Butler v Craig [2008] NZCA 198; (2008) 28 FRNZ 112 (1 July 2008)

Last Updated: 6 September 2012

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

₂₀₀₄

IN THE COURT OF APPEAL OF NEW ZEALAND

CA139/2008 [2008] NZCA 198

BETWEEN B Appellant

AND C Respondent

Hearing: 20 May 2008

Court: O'Regan, Priestley and Heath JJ Counsel: E B Parsons for Appellant

C R Pidgeon QC for Respondent

Judgment: 1 July 2008 at 11.30 am

_{JUDGMENT OF THE COURT}

A The appeal is dismissed. B Costs reserved.

_{C This decision may be cited as Butler v Craig.}

REASONS OF THE COURT

_{(Given by Heath J)}

B V C CA CA139/2008 [1 July 2008]

Table of Contents

Para No

The appeal [1] The purposes of the Convention [4] The Convention proceedings [12] The judgment under appeal [24] Competing arguments [31] Issues of delay [36] Implementation of a return order [40] Analysis: Can a return order be discharged? [45] Discretionary issues [61] Role of the Central Authority [63] Result [64]

The appeal

[1] Ms B appeals against a judgment given by Panckhurst J, in the High Court at Christchurch, on 26 February 2008. The Judge dismissed her application to discharge an order to return a child to Tenerife, in the Canary Islands. The return order was made following contested proceedings under those provisions of the Care of Children Act 2004 (the Act) which adopt the Hague Convention on the Civil Aspects of Child Abduction (the Convention) as part of New Zealand’s domestic law: Part 2, sub-part 4 of the Act.

[2] The primary issue is whether there was jurisdiction for the High Court to discharge the return order. There are no statutory provisions empowering any Court to do so. Nor is the subject addressed in the Convention itself. To our knowledge, this is the first occasion on which this issue has arisen in New Zealand in the seventeen years since the Convention was adopted, in April 1991.

[3] Ms B’s application was made under the inherent jurisdiction of the High Court. Panckhurst J held that he lacked jurisdiction to make the order sought but indicated, if jurisdiction existed, he would have granted the application.

The purposes of the Convention

[4] The Convention is an agreement among Contracting States negotiated through diplomatic channels. It establishes a regime by which Contracting States adopt a common approach to issues of forum in cases of child abduction. The Convention, finalised in 1980, is set out in full in Schedule 1 to the Act.

[5] The Convention’s objectives are set out in its preamble. They emphasise “that the interests of children are of paramount importance in matters relating to their custody” and that there is a need “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence”. Although the terms “day-to-day care” and “contact” are now used in New Zealand to denote parental responsibilities for children (see s 8 of the Act), the words “custody” and “access” remain in the Convention and those provisions of the Act adopting it.

[6] The Convention is concerned only with questions of forum, as opposed to the merits of a dispute about custody and access: see s 109. The assumption is that, unless a stated exception applies, a child ought to be returned to his or her country of habitual residence, so that questions of custody and access may be resolved in that jurisdiction. Those substantive issues are only resolved in the jurisdiction to which the child was removed if an application for a return order is dismissed.

[7] Only a Family Court or a District Court may exercise originating judicial jurisdiction conferred by the Convention: s 101(1) of the Act. Both courts are given sufficient jurisdiction to exercise any power that is expressly conferred by the Convention, or is reasonably necessary or expedient to carry out its judicial functions: s 101(2). Almost invariably, jurisdiction is exercised by a Family Court. For that reason, we omit further reference to the District Court’s jurisdiction.

[8] Section 105(1) lists four pre-requisites that must be proved before a Family

Court can make an order that a child be returned to another State: (a) The child must be present in New Zealand.

(b) The child must have been removed from another Contracting State, in breach of a person’s right of custody in respect of that child.

(c) At the time of removal, the person in the other Contracting State must have been exercising his or her rights of custody, or would have exercised them but for the removal.

