The High Court has recently overturned an order by the Family Court to return two children to France, ordering that the children stay in New Zealand with their mother.

The mother and her three children came to New Zealand from France for a holiday. The mother has family in New Zealand and during their holiday she sought mental health care.

The family was due to return three months later, but the mother decided it was best for her mental health to remain in New Zealand. The two older children, aged 15 and 12, wished to stay in New Zealand with their mother. The youngest child, at 7 years old, did not fully understand the situation.

The father filed an application in the Family Court to return the children to France, which was granted for the two younger children. The oldest child wanted to stay in New Zealand and the Court took this into consideration, allowing him to stay with his mother.

The mother appealed to the High Court to reverse the return orders for the two younger children.

The mother argued that the Court should refuse the return of a child if there was a “grave risk that return would place the child in an intolerable situation”. The Court relied on evidence from a psychologist, which highlighted the potential negative impacts that a forced return to France could have on the children.

The 12 year old had been vocal about not wanting to return to France, and was showing signs of significant attachment to her mother. The child’s wishes were seriously considered by the Court, given her age and maturity.

There was also evidence that a separation of the 12 year old from her siblings would negatively impact her future, including increasing the risk of impaired academic performance and mental health disorders, such as anxiety. The child’s relationship with her father had already deteriorated as a result of the return order.

Whilst the youngest child did not fully understand the situation, the psychologist provided evidence that separation from his siblings would likely cause him significant distress. The child’s siblings and mother were attachment figures for him, and leaving them could have “clinically significant” effects.

The Court also considered that the children’s living and schooling situation in France was uncertain, which could also be a cause of significant distress for them.

The Court decided that these factors meant the defence was made out and overturned both orders of return. However, the Court emphasised the need for the children to have an ongoing relationship with their father, but prioritised the wellbeing of the children.

Guardianship issues can be distressing for all parties involved. If you are confused about your situation, it pays to seek advice from a professional with experience in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Shaun Cousins and Hunter Flanagan-Connors 

 

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.