B v Secretary for Justice [2007] NZCA 210; [2007] 3 NZLR 447; [2007] NZFLR 791; (2007) 27 FRNZ 523 (30 May 2007)

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NOTE: ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/07 [2007] NZCA 210

BETWEEN S L B Applicant

AND THE SECRETARY FOR JUSTICE Respondent

Hearing: 3 May 2007

Court: William Young P, Arnold and Wilson JJ Counsel: E B Parsons for Applicant

C R Pidgeon QC for the Respondent

Judgment: 30 May 2007 at 3 pm

_{JUDGMENT OF THE COURT}

_{A The application for leave to appeal is dismissed.}

_{B This case may be cited as Butler v The Secretary for Justice.}

REASONS OF THE COURT

_{(Given by William Young P)}

S L B V THE SECRETARY FOR JUSTICE CA CA137/07 [30 May 2007]

Introduction

[1] In a judgment delivered on 9 March 2007, Panckhurst J allowed an appeal from a refusal by Judge McMeeken in Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention) proceedings to order the return to Spain of a four year old child. The mother (who was the unsuccessful party in the High Court) now seeks leave to appeal.

[2] Proceedings under the Hague Convention are required to be dealt with promptly: see s 107 of the Care of Children Act 2004 (the Act) and art 11 of the Convention. Given this requirement we have heard the application on the basis that if disposed to grant leave to appeal we would, at the same time, deal with the substantive appeal.

[3] The mother has two primary complaints about the approach taken in the High

Court:

(a) Panckhurst J’s refusal to appoint counsel to represent the child; and

(b) Panckhurst J’s rejection of the “intolerable situation” defence under s 106(1)(c) of the Act.

Before we address those complaints, it is necessary to say something about the factual background (including the progress of the litigation to date) and the relevant leave principles.

The factual background (including the progress of the litigation to date)

[4] The mother, a New Zealander, is now 31 and the father, an Englishman, is

37. He lives in Tenerife. They first came into contact with each other via the Internet and in February 2002 the mother travelled to Tenerife to meet the father. They had a sexual relationship and she became pregnant. In September 2002 she returned to New Zealand and the child was born on 2 December 2002. The father

came to New Zealand during the Christmas period and met the child. He made a further visit to New Zealand in June 2003. At the end of that month the mother, father and child travelled to Tenerife where they lived together as a family unit until

19 August 2004. On that day, mother and child left for New Zealand on a visit which was to last a few months. In late September 2004 the mother advised the father that their relationship was at an end and that she and the child would not be returning to Tenerife.

[5] On 18 April 2005, the Secretary for Justice (as the New Zealand Central Authority) applied under the Hague Convention for the return of the child to Tenerife.

[6] This application was first heard on 7 July 2005 and was dismissed by Judge McMeeken on 15 November 2005. The Judge found that by the time the child was “wrongly retained” in New Zealand, he was no longer habitually resident in Spain. There was thus no jurisdiction to order his return. Unhappily, the Judge did not address the other defences raised by the mother, in particular acquiescence (see s 106(1)(b)(ii)) and grave risk of harm or being placed in an intolerable situation (see s 106(c)). An appeal by the Secretary for Justice to the High Court was heard on 27

March 2006 and allowed by Panckhurst J in a judgment delivered on 12 April 2006. In this judgment, Panckhurst J concluded that the child was habitually resident in Spain when wrongly retained in New Zealand. But because Judge McMeeken had not, in her November 2005 decision, addressed all defences advanced by the mother, Panckhurst J felt compelled to remit the case to the Family Court for rehearing.

