.
112 Barbara Lubin, ‘International Parental Child Abduction: Conceptualising new remedies through application of the Hague Convention’ (2005) 4 WUGSLR 415, 444.
113 Weiner, ‘International Child Abduction and the Escape from Domestic Violence’, above n 77, 694.
114 Sandor, above n 105, 87.
hearings instead of automatic return. However, the defence would
require clear evidence of domestic violence, and is not likely
to be able to be
used by opportunistic parents wanting to gain a better custody order. Despite
the logic behind a specific defence,
there is little political will to interfere
into what is regarded as a successful instrument.115
Another policy option is the codification of undertakings or the
extension of mirror orders. In order for
undertakings to be
a widespread solution to domestic violence there needs to be authorisation
of undertakings in the
Convention to allow them to be enforceable in all
contracting states.116 As undertakings are not
enforceable, states have preferred to use mirror orders. Mirror orders are
enforceable in both the
state hearing the application for return, and the state
the child is being returned to. There is also a need for further education
regarding domestic violence, to ensure that the use of undertakings and mirror
orders is effective, and most relevant to the
behaviour that jeopardises
the victim and child’s safety. It is also important to note that
undertakings and mirror
orders will only be valid if a state has effective
measures to combat domestic violence. As noted during the drafting of the
not all states have the same level of social and legal
development.117 It has also been established that there are
situations of domestic violence, in which no matter what undertakings are given
mirror orders made, the victim and the child will still not be safe upon
return. As it is very difficult to change the Convention,
mirror orders are a
preferred policy instrument. However, both mirror orders and undertakings do not
guarantee the safety of the
abductor and child.
E. Rights of Access and Rights of Custody
The Convention uses the distinction between rights of custody and
rights of access as a basis for quantifying what constitutes
removal or retention of a child.118 Again, this was a compromise, as
115 Marilyn Freeman, ‘Primary Carers and the Hague Child Abduction Convention’  IFL 140, 145.
116 Freeman, ‘Primary Carers and the Hague Child Abduction Convention’, above n 115,
117 Beaumont and McEleavv, above n 2, 19.
118 Ibid 45.
custody disputes there can be many competing claims. For example,
there is the claim of the abductor, the left behind parent,
the child and other
relatives. In order to deal with each of these claims, a substantive hearing
into the merits of each claim
would be required and the summary
return mechanism would be impractical. The decision to focus on
protecting the rights
of the custodial parent was seen as the most simple and
practical formula.119 Under the Convention, rights of custody give
rise to a right to apply for the return of an abducted child, and rights of
give rise to access arrangements. At the time of the drafting of
the Convention, it was presumed that the abductor would be
non-custodial parent, and that the left behind parent would have rights
of custody. At this time, it was common
for one parent to have primary
responsibility for the child, and the other parent to have defined access
arrangements.120 Therefore, protecting the parent with rights
of custody would be in the best interests of the child, as the abducted child
would be returned to their primary carer and home country.
In recent times, an increase in the breakdown of marriages and relationships
has led the Courts to use less traditional
means of allocating
responsibility for children.121 As the prototype abduction situation
is no longer true, it has become more difficult to maintain the distinction
between the custodial
and the non-custodial parent. The New Zealand
courts have taken a liberal approach to the definition of rights of custody, and
allowed a parent with rights of access to obtain an order for return. This was
evidenced in the cases of Gross v Boda122 and Dellabarca v
Christie.123 This approach is contrary to the wording of the
Convention and international jurisprudence on the matter. New Zealand has been
by other jurisdictions for the unilateral extension of the scope of
the Convention. This criticism of the New Zealand approach
was seen in
the English decision of Hunter v Murrow.124 The
consequence is that New Zealand courts may allow a child to be returned to a
parent that has not had substantial contact
120 Ibid 210.
121 Lowe, Everall and Nicholls, above n 10, 257.
122  NZFLR 49 (CA).
123  NZFLR 829.
124  EWCA Civ 976.
with their child. There has been little reaction to this
development within New Zealand and it is unlikely that the
realises there is a problem.