(d) The child must have been “habitually resident” in the other

Contracting State, immediately before the removal.

[9] Conversely, s 106(1) provides that an application to return a child may be refused if:

(a) It were made more than one year after the removal of the child and the child has become settled in his or her new environment; or

(b) The person applying for the return order:

(i) were not actually exercising custody rights at the time of the removal, unless he or she establishes that such rights would have been exercised, if the child had not been removed; or

(ii) consented to, or later acquiesced in, the removal.

(c) There were a grave risk that the child’s return would expose him or her to physical or psychological harm or would otherwise place the child in “an intolerable situation”; or

(d) The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to give weight to his or her views; or

(e) The return of the child is not permitted by fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

[10] The Preamble to the Convention emphasises that “prompt return” is expected. That expectation is underscored by s 107(1) of the Act, which requires a Court to which an application for a return order is made to give priority, so far as practicable, to ensure the proceeding is dealt with “speedily”: s 107(2). Section 107(3) enables the New Zealand Central Authority (the body given jurisdiction to enforce the terms of the Convention) to obtain a statement of reasons from the Registrar of a Court if an application for a return order “is not determined within the period of six weeks commencing on the date on which the application is made”.

[11] Although the Preamble emphasises the Contracting States’ conviction that the interests of children are of paramount importance in relation to matters of custody, in determining applications for return orders, a Court is not entitled to consider issues of child welfare that go beyond s 106(1) grounds of opposition: see, generally, Secretary for Justice (New Zealand Central Authority) v H J [2007] 2 NZLR 289 (SC).

The Convention proceedings

[12] Ms B is a New Zealander. She lives in Christchurch. Mr C is an Englishman. He lives in Tenerife, Canary Islands. The Canary Islands are part of Spain, a Contracting State.

[13] Ms B met Mr C in February 2002 in Tenerife. They had previously corresponded via the Internet. Not long after they met, Ms B fell pregnant to Mr C. She returned to New Zealand. Their child, a boy, was born in this country on

X XXXXX 2002.

[14] Mr C visited New Zealand over the following Christmas/New Year period, seeing his baby son for the first time. He made another visit to New Zealand in June

2003. At the end of that month, all three returned to Tenerife where they lived together, as a family unit.

[15] On 19 August 2004, Ms B and the child left on (what Mr C believed to be) a holiday to New Zealand, for a few months. In late September 2004, Ms B advised

Mr C that their relationship was at an end and that she and the child were remaining in New Zealand. For Convention purposes, the child was “removed” at the time Ms B manifested an intention to retain the child wrongfully in New Zealand: see the definition of “removal” in s 95 of the Act and Harper v Johnson [2008] NZCA 131 at [8].

[16] Each Contracting State has its own Central Authority. Each has a common duty to uphold the terms of the Convention: generally, see, arts 6 and 7 of the Convention. The Secretary for Justice is the Central Authority for New Zealand. Section 100(1) of the Act provides that the Secretary “has all the duties, may exercise all the powers, and must perform all the functions, that a Central Authority has under the Convention”.

[17] On 18 April 2005, the Secretary for Justice applied to the Family Court for an order the child be returned to Tenerife.

[18] The Secretary’s application was heard in the Family Court on 7 July 2005. It was dismissed in a reserved judgment, given by Judge McMeeken: FC CHCH FAM

2005-009-0001564 15 November 2005. The Judge took the view that the child was not “habitually resident” in Tenerife, for the purposes of s 105(1)(d).

[19] The Central Authority appealed to the High Court. The appeal was heard on

27 March and determined on 12 April 2006: Secretary for Justice v SB [2006] NZFLR 1027. Panckhurst J held that the Family Court had erred on the habitual residence point. As other issues had not been addressed by the Family Court, the application was remitted to that Court for rehearing.

