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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Hidden in Plain Sight:
A Critical Analysis of Child Participation in 1980 Hague Convention Return Proceedings in Aotearoa
Mira Neuman
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2022
Acknowledgements
Thank you to my supervisor, Nicki Taylor, for your patience, kindness and wisdom. Your passion for child participation has inspired me throughout this dissertation. I am immensely grateful for all your support.
To my parents, sisters, Romy and extended family. You have all shown me incredible love and support across my university education. Whenever I needed there was always a cup of tea and a hug waiting. I am so lucky to have you all in my life.
To Logan and my friends. I have adored getting to know you all. Thank you for your encouragement throughout this year in particular.
Finally, I would like to thank my nephew Rudra. Born four weeks before this dissertation was due. A smile never leaves my face when I am around you!
Table of Contents
I. Introduction
In 2015, 2,997 children were abducted by their parent and moved across international borders.1 The impact of international abduction on children can be devastating and long-lasting. Upon reflection of their experience, previously abducted children have credited their abduction for their inability to create a stable self-identity, form secure adult relationships or trust those around them.2 They have also reported experiencing severe anxiety, sleep disturbance, increased aggressive behaviours and mood swings following their abduction.3 The greatest victims of international child abduction are undoubtedly the children themselves, but the voices of abducted children in Aotearoa’s return proceedings are too often hidden in plain sight.
This dissertation focuses on how well Aotearoa hears children’s views in return proceedings under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (hereafter “the Convention”). The Convention sets out the process that its 101 Contracting States must follow where a parent refuses to voluntarily return a child who has been wrongful removed or retained in another Contracting State.4 Under the Convention, an abducted child will be returned to their state of habitual residence unless the abducting parent can satisfy the court that one of the exceptions to return is fulfilled, and the court applies its discretion to allow the child to remain. These proceedings are referred to as return proceedings. The Convention does not explicitly prescribe how and when child participation fits into return proceedings since it only addresses the issue narrowly in an exception regarding the child’s objection to return. This therefore creates space for debate over the extent to which return proceedings should allow all children to participate, not just those expressing an objection to return. This dissertation engages with this debate specifically through the lens of return proceedings in Aotearoa.
1 Nigel Lowe and Victoria Stephens Part I — A Statistical Analysis of Applications made in 2015 Under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — Global Report (Hague Conference on Private International Law, the Hague, 2018) at 3.
2 Sarah Calvert “What Happens to Children in High Conflict Parenting Disputes. How Should we think of their "Voice"?” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 16 at 18. See also Marilyn Freeman Parental Child Abduction: The Long-Term Effects (International Centre for Family Law, Policy and Practice, December 2014) at 31.
3 Megha Bhatt “International Child Abduction: Modifying the 1980 Hague Convention on the Civil Aspects of Child Abduction and Proposals for a New United Nations Judicial Body” (2016) 20(2) UC Davis Journal of Juvenile Law and Policy 213 at 215.
4 Hague Conference on Private International Law “Status Table” (2022).
<https://www.hcch.net/en/instruments/conventions/status-table/print/?cid=24>
This dissertation aims to:
The Convention was drafted during the 1970s by the Hague Conference on Private International Law (HCCH) to address the lack of international cooperation in dealing with international children abduction. The Convention responded to intrafamilial abductions: cases of parents wrongfully removing their own children to a foreign jurisdiction, or retaining them there.5 Abductions by strangers are dealt with by the criminal law and result from significantly different motivations.6 Prior to the Convention, the process of returning children abducted by their parents was fraught with issues. States’ uncoordinated legal remedies were often ineffectual, litigation expensive and, even where proceedings were initiated, there remained uncertainty over whether the child would be returned to their place of habitual residence.7 Abducting parents could also pick between jurisdictions to escape further custody disputes.8 The Convention, drafted to provide recourse to these concerns, was adopted in October 1980 at the Fourteenth Session of the HCCH.9
Two key attributes of the Convention require highlighting. First, the Convention specifically addresses abductions of children:
5 Convention on the Civil Aspects of International Child Abduction 1343 (UNTS) 89 (Opened for signature 25 October 1980, entered into force 1 December 1983).
6 Crimes Act 1961, s 209. See also Elisa Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention (Hague Conference on Private International Law, Madrid, 1981) at 451.
7 Chantal Choi “It is More than Custody: The Balance Between Parental Intention and the Child's Perspective in Hague Convention Cases" (2019) 52(2) Suffolk Univ Law Rev 297 at 301.
8 Rebecca Rose “Interpretations of the Hague Child Abduction Convention 1980 in New Zealand Since COCA: Cause for Concern?” [2008] WkoLawRw 7; (2008) 16 Waikato L Rev 111 at 113.
9 Pérez-Vera, above n 6, at 430.
10 Convention on the Civil Aspects of International Child Abduction, above n 5, art 4 and 12.
Second, the purposes of the Convention within the preamble remain important considerations in return proceedings. These include recognition that those most significantly impacted by child abduction are children themselves and that children’s interests are of paramount importance in matters relating to their custody.12 In addition, the Convention intends to protect children from the harmful effects of their wrongful removal and facilitate their efficient return to their place of habitual residence.13
As the Convention is not self-executing, a Contracting State must enshrine it into their domestic legislation following ratification.14 Aotearoa first incorporated the Convention in the Guardianship Amendment Act 1991,15 which was replaced by the Care of Children Act (“COCA”) in 2005.16 The Convention is incorporated by ss 94 to 124 of the COCA.17 The position of the Convention within the COCA is significant. In replacing the Guardianship Act, the COCA was intended to respond, in part, to the changing attitudes towards the rights of the child.18 Section 6 of COCA exemplifies this change, imposing obligations around child participation.19 It is usually understood that s 6 applies only to a limited number of proceedings under COCA, not including return proceedings.20 This is a topic returned to in subsequent chapters.
11 Convention on the Civil Aspects of International Child Abduction, above n 5, art 3.
15 Guardianship Amendment Act 1991 (1991 No 19). This act amended the Guardianship Act 1968. See Dara Lenetha Ayanna Modeste “What is Worth Rewording is Worth Rewording Well: An Analysis of the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction in New Zealand” (2012) 38 Commw L Bull 653 at 658.
17 Care of Children Act. The exact wording of the Convention is not replicated within these sections with the differences being discussed below.
18 Hon. Peter Boshier and Damien Steel-Baker “Invisible Parties: Listening to Children” (2007) 45
Family Court Review 548 at 548.
20 Such proceedings include day to day care and contact, the administration of property belonging to or held in trust for the child, guardianship proceedings or the application of income of property. See Deborah Inder “Children’s Participation in the Context of Private Law Disputes in the New Zealand Family Justice System” (Thesis, Doctor of Philosophy, University of Otago, 2020) at 129.
Where a child is abducted to or from Aotearoa and their left-behind parent seeks their return, responsibility for implementing the Convention rests with the Central Authority.21 The Convention requires designation of a Central Authority in each contracting state to streamline the implementation and operation of the Convention.22 The Central Authority for Aotearoa is the Secretary for Justice.23 The duties imposed on the Secretary for Justice include communicating potential international child abductions to the Central Authority of other contracting states24 and facilitating judicial proceedings to obtain the return of the child.25 This latter duty may necessitate court involvement where the child is not returned voluntarily.
When responding to an international child abduction, Contracting States are initially required to encourage the voluntary return of the abducted child to their state of habitual residence.26 Such prompt return is presumed to be in the child’s best interests, while discouraging further international abductions.27 Where voluntary return is not forthcoming, however, the prescribed response in Aotearoa is provided by s 105 of the COCA. Section 105 incorporates art 12 of the Convention. It states that a court must order the return of the child where an application to return has been made and the court is satisfied the child is present in Aotearoa, was removed from another contracting state in breach of the applicant’s rights of custody and had been habitual resident in another Contracting state prior to abduction.28 Such decisions are summary proceedings, so once the court has determined the requirements are met, it will order the child be returned to their place of habitual residence.29 That is, of course, unless the abducting parent can successfully argue that one of the exceptions to return applies and the court uses its discretion not to return the child.
21 Convention on the Civil Aspects of International Child Abduction, above n 5, art 9-11.
22 Diana Bryant “The 1980 Child Abduction Convention - the Status Quo and Future Challenges” in Thomas John, Rishi Gulati and Ben Koehler (eds) The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar Publishing, Cheltenham, 2020) 181 at 181.
23 Care of Children Act, s 100(1).
24 Convention on the Civil Aspects of International Child Abduction, above n 5, art 9.
27 Pérez-Vera, above n 6, at 135; Carmen Tetley “The Hague Convention: Who is Protecting the Child?” (2012) 37(4) Children Australia 135 at 135.
28 Care of Children Act, s 105(1) and (2).
29 Alana Messent “Uprooting Child- Again: The Case for a Child-Oriented Approach to the Settlement Exception under the Hague Convention on International Child Abduction” [2008] CanterLawRw 1; (2008) 14 Canterbury L Rev 1 at 4.
Article 13 of the Convention includes a number of exceptions to return.30 Where the abducting parent (applicant) raises an exception to return, the matter is referred to the Family Court to determine whether the child may remain. These exceptions are found in s 106(1) of the COCA. There are five exceptions to return, of which the following three (particularly the final one) are pertinent to this dissertation:
It is relatively common for multiple exceptions to return to be argued concurrently, especially in regard to the grave risk and child objection exceptions.31 When an exception to return is raised, the applicant must first show, on the balance of probabilities, that the requirements of the exception are made out.32 The child will then only remain in the country of abduction if the court uses its residual discretion to allow this.33 The grave risk exception remains one of the most litigated, and successfully applied, exceptions in Aotearoa.34 However, as will be discussed in more detail below, children participate in return proceedings most frequently in respect of the child objection exception (s 106(1)(d)).
The child objection exception appears, on its face, to promote child participation in return proceedings by considering the views of the child objecting to return. Article 13(d) of the Convention states that refusal to return a child may occur where:35
30 Linda Elrod “‘Please let me stay’": Hearing the Voice of the Child in Hague Abduction Cases” (2011) 63 Okla L Rev 663 at 675.
32 The standard of proof required for exceptions was affirmed as the balance of probabilities in
Basingstoke v Groot [2007] NZFLR 363 (CA) at [10]-[18].
33 Cresswell v Roberts [2022] NZHC 1265 at [47]: and Care of Children Act, s 105(2).
34 Allie Maxwell “The Hague Convention on the Civil Aspects of International Child Abduction 1980: The New Zealand Courts' Approach to the Grave Risk Exception for Victims of Domestic Violence” (2017) 48 Victoria U Wellington L Rev 81 at 86.
35 While the child objection exception is not officially art 13(d), as it is a statement made after art 13(c) it is usual to refer to the child objection exception as 13(d).
“The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”.36
The Convention’s drafters clarified some of the key terms of the exception. For one, the Convention intentionally remains silent on the minimum age required for the art 13(d) test to be met, instead limiting the exception to those attaining the “requisite age and degree of maturity”.37 Any age they stipulated, the drafters decided, would be an arbitrary age with no real scientific rationale.38 This said, it is commonly understood that for older children, such as 15-year-olds, their closeness to independence makes it difficult to return them to their place of habitual residence against their will.39 Even where an objection exists, the court retains wide discretion as to whether the child should be permitted to remain.40 Beyond this general understanding of the child objection exception, as prescribed by art 13, there is limited space for Contracting States to further clarify how the exception will be addressed in return proceedings.
Within the COCA, s 106(1)(d) states:
“The child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with s 6(2)(b), also, to give weight to the child’s views”.41
While the central attributes of the exception found in art 13 are replicated in s 106(1)(d), it is important to highlight the unique reference to s 6(2)(b) of COCA within this provision. The potential significance of this legislative wording is discussed later in this dissertation. The use of the phrase “give weight” in s 106(1)(d) rather than “take account” (in art 13) presents a further difference. Beyond the significantly limited guidance in the Convention on how Contracting States should apply the child objection exception, each jurisdiction has largely defined the exception through case law, a topic addressed in Chapter II.
36 Convention on the Civil Aspects of International Child Abduction, above n 5, art 13(d).
37 Pérez-Vera, above n 6, at 433.
40 Rhona Schuz The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing, Oxford, 2013) at 319.
41 Care of Children Act, s 106(1)(d).
The importance of child participation, particularly in family law settings, has become well established over the last few decades both in Aotearoa and internationally. The flourishing research on child participation has identified significant benefits of giving children a voice in family law proceedings that impact them.42 While giving weight to the views of the child makes up a proportion of child participation, it does not describe everything child participation entails. Rather, child participation aims to make every child feel heard and respected by incorporating their views into Family Court procedures.43 Aotearoa has continued to increase opportunities for greater child participation in areas of family law, as was evident in s 6 of COCA, and in the recent 2019 amendments to the Oranga Tamariki Act 1989 to recognise the rights of the child to participate in matters that affect them.44 The dissertation, therefore, addresses an issue of particular contemporary relevance.
