Naraine and Naraine (New Zealand 1997) District Court Number FP 087/155/97 10 International Abduction [NEW ZEALAND 1997] =========================================================== IN THE DISTRICT COURT HELD AT WHAKATANE FP 087/155/97 COLBERT KHANTA NARAINE Applicant BARBARA LORRAINE NARAINE Respondent COUNSEL: T Fitzgerald for the Applicant M Callander for the Respondent HEARING: 14 October 1997 DECISION: 14 October 1997 ORAL JUDGMENT OF H1S HONOUR JUDGE B H S NEAL 001 This is an application pursuant to the Guardianship Amendment Act (which brings into force the Hague Convention in New Zealand) for the return to England of the two children of the parties, Chantelle who is aged 11 being born on 4 November 1986 and Janine who is aged 8 being born on 10 March 1989. 002 The mother and father were married on 7 August 1976 The mother is of New Zealand descent and the father of West Indian descent. The parties, since their marriage, have lived with the children in England until July of this year when the mother brought the two children to New Zealand where she has family support. The father understood at the time that she was traveling to New Zealand for three weeks and then returning with the children. It appears that in fact the mother in leaving was not sure of her intentions but when she arrived in New Zealand she decided to stay and the father was informed. 003 On 30 July, the mother applied for and obtained, without notice to the father, a temporary protection order under the Domestic Violence Act 1995 and also an interim custody order in respect of the children. That is from the New Zealand Family Court. Those applications were based on alleged abuse by the father of both the mother and the children and her fears. The father subsequently applied pursuant to the Hague Convention for the return of the children and it is this application that is now before the Court. 004 The mother has defended the applications. Her defence was initially on three grounds, firstly, under Section 13(1)(b)(ii) of the Act that the father consented or subsequently acquiesced to the removal of the children to New Zealand. At the hearing today, that ground has been withdrawn. The further grounds which have remained are those contained in Section 13(1)(c) and Section 13(1)(d) that is that there is a grave risk with the children's return, in that, it would expose them to physical or psychological harm or would otherwise place the children in an intolerable situation. Secondly, that the children object to being returned and have attained an age and a degree of maturity at which is appropriate to take account of their views. 005 The evidence before the Court is by way of affidavit. Because of the defences that were raised with respect to the children, a clinical psychologist, Mr Laven, interviewed the children and reported to the Court pursuant to Section 29A of the Guardianship Act He has today given evidence confirming his report and has been cross-examined by Counsel. Further, an audio tape taken by the mother of an incident between the father and the children back in 1993, was produced. It is the original of a transcript that was annexed to the mother's affidavit. Mr Fitzgerald objected to the production of the tape and also to a late affidavit filed by the mother in response to the father's affidavit. His objection to the tape, apart from on general grounds relating to the tape, was on the basis that the father had not had a chance to hear the tape and that accordingly its production was unfair. Given that the onus in this case is on the mother to establish her grounds of defence, I have admitted both the affidavit and the tape. The mother's affidavit takes matters little further for the purpose of today's hearing. In considering the weight to be attached to the tape, various matters must be taken into account including the inherent dangers involved with tapes, although the mother disposes that she was present when the tape was recorded and that it is of the father and the children. The second matter that needs to be taken into account is that the father has not heard the tape although, of course, he has had a copy of the transcript which is not full. Thirdly, I have to take into account that there has not been any cross-examination. It further has to be said that the tape itself adds really little to the transcript that is before the Court which is explicit in nature. 006 The parties and their witnesses, apart from, as I have already stated, have not been examined. 007 The evidence of the mother sets out an abusive relationship by the father to both herself and the children. A lot of that relates to his treatment of the children, both verbally and physically. There are various incidents set out by the mother including problems at school, involvement of social services, her inability to tell the full story when social services were investigating, her obtaining of an injunction against the father in November of 1993, generally her being overborne by the father, an incident reported by one of the children that the father has thrown a pen-knife in September 1994 and the incident, which formed the basis of the tape and transcript. 008 The affidavit of the school headmistress sets out the pressures upon the children and the removal of Chantelle from schooL There are affidavits from a friend and also a nephew of the father's, which tend to confirm the mother's story. There is also a note from her doctor, again, tending to confirm her story. In addition, there is the evidence of Mr Laven, to whom the children talked and told a story of physical and psychological abuse. 