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?
It’s a crime if someone tries to take a child out of New Zealand if:
- it goes against a Parenting Order
- a case involving the child is about to go to court
- another person is about to apply for a Court Order.
If the the child is about to be taken out of New Zealand without your permission, you can get an immediate CAPPS listing through Interpol, before you ask the court to make an order stopping the child from going overseas. Interpol (based at the Police National Headquarters in Wellington) will need to make sure that you intend to make an application for a court order. Interpol at Police National Headquarters in Wellington will then ask Customs Services 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.
If the the child is about to be taken out of New Zealand, you can make an application to the court to stop this.
Care of Children Act 2004, s 77
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 deciding on 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 time period or until a further order of the court.
Care of Children Act 2004, ss 48, 56
If it is possible that a child might be taken out of New Zealand sometime in the future, you 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, that means you have to follow it too. 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 decide that it 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 to stop a child being removed from New Zealand, you can also ask the court to issue a border alert. This means that when the child’s details are checked on the customs system at any New Zealand sea port or airport, the child can be stopped from leaving the country.
Getting your child returned to New Zealand
What can I do if my child has already been taken overseas?
Care of Children Act 2004, Part 2, Subpart 4, ss 94–124
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.
The aim of the convention is to make sure 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 assigned 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 “Where to go for more support” 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 usually resident in New Zealand immediately before being removed.
Care of Children Act 2004, s 97
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, that is, even if you weren’t providing day-to-day care for the child, if you did have the right to contact or visit the child, you can still apply to have the child returned.
How do I go about applying?
Care of Children Act 2004, s 102
You should contact the Hague Convention Advisor at the Ministry of Justice 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 you who will meet with you and complete the necessary application forms. You don’t need to hire your own lawyer, but can do so if you wish.
What if the other country hasn’t signed the Hague Convention?
You will usually have to get a lawyer in New Zealand who specialises in this kind of case. You 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.
