Court revokes order to send girl back to Netherlands
5.15pm Tuesday November 7, 2006
A little girl will remain in New Zealand with her mother and not be returned to her Dutch father after the Court of Appeal today revoked an order to send her back to the country of her birth.
Ella, a name used by the Court of Appeal to protect her identity, was born in the Netherlands in 2002 to a Dutch father, whom the court called Mr G, and a New Zealand mother, Ms B.
The parents were having relationship problems and in August 2004, Ms B brought Ella to New Zealand.
Ms B said the move was intended to be permanent but Mr G said he understood it was only so Ms B could be with her terminally ill mother until she died.
In November 2004, Mr G came to New Zealand, sponsored by Ms B, but lived separately from her and Ella.
After an incident between the parents, which led to a charge of assault being laid but later withdrawn against Mr G, his work permit was revoked in May 2005 and he returned to the Netherlands in June that year.
The Family Court ordered Ella be returned to the Netherlands under the Hague Convention that means decisions on custody of children should be heard in the country where they usually live.
The Family Court had decided Ella usually lived in the Netherlands.
But Ms B appealed and after the High Court decided the matter needed to be decided by an even higher court, the Court of Appeal today ruled Ella should not be sent back to the Netherlands.
Ms B's evidence said Mr G had threatened her with violence, and that was part of the reason for the permanent move to New Zealand and a "safer" environment for Ella.
The Court of Appeal said Mr G had not given evidence on Ms B's allegation.
"Her evidence on that point is therefore unchallenged."
The Court of Appeal decided the evidence supported the view Ella's habitual residence had ceased to be the Netherlands as soon as she left there and she should not be returned.