Key Facts
- •Applicant father (S) seeks return of two children (Will, 12, and Ed, 10) from England to New Zealand under the 1980 Hague Convention.
- •Respondent mother (K) opposes return, citing habitual residence in England, children's objections, and risk of harm in New Zealand due to alleged domestic abuse and mother's mental health.
- •Father had custody rights and was exercising them.
- •Children were initially habitually resident in New Zealand, moved to England for a planned 6-month visit in December 2023.
- •Mother claims father's anger and uncontrolled rage created an unsafe environment in New Zealand.
- •Mother's mental health deteriorated, leading to counselling and medication.
- •Mother ultimately refused to return to New Zealand with the children.
- •Children expressed strong preference to remain in England, citing friends, activities, and dislike of previous life in New Zealand.
Legal Principles
Habitual residence is a question of fact, focused on the child's integration into a social and family environment.
A v A, Mercredi v Chaffe, A v A and another (Children: Habitual Residence), Re LC (Children), Re B (A Child), Re B (A Child)(Custody Rights: Habitual Residence), Re J (a child), Proceedings brought by HR, Re M (Habitual Residence), Re A (A Child)
A child's objections to return are considered if they object and have sufficient maturity; objections must be genuine and relate to the country of return, not just circumstances.
Re M (Republic of Ireland)
Return is not mandatory if there's a grave risk of physical or psychological harm or an intolerable situation; protective measures are considered, focusing on the future situation.
Article 13(b) of the Hague Convention, Re A (Children), Re E (Children), Re S (Abduction), Re IG, Re C
Outcomes
Father's application dismissed.
Court found children were habitually resident in England by May 2024 due to their integration into the social and family environment in England; Ed's objections to return were considered, although Will's were not; Mother's evidence of potential harm to the children was deemed sufficient to meet the Article 13(b) threshold.