[20] Judge McMeeken reheard the application on 21 June 2006. She dealt with defences based on paternal acquiescence and grave risk of harm of the child being placed in an “intolerable situation”. The Judge dismissed the application on

4 October 2006, on the grounds that the father had acquiesced in the child’s return to

New Zealand: s 106(1)(b).

[21] Another appeal to the High Court followed. In a judgment given on 9 March

2007, Panckhurst J concluded that the Family Court had erred in finding paternal acquiescence. The Judge went on to hold that there was no “grave risk” that return of the child to Spain would produce an “intolerable situation”. The Family Court decision was reversed and return of the child to Tenerife ordered. Leave to apply, generally, was reserved: see Secretary for Justice v S B (Acquiescence) HC CHCH CIV 2006-409-002578 9 March 2007.

[22] Ms B sought leave to appeal to this Court against Panckhurst J’s second judgment. Her application was dismissed on 30 May 2007: B v Secretary for Justice [2007] 3 NZLR 447 (CA). Dismissal of the leave application exhausted all appellate challenges to the return order. It remained only for the order to be implemented.

[23] The child was one year and eight months old when he was brought to New Zealand by his mother, in August 2004. Now, he is five years old and has lived in New Zealand continuously since 19 August 2004. Although this Court confirmed the order on 30 May 2007, he has not yet been returned to Tenerife.

The judgment under appeal

[24] Panckhurst J drew a distinction between a case in which an unsuccessful parent sought, at first instance, to revisit a finding made in Convention proceedings (on the one hand) and a challenge to the implementation of the order made (on the other): at [21]. The Judge regarded the application before him as falling into the latter category and different from those cases in which appeal had been held to be the only mechanism by which a return order could be discharged: at [19]; compare Re M (Abduction: Undertakings) [1995] 1 FLR 1021 (CA) and Lowe, Everall and Nicholls, International Movement of Children: Law Practice and Procedure (2004) at [21.102]. We agree with that analysis: because available appellate processes were completed when this Court refused leave to appeal on 30 May 2007, the first option was not open.

[25] The Judge accepted that Australian Courts had exercised jurisdiction to make revocation orders in cases like this, but emphasised that its jurisdiction was expressly

conferred by the Family Law (Child Abduction Convention) Regulations 1986 (the

Australian regulations).

[26] In Australia, the Convention has been incorporated into domestic legislation through regulations enacted by the Federal Government. Specific jurisdiction to make an application to discharge a return order was conferred by reg 19A, promulgated in December 2004, the present terms of which are set out at [47] below.

[27] Panckhurst J, in holding that he had no jurisdiction to make the order sought, considered the jurisdictional point by reference to the inherent jurisdiction and the leave reserved in his judgment of 9 March 2007.

[28] While accepting that the High Court has wide inherent jurisdiction, the Judge recognised that its breadth could be narrowed by either substantive or procedural legislation: see Zaoui v Attorney-General [2005] 1 NZLR 577 at [35] and [36] (SC). Although the Judge “was attracted to the notion that since [the High Court] necessarily retains a supervisory jurisdiction over implementation of an order for return” he found that “an implied power to set aside an order in the rare case where its implementation would be contrary to the spirit of the Convention on account of delay” did not exist: at [40].

[29] Panckhurst J concluded that the absence of legislation akin to reg 19A of the Australian regulations confirmed that the High Court had no power to discharge a return order. The Judge also held that the general reservation of leave to apply in his judgment of 9 March 2007, was insufficient to provide a source of jurisdiction for the order sought.

[30] Panckhurst J went on to consider whether, assuming jurisdiction existed, the application should be granted or refused. The Judge said:

[55] On the basis of the affidavit evidence I am satisfied that there has been unreasonable delay on the father’s part. No doubt there have been difficulties in relation to issues such as the child’s passport and completion of the certificate required by the Spanish authorities. But advantage was not taken of the opportunity to return to this Court and obtain further directions designed to address any problems. Moreover, I consider that the father should have taken decisive steps to enforce the order in June 2007. Having

failed to do this by even August, he then became distracted for a further period of about three months while his own father was seriously ill in London. In my view the delay since 30 May 2007 is not adequately explained.

