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New Zealand Court of Appeal denies U.S. father's petition under Hague Abduction Convention to have child returned to his former habitual residence in Illinois since child had lived long enough away from Illinois to have lost his habitual residence there and to have acquired new habitual residence in New Zealand.

Mr. SK (plaintiff), a United States citizen residing in Chicago, Illinois where he has a successful law practice, and Ms. KP (defendant), a New Zealand citizen, met in the U.S. in 1993. Five years later, they were married in Scotland, and returned to live in Illinois. The defendant became pregnant with S in late 1999.

Due to difficulties in her pregnancy, the defendant traveled to New Zealand where her family could provide support. Later on, the defendant went back to Illinois to give birth to S.

In December 2000, with the plaintiff's consent, the defendant returned to New Zealand where she spent six months; during this period, the plaintiff visited her twice. After the defendant and S had returned to Illinois in May 2001, the former became pregnant with L. Because the couple was experiencing difficulties in their marriage, the defendant initially agreed to have an abortion.

She later changed her mind, however, and once again obtained plaintiff's consent to spend time with her family in New Zealand; there she gave birth to L by caesarean section in April 2002. Recognizing that the defendant would need enough time to recover from her surgery, the plaintiff refrained from pressing her to return. Instead, he visited her three times during her convalescence.

By September 2002, plaintiff began to realize that the defendant intended to remain with the children in New Zealand permanently. He filed proceedings in a New Zealand court to obtain an order for the return of the children and separate proceedings in the U.S. relating to the dissolution of the marriage and child custody.

The New Zealand Family Court held that, although the plaintiff had not consented to the continued residence of S in New Zealand, the actions or inactions of the parents over the relevant time period had caused S to lose his habitual residence in Illinois. At all relevant times, both the U.S. and New Zealand were parties to the Hague Convention on the Civil Aspects of International Child Abduction [ T.I.A.S. 11670; in force for U.S. July 1, 1988].

The plaintiff next appealed the decision to the High Court. It affirmed the Family Court's ruling, finding that returning S to the United States would take him out of the family and social environment in which he had developed. The plaintiff then brought the current appeal.

In a 2 to 1 split, the New Zealand Court of Appeal dismisses plaintiff's appeal. The Court first stresses its duty to construe the provisions of the Guardianship Amendment Act of 1991 (the 1991 Act), consistently with the Hague Convention (which it implements) with its emphasis on the prompt return of children wrongfully removed from, or retained away from, the state of their habitual residence.

Although local law does not substantively define the critical term, "habitual residence", the Convention appears to treat it as a factual concept. Under this approach, Member State courts have looked to factors such as the settled purpose of the parents, actual residence for an appreciable period, the strength of the child's ties to the existing state, the continuity of residence, and whether the stay in New Zealand was for a limited time.

"In a case such as the present, where the parents both intended at the outset of the child's visit to New Zealand that the child would remain for a limited period and then return to the existing place of habitual residence, the circumstances do not indicate a shared parental intent beyond a limited stay. Giving that factor due consideration, there can in general, in such circumstances as the present, only be a loss of habitual residence as a result of the gradual weakening of connections with the former state through the process of the developing orientation of the child in the new state to the point that the original links have disappeared." [ 19]

The Court then emphasizes two premises related to its discussion of the gradual loss of habitual residency in the former state.

"To my mind, in this context, a principle of particular importance is that the Court having jurisdiction should be slow to infer that there has been a loss of habitual residence arising from the prolonging of a child's stay in a new state beyond original expectations without protest or countering action because of the desire to achieve a reconciliation or reach an agreement between parents on arrangements for custody. Otherwise there will be disincentives to parents consenting to children travelling to stay with family members in other states, and correlative incentives on parents to take precipitate action when stays are extended, or sought to be extended, in circumstances such as the present."

"There is also support for the proposition that the Court should be slow to infer a change in habitual residence in the absence of [a] shared parental attempt to bring it about, this reflecting the weight attached to parental intention under the Convention. The decision of the Court on habitual residence must, however, in the end always reflect the underlying reality of the connection between the child and the particular state. Obviously there will be circumstances in which, having been considered, the facts indicate to the Court that all the circumstances of the case rather indicate this underlying reality." [ 20, 22].

Although the Court expresses some reservations about the general principles upon which the lower courts based their decisions, the Court of Appeal does conclude that they not only reached the proper conclusion but also used valid reasoning.

"Nevertheless, the circumstances that each Judge relied on in reaching the conclusion that habitual residence in Illinois had been lost in this case provided substantial support for their conclusions. Having spent much of his life in New Zealand, even prior to his visit in November 2001, the child's connections with Illinois had clearly gradually and substantially been weakened."

"These visits were not simply in the nature of holidays which would not in themselves normally change habitual residence. They were rather for reasons of management of a difficult pregnancy and avoiding the Chicago winter. In that context, the child's life in New Zealand amongst his extended family was likely to lead to attachments over time which decreased his connection with Illinois."

"What persuaded the Judges in the end that habitual residence in that state was lost by September 2002 was that, by then, a very young child had spent a very substantial proportion of his life in New Zealand. I am satisfied that each Judge did have regard to the appellant's purpose of attempted reconciliation, and his lack of any agreement that the child should remain indefinitely in New Zealand and that their judgments concerning habitual residence were in accordance with all the underlying principles of habitual residence."

"On this basis the Judges were entitled to view the relatively short period in New Zealand as sufficient to bring about a change in the child's habitual residence in Illinois. This being the reality of what had happened, it was open to the Judges to reach their finding that habitual residence in Illinois had been lost even though the crucial events occurred during a period of attempted reconciliation. For these reasons I conclude that there was no error of law concerning the finding of loss of habitual residence in the judgment of the High Court, which affirmed that of the Family Court. I would accordingly dismiss the appeal." [ 24- 26]

Citation: S. K. v. K. P., [2005] 3 N.Z.L.R. 590 (N. Z. C. A. 2005).
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Publication:International Law Update
Date:Jan 1, 2006
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