[7] The case was reheard on 21 June 2006 before Judge McMeeken. In issue were alleged paternal acquiescence and the s 106(1)(c) defence of grave risk of harm or of being placed in an intolerable situation. In a judgment which she delivered on

4 October 2006 Judge McMeeken dismissed the application; this time on the basis that the father had acquiesced in the child’s retention in New Zealand. She then went on to say:

Harm

[33] Having been satisfied that the father has acquiesced, it is not necessary to consider the second ground [ie the s 106(1)(c) defence] advanced by the mother, but if required to, I would not have found that second ground had been established. In my view, having regard to the test referred to in Damiano v Damiano [1993] NZFLR 548 and the well established tenet that the abducting parent cannot rely on a harmful situation which has been created by that parent herself, there is insufficient evidence to support the mother’s claim.

Court’s Discretion

[34] Although the defence has been made out by the mother, the Court has a discretion whether or not to order the child’s return. I accept that this discretion must be exercised having regard to the philosophy of the Convention and the effect on [the child] of having his welfare issues determined in Tenerife or in New Zealand.

[35] I have given consideration to these matters and I find that the facts of this case do not support a return to Tenerife. I have considered in particular the likely situation in Tenerife for [the child] (and his mother) if a return order were to be made. There is some uncertainty about the situation particularly in regards to the mother’s ability to remain in Tenerife and be able to support herself. I have considered what it may mean for [the child] if he had to return immediately to Tenerife and I conclude that because of his young age, that would be traumatic for him when his mother may not be able to remain with him for some time.

[36] I have also considered the philosophy of the Convention and whether that would be compromised if a return order is not made. In all of the circumstances, I find that having concluded the father acquiesced to [the child’s] removal, the philosophy and purposes of the Convention will not be breached by refusing a return order.

[8] There was another appeal to the High Court. In a minute of 9 February 2007, Panckhurst J declined to appoint counsel to represent the child. The appeal was heard on 23 February 2007, again by Panckhurst J. In a judgment delivered on

9 March 2007, he concluded that there had been no relevant acquiescence and, as well, that there was not a grave risk that the child’s return to Spain would produce an intolerable situation. So he ordered the return of the child.

The relevant leave to appeal principles

[9] Under s 145(1)(b) of the Act, the proposed appeal is subject to this Court granting leave.

[10] Hague Convention cases are important for the individuals involved including, of course, the children. As well, they often involve difficult questions of evaluation on which opinions might legitimately differ. Accordingly there can be a temptation to downplay the importance of the leave requirement. On the other hand, permitting serial appeals is inimical to the speedy resolution of Hague Convention applications. Further, where the question involved is simply one of evaluation, there is no reason to suppose that this Court’s evaluation will be any more “right” than that of the High Court.

[11] As already recorded, we have approached this case on the basis that if leave is to be granted, we will deal with the substantive appeal at the same time. This truncating of the process does not, however, justify in effect dispensing with the leave requirement.

[12] The relevant principles are those stated in Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA). The mother must have appeal points which are susceptible to bona fide and serious argument and identify public or private interests of sufficient importance to outweigh the costs and delay of a further appeal. Leave for a second appeal will normally be granted only where a point of principle is involved, see Smith v Adam [2006] NZCA 494; [2007] NZFLR 447 at [14] (CA).

Panckhurst J’s refusal to appoint counsel to represent the child

[13] The appointment of counsel for the child was not proposed until just before the second appeal before Panckhurst J. He addressed the question whether he should do so in his 9 February 2007 minute in these terms:

[2] Ms Parsons seeks appointment of counsel to represent the child. I heard brief argument in relation to this aspect in the course of the telephone conference. Reliance was placed upon the recent decisions of the Supreme Court in Secretary of Justice v HJ [2007] NZFLR 195] and of the House of Lords In Re D [[2006] 3 WLR 989]. I reserved my ruling in order to consider these cases, which I have now done.

[3] In Re D, in particular, contains an extended analysis of the desirability of appointing counsel to represent children or a child, the subject

of the Hague Convention case. Baroness Hale, in light of the European requirements, concluded at para 59:

It follows that children should be heard far more frequently in Hague

Convention cases than has been the practice hitherto.