Within return proceedings specifically, child participation is currently supported to some extent through the use of lawyer for child. Under s 7 of the COCA, a court may appoint a lawyer to represent a child in proceedings where there are concerns for the safety or well-being of the child and the court considers the appointment necessary.45 The Practice Note on the Hague Convention states that “the appointment of lawyer for child shall be considered where any of the defences in s 106 are raised by the respondent”.46 The role of lawyer for child in Convention proceedings is to represent the child’s instructions and present the child’s best interests to the court.47 However, as addressed in Chapter II, there remains some concerns with this role in this context. Another avenue for including the child’s views in COCA proceedings is through a psychological report of the child (s 133(4)(A)). This method also supports the court to determine whether the child has attained the requisite age and degree of maturity in child objection cases.48
42 Benedetta Ubertazzi “The hearing of the child in the Brussels IIa Regulation and its Recast Proposal” (2017) 13(3) J Priv Int L 568 at 600.
43 Sara Lembrechts Guide to Good Practice: Recommendations Based on the Views of Children and Young People to Professionals Involved in International Child Abductions (Missing Children Europe and University of Antwerp, June 2021) at 10.
45 Care of Children Act, s 7(a) and 7(b).
46 Ministry of Justice Practice Note: Hague Convention Cases: New Zealand Family Court Guidelines (On the Appointment of Lawyer for the Child/Counsel to Assist, Specialist Reports and on Views of the child) (March 2011) point 2.1.
47 Michelle Fernando “Family Law Proceedings and the Child’s Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada” (2014) 52(1) Family Court Review 46 at 51.
48 John Caldwell “The Hague Convention and the “Child objection” Defence” (2008) 6 NZFLJ 84 at 89.
Chapter II reviews Aotearoa case law to investigate the extent to which child participation currently occurs in return proceedings. Chapter III discusses the Convention’s compatibility with the United Nations Convention on the Rights of the Child (“the UNCRC”). Article 12 of the UNCRC provides all children with the right to express their views within family law proceedings more generally, and Chapter III considers the enforceability of this right in return proceedings in Aotearoa.49 Chapter IV investigates the current approach to child participation in return proceedings in the United Kingdom and the Netherlands to provide an international comparison. The final chapter outlines three proposals to enable greater opportunities for child participation within Aotearoa return proceedings in the future.
The Convention currently fulfils an important role in facilitating the return of internationally abducted children to their place of habitual residence. The intersection between return proceedings and the international and domestic drive towards implementing greater child participation in the family justice system is central to this dissertation. What this intersection should practically look like will be explored in-depth throughout the following chapters.
49 United Nations Convention on the Rights of the Child 27531 (UNTS) 1577 (Opened for signature 20 November 1989, entered into force 2 September 1990) art 12.
II. Child Participation in Aotearoa Return Proceedings
This chapter considers how child participation is currently occurring in return proceedings in Aotearoa. Section A explores Aotearoa’s historical reliance on the child objection exception to fulfil its child participation obligations in return proceedings under the Convention. This discussion is grounded in case analysis and theoretical literature. Section B focuses on four barriers to child participation, impart created by reliance on the child objection exception, and argued with reference to key contemporary cases.50 Finally, this chapter critiques the role of lawyer for child within return proceedings.
When enshrining the Convention into Aotearoa’s statutory law, the Guardianship Amendment Act 1991 mirrored the exceptions to return in art 13 of the Convention.51 A literal reading of art 13 identifies the child objection exception as the sole vehicle for potential child participation within return proceedings.52 Even though the COCA was enacted after Aotearoa ratified the UNCRC, the legislators only minimally adjusted the wording of the exceptions to return present in the Guardianship Act within the COCA.53 Interestingly, recognition of children’s rights, including their art 12 UNCRC right to express their views in decisions involving them, was incorporated into other COCA parenting proceedings under s 6.54 Return proceedings did not have to apply s 6 because it was argued that, as summary proceedings, return proceedings were wholly distinctive from other COCA proceedings.55 Instead, a requirement to take the views of the child into account in accordance with s 6 was inserted directly into s 106(1)(d).56 This decision reaffirmed the commonly held understanding that the child objection exception is the sole mechanism for child participation within Aotearoa return proceedings.
50 As noted by Clare Murphy in “International Child Abduction and the Rights of those Abducted: is New Zealand Honouring its Commitment to Children?” (2020) 10 NZFLJ 37, there are a limited number of cases under subpart 4 that are published, a factor that inevitably limits the cases that can be researched.
51 Guardianship Amendment Act 1991 (1991 No 19), s 13; Convention on the Civil Aspects of International Child Abduction, above n 5, art 13.
52 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 583.
53 Care of Children Act, s 106.
55 Clare Murphy “International Child Abduction and the Rights of those Abducted: is New Zealand Honouring its Commitment to Children?” (2020) 10 NZFLJ 37 at 39.
56 Care of Children Act, s 106(1)(d): in addition to taking them into account in accordance with s 6(2)(b).
In 2006, White v Northumberland57 solidified the limited nature of the child objection exception.58 In deciding to apply Balcombe J’s ‘shades of grey approach’, the court dismissed Millet LJ’s approach in Re R,59 which had seen objecting children who meet the age and degree of maturity requirement remain in their country of abduction unless countervailing factors outweighed the children’s views.60 The four steps implemented in White v Northumberland created significantly more stringent requirements that had to be met before the court would refuse the return of the child based on an objection. Justification for the high threshold required to apply the exception originated from the rationale that the best interests of children as a whole was better served by the prompt return of all children to their habitual residence.61
Under the White v Northumberland test, the court must first consider if the child objects.62 Currently, the requirements for this objection are simply that the child has expressed a wish not to return.63 Previously the child had to explicitly state they objected to returning before their objection would be considered.64 Where an objection exists, the second step requires the court to determine if the child has attained an age and degree of maturity at which it is appropriate to give weight to the child’s views.65 Where the first two requirements are met, the third step is determining the weight given to the child’s views.66 The fourth, and final, step requires the court to determine how it will use its residual discretion under s 105 of the COCA.67 The result of this four-stage approach is that, given the explicit nature of child participation within s 106(1)(d) and the high threshold for the exception found in the case law, child participation in return proceedings has remained insulated from the child participation developments progressing elsewhere in law. To understand the concerns related to this
57 White v Northumberland [2006] NZCA 446; [2006] NZFLR 1105 (CA).
58 Mark Henaghan “The voice of the child in international child abduction cases — Do judges have a hearing problem?” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 14 at 14.
59 Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 (CA).
60 Henaghan, above n 58, at 14.
62 White v Northumberland, above n 57, at [44] per Chambers J.
63 Ryding v Turvey [1998] NZFLR 313 (NZFC) at [316].
64 At [591]. Previously, there had been a requirement for the child to make a clear statement that they object to being returned, with the correct wording being critical to the success of the objection.
65 White v Northumberland, above n 57, at [44] per Chambers J.
66 At [44] per Chambers J. Read literally, the COCA only requires the first two criteria to be met. Chisholm J’s judgment in White v Northumberland created an additional third criteria not found in the English system or in the Convention. See Caldwell, above n 48, at 84.
insulation, it is important to reflect on the limitations of our current reliance on the child objection exception to provide opportunities for child participation.
The child objection exception has undoubtedly been instrumental in enabling some children to be heard by the court in return proceedings. Over the last forty years, attitudes towards the required age and degree of maturity have changed, to some extent allowing a greater number of children to participate.68 For example, in Robinson v Robinson the strong objections of children aged 13 and 14 were heard and given significant weight by the Court,69 and were key to the decision to allow them to remain in Aotearoa.70 While Robinson reflects child participation, concerns remain about how well this exception facilitates participation of children who fall outside the requirements of the child objection exception.
The structure of return proceedings under the Convention is itself a potential barrier for child participation. The requirement that a child who meets the s 105 requirements shall be returned to their place of habitual residence unless their abducting parent successfully argues a defence under s 106 can hypothetically limit the ability for a child to participate.71 First, without a claim under s 106, there is no requirement to hear the views of the child. Second, while most abducting parents making a claim under s 106 would choose to argue all potential exceptions to increase their likelihood of retaining their child in the state of abduction, failing to argue the child objection exception leaves the court under no obligation to hear the child’s views.72 Even in the limited instances where the child may be able to raise an objection, it remains the role of
68 For example, in Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145, [1999] 2 FCR 507 at [1158] the court decided without significant discussion that children at the ages of nine and seven failed to reach the requisite age and degree of maturity for the court to consider their objection. Modern cases have provided significantly more discussion on children around the age of ten.
69 Robinson v Robinson [2020] NZHC 1765.
71 Rhona Schuz “The Hague Child Abduction Convention and Children's Rights” (2002) 12(2) Transnational Law & Contemporary Problems 393 at 418.
72 Schuz “The Hague Child Abduction Convention and Children's Rights”, above n 71, at 418.
the parent to inform the child of this, a role sometimes forgotten during the great stress of return proceedings.73
The lack of child participation in cases argued under the grave risk exception illustrates the overreliance on the child objection exception to facilitate child participation in return proceedings. In Cresswell v Roberts the two children were aged five and six.74 While noting the question of grave risk is one looking at a risk “which this particular child in these particular circumstances could not be expected to tolerate”,75 the court failed to explore the views of the children.76 In a later case clarifying the application of the grave risk exception, the Court in LRR v COL made no reference to the desire to hear the views of the child within the exception.77 The mother’s views on returning to Australia were presented to the courts, while the child’s were not.78 Because the court relies on the child objection exception to hear the views of the child, where this exception is not argued there is nothing compelling the court to facilitate child participation.
Given the potentially significant implications of finding a child has reached the requisite age and degree of maturity for weight to be given to their views, the courts have tended to be cautious in this determination. Imposing a high threshold on the requisite age and degree of maturity, however, inevitably results in some children failing to meet this threshold. Summer v Green provides an example of the implications of such a finding. The mother in Summer v Green abducted her three children from Australia to Aotearoa.79 Two of the children were said to have objected to returning to Australia, the eldest, aged 10 (Child A), and the youngest, aged 6 (Child C).80 While Child A was deemed to have met the age and degree of maturity requirements, Child C was found to have fallen short of this threshold:
73 Marilyn Freeman and Nicola Taylor “Domestic Violence and Child Participation: Contemporary Challenges for the 1980 Hague Child Abduction Convention” (2020) 42(2) Journal of Social Welfare & Family Law 154 at 164.
74 Cresswell v Roberts, above n 33, at [1].
77 LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [101]- [120].
79 Summer v Green [2021] NZHC 3111.
80 Child A was ten years and nine months old.
“The Judge also found that [C] objected to returning to Australia but that his account of what occurred in that country was insufficiently rooted in what he saw and heard...The Judge found that [C] was not of an age and maturity where it was appropriate to give weight to his circumstances”.81
No further discussion on the views of Child C occurred once they were found to fall short of the age and degree of maturity threshold.82 Summer v Green is not the only case indicative of this finding. A four-year-old did not have their views considered in Zamani v Zamani.83 In G v G, the court concluded that “even if their views were considered, little weight ought to be given to them” in regard to two children (aged four and five).84 The court in G v G clearly acknowledged the potential for children’s views not to be considered where the child failed to meet the threshold for the child objection exception.
Pertinent to this discussion on age and degree of maturity is the issue of children whose views do not constitute an ‘objection’. Child B in Summer v Green wanted to be returned to Australia.85 Consideration of their views was restricted to determining that Child B would, for obvious reasons, fail to meet the criteria for the child objection exception.86 To summarise, while the child objection exception may be helpful for those children who meet the exception’s requirements, it fails to effectively facilitate child participation for children who do not meet the high thresholds imposed on the child objection exception.
