It would be horrible to find out that your child has been taken overseas without your knowledge or consent by their other parent. This is a real concern and does very occasionally happen, but it can be prevented.

If a person (usually a parent or caregiver) is concerned that a child is about to be taken overseas without consent, they may apply to the Family Court for an order preventing the child’s removal from New Zealand.

Such an order can be made if the child being removed from New Zealand would defeat a person’s claim for day-to-day care of, or contact with, the child, or prevents a Court order regarding day-to-day care or contact from being complied with.

The primary consideration is the best interests of the child. This includes contact with both parents and their families. If there is a risk the child will lose contact with the parent while overseas the Court is more likely to grant an order preventing the child from leaving the country.

In one recent case, a mother made an application for an order preventing removal despite the fact that the child was already overseas. The Court said that there was no simple way to have the child returned to New Zealand, and such an order would not assist. 

Instead the mother would need to take steps either under the Hague Convention (if it applied) or to apply in the country the child was removed to for an order that the child be returned to New Zealand. 

While the Hague Convention can result in a child’s return in a fairly short time-frame, applying for an order under the laws of a non-signatory country can be difficult, costly, and take considerable time.

The same family later came back before the Court once the child had returned to New Zealand. The mother was granted an order preventing further removal, however, there were conditions which allowed either parent to take their child overseas. They included:

  • the travelling parent will provide proof of return tickets at least four weeks in advance of any proposed travel;
  • the travelling parent will provide reliable contact details while overseas, and agree to pre-arranged contact;
  • the parent has to agree that the child’s place of habitual residence was New Zealand; and
  • the travelling parent would pay a bond of a sum equivalent to a return air ticket from New Zealand to the overseas country into the Family Court prior to departure. That bond is available to the other parent if the child did not return as agreed, but is refundable to the travelling parent upon the child’s return.

This shows a willingness to allow travel overseas when adequate safeguards are in place. In other circumstances, there may be a complete restriction on overseas travel.

Another important measure to take is to advise Interpol of the order. This should be made promptly after the Court order is received. This will result in an alert being entered on the New Zealand Customs Service computer system, so that if any person attempts to take the child out of the country, the child will be prevented by Customs or Passport Control from boarding the plane or boat.

If you are concerned that your child may be taken overseas without your agreement, then you should act quickly to obtain an order from the Family Court. Unless the child has been taken to a country which a signatory of the Hague Abduction Convention, it can be very difficult and expensive to have a child returned once they are overseas.

David Tyree
Family Lawyer
Wellington