At para 62 she referred to the appropriateness of appointing counsel part way through the process, particularly where considerable delay had occurred such that:

it could no longer be taken for granted that it was inappropriate for him (the child) to be given the opportunity of being heard.

In that instance the child was 8 and had been in England for over three and a half years by the time of the appeal hearing.

[4] Ms Parsons contends that the present case is not dissimilar, albeit [the child] is only 4 years of age and has been in New Zealand for about two years five months.

[5] I accept that New Zealand practice in relation to the appointment of counsel to represent children probably requires reconsideration. A more liberal approach seems appropriate, in light of international trends. That said, however, as is apparent from In Re D the appointment of counsel still requires a fact specific inquiry as to the need and appropriateness of that course. In particular, the age of the child, the issues in the case and the delay in its disposal, may be relevant factors.

[6] I am not persuaded that the appointment of counsel is required in this instance. The central appeal issue is whether the Family Court Judge erred in concluding that the father had acquiesced in [the child] remaining in New Zealand. A related issue is whether, even assuming acquiescence occurred, a return to Spain should have been ordered. This discretionary inquiry involves balancing the purposes of the convention on the one hand, and the welfare of the child on the other. It was with reference to this aspect that the appointment of counsel was sought.

[7] I do not consider that [the child] is of sufficient maturity to express views about the issue of return. However, to the extent that the discretionary evaluation requires his welfare to be weighed, I am satisfied it is appropriate to have updating evidence concerning his present living circumstances in New Zealand. This can be done by way of affidavit, to be filed no later than the respondent’s submissions.

In accordance with the indication given by Panckhurst J in [7] of the minute, the mother filed an updating affidavit.

[14] Before us, Ms Parsons argued that there is now (or should be) a principle in Hague Convention proceedings which requires the appointment of a lawyer to represent the child unless no useful purpose would be served by such an

appointment. In effect she invited us to apply the test provided for in s 7(2) of the Act albeit that this section does not apply to the determination of Hague Convention cases. She argued that the existing and somewhat restrictive practice note on the appointment of counsel in Hague Convention cases (issued by the former Principal Family Court Judge on 5 March 1997) is outmoded. She noted an evolution in practice with children increasingly represented in Hague Convention proceedings. This evolution is consistent with the view that children – even young children – have an independent stake in proceedings which affect them, a view which finds statutory expression in s 6 of the Act (albeit that this section, too, does not apply to Hague Convention cases).

[15] The point which Ms Parsons wishes to argue is, in a general sense, important. As well, despite the reality that ss 6 and 7(2) of the Act do not apply to Hague Convention cases, it is distinctly arguable that, particularly in light of what Baroness Hale of Richmond said in Re D, a broadly similar approach should be taken. But there remain difficulties with regarding this point as an appropriate candidate for leave to appeal in this case.

[16] In the first place, Panckhurst J approached the question whether to appoint counsel for the child in light of the speech of Baroness Hale in Re D. In effect he concluded that no useful purpose would be served by the appointment of counsel. Even on the approach contended for by Ms Parson, there is no obvious error of principle disclosed in his judgment.

[17] Secondly, there was a distinct basis for the Judge’s view that no useful purpose would be served by an appointment of counsel. Neither the Family Court Judge nor the experienced counsel who appeared for the parties in the Family Court saw the need for the appointment of counsel for the child. We accept that this consideration must now be assessed in light of the lapse of time since the proceedings were commenced (when the child was only two). But it is not without significance that the case was reheard in the Family Court in 2006 (when the child was three). Recognising, as we do, the requirement to treat the child as an actor in his own right whose interests are deeply affected, he is still only four years old. In

Re D at [57], Baroness Hale referred to the situation which existed at the start of the litigation in that case:

A was only four and half when these proceedings were begun. At that age few courts would accept that he has “attained an age and degree of maturity at which is appropriate to take account of its views”.

These remarks were made in the context of the “objection defence”, cf s 106(1)(d). They nonetheless seem to us to be of some relevance in the present situation.