The Convention envisages that contracting states will act expeditiously to process return proceedings.87 Where the contracting state takes longer than six weeks, they are said to have delayed under the Convention and may be required to outline their reasons for this delay.88
81 Summer v Green, above n 79, at [79].
83 Zamani v Zamani [2020] NZFC 1094 at [14].
84 G v G (No 2) [2021] NZHC 3318 at [37].
85 Summer v Green, above n 79, at [12]
87 Convention on the Civil Aspects of International Child Abduction, above n 5, art 11(1).
Aotearoa enshrined the Convention’s goal of resolving return proceedings within six weeks in s 107.89 To attain this goal, Aotearoa is reliant on Family Court judges to correctly apply the Convention. Unfortunately, return proceedings often exceed six weeks in Aotearoa. In Simpson v Hamilton,90 Anna,91 was permitted to remain in Aotearoa with her mother after the Family Court determined she objected to returning to Germany and was well settled in Aotearoa.92 The case was appealed to the Supreme Court two years after proceedings commenced. The Supreme Court overturned the decision partially on the basis of an incorrect application of the child objection exception. 93 Anna was able to remain in Aotearoa after a traumatic uplift from her school by her father, distraught after the Family Court proceedings allowed his abducted child to remain.94 While the rather exceptional facts in Simpson v Hamilton are by no means representative of all return proceedings, the case does provide a helpful illustration of the concerns associated with the speed return proceedings are resolved in Aotearoa. These concerns are mirrored internationally. In 2008, 24% of worldwide applications were appealed with the rate increasing significantly to 31% 2015.95 The average time an appealed case took to resolve in 2015 was 266 days.96 A far cry from the six weeks envisioned by the Convention.
The role that determining the best interests of the child should play in Convention proceedings has been the subject of contemporary literature discussing the Convention. Traditionally, the pursuit of efficient return of the child was deemed central to the Convention at the expense of discussions on the individual child’s best interests.97 LRR v COL overrode this hierarchy in 2019, arguing that the policy rationale behind prompt return, which included deterring potential abductors, was no more important than acting in the best interests of the child.98 The Court of Appeal found that the exceptions to return in art 13 of the Convention are as integral to the
89 Care of Children Act, s 107 (1).
90 Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338.
91 Name changed in accordance with the Care of Children Act, s 139.
92 Simpson v Hamilton, above n 90, at [24].
94 At [78], Anna was allowed to remain in New Zealand after her father tried to abduct her from New Zealand back to Germany. The second abduction left her scared of her father and the court accepted her objection to return on this basis.
95 Lowe and Stephens, above n 1, at 4.
97 Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289.
98 LRR v COL, above n 77, at [79].
Convention as art 12, the provision for prompt return.99 Cases subsequent to LRR v COL will now provide for the best interests of the child as a priority when making decisions under s106.100 The role of child participation within this discussion on the best interests of the child
is yet to be determined.101 Current considerations for the best interests of the child, which often occur when the court determines whether it should exercise discretion to allow the child to remain, do not provide opportunities for child participation.
Lawyer for child is an important medium for bringing the voice of the child to return proceedings where a child is provided an opportunity to participate. While the use of lawyer for child has been internationally commended,102 concerns over cases where no lawyer for child is appointed have been raised and gaps exist in instructions provided to lawyer for child on their role in return proceedings. Appointing a lawyer for child is not a requirement in return proceedings. KMA v Secretary of Justice103 reinforced the discretionary nature of the appointment, noting that failure to appoint a lawyer for child was not a valid appeal point.104 B v Secretary of Justice further stated it would be unlikely that a lawyer for child would be appointed where the child was very young.105 Without a lawyer for child, the opportunity a child has to participate substantially reduces.106
Failure to appoint a lawyer for child creates an opportunity for an abducting parent to bring the views of their child to court. Karly v Karly provides an apt example.107 The abducting parent informed the court of the child’s concerns about her safety in the care of her father after the court concluded the child failed to reach the requisite age and degree of maturity to have her
100 Murphy, above n 55, at 40.
102 Fernando, above n 47, at 54.
103 KMA v Secretary for Justice (as the New Zealand Central Authority on behalf of SAN) [2007] NZCA 223, [2007] NZFLR 891.
104 At [21] Under the Care of Children Act s 33 (3A) (b) it states that no appeal may be made to the High Court in relation to a decision under s 7 of the Care of Children Act.
105 B v Secretary of Justice [2007] NZCA 210, [2007] 3 NZLR 447 at [15]. It is important, however, to be aware that in 2014 changes were made to s 7 of the COCA which may have impacted the validity of the statement made in B v Secretary of Justice.
106 Henaghan, above n 58, at 14.
107 Karly v Karly [2017] NZFC 10030 at [57]. No lawyer for child was appointed in this case as the court relied on previous lawyer for child reports from a separate proceeding.
views given weight (or to be given much weight).108 While the weight provided to the parent’s account was not specified, some obvious concerns arise in this situation. Abducting parents can find it difficult to set aside their own beliefs and interests and provide an objective synopsis of the child’s views.109 It is essential children are provided a third party to support them in participating in return proceedings.
The second significant concern is the current uncertainty over the role of lawyer for child in return proceedings.110 Section 9B of the Family Court Act 1980 directs the lawyer for child to act in a way that promotes the welfare and best interests of the child while ensuring their views are presented to the court.111 It has been assumed that, as there is no exclusion of this section in subpt 4 of the COCA, lawyers acting for abducted children would be bound by s 9B.112 As Ashmore argues, the balance between representing the best interests of the child with their role presenting the child’s views was disrupted by the 2011 Practice Note on the role of lawyer for child within return proceedings.113 This Practice Note states that the appointment of lawyer for child should occur any time one of the s 106 exceptions to return are raised.114 Point 4.6 states that the role of the lawyer for child in such cases should be “clearly defined by the judge”.115 Ashmore points out that features of the role provided by the Practice Note differ quite substantially from those provided by s 9B, including that of the judge’s brief and a greater pronouncement of advocating for the views of the child.116 The uncertain role of lawyer for child as a result of the conflicting instruction is problematic.117 A uncertain role may lead to inconsistences in the opportunities children have to be heard during return proceedings.
109 Calvert, above n 2, at 17.
110 Alex Ashmore “Lawyer for Child in Hague Convention Cases – Trying to Define the Role” in Alex Ashmore, Dr Sarah Calvert, Maurice Casey, Kathryn Dalziel, Hana Ellis, Andrew Finnie, Simon Jefferson QC, Khylee Quince, Kiriana Tan, Stephen van Bohemen, Nicola Williams, Tania Williams Blyth (eds) Advanced Lawyer for Child: Out of the Comfort Zone (New Zealand Law Society, Wellington, 2018) 115 at 124.
111 Family Court Act 1980, s 9B (1)(a)-(b).
112 Ashmore, above n 110, at 124.
114 Ministry of Justice Practice Note: Hague Convention Cases: New Zealand Family Court Guidelines (On the Appointment of Lawyer for the Child/Counsel to Assist, Specialist Reports and on Views of the child) (March 2011) point 2.1.
116 Ashmore, above n 110, at 124.
The facilitation of child participation in Convention cases is largely restricted to arguments raised by the abducting parent under s 106(1)(d), the child objection exception. As Clare Murphy concluded, Aotearoa has “operated in a state of self-denial and internal inconsistency when it comes to matters of the Convention”,118 a sentiment clearly reflected in the lack of child participation in return proceedings. While allowing for children who reach the high threshold requirements of the exception to be heard, those children who fail to meet these requirements are often silenced in return proceedings. Abducted children whose parent fails to raise a child objection argument, or who fail to meet the requisite age and degree of maturity requirements, or have views they want to express other than an objection to being returned, are often not provided an opportunity to participate. Even where a lawyer for child is appointed, the confusion over their role in return proceedings may lead to inconsistencies in hearing the child. Beyond the Convention, the UNCRC is an international treaty with significant implications for the place of child participation within Convention proceedings. Chapter III discusses whether the current accessibility to participation for children in return proceedings aligns with, or breaches, the rights Aotearoa assured children through its ratification of the UNCRC in 1993.
118 Murphy, above n 55, at 37.
III. The Compatibility between Child Participation in Aotearoa’s Return Proceedings and the UNCRC
The lack of guidance the Convention provides on child participation has paved the way for discussion on how other conventions may guide the requirements of child participation in return proceedings. Contracting States’ obligations to protect the rights of children to express their views, as required by art 12 of the UNCRC, has swiftly become a central argument in this discussion.119 With the Convention predating the UNCRC by almost a decade,120 the UNCRC offers a more modern, rights-based approach to child participation that has already reconceptualised the requirements of child participation in Convention proceedings in a number of contracting states.121 In this chapter, I argue that the courts will be required to follow the UNCRC because of imminent legislative changes to s 6 of the COCA. Furthermore, I argue that the need for Contracting States to apply the Convention consistently demands that where other Contracting States determine that the Convention must be consistent with the UNCRC, Aotearoa should follow suit. Together, these two grounds support the wider argument that any disconnect between the UNCRC and the application of the Convention should lead to a re- evaluation of the present application of the Convention.122 This direction may also be consistent with the private international law theory that where two conventions can be applied concurrently without conflicting, both should be applied.123 However, further consideration of this argument goes beyond the scope of this dissertation.
The UNCRC was adopted by the General Assembly in 1989, and has been ratified by 195 countries (every state except the US) including Aotearoa in 1993.124 It imposes obligations on contracting states to uphold the rights of children.125 These obligations have been said to make
119 Bryant, above n 22, at 189.
120 Freeman and Taylor, above n 73, at 164.
121 For example: the Brussels II regulations discussed in the following chapter have incorporated the UNCRC into return proceedings.
122 Eran Sthoeger “International Child Abduction and Children's Rights: Two Means to the Same End” (2011) 32(3) Mich J Int'l L. 511 at 522.
123 Kathryn Hollingsworth and others “Judging parental child abduction: what does it mean to adopt a children’s rights-based approach” in G Douglas (ed) International and National Perspectives on Child and Family Law (Intersentia, Cambridge) 125 at 128.
124 Ministry of Justice “UN Convention on the Rights of the Child” (2020)
<https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/human- rights/international-human-rights/crc/>.
125 Trynie Boezaart “Listening to the Child's Objection” (2013) 3 N Z L Rev 357 at 359.
the UNCRC the “most important children’s rights document in history”.126 The UNCRC was developed to address concerns around the traditional status of children as little more than the passive recipients of their parents’ care.127 While the Convention (unlike other Hague Conventions created after the UNCRC) does not refer to the UNCRC, art 11 of the UNCRC, requiring state parties to combat the illicit transfer and non-return of children abroad, reiterates the Convention’s purpose.128 A connection between the conventions is, therefore, formed.
Article 12, one of the four guiding principles of the UNCRC,129 is fundamental to discussions of child participation. It states:
“State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.”130
The purpose of Article 12 was to recognise the child’s right to fully participate in society, while also aiding the decision making process.131 Children’s input in decisions about their lives is considered essential to effective decision-making under art 12.132 To ensure all children are provided an opportunity to participate, the UN Committee on the Rights of the Child, in General Comment No. 12, clarified the existence of the rebuttable presumption that every child has capacity to form his or her own views.133 The weight attributable to these views, set out in art 12(2), corresponds with the child’s age and degree of maturity.134 To provide redress to children who have their art 12 rights breached, General Comment No.12 clarifies that the state should provide children with access to a complaint or appeal process.135 Article 12 provides
126 Elrod, above n 30, at 672.
127 Gerison Lansdown “Article 12: The Right to be Heard” in Ziba Vaghri, Jean Zermatten, Gerison Lansdown, Robertac Ruggiero (eds) Monitoring State Compliance with the UN Convention on the Rights of the Child: An Analysis of Attributes 2022 (Springer International Publishing, Cham, 2022) 41 at 42.
128 Hans van Loon “Protecting Children Across Borders: The Interaction Between the CRC and the Hague Children’s Conventions” in Ton Liefaard and Julia Sloth-Nielsen (eds) The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead (Brill, Leiden, 2016) 31 at 33.
129 The others being the key consideration of the best interests of the child, the right to non-discrimination and, finally, the right to life and development. See Inder, above n 20, at 51.
130 United Nations Convention on the Rights of the Child, above n 49, art 12(1).
131 Elrod, above n 30, at 673.
132 Brian Kenworthy “The Un-Common Law: Emerging Differences between the United States and the United Kingdom on the Children's Rights Aspects of the Hague Convention on International Child Abduction” (2002) 12(2) Ind Int'l & Comp L Rev 329 at 346.
133 Tine Van Hof and others “To Hear or Not to Hear: Reasoning of Judges Regarding the Hearing of the Child in International Child Abduction Proceedings” (2020) 53(4) Fam L Q 327 at 328.
134 United Nations Convention on the Rights of the Child, above n 49, art 12(1).
135 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 574.
clear requirements for states to initiate child participation in decisions that impact them, decisions which include return proceedings.
