Parents and guardians of a child have the responsibility to make important decisions concerning the child. This includes decisions such as the child’s place of residence and travel by the child. Even when parents are separated these decisions must be made jointly.

If an order preventing removal of a child from New Zealand is in place, it is a breach of that order to leave the country with the child or to attempt to do so.

Usually, an order preventing removal is in place when parents have separated and there is a concern that someone will try and take the child overseas without both parents’ permission. An order like this can result in the child being stopped at the airport and not being able to board a plane.

However, if a parenting order preventing removal is in place it does not necessarily put an end to overseas holiday plans. An application can be made to suspend the parenting order for a specified period of time. In deciding whether to suspend a parenting order, the court will weigh up the benefit of the travel with the risk of the child not returning to New Zealand.

The Court will consider various matters in deciding whether the parenting order should be suspended, including:

  • the country of destination (the Court is more willing to allow travel to countries which have signed the Hague Abduction Convention on Child Abduction, which provides a comparatively simple and quick method of seeking to have children returned to countries they have been removed from improperly);
  • the person’s history of complying with court orders;
  • the relationship and trust between the parents;
  • the reason for, and length of, travel;
  • the age of the child;
  • the wishes of the child;
  • any safety concerns for the child in the country of destination; and
  • the measures that can be put in place to ensure the child’s return to New Zealand.

If the Court decides that a parenting order should be suspended to allow for a holiday overseas, it will generally be for a specific period of time and in relation to a specific person.  On the child’s return the order will once again be in force.

Guardians can agree to a suspension and jointly ask the Court to suspend the order. If there is no agreement, however, an application can be made by the person wishing to take the child overseas. This can take time to resolve, and it is important to allow time for a suspension to be granted by the Court, otherwise the overseas holiday might not even get off the ground in the first place.

David Tyree
Family Lawyer
Wellington