[56] Regarding the criticisms directed at the mother, I think her approach has been tactical. She has done enough to be seen as compliant, but has not made matters easy from the father’s perspective. In this situation it was incumbent upon the father to invoke the assistance of the Court by obtaining directions designed to enforce a prompt return. The mother’s attitude does not excuse the delay.

[57] Whether the delay of over eight months is such as to render implementation of the order at this late stage inimical to the purposes of the Convention, is not a straight-forward question. There are no cases which provide a yardstick. The Australian regulations opt for 12 months from the final appellate decision as the cutoff point. But the regulation also recognises other grounds (agreement, impracticality and exceptional circumstances) for the discharge of an order.

[58] Assuming I possessed jurisdiction, I would have concluded that the present circumstances do justify setting aside the order. A delay of over eight months is extreme, when placed alongside the systemic delay to 30 May

2007. To return the child now would not, I think, be in his best interests. Spain has long since ceased to be his country of habitual residence. He is settled in New Zealand and the real question is whether relocation from this country to another should be permitted. In short, there are substantial parallels between this case and Re D [(A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 (HL)] – save that in the English case there was no duty to order a return once the applicant father failed to establish he had rights of custody at the relevant time.

Competing arguments

[31] Ms Parsons submitted that the delay that had occurred since the return order was confirmed by this Court on 30 May 2007 meant that the need to protect the child from the “harmful effects” of removal no longer existed. Further, she submitted that “prompt return” was not now possible. She characterised what had occurred subsequent to the 30 May 2007 dismissal of the leave to appeal application as a “passive abuse of process” that justified the High Court’s intervention to prevent return.

[32] As to jurisdiction, Ms Parsons submitted that the High Court possessed inherent jurisdiction to resolve any unexpected problems arising from the post-return order delay. She submitted that the inherent jurisdiction was not displaced by legislation because the statute did not address the circumstances in which a return

order might be discharged. Ms Parsons contended that invocation of the inherent jurisdiction, in these circumstances, would promote the purposes of the Convention, rather than defeat them.

[33] If we were to uphold her submission on jurisdiction, Ms Parsons submitted that we should not interfere with Panckhurst J’s assessment that the “father should have taken decisive steps to enforce the order in June 2007” and to apply his conclusion that relief ought to be granted: at [55] and [58].

[34] Ms Parsons disavowed reliance on the parens patriae jurisdiction, which is part of the High Court’s inherent jurisdiction: see s 16 of the Judicature Act 1908, Pallin v Department of Social Welfare [1983] NZLR 266 (CA) and Re an Unborn Child [2003] 1 NZLR 115 (HC). Although the Act is a code, the inherent jurisdiction is retained by s 13(2). We agree that the parens patriae jurisdiction ought not to be invoked in a case such as this because to do so would invite a merits based approach, contrary to the objects of the Convention.

[35] Mr Pidgeon QC, for Mr C, submitted that the absence of any express power to discharge a return order was deliberate. He contended that it would frustrate the purposes of the Convention if the inherent jurisdiction were used to provide a non- statutory jurisdiction for such an order. Mr Pidgeon was also concerned that, if jurisdiction were held to exist, it might be used, opportunistically, by disappointed parents to delay the (otherwise) inevitable return of children to states of habitual residence for substantive custody and access issues to be resolved in that jurisdiction.

Issues of delay

[36] There are three discrete periods in which delay may be relevant to Convention proceedings. Care must be taken not to confuse the way in which each type of delay impacts on such proceedings. While it is possible to find broad dicta that suggest that the Court can consider questions of delay more generally, those authorities, when read carefully, do not support such a general proposition. For example, we refer to Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC

619 (HL) at [4] (Lord Hope of Craighead) and Re M (Children) (Abduction: Rights of Custody) [2007] 3 WLR 975 (HL) at [54] (Baroness Hale of Richmond).