1. The New Zealand Approach
Instead of incorporating the Hague Convention as a whole directly into domestic law, New Zealand chose to implement it through legislative provisions. In doing so, the Guardianship Amendment Act 1991 initially defined rights of custody as the right to the possession, and care of the child, and the right to determine where the child lived.125
This definition was actually narrower than the definition in the
Convention and consequently required amending by the
Guardianship Amendment Act
1994.126 The 1994 amendment changed the definition of rights of
custody to include rights relating to the care of the child, and the right
determine the child’s place of residence.127 Rights of access
are defined as the right to take a child for a limited period of time to a
place other than the child’s habitual
In Gross v Boda, 128 the Court of Appeal held that the
father’s visitation rights that included every other weekend and
alternating holidays gave
him intermittent possession, and was sufficient to
qualify as rights of custody. Cooke P disagreed with the distinction
between rights of custody and rights of access, and stated that “no
convincing reason has been given in argument for postulating
a sharp dichotomy
between the two concepts”.129 Therefore a parent with
substantial intermittent rights to the possession and care of the child could
be said to have rights
of custody.130 Similarly, in Dellabarca v
Christie, 131 the father was held to have rights of custody
arising from his entitlement to daytime access every Wednesday and one weekend
third week, as this was considered to be a right relating to the care
of the person of the
125 Guardianship Amendment Act, s 4.
126 Paul Geraghty (ed.), Family Law in New Zealand (11th ed, LexisNexis New Zealand
Limited, New Zealand, 2003) vol 1, ch 6, 592.
128 Gross, above n 123, 49.
130 Ibid 55-56.
131 Dellabarca, above n 124, 829.
child. These cases highlight that extending the definition of rights of
custody, can allow a parent with only rights of access
to successfully obtain
the return of the child.
In the introduction of the Guardianship Amendment Bill 1991, Hon. William
Jefferies, Minister of Justice, stated that
Convention, demonstrated New Zealand’s commitment to
international cooperation.132 This is an interesting statement,
as New Zealand has taken a contradictory stance towards the application of the
the face of changing trends in child abduction
situations, New Zealand has relentlessly upheld the Convention.
has allowed children to be returned in the context of circumstances
such as domestic violence. However,
New Zealand has been willing to
unilaterally extend the scope of the Convention, and allow the return of a
child to a parent
who only exercises rights of access that are not
protected by the Convention. There has been such disapproval of the New Zealand
approach, that the principle of comity that usually restrains courts from
criticising the legal system of another state has not prevented
The difficulty with the New Zealand approach to rights of custody is that it
allows a parent who never had actual care of the child
to apply for the return
of the abducted child.133 Consequently, an order for return
may send a child to a parent and situation that is totally
unfamiliar. The Convention,
through the summary return mechanism, intends to
return a child to their primary carer and a familiar environment.
Although summary return does not always bring this result, there is still
no justification for the New Zealand approach. The
extension of rights of
custody does not further the intentions of the Convention. Furthermore,
upon return of the child,
a substantive hearing is unlikely to grant
custody to a parent with only access rights, and what is known as an
shuttle’ occurs. An empty shuttle occurs when an
abducted child is returned to their home country and the abducting parent
then given permission to leave the country with the child. This is a pointless
procedure, as the parent with rights of
132 (1990) 507 New Zealand Parliamentary Debates 1540 (W.P. Jefferies).
133 A v A [Child Abduction] (2001) 21 FRNZ 540.
access is unlikely to be granted custody, and as a result there is a
considerable waste of time, resources and cost by all parties
This criticism towards the New Zealand approach was evident in Hunter v Murrow134. In this case, the mother abducted the child from New Zealand to London.135 The High Court in New Zealand held that the father’s contact, which was limited to two or three times a week was sufficient to establish rights of custody. This was unusual, as the child had never lived with the father, and he would have been unlikely to be granted custody in a full hearing. The English court disagreed with the New Zealand decision, and refused the order for return. The basis for this decision was that the father only had contact arrangements not rights of custody.136 Thorpe LJ stated that New Zealand had wrongly interpreted simple contact arrangements as custody rights, and that this impedes the uniform construction of the Convention.137 In S v H, 138
Hale J considered that it would be ‘Draconian’ to grant an
order for return where a parent only exercised rights
of access. The
English approach to determining whether rights of custody exist is to view the
expression broadly, but maintain
the essential distinction between rights of
custody and rights of access.139 The result is that the New Zealand
position is at odds with other jurisdictions, and the primary carer and the
secondary parent are
treated as being equal.
