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Father retrieves son through Hague convention orders upheld by NZ Courts

Mum loses fight for son in tug-of-love
13 November 2006 

Pleas to remain in New Zealand by a boy caught in an international tug-of-love have failed to sway the courts not to send him back to England.

The boy, now 11, was brought to Christchurch nearly two years ago by his mother, who had told her former partner in Hampshire that she was taking him to live in Liverpool.

The father tracked them down in Christchurch and began a legal battle under international child-abduction laws to have the boy returned to England.

By then the boy had settled in Christchurch. He told a court psychologist that life was far better here than in Britain, but Christchurch Family Court Judge Patricia Costigan ruled that the boy's views counted for little. The mother challenged that decision in the High Court but failed, despite Justice Chisholm being told the boy would "hate to go back to live in England". She recruited an Auckland Queen's Counsel in a last-ditch bid to have her son remain in New Zealand while the custody battle is decided, but that also ended in failure.

The mother, who cannot be named, and her son must return to England by November 21.

She told The Press she hoped to persuade the courts in England to allow her to return to New Zealand within a few months. "I'm going to go back to court in England to try and get some of the conditions removed." She said she had friends and family in New Zealand, including a brother, sister and 25-year-old son.

Her son was keen to stay in Christchurch, she said. "He's got lots of friends, more than he ever had in England. He thinks he's a Kiwi now. He dresses like a Kiwi and he's got a little Kiwi accent."

She said she was determined to return to Christchurch, where she also had work and a new partner. The boy had lived with his mother since his parents separated shortly before he turned two. 

In the High Court in Christchurch in June,
Justice Chisholm said
 The mother had gained permission from the English courts to move with her son to New Zealand on condition they obtained residency and other family members were also resident before the move.

None of these conditions were met when the mother told the boy's father they were moving to Liverpool, but in reality flew to New Zealand. The father realised the truth only when he was called by the boy's school asking where he was.
The court said
 The father used the Hague Convention on international child-custody battles to seek the boy's return to England for the case to be heard there, but the mother sought to invoke New Zealand law providing an exception if the child objects to being returned.
An independent lawyer appointed for the boy said the child clearly expressed that he would "hate to go back and live in England" and would be "really angry" if that happened. The Family Court commissioned a psychologist to talk to the boy, who confirmed his wish to stay in Christchurch, but it was also found the boy was not mature enough to make such decisions for himself.

The boy's mother challenged Judge Costigan's ruling that the boy was not mature enough to warrant giving his views about remaining in New Zealand anything more than "modest weight".

Justice Chisholm said
 The law was not clear, but he rejected the mother's appeal on the basis that Judge Costigan's ruling was sufficiently flawed to justify overturning it. The mother then appealed to the Court of Appeal, recruiting Auckland Queen's Council Colin Pidgeon to challenge that decision.

Justice Chambers, sitting with Justices Glazebrook and O'Regan, ruled there was no reason to overturn the High Court decision and that the boy should return to England to have the courts there determine his future.


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