[37] The first type of delay arises from a failure to apply for a return order within one year of the date on which the child was removed from the state of his or her habitual residence. A late application of that type brings into play the question whether a child has become settled in his or her new environment: s 106(1)(a) and Secretary for Justice (New Zealand Central Authority) v H J, at [55], [56] and [57] (per Blanchard, Tipping and Anderson JJ) and [128] and [136]-[138], (per McGrath J). This type of delay is relevant to whether a ground for refusal to return a child has been established, though it may also be relevant to the Court’s discretion to make a determination whether or not to return a child to give effect to the purposes of the Convention: Secretary for Justice (New Zealand Central Authority) v H J at [2] (per Elias CJ), [68] (per Blanchard, Tipping and Anderson JJ) and [138] per (McGrath J).

[38] The second type of delay occurs while the application makes its way through the judicial system. In Vigreux v Michel [2006] EWCA Civ 630 at [86], Wall LJ observed that a proceeding that “took nearly 5 months to be heard [at first instance] is both shocking and unacceptable”. Delays arising from the use of appellate procedures exacerbate the problem. Problems with systemic delay were also discussed by William Young P, delivering the judgment of this Court on the application for leave to appeal against Panckhurst J’s second judgment: B v Secretary for Justice at [25].

[39] The third type of delay, and the only one with which we are concerned, arises from delays in enforcing a final return order.

Implementation of a return order

[40] While there is nothing in the Act or in the Convention itself that provides a procedure to discharge a return order, s 119 confers a discretion on a Family Court to issue a warrant to authorise a specified person to uplift the child, so that he or she may be returned in accordance with the order: s 119(1) and (2).

[41] Section 119(1) and (2) provides:

119 Enforcing order for return of child

(1) If, in proceedings under section 105, a Court makes an order under section 105(2) for the return of a child, a Family Court or a District Court may, at any time, issue a warrant of the kind referred to in subsection (2), either on its own initiative or on an application for the purpose by a party to the proceedings.

(2) The warrant referred to in subsection (1) is a warrant that authorises any member of the police or any Social Worker or any other person named in the warrant to take possession of the child and to deliver the child to a person or authority named in the warrant for the purpose of returning the child in accordance with the order.

....

[42] We consider that a Family Court Judge could decline to make an enforcement order if a material change in circumstances had occurred since the order was made. The change would need to be of such significance that enforcement of the order would be pointless. An example of the type of exceptional circumstance in which a Court might decline to enforce a return order would be the death of the parent at whose instigation the order was sought.

[43] An example of the way in which the enforcement discretion might be exercised is KS v LS [2003] 3 NZLR 837. Delivering the judgment of a Full Court of the High Court, consisting of himself and Frater J, Priestley J said, in the context of the Guardianship Act 1968 equivalent to s 119:

[111] In the face of an abducting party being obdurate, s 26(1) of the Act permits a Family Court, either on application or on its own motion, to issue a warrant to enforce an order for return. If it became necessary to enforce the order, doubtless the Court would have appropriate regard to s 23(1) of the Guardianship Act 1968 and would have given some consideration to the least distressing time frame. Although s 23(3) expressly states that the provisions of Part I of the Act are not limited by s 23, it would nonetheless be permissible, provided the child’s return to the state of habitual residence was not artificially or unnecessarily delayed, to issue a warrant but let it lie in Court for an appropriate period.

[112] Furthermore, in terms of the policy of the convention, the mechanism of a child’s return is not a matter for judicial decision. It is instead an administrative matter. Section 7(1) designates the chief executive of the Department for Courts (the secretary) as the Central Authority for New Zealand. As such the secretary has all the duties and powers of a central

authority under the convention. It is mandatory for him to perform all the functions of a central authority.

[113] Article 7 of the convention makes it mandatory for central authorities to cooperate with each other to secure the prompt return of children, and additionally empowers central authorities:

(h) To provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child.