009 The father's affidavit denies the abuse and states that the family unit was happy. He produces as exhibits a number of documents which he says explain a number of incidents, including the final result of the social services intervention and his dealings with the schools. 010 The issue in this hearing is not the welfare of the children except to the limited extent that is set under Section 13 of the Act. It is about the forum for the determination of the substantive issues. Whether that should be in England or in New Zealand. Prima facie one would have thought that the appropriate forum was England that being the country in which the children have lived all their lives until July of this year. The mother, as I understand it through Counsel, concedes that the grounds are made out under Section 12 for the return of the children subject to the defences she raises. 011 I now turn to deal with the first of those defences. That is whether the mother has established to the satisfaction of the Court, that there is a grave risk that the children's return would expose them to physical or psychological harm or would otherwise place them in an intolerable situation. It is clear that the Court has the power to return the children, in respect of whom the application is made, to such person or countries as specified in the order. It is now established that for this defence to succeed, the harm must relate to a return to England rather than to the father. Lord Donaldson of Lymington MR in C v. C [1989] 2 All ER 465 at 473 stated: "It will be the concern of the Court of the Court to which the child is tO be returned, to minimise or eliminate [the psychological harm] and in the absence of compelling evidence to the contrary or evidence that is beyond the powers of those caught in the circumstances of the Case, the Courts of this country shall assume this will be done. Save in an exceptional case our concern, i.e. the concern of these Courts, should be limited to giving the child the maximum possible protection until the Courts of the other country, Australia in this case, can resume their normal role in relation to the child". 012 Further, it was stated in the Family Court of Australia In the Marriage of Murray and Tam, Director of Family Services (ACT) (1993) 16 Fam LR 982 at 1001 and 1002 the following: "It must be remembered that the applicant for the purposes of the Regulations is not the husband but the New Zealand Department of Justice and the children are proposed to be returned to it and not to the husband. Their disposition in New Zealand will be a matter for the New Zealand Courts if they arc returned to that country and if the wife's allegations are accepted it would appear unlikely that they would be returned to the husband". Further: "That is it open to her to return to another part of New Zealand where the danger to her may be less and it is, of course, open to her to seek orders from the New Zealand Courts, both for personal protection and interim and final custody immediately upon her arrival in New Zealand. She also can if she wishes seek leave from the New Zealand Court to take the children to Australia". And further: "It would be presumptuous and offensive in the extreme for a Court in this country to conclude that the wife and the children are not capable of being protected by the New Zealand Courts or that relevant New Zealand authorities would not enforce protection orders which are made by the Courts". 013 The Court of Appeal in New Zealand in A v A 1996, 14 FRNZ 348 has confirmed the narrow interpretation as the correct interpretation and that the Convention is concerned with the appropriate forum for determining the best interests of the child. That the Court of the country to which the child has been abducted will only be the appropriate Court if it is established that the child's return to the country of habitual residence will give rise to a grave risk and the Court exercises its discretion in favour of returning the child in the country to which the child has been abducted. Also that 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 to determine the best interests of the child. 014 In this case, there is evidence before the court which gives concern as to the return of the children to their father. Whilst, ultimately, those concerns will have to be the subject of a substantive hearing, the evidence as it presently stands leaves a clear concern for the children; particularly given the evidence of Mr Laven. 015 The real question, however, is not whether they will be at grave risk from a return to him but rather to En&land. I am satisfied, subject to a matter that I will deal with shortly, that the English Laws, Courts and system are able to properly protect the children. There has been filed evidence of new laws that have come into effect on the first of this month, that are similar to laws in New Zealand. 016 Mr Callander, for the mother, however, sought to show that the father's influence has been pervasive and that combined with the mother's inability when she was in England, to appropriately protect the children as a result of what might be described as the "battered spouse syndrome" leads to a situation where, notwithstanding that laws are capable in England, that the children may not be able to be properly protected, that is that the mother may well, under the influence of the father, return the children to a position of risk. He relies, in this submission, on the evidence of the mother that she was unable to remove herself and the children from the situation she was in until she received the support of her family to come to New Zealand and asks the Court to find from that, that the children are at grave risk. 017 There may well be something in that submission, from