Two elements of art 12 should be clarified. For one, there is no definition of “due weight” in the UNCRC. However, other human rights standards suggest due weight should be determined by factors including the strength with which the views are expressed, the potential implications of the decision on the child and whether any harm could result.136 Secondly, art 12(2) provides that a child should be heard directly, representative or appropriate body in a manner consistent with the procedural rules of national law of the Contracting State.137 The UNCRC emphasises that a person hearing the views of a child must equipped with necessary training.138
To summarise, art 12 imposes substantial rights on children to participate. A child capable of forming views has the right to be heard in all proceedings that affect them, with the weight given to those views depending on the child’s age and degree of maturity.139 Aotearoa agreed to uphold the UNCRC, including art 12. Within return proceedings, the relevance of art 12 is arguably increasing in Aotearoa. Under art 12 courts may be required to adhere to the rights of children to participate, an argument strengthen by imminent changes to the COCA.
In a statutory provision unique to Aotearoa, s 106(1)(d) of COCA provides reference to child participation under s 6, forming a connection between return proceedings and child participation as likely envisaged by art 12 of the UNCRC. Section 106(1)(d) states:
“That the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b) also to give weight to the child’s views”.140 (emphasis added)
The introduction of COCA in 2004 enabled an addition to be made to s 106(1)(d) to that previously incorporated in the Guardianship Amendment Act 1991. This new reference to s 6
136 Van Hof and others, above n 133, at 330.
137 United Nations Convention on the Rights of the Child, above n 49, art 12(2).
138 Bryant, above n 22, at 189.
139 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 572.
140 Care of Children Act, s 106(1)(d).
of the COCA in s 106(1)(d) is significant. Section 6 sets out the guidelines for child participation in the many disputes between parents/guardians under the COCA, but previously with the exception of Convention proceedings.141 Section 6 states “a child must be given reasonable opportunities to express views on matters affecting the child” and that those views expressed must be taken into account.142 The reference to s 6 in s 106(1)(d) in 2004 was a clear signal to courts to implement a greater level of child participation in return proceedings. This was likely rationalised by the growing support in scholarship on the positive impacts of child participation in the early 2000s.143 However, as demonstrated in Chapter II, the requirements to adhere to s 6 when applying s 106(1)(d) appear to be largely ignored in Aotearoa return proceedings.
While the Ministry of Justice report on the 2014 family justice reforms states that s 6(2) of the COCA already gives effect to the UNCRC,144 the imminent amendment to s 6 of COCA will formally entrench art 12 of the UNCRC directly into s 106(1)(d) proceedings. Once in effect, the Family Court (Supporting Children in Court) Legislation Act 2021 amends s 6 of COCA to state that the purpose of s 6 is to implement art 12 of the UNCRC.145 Given the reference to s 6 in s 106(1)(d), there will, therefore, be strong legislative support that return proceedings involving the child objection exception in s 106(1)(d) must implement art 12 of the UNCRC. In addition, the Practice Note on Hague Convention Cases states that s 6 is expected to apply to return proceedings argued under the s 106(1)(a), (c) and (d) exceptions.146 The fact that Aotearoa has taken steps to implement art 12 of the UNCRC arguably goes beyond that of other Contracting States, making it a seemingly smaller step to implement the UNCRC more fully in return proceedings. A strong argument exists that, following the Family Court (Supporting Children in Court) Legislation Act 2021, children must be assured their art 12 rights to participation in Aotearoa return proceedings.
141 Murphy, above n 55, at 39.
142 Care of Children Act, s 6(2)(a) and (b).
143 Claire Fenton-Glynn “Participation and Natural Justice: Children's Rights and Interests in Hague Abduction Proceedings” (2014) 9(1) Journal of Comparative Law 129 at 131.
144 Ministry of Justice Te Korowai Ture ā-Whānau: The final report of the Independent Panel examining the 2014 family justice reforms (May 2019) at 35.
145 Family Court (Supporting Children in Court) Legislation Act 2021. This Act is not yet in force at the time of writing, but has Royal Assent.
146 Ministry of Justice Practice Note: Hague Convention Cases: New Zealand Family Court Guidelines (On the Appointment of Lawyer for the Child/Counsel to Assist, Specialist Reports and on Views of the child) (March 2011) points 6.1 and 6.2.
Increasing children’s participatory rights guaranteed under the UNCRC and the changes to s 106(1)(d) were the result of increasing international awareness of the benefits of child participation during the 1980s.147 The scholarship driving this trend had not yet emerged in the 1970s when the Convention was drafted.148 I will now review and summarise key themes in this scholarship.
At a foundational level, child participation in all proceedings that impact them allows the child to feel heard, respected and empowered.149 One European survey concluded that children who felt respected and heard in judicial proceedings reported positive effects on their overall wellbeing.150 Similarly, a Northern Ireland survey concluded that “attentive and genuine involvement allows young people to feel trusted and respected”.151 A child’s self-esteem, psychological functioning, and self-sufficiency have all been shown to increase with participation.152 Conversely, one of the greatest concerns children had was having adults around them who offered them little dignity or respect, or the means of having their views heard.153 This was evident in a US survey where children reported experiencing feelings of betrayal towards the legal system and their own parents when their views were not heard in proceedings that affected them.154 The rich foundation of research aligns with the conclusion that allowing children to participate improves their experiences of parental disputes about their future.
The benefits of child participation in parental disputes are not limited to the child. Allowing a child to engage in proceedings impacting their lives can help children better understand and
147 Freeman and Taylor, above n 73, at 164. See also Schuz, The Hague Child Abduction Convention,
above n 40, at 317.
149 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 571.
150 Lembrechts, above n 43, at 10.
151 Ursula Kilkelly and others Children’s Rights in Northern Ireland (Northern Ireland Commissioner for Children and Young People, Belfast, 2005) at xxii.
152 Boshier and Steel-Baker, above n 18, at 548.
153 Laura Lundy “‘Voice’ is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child” (2013) 33(6) British Educational Research Journal 927 at 929.
154 Elrod, above n 30, at 666.
accept the outcome, in turn making that outcome more sustainable.155 Hearing the views of the child can also improve the decision-making capabilities of the court as clearer picture of the best interests of the child can be developed.156 Further, the credibility of the judicial system increases when courts promote child participation as those most impacted by outcome have a voice in the decision making process.157 These benefits rationalise the international increase of child participation.
Child participation is especially important in return proceedings. The decision made in return proceedings, namely whether to return the child to their state of habitual residence or not, is a critical event in shaping the child’s future.158 Children in return proceedings are often of the age group most interested in the chance to participate. Children aged 12 and younger are more likely to want a greater say in proceedings compared to those over the age of 12.159 The average age of children in return proceedings is 6.8 years, well within this age bracket.160
The psychological implications of abduction on children are significant. Abducted children have a high likelihood of developing a loss of resilience, an inability to create a stable self- identity, adjustment deficits,161 and often an inability to form secure relationships as an adult.162 Some children have described their experience as an “escalating cycle of fear and anxiety” that impacts them long into their adult lives.163 Where children have been forcefully returned to their place of habitual residence, some have become intentionally ill, attempted to physically resist return or indicated suicidal intentions if they were to be returned.164 Children involved in return proceedings are often subject to significant trauma as a result of the abduction, loss of contact with their left-behind parent and the return process, further emphasising the need to provide abducted children with proven methods of support.165 As child
155 Schuz “The Hague Child Abduction Convention and Children's Rights”, above n 71, at 405.
156 Fenton-Glynn, above n 143, at 133.
157 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 571.
158 Anne-Marie Hutchinson and Marilyn Freeman “The Voice of the Child in International Child Abduction” (2007) IFL 177 at 179.
159 Freeman and Taylor, above n 73, at 167.
161 Marilyn Freeman “The Effects and Consequences of International Child Abduction” (1998) 32(3) Fam L Q 603 at 605.
162 Calvert, above n 2, at 18.
164 Fenton-Glynn, above n 143, at 133.
165 Tetley, above n 27, at 139.
participation has been shown to benefit children in return proceedings, it should be offered wherever possible.
Creating workable arrangements for the individual child through child participation is particularly important in return proceedings. One study found that 35% of interviewees had reported attempted, or achieved, multiple abductions.166 One child described how she was abducted by her father, subsequently re-abducted by her mother and finally abducted again by her father.167 Promoting long-term arrangements between parents may reduce this risk of multiple abductions. The child’s view in creating such arrangements is crucial as parents in return proceedings are often unable to place their own feelings in perspective and focus on their child’s wellbeing.168 In addition to providing perspective, a child’s voice can allow parents and judges to recognise the emotional plight of the child. Abducted children can feel isolated and confused, affirmed by a previously abducted child who stated, “family judges have to be aware of the impact ... no-one realised how alien we all feel”.169 The voice of the child therefore starts to centre the proceedings on the welfare of the child, rather than the parental dispute at play.
The benefits of child participation for both the child and the judicial system are considerable. It is no surprise child participation is increasingly seen as a necessity within return proceedings despite its absence from the Convention text. Because the Convention was drafted before recognition of child participation came into fruition, abiding by the UNCRC provides Aotearoa the best model for accounting for child participation in return proceedings.
In the case of Hollins v Crozier,170 Doogue J resolved that courts deciding cases under the Convention should give more than lip service to art 12 of the UNCRC.171 Whether this has actually been actioned in subsequent return proceedings remains less clear. By drawing on the critiques of child participation in return proceedings discussed in Chapter II, this section
166 Freeman, above n 161, at 21.
168 Calvert, above n 2, at 17.
169 Freeman, above n 161, at 25.
170 Hollins v Crozier [2000] NZFLR 775 (DC) at [797].
171 John Caldwell “Child Welfare Defences in Child Abduction Cases - Some Recent Developments” (2001) 13 CFLQ 121 at 130.
examines whether the current stance on child participation in return proceedings in Aotearoa is consistent with the participatory obligations imposed by art 12 of the UNCRC.
As discussed in Chapter II, Cresswell v Roberts and LRR v COL highlight the present reliance on the abducting parent bringing forward the child objection exception before the views of child are heard in return proceedings. The requirement under art 12 that all children capable of forming their own view must be heard in matters impacting them is an intentionally wide provision.172 Giving abducting parents the power to decide whether or not to argue the child objection exception to return is a barrier to hearing the views of all children. Rhona Schuz reinforces this concern, stating that a clear breach of art 12 occurs when the taking parent’s decision not to argue the child objection prevents the court hearing the children’s views.173
Article 12 is also breached where parents articulate the views of the child to the court.174 The Guide to Good Practice Part IV (2010) recognised that parents frequently present their view of their child’s perspective in return proceedings.175 Unfortunately, where the views of the child are presented by the objecting parent, the child’s views are often conflated with the parent’s desires or interests.176 This can strongly influence the decision-maker’s perception of the legitimacy of the views,177 particularly as parental influence over children’s views is already a serious concern for decision-makers.178 The current processes for bringing the child’s views to court, either by requiring the child objection exception to be argued or through parents presenting the views of the child, fails to meet the art 12 requirements. I argue that these breaches of art 12 stem from an overreliance on the child objection exception to facilitate all child participation.
172 United Nations Convention on the Rights of the Child, above n 49, art 12(1).
173 Schuz “The Hague Child Abduction Convention and Children's Rights”, above n 71, at 418.
174 See Karly v Karly, above n 106.
175 Fenton-Glynn, above n 143, at 132.
176 Peter McEleavy “Evaluating the Views of Abducted Children: Trends in Appellate Case-Law” (2008) 20(2) CFLQ 230 at 231.
177 McEleavy, above n 176, at 231.
178 Elrod, above n 30, at 687.
As highlighted in Summer v Green, the failure of a child to reach the requisite age and degree of maturity under the child objection exception can result in the child’s views being silenced in return proceedings. Article 12, however, requires the views of all children to be taken into account with the weight to be given to the views determined by the child’s age and degree of maturity.179 There is a seemingly small, but critical, differentiation between these positions. For one, as Tine Van Hof has argued, the text of art 12 does not allow a child not to be heard for the sole reason they fail to meet any age or degree of maturity requirements.180 Second, following the application of art 12, Child C in Summer v Green would have had their views heard by the court but the age and maturity of Child C would determine the weight given to those views.181 Even where the weight given to Child C’s views was minimal, they would still receive the benefits of feeling heard and respected.
Under art 12 it is expected that the importance of being heard would apply to children of all ages and stages. The UN Committee on the Rights of the Child was explicit on this matter. It stated that instead of using written or spoken language, children could exercise their rights to participation through facial expressions, emotions, drawing and painting.182 The Committee also argued that children with disabilities should be provided the tools necessary to communicate with the court, reflecting the intentionally wide scope of children who should be heard during proceedings.183 The UNCRC responds to the underestimation by adults of the competencies of children by imposing strict requirements for child participation.184 Reliance on the child objection exception, with the child only being heard once they have reached the requisite age and degree of maturity, fails to comply with these requirements of child participation provided by art 12. This is not to say that the rationale behind the high thresholds in the child objection exception should be removed. Rather, it supports the argument that the child objection exception should exist separately from the opportunities for child participation in return proceedings. A baseline of child participation, as already exists in other COCA proceedings outside the Convention, should be implemented to necessitate hearing the child in all return proceedings.