The procedure adopted, in KS v LS, was to issue a warrant but to let it lie in Court for three weeks so that particular medical attention required by the parent in Australia could be administered: at [129] and [130].

[44] That approach was followed by Judge Boshier in S J R v K M L S (2005) 24

FRNZ 902. The Principal Family Court Judge added:

[33] Just as negotiated return may be permitted to secure a safe and easy relocation, so also should the enforcement provisions of s 119 be used for similar effect.

....

Analysis: Can a return order be discharged?

[45] The only Commonwealth authority (of which we are aware) in which a return order was discharged is Re F (Hague Convention: Child’s Objections) [2006] Fam CA 685. The Full Court of the Family Court of Australia considered an appeal from an order made in the Family Court, on review from a Judicial Registrar, in which an order for return had been made.

[46] Delay occurred for two main reasons. The first was that the (Australian) Central Authority expressed concern that it had no budgetary allowance from which to pay for the child to be returned to the United States of America. Second, some delay in enforcement of the order had necessarily followed from the fact that the father was resident in New Orleans at a time in close proximity to the devastation caused by Hurricane Katrina. There was also some suggestion of inappropriate maternal pressure on the child not to leave Australia; something that appears to have manifested itself in the child’s conduct in the period leading up to his intended removal.

[47] The appeal to the Full Court was determined at a time when the relevant regulations had been amended to provide expressly for the discharge of a return order: see [26] above. Regulation 19A(1) and (2) of the Australian regulations, as promulgated in December 2004, provides:

19A Discharge of return order

(1) If a court makes an order under this Part for the return of a child (a return order), the responsible Central Authority or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

(2) The court must not make an order discharging a return order, or a part of a return order, unless it is satisfied of all of the following:

(a) all the parties consent to the return order being discharged;

(b) since the return order was made, circumstances have arisen that make it impractical for the order to be carried out;

(c) exceptional circumstances exist that justify the return order being discharged;

(d) the day on which the application for the discharge of the return order was made is more than 2 years after the return order was made or any appeal in relation to the return order was determined.

...

Since Re F (Hague Convention: Child’s Objections) was decided, the period in reg

19A(2)(d) has been reduced to one year. That period was reduced to 1 year by a

2007 amendment to reg 19A, which came into force on 24 July 2007.

[48] The inherent jurisdiction of the High Court can only be exercised in circumstances that fall within its proper scope and when it does not conflict with legislative provisions: generally, see Taylor v Attorney-General [1975] 2 NZLR 675 (CA), Donselaar v Mosen [1976] 2 NZLR 191 (CA), Champtaloup v Northern Districts Aero Club Inc [1980] 1 NZLR 673 (SC and CA), and Zaoui v Attorney- General at [35] and [36].

[49] The Act incorporates an international Convention as part of New Zealand domestic law. It confers originating jurisdiction on a Family Court or a District Court. In those circumstances, to allow the High Court to exercise its inherent

jurisdiction would be contrary to Parliament’s clear intention to restrict originating jurisdiction to those Courts. There is the added point that the Act is a code: s 13.

[50] In Samleung International Trading Co Ltd v Collector of Customs [1994] 3

NZLR 285 (HC), Blanchard J considered the use of the inherent jurisdiction of the High Court to assist the District Court to exercise statutory powers conferred on it. At 291, the Judge said:

In this application the Court is not directly concerned with the New Zealand statutes which I have described. What the applicants would have the Court declare is that an inherent jurisdiction exists whereby the Court can, without relying upon statutory authority, issue a letter of request in a criminal proceeding and may do so, as a superior Court, in aid of an inferior Court's proceedings. As a refinement introduced during argument Mr Castles also suggested that the Court could exercise an inherent jurisdiction in aid of s 44 of the Evidence Amendment (No 2) Act and thereby, so to speak, "bring it to life".