3. Policy Recommendations
Thorpe LJ in Hunter v Morrow discusses how there is a
general movement away from the distinction between rights of custody and
rights of access.140 Accordingly, it is suggested by counsel that the
determinative factor should be parental responsibility. If the parent
parental responsibility by virtue of marriage, agreement or
operation of law, then they would also have rights of custody.141
134 Hunter, above n 125, 976.
135 Hunter, above n 125, 976.
136 Ibid .
138  Fam 49, 57.
139 Re: V- B (Abduction: Custody Rights)  2 FLR 192.
140 Hunter, above n 125, .
New Zealand approach seems to be in line with changing social and legal developments regarding child custody. The simple distinction between the primary carer and the secondary parent is no longer realistic. In New Zealand, as of 1 July 2005, section 18 of the Care of Children Act 2004 states that unmarried fathers whose particulars are registered on the child’s birth certificate have parental responsibility.142
Therefore, the distinction between rights of custody and rights of
access may have less significance in the future.
In Hunter, Thorpe LJ expresses regret in refusing the order for return
as it prevents the father from playing an active role in the
child’s life which had occurred prior to the removal of the
child.143 The New Zealand approach seems to prioritise the
involvement of both parents in the child’s life. In Hunter, the
only real remedy available for the father is to relocate in order to continue
contact with his child. There seems to be something
inherently unjust in the
arbitrary removal of the child by the mother. The mother did not
claim domestic violence or any specific reason for her departure with the
child. The situation in Hunter warrants a close examination of the
distinction between rights of custody and rights of access. New Zealand would
to advocate for further investigation into these issues
through the Hague Conference Special Commission.
On the other hand, the New Zealand approach undermines and weakens
the Convention. The New Zealand position is very unusual
as it seems to even
contradict the traditional approach New Zealand has taken to the application of
the Convention. As discussed
above, New Zealand has tended to uphold the
Convention, and summary return even in the face of evidence of
violence. However, the decision in HJ v Secretary for Justice
to refuse an order for return in the context of domestic violence may
have signalled a new direction for New Zealand. It is
possible that New
Zealand is now willing to step outside the framework of the Convention in
determining Convention applications.
This is a dangerous approach as it leads
to uncertainty and criticism from other states. There is strong support for
significant changes to the Convention to be made by legislators
142 Ibid, .
143 Ibid .
done through the discretion of judges.144 New Zealand
must seek change to the Convention through legitimate channels and ensure that
its decisions are in line with international
jurisprudence on the rights of
F. Future Reform
Throughout this paper, I have highlighted the inadequacies of the Convention
in meeting the changing needs of society today. The philosophy
of the Convention
is based on the assumption that the best interests of the child are met
through summary return. As has been
highlighted, this assumption is only
correct in the context of the prototype abduction. However, as the
is no longer true of most abduction situations the philosophy
of the Convention is questionable. The tension between the assumptions
Convention and developments within society has proven to be problematic. In
particular, there is need for reform in order
to ensure the best interests of
the child are always met and that the needs of domestic violence victims are
met. In addition,
there is a need to address New Zealand’s liberal
approach to the definition of rights of custody.