179 Bryant, above n 22, at 189.
180 Van Hof and others, above n 133, at 332
182 United Nations Committee on the Rights of the Child General Comment No.12 UN doc CRC/C/GC/12 (1 July 2009), at 9.
184 Lundy, above n 153, at 938.
Interlinked with the previous two sections of this chapter is the issue of children who support, or do not object to, returning to their place of habitual residence. Fisher J confirmed in the 1999 case of S v S that “the framers of the Hague Convention assumed that a mature child's wishes would be taken into account without distinction between a wish to remain and a wish to return”.185 While this statement goes some way to appreciating the equality of children’s views highlighted in art 12, recent cases have failed to uphold this sentiment. In Summer v Green, Child B (who did not object) did not have their views incorporated into the discussion on whether the siblings should be returned to Australia.186 Michelle Fernando argues that Australia generally fails to adhere to art 12 on the basis that children are only permitted to express their views where they object to returning.187 This critique is equally applicable to Aotearoa. There is growing international support for child participation being accessible irrespective of whether the child objects to, or accepts, being returned to their state of habitual residence.188 To realise this desire, child participation must not remain solely within the child objection exception.
Article 12 of the UNCRC does not exist in isolation from the other UNCRC articles.189 Particularly important in this respect is art 3 of the UNCRC, which states that in all actions concerning children, the best interests of the children shall be the primary consideration.190 A positive step forward was taken in Aotearoa in LRR v COL, which acknowledged the importance of the best interest test in Convention cases.191 However, a failure to recognise art 12 in the process of understanding what is in the best interests of the child is failing to read the UNCRC as a whole and is needlessly breaking it into independent articles.192 There is clear evidence the drafters of the Convention intended to relate the exceptions to return, including
185 S v S [1999] 3 NZLR 513 (CA) at [525].
186 Summer v Green, above n 79, at [80].
187 Michelle Fernando and Nicola Ross “Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia” (2018) 32(1) IJLPF 93 at 96.
188 Bryant, above n 22, at 189.
189 Lundy, above n 153, at 933.
190 United Nations Convention on the Rights of the Child, above n 49, art 3(1).
191 Murphy, above n 55, at 39.
192 Elrod, above n 30, at 673.
the child objection exception, to the issue of the child’s best interests.193 However, there appears to be a disconnect, as the court failed to consider the views of the child when discussing the child’s best interests in LRR v COL.194 The court’s determination of whether it is in the child’s best interests to be returned should, following art 12, incorporate the views of the child.195 Schuz supports this conclusion, submitting that, to account for art 12, the courts should specifically mention the views of the child in all applications of their discretion regarding whether to order return or not.196 Clare Murphy further suggests looking closely at the interrelationship between the ‘best interests of the child’ and child participation in an Aotearoa context.197 Were child participation used to help inform the best interests of the child in Aotearoa return proceedings, child participation would exist outside the child objection exception and the number of children provided the opportunity to be heard would increase.
The disconnection between the UNCRC and the current facilitation of child participation in return proceedings is of significant concern. Article 12 requires all children to be heard, yet the voices of children in return proceedings are too often stifled by the reliance on the child objection exception and the caveats on participation that exist within that exception. The current framework ignores the connection between the Convention and the UNCRC while concurrently failing to ensure children are provided a voice in return proceedings.198 Aotearoa must address this disconnect. Aotearoa’s alignment of s 106(1)(d) with s 6 provides additional support for this proposition. The obvious issue, however, is how this can be achieved. An examination of the practices and jurisprudence of other contracting states is useful in providing a path Aotearoa could take to reconceptualise child participation in return proceedings.
194 Murphy, above n 55, at 39.
195 Schuz “The Hague Child Abduction Convention and Children's Rights”, above n 71, at 419.
198 Hollingsworth and others, above n 123, at 129.
IV. Child Participation in Return Proceedings Outside Aotearoa
The contemporary issue of aligning return proceedings with the UNCRC persists for many Contracting States. In a 2020 analysis of return proceedings across the world, one or more children were heard in just 194 of the 435 cases subject to analysis.199 In five of these cases, the rationale behind not hearing the child was that the child did not ask to be heard, or hearing the child was not mandatory.200 States frequently create a façade of child participation while failing to provide any meaningful avenue for a child to be heard.201 Aotearoa is not alone in needing to confront the lack of opportunities for child participation within return proceedings. Discussion of the future of child participation in return proceedings has led to significant changes and informative jurisprudence from some contracting states. Such jurisprudence should be accorded a degree of authority in other jurisdictions.202 Similarly, the need for Contracting States to apply the Convention as uniformly as possible to ensure international consistency encourages states to look to other jurisdictions to shed light on how they may improve their application of the Convention.203 The greatest changes in this area are in the Brussels IIa Regulation and Recast, UK jurisprudence and changes to return procedures undertaken in the Netherlands.
Of considerable significance across return proceedings in Europe, the Brussels IIa Regulation (a predecessor to the current Brussels II Recast)204 imposed strict child participation requirements in an attempt to align with art 12 of the UNCRC.205 The Brussels IIa Regulation was developed to provide a “framework for mutual recognition of jurisdiction”206 for Member States in the European Union (“EU”) applying the Convention.207 Importantly, the Brussels IIa
199 Van Hof and others, above n 133, at 332.
201 Paul Beaumont, Lara Walker and Jayne Holiday “Conflicts of EU Courts on Child Abduction: The Reality of Article 11(6)-(8) Brussels IIa Proceedings Across the EU” (2016) 12(2) IJPL 211 at 234.
202 Caldwell “Child Welfare Defences in Child Abduction Cases”, above n 171, at 121.
204 Council Regulation (EC) 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility, Repealing Regulation (EC) No 1347/2000 [2003] OJ L338.
205 Van Hof and others, above n 133, at 331.
206 Lars Bay Larsen “Mutual Recognition in Civil Law Cooperation: The Case of Child Abduction - Some General Remarks in the Light of the Jurisprudence of the CJEU (the Brussels II Bis Regulation)” (2015) 6 New J Eur Crim L 452 at 455.
207 Peter Mankowski and Ulrich Magnus (eds) Brussels IIbis Regulation: Commentary (Otto Schmidt KG, Köln, 2017) at 6.
Regulation attempted to impose an obligation to hear the child onto EU states applying the Convention.208 While the Brussels IIa Regulation was somewhat effective, there remained a disconnect between the theoretical requirements to hear the child and the practical facilitation of child participation.209 To rectify this concern, the recast which came into effect in August 2022 was implemented.210 In the common provisions of the Council Regulation (EU) 2019/1111 (the “Brussels II Recast”), art 21 requires EU states to provide a child capable of forming his or her own views a “genuine and effective opportunity to express their views”.211 In addition, weight must be given to those views in accordance with the age and degree of maturity of the child.212 While these changes have been largely praised for their focus on the rights of the child, one critique has arisen that the guidelines lack clarification over the methods states must use to hear the child.213 It has been argued that the provisions still provide too much discretion to EU states in this respect.214 For the purposes of the present dissertation, the Brussels II Recast provides an example that Aotearoa can look to as an editable template for increasing our own child participation in return proceedings.
To understand how Aotearoa may replicate the benefits associated with the Brussels II Recast, it is important to examine the changes the Recast imposed. There is an obvious shift in the implementation of the Brussels II Recast towards the requirements for child participation provided for in art 12 of the UNCRC.215 Of significance is the desire under the Brussels II Recast to use the age and degree of maturity criteria to limit the weight the court can give children’s views while providing all children the opportunity to participate.216 As a result, the previous discretion decision-makers had to limit child participation by claiming the age and degree of maturity of the child was too low is removed.217 Discretion as to what is meant by due weight given to the child’s views was also removed.218 These techniques for reducing the discretion given to decision makers is likely to create greater consistency in child participation.
208 Benedetta Ubertazzi “The Child’s Right to be Heard in the Brussels System” (2017) 2(1) European Papers 43 at 57.
210 Council Regulation (EU) 2019/1111 on Jurisdiction, the Recognition and Enforcement of Decisions in Matrimonial Matters and the Matters of Parental Responsibility, and on International Child Abduction (Recast) OJ L178/1.
211 Council Regulation (EU) 2019/1111, above n 209, Article 21(1).
213 Freeman, above n 161, at 15.
215 Freeman and Taylor, above n 73, at 164.
216 Ubertazzi “The hearing of the Child in the Brussels IIa Regulation”, above n 42, at 573.
217 Van Hof and others, above n 133, at 331.
Aotearoa should look to the Recast for ways in which it too can promote consistent child participation in return proceedings.
In Re D (discussed further below) Baroness Hale stated that while the Brussels II Revised Regulation applied to cases within the EU itself, it was a principle of universal application “consistent with our international obligations under art 12 of the United Nations Convention on the Rights of the Child”.219 While Re D occurred in 2007, it remains arguable the Recast has a persuasive effect on other jurisdictions outside the EU on the requirements for child participation in Convention cases. This further supports the use of the Recast as a template for changing child participation requirements in Aotearoa return proceedings.
Unlike in Aotearoa, child participation in return proceedings under the Brussels II Recast is not limited by the exception to return; nor are the views of the child dismissed where they fail to reach an age and degree of maturity threshold. Were Aotearoa to adopt elements of the Recast, the language “genuine and effective opportunity” could be utilised. In fact, Aotearoa has ample opportunities to incorporate elements of the Brussels II Recast into our own return proceedings. To do so would maintain consistency in return proceedings across contracting states.
The traditional approach to child participation in the UK was similar to that of Aotearoa, with children often only heard where the child objection exception was argued by the abducting parent.220 UK cases normalised stringent thresholds on exceptions to return.221 Recently, however, there have been significant shifts in child participation in UK return proceedings. Since 2008, the UK has applied a more child-centric approach to return proceedings than many other contracting states.222 One of the key cases which pushed the UK towards this child- centred approach was Re D.
219 Re D (a Child) (Abduction: Rights of Custody) [2006] EWCA Crim 1518; [2007] 1 AC 619 at [58].
220 McEleavy, above n 176, at 231.
221 For example, in Re F (Minor: Abduction: Rights of Custody Abroad) [1995] Fam 224 (CA).
222 Rhona Schuz “Disparity and the Quest for Uniformity in Implementing the Hague Abduction Convention” (2014) 9(1) Journal of Comparative Law 3 at 21.
The 2007 case of Re D, specifically the judgement of Baroness Hale, firmly established the importance of child participation in return proceedings. Re D involved an eight-year-old boy who objected to being returned to Romania.223 In her judgement, Baroness Hale recognised the growing support for hearing the views of the child in return proceedings.224 She described children are capable moral actors in their own right, reasoning that as return proceedings impact the child as well as the parent, both parent and child’s views should be paid significant respect.225 Her Honour criticised parents bringing the views of their children to return proceedings, arguing “it is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court”.226 Such sentiment supports the right of the child to participate as granted by art 12 of the UNCRC. Aotearoa is yet to address this concern.
The second significant finding of Baroness Hale was that European courts, in accordance with the Brussels Regulation, should consider the views of the child at the early stages of a case.227 Her Honour criticised the outdated system where child participation was only considered at the close of the proceedings, if it was brought up at all.228 It is clear that a reliance on the child objection exception to achieve child participation fails to bring the child’s views to the forefront of the decision-makers’ mind, as the views are addressed as an exception to return rather than an overarching consideration. The judgment of Baroness Hale provides judicial support for the aforementioned desire to bring the views of the child to the centre of return proceedings.
Hearing the child is now mandatory in UK return proceedings, a change driven in part by the Brussels IIa Regulation.229 There are three key methods for hearing the child within UK return proceedings.230 First, the child can be included as a separate party to the proceeding. Second,
229 Baroness Hale of Richmond “Child Abduction from the Child's Point of View” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 40 at 41.
the child is offered a face-to-face meeting with the judge.231 The final option is the presentation of an independent report of the views of the child by a Cafcass Officer.232 In Re D, Baroness Hale stated that while rare, where the parents refuse to bring legitimate legal arguments to return proceedings, the child should be appointed separate legal representation.233 The UK courts have, however, concluded that in most cases, the use of a Cafcass officer will be sufficient.234 This said, there has been an increase in states exploring the possibility of offering children separate legal representation in return proceedings.235 Some believe separate representation would promote the primacy of the child’s views.236 This may be something for Aotearoa to explore further.
While the three methods referenced above successfully facilitate child participation to a certain extent, judges within the UK have acknowledged a number of limitations with this system. Judges are provided with no training on how to communicate with children in the complex situation of international child abduction, making many ill-equipped to meet with children.237 Were Aotearoa to look to improve our own child participation within return proceedings by having the child communicate with the judge, these issues of judicial training would need to be addressed.