Both parties to the application agree that a District Court has no inherent jurisdiction of its own. I have been referred to Parsons v Martin (1984) 58

ALR 395 where the Full Bench of the Federal Court of Australia held that there was no power in the West Australian Court of Petty Sessions to issue

letters of request referring to criminal proceedings before that Court. It had no express, implied or incidental power and, as a "creature of statute", like the District Court, it had no inherent jurisdiction. (In New Zealand, in

relation to the powers of a District Court, see generally Department of Social

Welfare v Stewart [1990] 1 NZLR 697 and Watson v Clarke [1990] 1 NZLR

715.)

Although a District Court may lack an inherent jurisdiction, as contrasted with the inherent powers which it needs to enable it to fulfil its statutory functions, there is no reason to doubt that if the High Court possesses inherent jurisdiction to do a thing which cannot be done by a District Court, then the High Court may use its powers in aid of the District Court. Master Jacob, in his much cited article "The Inherent Jurisdiction of the Court" (1970) Current Legal Problems 23 at pp 48-49 says:

"But the High Court also has power under its inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively, eg, by the issue of a subpoena to attend and give evidence; and to exercise general superintendence over the proceedings of inferior courts eg, to admit to bail."

I see no reason why, if this Court has an inherent jurisdiction to issue letters of request in criminal matters, it cannot come to the aid of a District Court in a like situation.

[51] However, at 292, Blanchard J concluded that it did not follow that the High

Court could lend its inherent jurisdiction to powers expressly conferred upon inferior

courts. In the context of an application to issue letters of request to a foreign court when the District Court’s jurisdiction had been placed on a statutory footing, the Judge said “it would not be appropriate, nor is it necessary, for [the High Court] now to create a new jurisdiction which” it had not “found to exist in the past”: at 293.

[52] The rationale for the suggestion that the High Court should exercise its inherent jurisdiction lies in its supervisory role over inferior courts. We hold that the High Court’s inherent jurisdiction is not available to assist a Family Court when the latter is given express jurisdiction by a statute to exercise originating jurisdiction over all Convention issues. No adjectival jurisdiction is required.

[53] We are satisfied that Panckhurst J was right to hold that the High Court did not have jurisdiction to make the order sought.

[54] We did not hear argument on whether any other jurisdiction might exist to discharge a return order. We have considered whether a jurisdiction could be implied to enable a Family Court to do so, on the basis that the discretion would be no wider than that conferred by s 119(1) of the Act. However tempting it might be to try to fill the statutory gap by creating such a jurisdiction, we consider that to do so would amount to an inappropriate usurpation of the Legislature’s functions.

[55] Nevertheless, we are concerned that, in exceptional cases involving material changes of circumstance, no jurisdiction to discharge a return order exists. If no enforcement application were made, the child would remain in New Zealand and the provisions of s 118(2)(b) might prevent a New Zealand based parent from taking the child out of the jurisdiction, even for a short holiday.

[56] Our research indicates that s 119 first appeared as s 26 of the Guardianship Amendment Act 1991, the statute which adopted the Convention into New Zealand law. The section does not reflect any specific provision in the Convention. In contrast, reg 20 of the Australian regulations places the obligation to enforce the return order firmly on the Central Authority. Regulation 20(1) provides:

(1) If the responsible Central Authority applies to the court for a return order for a child, and the order is made, the responsible Central Authority must

coordinate the making of the arrangements that are necessary to give effect to the order.

That regulation goes no further than the obligation placed on a Central Authority by art 7(h) of the Convention.