the history of this matter, however, given that a stand has now been made by the mother and given the protection that no doubt she is either now aware of or will be made aware of, that can be put in place through the Court and indeed no doubt the help that social services in England could bring to bear in the matter, I am not satisfied that circumstance is such to make out the ground. I find accordingly that that ground is not made out. 018 The children, in discussing the matter with Mr Laven, appear not to see England as the problem but rather their father. I will refer to that when dealing with the next ground because their views are relevant to the question of grave risk and I have taken Mr Laven's evidence and their views into account in coming to the view that the ground is not made up 019 As to the ground that the children object to being returned and have attained an age and degree of maturity at which it is appropriate to take account of their views, I find immediately, given Mr Laven's evidence and the views taken in previous cases, that the children aged 8 and 11 and both being intellectually above average, have attained an age and degree of maturity at which it is appropriate to take account of their views. It is a question of whether in fact they object. 020 Mr Laven's evidence, and I set out in particular that part of his report which is headed "England versus the Father as Significant Issue". "Both girls saw New Zealand as a more desirable place to live than England because of the warmer weather and the prospect of playing on the beach. A number of other perceived advantages of New Zealand life were described by the girls, but these seemed inextricably bound up with their dissatisfactions concerning their father's treatment of them. Janine stated that she preferred her school in England although she had no problems with her New Zealand school. Chantelle stated that she missed her friends in England and writes to them regularly. Chantelle also misses the snow, the shop window displays at Christmas and the products able to be seen in the shops. She would be keen to return to England just for a holiday to see her friends, but only if it did not involve having to see her father. For both girls, their fear of their father and their wish to not return to him appeared to be both independent from and more significant than their preference to stay in New Zealand per se. Their view of their father appeared to contribute significantly to their favourable view of life in New Zealand but there was no evidence that their evaluation of England, relative to New Zealand, contributed significantly to their view of their father" 021 When examined, Mr Laven stated further that both children had a positive view of New Zealand. He further stated that his impression of both girls was that they had no objection to a return to England but rather to their father. Whilst he said that his impression was that they preferred to stay in New Zealand and accordingly he would imagine that they would object to return to England, he agreed that preference was different to objection and that was the way that he had stated it in his report. He did, when he was examined by Mr Callander, give the opinion that if they were to come into chance contact with their father in England, that would be traumatic for them. 022 In considering whether the children object to a return, I deal with it on the basis that it is a return to England rather than to their father and that the questions of whether they object is a factual one, following the view of the Court of Appeal in R v S (a minor) (abduction) 1993 2 All ER 653. I unable, however, to find from the evidence of Mr Laven, that the children do object to a return to England. Whilst they might have a preference to remain in New Zealand, they show positive feelings about England as opposed to seeing their father. AccordingLy, I find that the ground is also not made out. 023 The result of those findings means that I am bound to make an order that the children be returned. Before doing so, I invite Counsel to further address me as to any further steps that should be taken prior to the order being made. 024 I have discussed with Counsel as to whether any steps need to be taken at this stage to further secure the safety of the children on their return to England. I have in mind that there does not appear, having regard to Court of Appeal decision in A v A to be jurisdiction to make conditions but also that the father was offering undertakings which may or may not now be sufficient in light of the evidence of Mr Laven and that Counsel need some time to inquire as to what immediate steps might be taken by the mother in England and or by the Central Authority in that country to procure the safety of the children until the substantive matter is heard. 025 I accordingly, after discussion with Counsel, make an order that the children be returned forthwith to the Central Authority in England. 026 That the order is to lie in Court until 2.l5pm this Friday, 17 October, to enable Counsel to make those further inquiries and make further representations regarding those matters, if necessary. 027 The costs of the return of the children will be met by the mother who already has open return tickets. I have heard submissions from Counsel as to contributions to the costs of the 29A Report and of the report writer. It is clear that the mother is of limited means and in fact is being supported by her family here in New Zealand and for the return to England and that she will face expenses. In the circumstances, I do not intend to order any contribution. /s/ B H S Neal ____________________ B H S Neal Family Court Judge