[18] So while we accept, as Panckhurst J did, that existing practice as to the appointment of counsel may require re-examination, we do not accept that it could credibly be argued that Panckhurst J was wrong, in this case, not to appoint counsel to represent a four year old child.

Panckhurst J’s rejection of the “intolerable situation” defence under s 106(1)(c)

of the Care of Children Act 2004.

[19] Section 106 of the Act relevantly provides:

106 Grounds for refusal of order for return of child

(1) If an application under section 105(1) is made to a Court in relation to the removal of a child from a Contracting State to New Zealand, the Court may refuse to make an order under section 104(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the Court—

...

(c) that there is a grave risk that the child's return—

(i) would expose the child to physical or psychological harm; or

(ii) would otherwise place the child in an intolerable situation .

[20] In the Family Court, the wife relied on both legs of the s 106(1)(c) defence but without particular reference to the effect of delay. In the High Court the argument was focused on s 106(1)(c)(ii) particularly in light of the delay which had occurred since the proceedings commenced.

[21] In his judgment, Panckhurst J referred to the conclusion of Judge McMeeken on this aspect of the case, noted that the argument before him was rather different from what had been advanced in the Family Court and discussed in some detail the speech of Baroness Hale in Re D. It is clear from his judgment as a whole that he accepted that delay after the commencement of proceedings could be relevant to the intolerable situation defence.

[22] Then, after referring to the New Zealand Bill of Rights Act 1990, the Judge went on:

Has the delay produced an intolerable situation in this case?

[50] But delay, of itself, is not determinative. It must found one of the available statutory defences. Lord Hope observed in In re D:

4. ... As the preamble to the Convention indicates, its purpose is to protect children from the harmful effects of their wrongful removal. The assumption on which the remedy of prompt return proceeds is that the state to which the child will be returned is the state of his habitual residence. Through no fault of his own, the child whose return is being sought in this case has now been settled for so long in this country that this assumption is scarcely tenable.

5. Delay does not, in itself, excuse compliance with the Convention. Courts must do the best they can to give effect to it, so long as its provisions have not become completely unworkable. The lesson of this case is that every effort must be made to avoid such delays. If there is a dispute as to whether the removal was wrongful it should be dealt with summarily. A balance must, of course, be struck between acting on too little information and the search for too much.

[51] The argument mounted by Ms Parsons that [the child]’s return to Tenerife, at this stage, would involve the grave risk of placing him in an intolerable situation included reliance on similar circumstances. [The child] has spent about 70 per cent of his lifetime in New Zealand, including the past two years seven months. Tenerife, in Spain, has long since ceased to be his place of habitual residence. An order would place him in a strange environment far removed from the life which he enjoys in this country. Indeed, can it be said that the point has now been reached where a return to Tenerife would be so inimical to the interests of [the child] that it would be contrary to the object of the Convention to require it?

The contrary argument

[52] Mr Pidgeon strongly resisted the intolerable situation argument. He submitted that Judge McMeeken was right to dismiss the argument for non- return based on this ground.

[53] The extensive delay which has occurred was not, Mr Pidgeon submitted, of [the father]’s making. He had indicated a preparedness to use the Hague Convention as soon as [the mother] communicated to him her

intention to remain, with [the child], in New Zealand. Within the 12 month period allowed for bringing an application, he did so. Nor did [the father] contribute to the subsequent delay. Following the first Family Court decision in November 2005, he appealed to this Court. He was vindicated. But, because the s106 grounds had not been considered, the case was remitted back to the Family Court. Then there was a further decision at first instance, followed by another successful appeal, at least with reference to acquiescence.

[54] Mr Pidgeon also drew attention to the proposals made by the Applicant. In an affidavit dated 20 September 2005 [the father] offered a number of assurances in relation to [the mother] and [the child]’s return to Tenerife. These included an undertaking to pay for flights for both from New Zealand to Tenerife and to provide accommodation, albeit in the same home as was occupied by the parties and [the child] in 2003-4. There was also an offer made to obtain employment for [the mother] in the promotion company with which [the father] is associated.