1. Best Interests of the Child
The summary return mechanism reflects a compromise between
ensuring the best interests of the individual
child are met, and
protecting children generally by deterring future abductions. Given developments
within society, the assumption
that the summary return mechanism is in the best
interests of the child is no longer correct. The case law has shown that the
in the Convention can lead to the return of child when it is not in
their best interests. This was evident in the cases of KS v LS and A v
A. There is a further need to reconcile the approach in the Convention
with the fundamental principles of New Zealand family law,
and article 3 of
the UNCRC, which holds the best interests of the child as of paramount
There is no simple solution to this inconsistency. On one side of the
argument is the notion that the Convention needs to be amended
144 Beaumont and McEleavy, above n 2, 83.
that an order for return can be refused, when it is clearly not in the best
interests of the child. The other side of the argument
is that the determination
of custody disputes on the basis of the best interests of the child is
indeterminate, and varies immensely
between jurisdictions. Prior to the
Convention, the difficulty of using the “best interests” of the
child as the determinative
factor in custody disputes produced a great
number of inconsistencies between jurisdictions. The inconsistency
jurisdictions provides an incentive for an abduction, as the
parent may gain a more favourable custody decision in another
This amendment is not meant to defeat the operation of
the Convention, and allow substantive hearings in all
This is a difficult point to agree with. In practice this amendment is likely
to allow courts to delve
further into substantive hearings. In addition,
there is a general perception that the summary return mechanism is a
of the Convention, as it provides certainty. Therefore,
qualifications to the summary return mechanism are likely to
uncertainty and weaken the application of the Convention. It seems apparent
that it is not possible to retain the
Convention in its current state, and allow
greater scope for the refusal of an order for return on the basis of the best
of the child.
2. Domestic Violence
The drafters of the Convention originally thought that they had
provided adequately for the protection of domestic
violence victims. This
was based on the assumption that the abductor would be the abuser, and
that the summary return
mechanism would return the child to safety. Again,
the change in the profile of the abductor has challenged the
in the Convention. The idea that the abductor would be
the victim of domestic violence was not contemplated
drafting of the Convention. It has become increasingly common for the
victim to abduct their child in order
to escape domestic violence. In both
M v M and H v C, the mother abducted her child in order
to escape horrendous domestic violence and the courts still ordered the
This new situation poses a serious difficulty for the Convention in two ways.
Firstly, the Convention assumes that the abduction
harmful effects to the child. In the context of domestic violence this is
questionable, as the abduction removes the child from the
harmful situation. In
M v M, the abduction had clearly removed the child from a harmful
situation, yet this was not enough to prevent an order for
There is little research available on whether this situation is still harmful to
the child, yet common sense would say it
is not. Secondly, the presumption in
favour of summary return in the situation of domestic violence can lead
to an order
for return exposing the child to harm either from experiencing or
witnessing domestic violence. Two policy options suggested
inclusion of a specific domestic violence defence and the strengthening of
the use of undertakings and mirror orders.
The high incidence of domestic violence seems to warrant the inclusion in the
Convention of a specific domestic violence defence.
A domestic violence defence
is a simple method of addressing this trend within society and protecting
the child. The difficulty
with this defence is that there are questions
raised over the threshold level of violence that would be required to
establish the defence. The defence is also criticised because it is
again seen as weakening the Convention by
allowing substantive hearings
in applications for return. At this stage, there is little political will
to make such a
major reform to the Convention. However, as the policy
process seems to react to specific events, I would predict that further
situations such as those in M v M and H v C will eventually force
the international community to address this issue. The plight of victims of
domestic violence has become an
increasingly important domestic issue in
the last decade, and may eventually extend to the context of child
At present, the issue of domestic violence and child abduction has been dealt
with through the use of undertakings and mirror orders.
As undertakings are
technically not enforceable in other states, there is a preference for courts
to use mirror orders. There
is little incentive to make undertakings
enforceable through their codification in the Convention. This is because it is
to make changes to the Convention, and mirror orders are viewed as a
satisfactory alternative. Mirror orders provide a dubious compromise
to the use
of a specific domestic violence defence. Mirror orders do not guarantee that the
perpetrator will obey the protection
measures and therefore, do not
ensure the safety of the child or victim upon return. The real issue
is that the summary return mechanism in the Convention is not
appropriate in relation to the situation of domestic
undertakings nor mirror orders deal with this tension. Until the policy process
is forced to react to the
situation of domestic violence and abductions,
the use of mirror orders is the only option available.
3. Rights of Custody and Rights of Access
As there are often many competing claims in a custody dispute, it was
necessary to reach a pragmatic solution during the drafting
of the Convention
and focus solely on protecting rights of custody. Accordingly,
the Convention makes a distinction
between rights of custody and rights
of access. The New Zealand courts have interpreted rights of custody liberally,
the return of a child to a parent exercising only rights of access.
This approach is problematic, as it may lead to the return of
a child to a
parent that the child has never lived with, this was seen in Gross v
Boda and Dellabarca v Christie. This approach also contradicts
the intention of the Convention to return a child to their primary carer and a
Therefore, the New Zealand approach is
inconsistent with the wording in the Convention and was criticised by the
courts in Hunter v Murrow.
