Relocation disputes and international child abduction
International Child abduction
Preventing your child being taken out of New Zealand
What can I do to stop my child being taken out of the country?
If the removal of the child from New Zealand is imminent, it is possible to get an immediate CAPPS listing via Interpol, before an application to prevent removal is made to the Court. Interpol (based at the Police National Headquarters in Wellington) will require a guarantee that the application will be filed. (See below, “How will my child be stopped from being taken overseas?”.)
If the removal of the child from New Zealand is imminent, an application can be made to the court to prevent the removal. The order can be applied for if taking the child out of New Zealand would be in breach of a parenting order, or would defeat a person’s intention to apply for day-to-day care or contact with the child.
To stop a child being taken out of New Zealand the court can:
- issue a warrant for the police or a social worker to take the child and put the child in the care of a suitable person while determining what will happen next.
- order that any travel tickets or passports be handed over to the court. This includes the child’s passport and the passport of the person who was going to take the child out of New Zealand.
- order that the child not be removed from New Zealand for a specified period or until a further order of the court.
If it is possible that a child might be taken out of New Zealand sometime in the future, a party can request the court to make it a condition of a parenting order that a child not be removed from New Zealand. A non-removal condition is binding on both parties. It will usually be attached to a parenting order if either party requests it, either at the time a parenting order is applied for, or later, as a variation to a parenting order. However, the court would have to consider that such a condition would be in the welfare and best interests of the child.
How will my child be stopped from being taken overseas?
Where an order has been made preventing a child being removed from New Zealand, the Customs Service should be notified (via Interpol at Police National Headquarters in Wellington) and asked to enter the child’s details on to the Customs Service computer system. This is called a CAPPS listing (“Customs Automated Passenger Processing System”).
A CAPPS listing means that when a child is checked in at an international airport, a customs officer will see that the child cannot leave New Zealand and the child will be stopped from getting on a plane.
Getting your child returned to New Zealand
What can I do if my child has already been taken overseas?
If a child has been wrongfully taken from New Zealand or kept overseas, the government may be able to help a parent apply to have their child returned to New Zealand under an international treaty called the Hague Convention on the Civil Aspects of International Child Abduction. The other country must be one that, like New Zealand, has signed this Convention.
New Zealand is a signatory to the Hague Convention. The aim of the convention is to ensure that a child who has been abducted or wrongfully kept in a country is returned as quickly as possible to the country where the child usually lives.
Note: The convention only applies to countries that have signed and accepted the convention. These are called contracting states. A central authority is established in each contracting state to deal with applications for the return of children taken to or from that country. The Chief Executive of the Ministry of Justice is the central authority for New Zealand. A person wishing to apply to have their child returned should act quickly, by contacting the Hague Convention Advisor at the Ministry of Justice. (See “Other resources” at the end of this chapter.)
When can I apply under the Hague Convention to have my child returned?
You can apply if:
- the child was removed from New Zealand to another contracting state in breach of the applicant’s “custody rights”, and
- those “custody rights” were actually being exercised when the child was removed, or would have been if the child had not been removed, and
- the child was habitually resident in New Zealand immediately before being removed.
For the purposes of the law relating to child abduction, “custody rights” mean rights relating to the care of the child and, in particular, the right to determine the child’s place of residence. The New Zealand courts have decided that these custody rights also include the right to contact, access, or visitation with a child.
How do I go about applying?
The Hague Convention Advisor at the Ministry of Justice should be contacted for help with making an application for the return of the child. If they are satisfied that the Hague Convention applies, they will appoint a lawyer for the applicant who will meet the applicant and complete the necessary application forms. An applicant doesn’t need to hire their own lawyer, but can do so if they wish.
What if the other country hasn’t signed the Hague Convention?
In most cases the person seeking to have their child returned to New Zealand will have to get a lawyer in New Zealand who specialises in this kind of case. They will usually also need to hire a lawyer in the overseas country: that lawyer will apply to the courts in their country to have the child returned. This can be a difficult process and legal aid is not available.
What happens to the person who took the child?
In some situations, the person who took the child out of New Zealand can also be charged with a crime, such as kidnapping.