[55] Ms Parsons, however, questioned the worth of these assurances, particularly as they related to living accommodation and employment. Will it prove feasible for this estranged couple to live under the same roof and share the care of their son? Likewise, she asked, what credence was to be given to the assurance of work with [the father’s company]?

Discussion

[56] This aspect of the case has caused me the utmost concern. A number of the observations contained in In re D fit the circumstances of this case. Tenerife has long since ceased to be [the child]’s place of habitual residence. There is little or nothing to suggest that a court in Spain will have access to evidence of particular assistance in resolving the relevant issues in [the child]’s best interests. In terms of language I am unclear whether either of the parties is fluent in Spanish, or whether both will be faced with the difficulty of settling their differences using a language which is foreign to them.

[57] In response to a minute which I issued on 28 February counsel for the Central Authority indicated that [the father] would likely seek shared custody of [the child] and oppose his relocation back to New Zealand. How realistic the opposition to relocation will be in light of the circumstances discussed above must be debatable, but that is a merits-based issue.

[58] These factors suggest the wisdom of not making an order for return to Spain. Yet, it is the circumstance of delay, something not of [the father]’s making, which is the very genesis of any such suggestion. And, moreover, is there any basis in terms of the Convention to refuse an order in the circumstances of this case? This question is answered in In re D and is, in any event, clear upon a reading of ss 105 and 106. The former provides that a New Zealand Court “must make an order that the child ... be returned ...” where the jurisdictional requirements are met, subject only to s106. Hence, one of the grounds in s106 for refusal of an order for return must be established.

[59] The issue is, therefore, whether there is a grave risk that [the child]’s return to Spain would place him in an intolerable situation. The leading case in New Zealand on s106(1)(c) is A v Central Authority for New Zealand [1996] 2 NZLR 517 (CA), a decision of a Full Court. At 523 the Court said:

Where the system of law of the country of habitual residence makes the best interests of the child paramount and provides mechanisms by which the best interests of the child can be protected and properly dealt with, it is for the Courts of that country and not the country to which the child has been abducted to determine the best interests of the child.

In most instances where the best interests of the child are paramount in the country of habitual residence the Courts of that country will be able to deal with any possible risk to a child, thus overcoming the possible defence of the abducting parent. That does not gainsay the fact that in some instances there will be situations where the Courts of the country to which the child has been abducted will not be so satisfied. This will not necessarily be limited to cases where there is turmoil or unrest in the country of habitual residence.

There may well be cases, for example, where the laws of the home country may emphasise the best interests of the child are paramount but there are no mechanisms by which that might be achieved, or it may be established that the Courts of that country construe such provisions in a limiting way, or even that the laws of that country do not reflect the principle that the best interests of the child are paramount.

[60] More recently, and in similar vein, the Court said in HJ v Secretary for Justice (Habitual residence) [2006] NZCA 400; [2006] NZFLR 1005 (CA):

[32] ... the s 106 exceptions are defined so narrowly that there are comparatively few cases in which they apply. To that extent we agree with KS v LS [[2003] 3 NZLR 837]. But there is no requirement to approach in a presumptive way the interpretative, fact finding and evaluative exercises involved when one or more of the exceptions is invoked, cf DP v The Commonwealth Central Authority (2001) 180 ALR 402. So to that extent we agree with El Sayed [El Sayed v Secretary for Justice [2003] 1 NZLR 349].

[33] The s 106(1)(c) defence is not easy to invoke successfully. This is in part a function of the hurdle provided by the expression “grave risk” and in part because of judicial expectations that, in the normal course of events, the legal systems of other countries will protect children from harm. In this context we think that references by Judge von Dadelszen to “heavy onus” (and we note that he did not say “heavy onus of proof”) should simply be construed as a statement of the obvious – that the defence in question was, by its nature, difficult to make out.