Baroness Hale affirmed the need to implement child participation in return proceedings when she noted that the issue now is not whether we should hear children in return proceedings, but what the best way to do it may be.238 Aotearoa should consider the lessons learned from the UK when implementing changes to our own return proceedings. This will ensure the implementation of a more durable and effective procedure for child participation in return proceedings.
233 Hutchinson and Freeman, above n 158, at 181.
235 Hague Conference on Private International Law Conclusions and Recommendations of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and 1996 Hague Conventions (June 2011) at 50-51.
236 Hutchinson and Freeman, above n 158, at 182.
237 Justice MacDonald “Hearing the Children's Objections, Some Perspectives from a Judge Hearing Cases in England and Wales” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 45 at 49.
238 Baroness Hale of Richmond, above n 229, at 44.
The Netherlands is now bound by the Brussels II Recast when dealing with international child abduction cases and takes a novel approach to the structure of return proceedings and how children participate. The Netherlands has significantly increased the use of mediation in return proceedings.239 Where mediation is possible, it occurs in the first two weeks of an application for return being filed. Mediation is conducted by a lawyer specialised in international child abduction and a psychologist.240 It is run through the Child Abduction Centre within the specialised mediation bureau.241 The Dutch Ministry of Security and Justice refund a large portion of the cost to encourage mediation.242 Where the mediation is unsuccessful, a hearing at the Hague District Court will occur two weeks later, with the opportunity to lodge one appeal.243 In a bid to move away from the international average of 158 days to reach a decision in return proceedings,244 the Netherlands has also adhered to the Convention in implementing a strict time frame of six weeks to make a decision on returning the child to their place of habitual residence.245
Child participation in line with the requirements under the Brussels II Recast is also addressed in this process. The views of the child are a central to mediation. Mediation begins with the child’s views being read out by a child psychologist who had previously met with the child.246 Where the parents cannot reach an agreement, all children over the age of three are provided with a Guardian Ad Litem who submit reports on the views of the child. Children ages six and above can choose to speak directly with the judge.247 Implementing mediation based return proceedings that place the views of the children to the foreground improves child participation, as well as the long-term outcomes for both the parents and children. Aotearoa could follow the Netherlands’ lead in implementing a mediation model, an approach explored further in chapter V.
239 Central Authority for International Child Abduction (the Netherlands) The Guide to the International Child Abduction Procedure (October 2016) at 2.
241 Annette Olland “The voice of the child in 1980 Hague return procedures in the Netherlands” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 54 at 54.
242 Central Authority for International Child Abduction (the Netherlands), above n 239, at 3.
244 Lowe and Stephens, above n 1, at 4.
245 Olland, above n 241, at 54.
In private international law, one of the greatest assets a contracting state has is learning from the jurisprudence and systems implemented by other contracting states. Decisions like Re D have persuasive influence on Aotearoa’s return proceedings, helping guide the international direction of the child participation in return proceedings. The Brussels II Recast further shapes the direction of EU Member States and provides a strong model of child participation that aligns with art 12 of the UNCRC. Thus far, this dissertation has provided a critical analysis of child participation in Aotearoa return proceedings. Taking inspiration from the UK and the Netherlands provides a starting point from which Aotearoa can address the critiques that have arisen from this analysis.
V. Looking Forward: Reforming Aotearoa’s Child Participation in Return Proceedings
It is abundantly clear that Aotearoa must reassess the current practices of limiting child participation in return proceedings. These practices are stonewalling abducted children from feeling respected and acknowledged in proceedings that have significant implications on their futures. Beyond Aotearoa’s obligations to abducted children, however, are the imminent requirements to adhere to the UNCRC via the amendment to s 6 of the COCA, alongside the necessity to ensure Aotearoa does not lag behind the advances of other Contracting States. Together, these requirements make it very difficult for Aotearoa, from both a moral and legal standpoint, to continue to restrict child participation in return proceedings. This is especially true given the increasing child participation in other areas of family law. We can be under no illusion, return proceedings have been side-lined in this acceleration of recognising the value of child participation in Aotearoa family law.
There is no doubt that rectifying the accessibility of child participation in return proceedings can be more complicated than implementing changes to purely domestic family law. The Convention cannot be edited and must continue to be complied with. These limitations, however, do not disable the possibility of reform. This chapter examines three proposals for reform, providing both long and short term direction that may support Aotearoa on the path to greater child participation in return proceedings. Proposal 1 considers the greater implementation of mediation in return proceedings. Proposal 2 identifies a legislative change to the wording of s 106 to facilitate child participation more readily. The final proposal discusses how non-legislative changes could be drafted to rectify some of the aforementioned limitations of child participation in return proceedings.
As argued in Chapters II and VI, the current process of return proceedings enacted solely through judicial decision-making has failed to ensure a decision is reached quickly, while also failing to meaningfully hear all children. It is for this reason that Proposal 1 considers how child participation may be best facilitated through mediation. It is of particular importance that
the Netherlands, along with other Contracting States, such as Germany,248 have already moved towards mediation in return proceedings. This provides Aotearoa with a level of confidence over the success of the concept. It is also significant that the Practice Note of March 2011 already allows for mediation to occur in some return proceedings.249 Proposal 1 would see mediation encouraged in all return proceedings as it is in other areas of Family Law. Family Dispute Resolution (FDR) already facilitates mediation in the context of care and contact disputes between parents in Aotearoa.250 This FDR resource could be adapted for implementing mediation in return proceedings in Aotearoa with amendments for child participation as proposed by the Family Justice Reforms.251
While the benefits of mediation in international child abduction cases overall have been well documented,252 such general benefits are not the focal point of this dissertation. More important is the way that providing mediation within return proceedings may improve the ability of children to participate. In Aotearoa, including child participation within a mediation setting in divorce disputes has been shown to improve parent-child relationships, promote the well-being of the child and help to create durability in the parenting agreements.253
Literature continues to provide evidence of the benefits of mediation in parental disputes. Of great significance is the finding of an Australian study (on mediation in disputes over care and contact) that children’s participation is potentially more meaningful in a mediation setting than a litigation one.254 This finding was attributed to the voice of the child being directed to the parents rather than a judge. 255 In these circumstances, the child’s views are likely to have a
248 Emily Dunne “Family mediation in international child abduction cases in Ireland: One size will not fit all” (2019) 6(2) Journal of Mediation & Applied Conflict Analysis at 5.
249 Ministry of Justice Practice Note: Hague Convention Cases: Mediation Process – Removal, Retention and Access (March 2011) point 2.1.
250 Ministry of Justice “Care of Children” (2022). <https://www.justice.govt.nz/family/care-of- children/resolving-parentings-disagreements/mediation-to-work-out-parenting-disagreements/>
251 Ministry of Justice Te Korowai Ture ā-Whānau: The final report of the Independent Panel examining
the 2014 family justice reforms (May 2019) at 35.
252 Sandra Ferreira “The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation Is Necessary” (2019) 52(1) Comp & Int'l L J.Southern Africa 22.
253 Jennifer McIntosh “Child Inclusive Divorce Mediation: Report on Qualitative Research Study” (2000) 18 Conflict Resolution Quarterly 55 at 55; and Jennifer McIntosh, Yvonne Wells, Bruce Smyth and Caroline Long “Child-focused and Child-Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Post Separation Adjustment” (2008) 46(1) Family Court Review 105 at 105.
254 Ferreira, above n 252, at 35.
greater impact on the parents’ decisions.256 A study on child-inclusive mediation found that incorporating the views of children led to more stability in the lives of the children one year following the meditation.257 Parents also reported the benefits of mediation, finding that mediation had continued advantages long after the mediation was complete.258 An early study into the impacts of child participation in mediation found that 25 out of 28 children stated they had benefited from the mediation, especially in their communication with their parents.259 The legal framework return proceedings exist within is somewhat different to that of care and contact disputes which were the focal point of the aforementioned studies. That said, the benefits of brining the child’s views before the parents are likely to be replicated in return proceedings given that parents can often fail to consider their child’s perspective in these proceedings.260
There are a number of other reasons mediation may be more desirable than litigation in return proceedings. For one, children’s participation in mediation is not constrained to an objection, allowing the views of the child to be heard in more accuracy.261 Children are able to share their views without having to align with the desires of a single parent, as the child objection exception requires. Secondly, decision making in mediation are less constrained by the mechanisms of return. The views of the child can have wide range of impacts on the outcome of the mediation which can go beyond whether the child is returned and can address issues of contact.262 Mediation can therefore facilitate outcomes that create greater stability for the child beyond the return proceeding.
While mediation is effective in the Netherlands, there are some crucial differences between Aotearoa and the Netherlands which may impact on the practical achievability of this proposal. The first is the volume of Convention cases each Central Authority deals with. In 2015, the Central Authority of Aotearoa sent and received 41 return applications.263 During the same
257 Felicity Bell and others “Outcomes of Child-Inclusive Mediation” (2013) 27(1) IJLPF 116 at 118.
259 Sarah Vigers Mediating International Child Abduction Cases (Hart Publishing, Oxford, 2011) at 78.
260 Calvert, above n 2, at 17.
261 Ferreira, above n 252, at 35.
262 Vigers, above n 259, at 90.
263 Lowe and Stephens, above n 1, at 6.
year, the Central Authority of the Netherlands sent and received 118 applications.264 A greater volume of work for the Central Authority is likely to translate to greater funding in the area. Increasing the use of mediation in return proceedings would require planning and specialist mediators would require training. Aotearoa may have limited funding to achieve this. However, with the FDR system already training mediators in other areas of family law, it is arguably not a significant step to undertake the specific training for international child abduction cases. In Ireland, which has also yet to increase mediation in return proceedings, practitioners acknowledged there was significantly greater scope for mediation.265 Were other smaller jurisdictions intending to implement mediation at a greater level into return proceedings, there could be some international collaboration to train the mediators. Seeking to apply the Dutch and German mediation training models could further lessen the financial burden for Aotearoa while ensuring consistency across Contracting States.
The physical geography of Aotearoa is also a potential limitation to implementing compulsory meditation. Face-to-face mediations require the left-behind parent to enter the contracting state to partake in mediation. While the physical proximity between the Netherlands and many contracting states creates no significant barrier, Aotearoa is poorly placed in this regard. For in-person mediation, left-behind parents would need to be flown in to attend mediation. However, as a large portion of abduction cases in Australasia occur between Australia and Aotearoa,266 this concern about physical proximity does decrease. In addition, the tools for online mediation, already occurring in FDR and in other Contracting states, could be utilised to mitigate Aotearoa’s geographical isolation.
The final concern is that, without court involvement, the child may not be provided a voice in mediation. Aotearoa would need to impose clear mechanisms for hearing the child in mediation settings, taking into consideration costs, the avoidance of delay and how the child will be heard.267 Ensuring a lawyer for child is present, especially for cases involving very young children, would restrict this limitation.268 The lawyer for child could bring the views of the child at the start of the meditation, as was imagined in Re D and occurs in the Netherlands.
265 Dunne, above n 248, at 10.
266 Nigel Lowe and Victoria Stephens Part III — A statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — National Reports (Hague Conference on Private International Law, the Hague, 2018). At 4.
267 Vigers, above n 259, at 88.
268 Elrod, above n 30, at 690.
Providing mediators with guidance on how children’s views should be incorporated into mediation would also be essential. Considerable attention to creating strategies for ensuring the child is heard during mediation is required.
Mediation has already been successful in the Netherlands, as well as in Germany and the UK.269 Aotearoa has a pre-existing mediation framework in place in FDR that could be adapted to Convention cases without significant expense. While there are some financial and temporal burdens that Aotearoa would need to shoulder to implement mediation in return proceedings, I argue that the significant benefits for children and parents created through mediation would outweigh these concerns. There would, however, need to be sufficient training and support offered to mediators dealing with Convention cases and guidelines for how child participation within mediation should be developed.
As identified in Chapters II and III, the reliance on the child objection exception to facilitate child participation in return proceedings is undisputedly ill-founded. The child objection exception was never intended to facilitate child participation. Trying to force child participation within the child objection exception has created uncertainty, confusion, and inconsistencies as to what role child participation plays in return proceedings. At the root of this issue is arguably the wording of s 106(1)(d) itself. The decision to incorporate s 6 within s 106(1)(d) may have been intended to create more child participation within return proceedings. Yet, the placement of s 6 has been overshadowed by the traditional model of the child objection exception and largely side-lined. The child objection exception requires a high threshold to be met before a child’s views will be taken into account. Child participation under s 6 allows all children to participate. As a result, it makes little sense to try and incorporate s 6 directly into s 106(1)(d).
