Judge orders boys' return to Britain
JOHN EDENS IN QUEENSTOWN
A judge has ordered two young boys "wrongfully retained" by their Kiwi mother returned to Britain after she moved back to New Zealand with them.
In the High Court in Invercargill, Justice Warwick Gendall dismissed an appeal after an earlier Family Court hearing in Queenstown and upheld the judge's decision ordering two boys, aged 5 and 6, returned to England.
The parents were originally from New Zealand, moved to Britain in 2001 and married in 2002, but the marriage broke down and they divorced in 2010. After mediation they reached a a custody agreement in Britain but part of the agreement involved the mother travelling to New Zealand with the boys via South Africa.
They agreed shared custody of the children would be equal and the mother left in August 2010.
Within three weeks the mother told her ex-husband she would not be returning to Britain. The father did not agree to that and she indicated he could travel to New Zealand to collect the children.
On December 2, 2010, he emailed her: "Clearly very upset and angry that you have in effect abducted my children away from me."
The parents eventually agreed the children would stay in New Zealand until the youngest started school and the father understood the arrangement would last until November this year.
In May last year, the mother and boys left New Zealand for a holiday and she met the father in June. She told him she was not returning the children in November, or ever, and left to return to New Zealand with her sons.
The Hague Convention says children should not be removed from, or retained outside, their country of habitual residence without both parents' consent.
Court documents say the mother's case asserted the children were not wrongfully removed because they left after a mediation agreement and there was no intent to retain them in New Zealand.
Family Court Judge Stephen Coyle said it was not a case of wrongful removal but of wrongful retention.
Justice Gendall agreed with the Family Court, saying the father never consented to the boys remaining permanently in New Zealand after November this year.
"The evidence satisfies me that the father never acquiesced or agreed to the boys being retained in New Zealand after November 2012 or that he agreed to their departure to New Zealand on the basis that such retention would occur."
The removal of the children in June last year from Britain was wrongful under the terms of the Hague Convention and the father was entitled to costs.
- © Fairfax NZ News