[61] Spain has been a party to the Convention since 1992 and its courts are required to determine child related issues on the basis of the best interests principle. The practical working of a Spanish court is demonstrated, for example, by the decision in the recent English case of Re E (Abduction – Rights of Custody) [2005] 2 FLR 759. I can see no basis for concern in relation to the arrangements which prevail in the requesting State.

[62] I note that it is the fact of return which must give rise to an intolerable situation. The emphasis, therefore, is upon the likely situation of the child following return to the requesting State. The child’s situation in the

requested State is relevant only to the extent that it supplies the backdrop against which to measure intolerability in the other country.

[63] I am not satisfied that there is evidence to establish a grave risk that [the child] will be in an intolerable situation upon his return to Spain. No doubt his situation will not be easy. But [the father] has undertaken to meet the cost of flights for both mother and child to Tenerife. This is important because it means that [the child] will have his mother available to provide day to day care. With reference to living accommodation and financial support, I accept that there may well be difficulties, but they are not such as to suggest that the grave risk test is met.

[23] Re D was an objection case, a point much stressed by Mr Pidgeon QC for the respondent. He submitted that it would be “a bold and unwise step” for this Court to accept that delay in itself could create an intolerable situation. We accept that some delay is inevitable when proceedings are defended and judgments are appealed. We also accept that it would be inconsistent with the policy of the Hague Convention to hold that the ordinary consequences of inevitable delays (ie delays which are part and parcel of litigation) give rise to a defence and the courts should be slow to do so. Nonetheless, it is obviously conceivable that the consequences of delay might contribute to what would be an intolerable situation for a child if returned. If that is the case, there could be no escape from the conclusion that the intolerable situation defence is made out.

[24] On this basis, the case before Panckhurst J was closely balanced.

[25] By the time Panckhurst J came to order the child’s return the proceedings had been on foot for some 22 months. The child had spent more of his short life in New Zealand than he had in Spain. According to the mother, he has no memory of Spain and cannot speak Spanish. She maintains that there is at least uncertainty as to her ability (and that of the child) to remain in Spain. In contra-distinction, the child is said to be settled in New Zealand with routine, family and friends.

[26] Further, there is now a widespread recognition that the Hague Convention is more often invoked against custodial parents than the comparatively few non-custodial parents who abduct children who might be thought to have been its primary targets. As well, the premise upon which the Convention operates, namely that a decision about the welfare of a child is best made by the courts of the country

of the child’s relevant habitual residence, is of limited practical moment where there have been such lengthy litigation delays as to erase (at least substantially) the child’s connection with that country.

[27] The difficulty, however, is that whatever faults there may be with the way in which the Hague Convention operates, Hague Convention applications must be addressed in the context of the Hague Convention as it presently stands and in accordance with the relevant provisions of the Act. The long and the short of it is that unless the intolerable situation defence was made out, Panckhurst J was required to direct the return of the child.

[28] In determining whether the defence was made out Panckhurst J thoroughly evaluated the competing considerations. There is no scope for asserting that he took a presumptive approach (see for instance [60] of his judgment). No error of process or principle was identified. Indeed the complaint advanced comes down to the proposition that that he came up with the wrong answer. Spain is a civilised country and a party to the Hague Convention and there is no reason to suppose that the Spanish courts will not fairly resolve the underlying issues. Given the treaty context, we think it implausible to assume that immigration issues would be allowed to interfere with that process. In reality the mother is inviting us to engage in a factual re-evaluation of the defence, in effect an error correction exercise which is not appropriate on a second appeal (not that we are, in any event, inclined to differ from the Judge’s assessment).

Result

[29] The application for leave to appeal is dismissed.

Solicitors:

Beverley Alexander, Christchurch for Applicant

Fortune Manning Law Partnership, Auckland for Respondent