269 Martín Nuria González “International Parental Child Abduction and Mediation: An Overview” (2014) 48(2) Fam L Q. 319 at 321.
Proposal 2 builds upon the clear intention of the legislature to increase child participation within return proceedings by removing the reference to s 6 of the COCA from s 106(1)(d) and placing it into s 106(1). To align Aotearoa with other contracting states, the wording of s 106(1) could adopt language from the Brussels II Recast. As an example, the following could be incorporated within s 106(1):
“In accordance with section six of the COCA, children involved in return proceedings must be provided with genuine and effective opportunities to be heard and weight must be given to their views in accordance with the child’s age and degree of maturity.”
When implementing changes to s 106(1), the legislature could also consider requiring greater monitoring of child participation in return proceedings. The EU imposes art 42 certificates for this purpose.270 The art 42 certificates require judges to state the child has been provided the opportunity to participate.271 While these certificates have been criticised for the ease at which judges can make unsubstantiated claims of child participation, there is an opportunity for Aotearoa to implement something to review child participation in return proceedings. While such monitoring is not central to Proposal 2, it is worth considering as it could be implemented concurrently to the aforementioned changes to s 106(1).
Chapter II identified a number of concerns with child participation in return proceedings. These are addressed in relation to Proposal 2:
270 Beaumont, Walker and Holiday, above n 201, at 238.
It is crucial to reiterate the present and increasing connection between s 6 and art 12 of the UNCRC. By directly incorporating s 6 into all return proceedings, Aotearoa’s obligations under the UNCRC would be fulfilled. Aotearoa would also be acting consistently with other contracting states, maintaining uniformity in return proceedings. Such imposition would adhere to the purposes of the Convention. Hearing all children would recognise that those most significantly impacted by child abduction are children themselves and would place children’s interests at the forefront of return proceedings. Children would be provided with the benefits of feeling included and respected, even where the weight given to their views may be minimal due to their age and degree of maturity.273 In turn, a blanket implementation of child’s participation within s 106(1) would provide judges with greater certainty over the requirements to hear the child. This would inevitably create greater consistency across return proceedings undertaken in Aotearoa.
The final benefit of Proposal 2 is that, as more changes are made to how we hear children in COCA proceedings through s 6, these changes will automatically apply to return proceedings to remove the irregularities of the current requirements for child participation across the COCA.
The obvious limitation to the placement of s 6 within s 106(1) is that the current implementation of s 6 into 106(1)(d) has failed to create meaningful change. One could argue, therefore, that judges would likely treat any implementation of s 6 within s 106(1) with equal insignificance. However, the s 6 requirement was rather haphazardly placed in the middle of s 106(1)(d). This has created significant confusion over when the views of the child are meant to be heard in return proceedings. If all s 106(1) return proceedings required hearing the child under s 6, it would signal a clear intention from the legislature that child participation is a central feature to return proceedings. In turn, this would be a positive step forward as it would centralise child
272 Elrod, above n 30, at 675.
participation, bringing it to the forefront of the decision as envisioned by Baroness Hale in Re D.
To meaningfully implement the legislature’s intention in incorporating s 6 into s 106(1)(d), s 6 should be incorporated into s 106(1). The UNCRC would therefore have to be complied with in all return proceedings following the enactment of the Family Court (Supporting Children in Court) Legislation Act 2021. While it is acknowledged that the Convention sections of the COCA are often left unchanged to preserve the purpose of the Convention, given there was already an addition of s 6 within the Convention sections, it does not appear to be a significant step to draw the reference to s 6 into all 106(1) proceedings.
Without making legislative changes, providing guidance for judges, lawyers and others involved in the Convention cases may be sufficient to clarify how child participation should be implemented in return proceedings. Such clarification could be constructed via the reworking of the Family Court Judges’ Bench Book to ensure child participation is extends beyond the child objection exception, a new Practice Note for lawyers involved in return proceedings, and clarification over the role of lawyer for child. Together, these non-legislative changes could better align Aotearoa with the Brussels II Recast as well as provide practical guidance to better promote child participation in return proceedings.
Of particular importance, as address above, is the need for judges to differentiate between the child objection exception and child participation. The Family Court Judges’ Bench Book could address this issue by informing judges that the voice of all children, not just those expressing an objection, should be considered in return proceedings. There are two important suggestions in this area. First, judges should hear the views of children capable of forming a view at the beginning of all return proceedings, no matter the age and degree of maturity of the child. This would align with the rights of the child under the UNCRC, Baroness Hale’s suggestion in Re D, s 6 in respect of other parental disputes governed by COCA, and would highlight the
importance of the child’s views to parents and the court. Second, the child’s views must be addressed in every discussion on whether the court will apply its discretion to allow the child to remain in Aotearoa. The purpose of this is to align with the newly established requirement to consider the best interests of the child in LRR v COL. Where the requirements for child participation are clearly laid out judges are more likely to implement them.
The involvement of the child within the proceedings should also be addressed in the Judges Bench Book. There may be potential for the techniques currently applied in the UK to be applied in Aotearoa. For example, in exceptional cases a child could be made to be a party to the proceedings. Judges could also provide children the opportunity to speak directly with them to ensure the views of the child are brought to the forefront of the proceedings. To implement this recommendation, judges involved in return proceedings would need to be provided with training on speaking directly to these children.
Recommendation two of Proposal 3 would impose a new Practice Note to provide consistency for lawyers, parents and children on child participation in return proceedings. The Practice Note would relay the requirements to hear the child as outlined in recommendation one. In addition, it would clarify that a lawyer for child should be engaged in all return proceedings, and failure to appoint a lawyer for child should be a valid appeal point. By ensuring those involved in return proceedings are aware of the place of child participation, less confusion about the role of child participation would ensue.
The third recommendation of Proposal 3 centres on the role of lawyer for child. As was highlighted in Chapter II, the role of the lawyer for child is not wholly clear and this may be leading to some discrepancies in the actioning of the role. At the core of this issue is that the Practice Note on the Role of the Lawyer for Child in return proceedings appears inconsistent with the guidelines for lawyer for child under the Family Court Act. In these circumstances either the Practice Note must be amended to be consistent with the definition of the role presented in the Family Court Act 1980 or there needs to be a clear articulation that the Family Court Act directions do not apply to return proceedings. I would recommend that, for consistency, the Practice Note is revoked to ensure that the role of lawyer for child is the same across all COCA proceedings. This would help ensure all children are provided with equal opportunities to participate where a lawyer for child is provided for them.
While the quickest to implement, Proposal 3 remains limited as none of the recommendations would be legally binding. While the 2011 Practice Note stated that s 6 should be applied in s 106(1)(a), (c) and (d) proceedings, 274 Chapter II confirmed this was not occurring in practice. To rectify this concern, the additions to the Judges’ Bench Book and the new Practice Note would need to be easily applicable and consistent with settled jurisprudence, such as the child objection exception.
A second limitation would be the resources required to make these changes. There would need to be training for those undertaking the role of lawyer for child and judges on how best to communicate with children specifically in Convention cases. In addition, as the efficient return of the child is a key principle of the Convention, any encroachment on the speed at which return proceeding can conclude must be weighed against this principle. I argue that hearing the child at the beginning of the process and in the judges determination over whether discretion should be applied would not increase the length of return proceedings so significantly that it would outweigh the need to ensure the child feels respected in the proceedings. As described in Simpson v Hamilton, where confusion over the role of the child objection exception ensues, the implications on the time the case can be resolved is significant. Creating more certainty over child participation and the child objection exception may actually allow some cases to be decided faster.
While potentially the simplest of the above proposals, the three non-legislative recommendations of Proposal 3 provide an opportunity for clarification over the use of child participation in return proceedings. By implementing easy to follow, clear guidelines on where and how child participation should be facilitated, Proposal 3 would make a short-term changes that could have significant implications on children in return proceedings.
274 Ministry of Justice Practice Note: Hague Convention Cases: New Zealand Family Court Guidelines (On the Appointment of Lawyer for the Child/Counsel to Assist, Specialist Reports and on Views of the child) (March 2011) points 6.1 and 6.2.
The three proposals discussed in this chapter would all help to provide greater levels of child participation in return proceedings in Aotearoa. Proposal 1, increasing the use of mediation within return proceedings, can be implemented by adapting the FDR system into return proceedings. Proposal 2, requiring s 6 of the COCA to be upheld in all return proceedings, would require legislative change but would recognise Aotearoa’s commitment to the UNCRC by providing more children the opportunity to participate in return proceedings. Finally, Proposal 3 would ensure consistency within the levels of child participation in Aotearoa return proceedings through providing guidance for lawyers and judges. In the final chapter, these proposals are weighed up to provide a clear direction for how change should be implemented in Aotearoa.
VI. Conclusion
While child participation in Family Court proceedings has gained international and domestic acceptance, return proceedings remain largely excluded from these developments. Chapter I corresponds to the first aim of this dissertation through an evaluation of the success of the mechanisms for promoting child participation in Aotearoa return proceedings. The child objection exception is clearly the core mechanism by which most abducted children are currently heard in Aotearoa. While the child objection exception has a legitimate role as an exception to return, it fails to facilitate opportunities for child participation for all children in return proceedings. The poor placement of the s 6 requirement within s 106(1)(d) perpetuates this failure to the detriment of child participation and certainty. It is not helped that the current method for relaying the child’s views, through the lawyer for child, is hindered by inconsistencies over the role of lawyer for child in return proceedings.
In relation to the second aim of this dissertation, exploring the rationale other Contracting States have used to increase child participation in their return proceedings reinforced the need for Aotearoa to implement change. Importantly, many of these improvements have been driven by the recognition that children in return proceedings should be afforded their right to participate under art 12 of the UNCRC. This is clearly demonstrated in the Brussels II Regulation and, recently, Recast. Aotearoa must follow suit. As the reference to s 6 in s 106(1)(d) demonstrates, the legislature in Aotearoa already intended the UNCRC to be applied in return proceedings, making it more puzzling that this has not been actioned already. Research into the international developments demonstrates that initiatives towards increasing child participation can be successful, as was seen in the mediation the Netherlands encourages and the jurisprudence supporting hearing the child in Re D. The tools for implementing greater child participation successfully are already there; it is now primarily a matter of how we apply these tools in Aotearoa.
The final aim of this dissertation was to make a recommendation on how Aotearoa might address the current limitations regarding child participation in future return proceedings. I argue this would be best achieved by implementing all three proposals outlined in Chapter V. While all three proposals serve a distinctive purpose, they have complimentary roles in addressing the key issues this dissertation has uncovered. The role of Proposal 1 is to increase
mediation in Aotearoa return proceedings. Encouraging greater mediation would have a positive impact on children as their views could impact the agreements their parents reach. The views of the child could further encourage parents to place the best interest of their children at the heart of the mediation. However, I argue that increasing mediation alone is insufficient. Mediation can never be compulsory, is not always possible and, as in the Netherlands, court procedure will still be required where no formal agreement is reached in mediation. To increase child participation in return proceedings where mediation is unsuccessful, Aotearoa must address the limited child participation in judicial decision-making.
Proposal 2 is well placed to respond to this concern. I argue that the most limiting aspect of child participation in judicial proceedings is the assimilation of child participation and the child objection exception. Under Proposal 2, the requirement to adhere to s 6 within all s 106(1) proceedings would provide clarity for judges and align with the UNCRC art 12 by providing all children with the opportunity to be heard in proceedings that affect them. There is, however, the limitation that legislative change is often slow, and the role of judges and lawyer for child is not addressed by the changes imposed by Proposal 2. Proposal 3 would address the latter of these concerns. The three recommendations could be implemented relatively quickly, and, while potentially limited by not being legally binding, provide clear direction for judges that would support the consistent facilitation of child participation in return proceedings. Creating widely recognised standards of child participation in return proceedings across the judiciary would being to align return proceedings with section 6 of the COCA.
Moving forward, Proposal 3 should be implemented first, easing the transition to greater child participation generated by Proposal’s 1 and 2. Work to train mediators and initiate the requisite legislative changes for Proposal’s 1 and 2 should promptly follow. At the point where all three of these proposals implemented, Aotearoa would be in an excellent position to prevent children in return proceedings from being hidden in plain sight.
VII. Bibliography
A. Cases
B v Secretary of Justice [2007] NZCA 210, [2007] 3 NZLR 447.
Basingstoke v Groot [2007] NZFLR 363 (CA).
Cresswell v Roberts [2022] NZHC 1265.
G v G (No 2) [2021] NZHC 3318.
Hollins v Crozier [2000] NZFLR 775 (DC).
Karly v Karly [2017] NZFC 10030.