[57] The issue of enforcement is not addressed in the English and Welsh legislation, the Child Abduction and Custody Act 1985. In European jurisdictions, enforcement has been governed through the operation of the Convention for the Protection of Human Rights and Fundamental Freedoms. Under art 8 of that Convention each government has an obligation to respect family life. There are dicta in some decisions of the European Court of Human Rights which are indicative of a very narrow approach to discharge or refusal to enforce a return order. For example, we refer to Sylvester v Austria [2003] ECHR 196 (Application nos

36812/97 and 40104/98) and PP v Poland [2008] ECHR 19 (Application no

8677/03). In the former, the Court said:

63. The Court accepts that a change in the relevant facts may exceptionally justify the non-enforcement of a final return order. However, having regard to the State's positive obligations under Article 8 and the general requirement of respect for the rule of law, the Court must be satisfied that the change of relevant facts was not brought about by the State's failure to take all measures that could reasonably be expected to facilitate execution of the return order.

[58] The interregnum between the making of a return order and its implementation has the potential to cause much distress if steps were not taken promptly to enforce the order. The problems that have arisen in this case highlight the need for legislation in New Zealand akin to that adopted in Australia.

[59] When Parliament elects to adopt an international Convention as part of its domestic law, any ancillary policy choices at the margins of the Convention ought properly to be made by the legislature rather than the Courts. For example, in Australia, a period of one year must elapse before any discharge application can successfully be made. That period is not something to be found in the Convention itself but represents a policy choice of the Federal government of Australia. The circumstances in which it is inappropriate, in a family law context, for Courts to

determine policy choices of this type were discussed in P v K [2003] 2 NZLR 787 (HC) at [183] - [188] per Heath J, with whom Priestley J agreed at [176].

[60] In our view, any lacuna in the legislation can only be cured by Parliament. We would urge Parliament to consider urgently whether to enact legislation akin to that contained in reg 19A of the Australian regulations (see para [47] above).

Discretionary issues

[61] Panckhurst J expressed the view that, had he had jurisdiction to discharge the return order, he would have exercised it. With respect, we do not consider the facts of this case come close to the type of exceptional situation in which, even if a jurisdiction were to exist, it could properly be exercised to prevent return: compare [42] above. Nor do we consider that refusal to enforce the return order could be justified.

[62] We observe that none of the criteria identified in reg 19A of the Australian regulations (see [47] above) could have been invoked in this case. The facts set out in detail in Panckhurst J’s judgment under appeal do not demonstrate that it is “impractical” for the order to be implemented. Nor were any “exceptional circumstances” justifying discharge of the order made out. Further, the time limit of one year set out in reg 19A(2)(d) has not yet passed. While application of a foreign law cannot be determinative, in the context of an international Convention to which both Australia and New Zealand are parties, it is a significant pointer to refusal of any available discretionary relief.

Role of the Central Authority

[63] We echo observations made by Bryant CJ, Kay and Boland JJ in Re F (Hague Convention: Child’s Objections):

80. The State Central Authority is charged with the obligation to do anything that is necessary to enable the performance of the obligations of Australia under the Convention (Regulation 5(1)(a)). In our view not only does that obligation extend to the requirement to facilitate the return of a child where

such an order has been made, but it also requires the Central Authority to actively partake in proceedings brought by it under the Regulations and to assist the Court in determining the proper application of the Regulations to the facts of any one case.

See also, in respect of the duties of the Central Authority, Laing v Central Authority [1999] FamCA 100; (1999) 151 FLR 416 at 429 - 430 (per Nicholson CJ) and 481 - 482 (per Kay J) and P v Commonwealth Central Authority [2000] Fam CA 461 at [168]. In our view, following delivery of this judgment the Central Authority should take prompt steps to enforce the return order.

Result

[64] The appeal is dismissed.

[65] We understand that B is legally aided. If that were so, we would make no order as to costs. In case our premise is wrong, we reserve all questions of costs.

[66] In White v Northumberland [2006] NZFLR 1105 at [63] - [64], this Court referred to practical problems facing Judges and lawyers when so many family law cases are reported by the use of initials. For ease of later citation, this case may be reported and cited as Butler v Craig both to meet that problem and to preserve the anonymity of the parties.

Solicitors:

Beverley Alexander, Christchurch, for Appellant

Fortune Manning Law Partnership, Auckland for Respondent