Tak­ing a child overseas with­out con­sent

Kapi-Mana News - - FRONT PAGE - ALAN KNOWSLEY

It some­times hap­pens that a child has been taken overseas by one sep­a­rated par­ent with­out the knowl­edge or con­sent of their other par­ent. It can be very dif­fi­cult to get the child back to New Zealand.

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

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

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

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

How­ever, the same fam­ily came be­fore the court once the child had been re­turned to New Zealand. The mother was granted an or­der, but there were con­di­tions which al­lowed ei­ther par­ent to take their child overseas. They in­cluded: the trav­el­ling par­ent will pro­vide proof of re­turn tick­ets at least four weeks in ad­vance of any pro­posed travel; the trav­el­ling par­ent will pro­vide re­li­able con­tact de­tails while overseas and agree to pre-ar­ranged con­tact; the par­ent has to agree that the child’s place of ha­bit­ual res­i­dence was New Zealand.

It also in­cluded that the trav­el­ling par­ent would pay a bond of a sum equiv­a­lent to a re­turn air ticket from New Zealand to the overseas coun­try, into the Fam­ily Court prior to de­par­ture. That bond is avail­able to the other par­ent if the child did not re­turn as agreed, but is re­fund­able to the trav­el­ling par­ent upon the child’s re­turn.

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

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

If you are con­cerned that your child may be taken overseas with­out your agree­ment, then you should act quickly to ob­tain an or­der from the Fam­ily Court as it can be very dif­fi­cult and ex­pen­sive to have a child re­turned once they are overseas.

Col­umn cour­tesy of RAINEY COLLINS LAWYERS­phone 0800 733 484 www.rain­ey­collins.co.nz If you have a le­gal in­quiry you would like dis­cussed in this col­umn please email Alan on aknowsley@rain­ey­collins.co.nz

STUFF

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

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