KMA v Secretary for Justice (as the New Zealand Central Authority on behalf of SAN) [2007] NZCA 223, [2007] NZFLR 891.
LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610.
Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 (DC).
Re R (Child Abduction: Acquiescence) [1995] 1 FLR 716 (CA).
Robinson v Robinson [2020] NZHC 1765. Ryding v Turvey [1998] NZFLR 313 (NZFC). S v S [1999] 3 NZLR 513 (CA).
Secretary for Justice v HJ [2006] NZSC 97, [2007] 2 NZLR 289.
Simpson v Hamilton [2019] NZCA 579, [2019] NZFLR 338.
Summer v Green [2021] NZHC 3111.
White v Northumberland [2006] NZCA 446; [2006] NZFLR 1105 (CA).
Zamani v Zamani [2020] NZFC 1094.
Re D (a Child) (Abduction: Rights of Custody) [2006] EWCA Crim 1518; [2007] 1 AC 619.
Re F (Minor: Abduction: Rights of Custody Abroad) [1995] Fam 224 (CA).
B. Legislation
Care of Children Act 2004 Crimes Act 1961
Guardianship Amendment Act 1991 (1991 No 19) Family Court Act 1980
Family Court (Supporting Children in Court) Legislation Act 2021
C. Treaties and United Nations Materials
Convention on the Civil Aspects of International Child Abduction 1343 (UNTS) 89 (Opened for signature 25 October 1980, entered into force 1 December 1983).
United Nations Convention on the Rights of the Child 27531 (UNTS) 1577 (Opened for signature 20 November 1989, entered into force 2 September 1990).
United Nations Committee on the Rights of the Child General Comment No.12 UN doc CRC/C/GC/12 (1 July 2009).
D. European Union Legislation
Council Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 [2003] OJ L338.
Council Regulation (EU) 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) OJ L178.
E. Books and Chapters in Books
Alex Ashmore “Lawyer for Child in Hague Convention Cases – Trying to Define the Role” in Alex Ashmore and others (eds) Advanced Lawyer for Child: Out of the Comfort Zone (New Zealand Law Society, Wellington, 2018) 115.
Annette Olland “The voice of the child in 1980 Hague return procedures in the Netherlands” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 54.
Baroness Hale of Richmond “Child Abduction from the Child's Point of View” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 40.
Diana Bryant “The 1980 Child Abduction Convention - the Status Quo and Future Challenges” in Thomas John, Rishi Gulati and Ben Koehler (eds) The Elgar Companion to the Hague Conference on Private International Law (Edward Elgar Publishing, Cheltenham, 2020) 181.
Gerison Lansdown “Article 12: The Right to be Heard” in Ziba Vaghri and others (eds) Monitoring State Compliance with the UN Convention on the Rights of the Child: An Analysis of Attributes 2022 (Springer International Publishing, Cham, 2022) 41.
Hans van Loon “Protecting Children Across Borders: The Interaction Between the CRC and the Hague Children’s Conventions” in Ton Liefaard and Julia Sloth-Nielsen (eds) The United Nations Convention on the Rights of the Child: Taking Stock after 25 Years and Looking Ahead (Brill, Leiden, 2016) 31.
Justice MacDonald “Hearing the Children's Objections, Some Perspectives from a Judge Hearing Cases in England and Wales” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 45.
Kathryn Hollingsworth and others “Judging parental child abduction: what does it mean to adopt a children’s rights-based approach” in G Douglas ed International and National Perspectives on Child and Family Law (Intersentia, Cambridge) 125.
Mark Henaghan “The voice of the child in international child abduction cases — Do judges have a hearing problem?” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 14.
Peter Mankowski and Ulrich Magnus (eds) Brussels IIbis Regulation: Commentary (Otto Schmidt KG, Köln, 2017).
Rhona Schuz The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing, Oxford, 2013).
Sarah Calvert “What Happens to Children in High Conflict Parenting Disputes. How Should we think of their "Voice"?” in The Judges' Newsletter on International Child Protection (eBook ed, Hague Conference on Private International Law, 2018) vol XXII, 16.
Sarah Vigers Mediating International Child Abduction Cases (Hart Publishing, Oxford, 2011).
Thalia Kruger International Child Abduction: The Inadequacies of the Law (Hart Publishing, London, 2011).
Ursula Kilkelly and others Children’s Rights in Northern Ireland (Northern Ireland Commissioner for Children and Young People, Belfast, 2005).
F. Journal Articles
Alana Messent “Uprooting Child- Again: The Case for a Child-Oriented Approach to the Settlement Exception under the Hague Convention on International Child Abduction” [2008] CanterLawRw 1; (2008) 14 Canterbury L Rev 1.
Allie Maxwell “The Hague Convention on the Civil Aspects of International Child Abduction 1980: The New Zealand Courts’ Approach to the Grave Risk Exception for Victims of Domestic Violence” (2017) 48 Victoria U Wellington L Rev 81.
Anne-Marie Hutchinson and Marilyn Freeman “The Voice of the Child in International Child Abduction” (2007) IFL 177.
Benedetta Ubertazzi “The Child’s Right to be Heard in the Brussels System” (2017) 2(1)
European Papers 43.
Benedetta Ubertazzi “The Hearing of the Child in the Brussels IIa Regulation and its Recast Proposal” (2017) 13(3) J Priv Int L 568.
Brian Kenworthy “The Un-Common Law: Emerging Differences between the United States and the United Kingdom on the Children's Rights Aspects of the Hague Convention on International Child Abduction” (2002) 12(2) Ind Int'l & Comp L Rev 329.
Carmen Tetley “The Hague Convention: Who is Protecting the Child?” (2012) 37(4) Children Australia 135.
Chantal Choi “It is More than Custody: The Balance Between Parental Intention and the Child's Perspective in Hague Convention Cases" (2019) 52(2) Suffolk Univ Law Rev 297.
Claire Fenton-Glynn “Participation and Natural Justice: Children's Rights and Interests in Hague Abduction Proceedings” (2014) 9(1) Journal of Comparative Law 129.
Clare Murphy “International Child Abduction and the Rights of those Abducted: is New Zealand Honouring its Commitment to Children?” (2020) 10 NZFLJ 37.
Dara Lenetha Ayanna Modeste “What is Worth Rewording is Worth Rewording Well: An Analysis of the Implementation of the Hague Convention on the Civil Aspects of International Child Abduction in New Zealand” (2012) 38 Commw L Bull 653.
Eran Sthoeger “International Child Abduction and Children's Rights: Two Means to the Same End” (2011) 32(3) Mich J Int'l L 511.
Emily Dunne “Family mediation in international child abduction cases in Ireland: One size will not fit all” (2019) 6(2) Journal of Mediation & Applied Conflict Analysis.
Felicity Bell and others “Outcomes of Child-Inclusive Mediation” (2013) 27(1) IJLPF 116.
Hon. Peter Boshier and Damien Steel-Baker “Invisible Parties: Listening to Children” (2007) 45 Family Court Review 548.
Jennifer McIntosh “Child Inclusive Divorce Mediation: Report on Qualitative Research Study” (2000) 18 Conflict Resolution Quarterly 55.
Jennifer McIntosh, Yvonne Wells, Bruce Smyth and Caroline Long “Child-focused and Child- Inclusive Divorce Mediation: Comparative Outcomes from a Prospective Study of Post Separation Adjustment” (2008) 46(1) Family Court Review 105.
John Caldwell “Child Welfare Defences in Child Abduction Cases - Some Recent Developments” (2001) 13 CFLQ 121.
John Caldwell “The Hague Convention and the “Child objection” Defence” (2008) 6 NZFLJ 84.
Lars Bay Larsen “Mutual Recognition in Civil Law Cooperation: The Case of Child Abduction
- Some General Remarks in the Light of the Jurisprudence of the CJEU (the Brussels II Bis Regulation)” (2015) 6 New J Eur Crim L 452.
Laura Lundy “‘Voice’ is Not Enough: Conceptualising Article 12 of the United Nations Convention on the Rights of the Child” (2013) 33(6) British Educational Research Journal 927.
Linda Elrod “‘Please let me stay’: Hearing the Voice of the Child in Hague Abduction Cases” (2011) 63 Okla L Rev 663.
Marilyn Freeman and Nicola Taylor “Domestic Violence and Child Participation: Contemporary Challenges for the 1980 Hague Child Abduction Convention” (2020) 42(2) J Soc Welf Fam Law 154.
Marilyn Freeman “The Effects and Consequences of International Child Abduction” (1998) 32(3) Fam L Q 603.
Martín Nuria González “International Parental Child Abduction and Mediation: An Overview” (2014) 48(2) Fam L Q 319.
Megha Bhatt “International Child Abduction: Modifying the 1980 Hague Convention on the Civil Aspects of Child Abduction and Proposals for a New United Nations Judicial Body” (2016) 20(2) UC Davis Journal of Juvenile Law and Policy 213.
Michelle Fernando and Nicola Ross “Stifled Voices: Hearing Children's Objections in Hague Child Abduction Convention Cases in Australia” (2018) 32(1) IJLPF 93.
Michelle Fernando “Family Law Proceedings and the Child’s Right to be Heard in Australia, the United Kingdom, New Zealand, and Canada” (2014) 52(1) Family Court Review 46.
Paul Beaumont, Lara Walker and Jayne Holiday “Conflicts of EU Courts on Child Abduction: The Reality of Article 11(6)-(8) Brussels IIa Proceedings Across the EU” (2016) 12(2) IJPL 211.
Peter McEleavy “Evaluating the Views of Abducted Children: Trends in Appellate Case-Law” (2008) 20(2) CFLQ 230.
Rebecca Rose “Interpretations of the Hague Child Abduction Convention 1980 in New Zealand Since COCA: Cause for Concern?” [2008] WkoLawRw 7; (2008) 16 Waikato L Rev 111.
Rhona Schuz “Disparity and the Quest for Uniformity in Implementing the Hague Abduction Convention” (2014) 9(1) Journal of Comparative Law 3.
Rhona Schuz “The Hague Child Abduction Convention and Children's Rights” (2002) 12(2) Transnational Law & Contemporary Problems 393.
Sandra Ferreira “The Hague Convention on the Civil Aspects of International Child Abduction: Why Mandatory Mediation Is Necessary” (2019) 52(1) Comp & Int'l L J Southern Africa 22.
Tine Van Hof and others “To Hear or Not to Hear: Reasoning of Judges Regarding the Hearing of the Child in International Child Abduction Proceedings” (2020) 53(4) Fam L Q 327.
Trynie Boezaart “Listening to the Child's Objection” (2013) 3 NZ L Rev 357.
G. Reports
Central Authority for International Child Abduction (the Netherlands) The Guide to the International Child Abduction Procedure (October 2016).
Elisa Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention (Hague Conference on Private International Law, Madrid, 1981).
Hague Conference on Private International Law Conclusions and Recommendations of the Special Commission on the Practical Operation of the 1980 Child Abduction Convention and 1996 Hague Conventions (June 2011).
Marilyn Freeman Parental Child Abduction: The Long-Term Effects (International Centre for Family Law, Policy and Practice, December 2014).
Ministry of Justice Te Korowai Ture ā-Whānau: The final report of the Independent Panel
examining the 2014 family justice reforms (May 2019).
Ministry of Justice Practice Note: Hague Convention Cases: Mediation Process – Removal, Retention and Access (March 2011).
Ministry of Justice Practice Note: Hague Convention Cases: New Zealand Family Court Guidelines (On the Appointment of Lawyer for the Child/Counsel to Assist, Specialist Reports and on Views of the child) (March 2011).
Nigel Lowe and Victoria Stephens Part I — A statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — Global report (Hague Conference on Private International Law, the Hague, 2018).
Nigel Lowe and Victoria Stephens Part III — A statistical analysis of applications made in 2015 under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction — National Reports (Hague Conference on Private International Law, the Hague, 2018).
Sara Lembrechts Guide to Good Practice: Recommendations Based on the Views of Children and Young People to Professionals Involved in International Child Abductions (Missing Children Europe and University of Antwerp, June 2021).
H. Theses
Deborah Inder “Children’s Participation in the Context of Private Law Disputes in the New Zealand Family Justice System” (Thesis, Doctor of Philosophy, University of Otago, 2020).
I. Websites
Hague Conference on Private International Law “Status Table” (2022)
<https://www.hcch.net/en/instruments/conventions/status-table/print/?cid=24>.
Ministry of Justice “UN Convention on the Rights of the Child” (2020)
<https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human- rights/human-rights/international-human-rights/crc/>.
Ministry of Justice “Care of Children” (2022) <https://www.justice.govt.nz/family/care-of- children/resolving-parentings-disagreements/mediation-to-work-out-parenting- disagreements/>.
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