This issue is further complicated by developments within society that have
led to less traditional means of allocating responsibility
for a child. The
distinction between rights of custody and rights of access has become
more difficult to maintain.
In accordance with these developments,
it was suggested by counsel in Hunter v Murrow that parental
responsibility should be the determinative factor and not rights of custody.
The advantage of this position is that
it would allow the child to have
contact with both parents. The disadvantage is that allowing parental
to be the determinative factor in abduction cases, may
still allow the return of a child to a parent they have never lived
with and an
unfamiliar environment. This situation is unlikely to be in line with the best
interests of the child.
The solution to New Zealand’s unilateral approach is difficult
to ascertain. On the one hand this approach is justified
by developments within
society. On the other hand, this approach is inconsistent with the essential
distinction between rights
of custody and rights of access in the Convention.
The solution may lie in Thorpe LJ’s comments in
Hunter. Firstly, he notes that it is impractical to revise the
Convention, as any changes have to be agreed by all Contracting States.145
Secondly, he notes that article 31(3)(b) of the Vienna Convention on the
Law of Treaties (the Vienna Convention), allows a construction
reflects subsequent practice in the application of the treaty, and establishes
the agreement of the parties regarding
This section could be used to allow the application of the Convention to
develop in accordance with social and legal changes since
the drafting of the
Convention. In the situation of rights of custody, New Zealand would need to
prove that other states agreed with
the liberal interpretation of rights of
custody. In Hunter, counsel was unable to prove that this was the
In consequence, the New Zealand approach is still out of step with
international norms regarding the application of the Convention.
unilateral approach is also criticised for weakening the Convention, by
extending its scope beyond what was ever intended.
There are two
options for New Zealand in light of the above discussion. Firstly, New Zealand
could rectify the situation and not
allow the return of a child to a parent
with only rights of access. Therefore, New Zealand would avoid further
from other states and uphold the provisions of the Convention.
Alternatively, New Zealand could continue with the liberal approach
that other jurisdictions will eventually follow. This would then allow the
application of article 31(3) (b) of the Vienna
Convention. Despite the criticism
that New Zealand has received for its liberal approach, there does not seem to
have been a realisation
of this problem within New Zealand. There has been
little scholarly attention on this issue and it is not an issue that is highly
visible to the public. Therefore, New Zealand is likely to continue
with its liberal interpretation of rights of
The above issues pose significant challenges to the operation of the
Convention. Since the drafting of the Convention, social
and legal developments
within society have led to difficulties in implementing the
145 Hunter, above n 124, .
147 Ibid .
Convention. Article 31(3)(b) of the Vienna Convention provides the
opportunity to adapt the application of the Convention
to meet the
changing context of child abduction. The inherent difficulty is that to deal
with the challenges of the above
issues, it is necessary to use
methods that ultimately undermine the framework the Convention is based
upon. For example,
in order to ensure that a child is not returned to a
situation of domestic violence, a specific domestic violence defence is
However, this defence would weaken the summary return
mechanism in the Convention and allow courts to hold
hearings. The summary return mechanism is an essential component of the
Convention and as stated previously is
often viewed as a strength of the
The policy process seems to require a highly publicised event to force the
government to rectify a particular policy problem.
The incorporation of
the Convention into domestic law in New Zealand followed the highly
case. This case resulted in public outcry at
the inadequate legal situation regarding child abduction in New Zealand and
the Government to react. The difficulty with this approach to solving
a policy problem is that the response is often hurried
and lacks a
substantial analysis of all the issues involved. It is apparent that the
government is unaware of the major tensions
between the assumptions in the
Convention and changes that have occurred in society since the
drafting of the Convention.
Therefore, one may question whether it
will take further highly publicised cases for the government to recognise
inherent tensions within the Convention and rectify the situation.
It is clear that there is a tension between the assumptions in the Convention and changing social trends. It is impractical to attempt to revise the Convention, as this requires the agreement of a large number of states. The most realistic option for reform is the use of the Vienna Convention to allow the interpretation of the Convention to adapt to the changing context of child abduction. However, the difficulty is that the changes required undermine the functioning of the Convention. The balance must be struck between allowing the Convention to respond to changes in society and ensuring the essential elements of the Convention remain functional.
The New Zealand Law Students’ Journal (2007) 1 NZLSJ