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Preventing Children Being Taken from New Zealand
Please read this information carefully.
If you find yourself in a situation involving the removal of your child without consent from New Zealand or retention of a child overseas, you are strongly advised to seek the assistance of a lawyer. The information contained in these pages is also available in booklet form. For more information or to obtain a copy of the booklet please contact one of the numbers below.
This information is divided into two parts:
Orders Preventing Children Being Taken From New Zealand
I am worried that someone will take my child out of New Zealand without my consent - what can I do?
If you are concerned that your child may be removed from New Zealand with the intention of preventing you from having access or custody, you can ask the Family Court to grant you an order to prevent the child from leaving New Zealand. This is commonly called an "Order Preventing Removal".
Is it difficult to get an order preventing removal?
No, not if you genuinely fear that your child will be taken out of New Zealand without your consent, or the consent of the Court. An application for an order preventing removal will need to be made to the Family Court. You will have to tell the Court why you fear that your child will be removed; for example, because his or her other parent has said they will take the child with them when they go to live overseas.
How do I get an order preventing removal?
You need to see a lawyer as soon as you can. You may already have a lawyer, or you could ask a friend or your Community Law Centre or Citizens Advice Bureau to help you find one. It is best to use a lawyer who is experienced in family law work.
You should always ask for some idea of what the expected cost will be before you hire a particular lawyer because this may be different from one lawyer to another.
Depending on your circumstances, you may be eligible for legal aid. You can ask your lawyer, Community Law Centre or Citizens Advice Bureau about legal aid and whether you meet the criteria.
How long does it take to get an order?
It usually takes two to three working days to get an order. These orders are given priority in the Family Court if there is some urgency. They can be made within hours in an emergency situation.
You need to talk to your lawyer about the time you think you have before your child could be taken out of New Zealand. It is up to your lawyer to make contact with your nearest Family Court and ask for an emergency hearing time if necessary.
What can the Court do to help me?
The Court can order that:
How can I be sure that an order preventing removal will be complied with?
Getting an order preventing removal of a child from New Zealand is not enough to physically prevent your child from being taken out of the country. While the person removing your child will be in breach of a Court order, that will not stop them being able to leave the country.
If there is an order preventing removal, your child's details can be entered onto the Customs Service computer system for passengers. This means that the child can actually be stopped from leaving New Zealand at the airport by customs officers when the details are checked on the customs system. This is especially important if your child has citizenship of more than one country, because the Court in New Zealand cannot prevent other countries from issuing a passport to your child.
An application for an alert to be entered onto the Customs system must be made through your lawyer. It will not happen automatically through the Court.
If I get one of these orders, can I still take my child overseas for a holiday or to live?
No. The order will prevent ANYONE from taking your child out of the country - even you. If you want to take your child away, you will have to ask the Court to either change (vary), or cancel (discharge) the existing Court order.
If I ask the Court to make an order preventing the removal of my child, can anyone challenge it?
Yes. There are two ways an order can be made:
I have my child's passport. Isn't this enough to stop them being taken overseas?
No. Someone could falsely declare that your child's passport is lost, and get a new one. If your child has more than one citizenship, they may also be able to obtain a passport from another country to travel on.
Please note for a New Zealand passport to be issued to a child, the consent of only one parent is required to be given.
Return of Children Taken Without Consent From New Zealand
Under an international law agreement called the Hague Convention on Civil Aspects of Child Abduction ("the Convention"), you may be able to ask the authorities of the country your child is in, to return your child to New Zealand. It is possible that the person who took your child out of New Zealand could be prosecuted for doing this.
The basic principles of the Convention are that :
What requirements have to be met under the convention to have a child returned?
The Convention may be used to ask for the return of your child to New Zealand if:
Note: It is not necessary for you to have a Court order giving you custody, access to, or guardianship of your child. Most natural parents in New Zealand automatically have rights of guardianship (your lawyer should be able to tell you about the exceptions to this.)
Even if you do not have day-to-day care of your child, you may still have enough rights under the Hague Convention to ask for your child to be returned to New Zealand if:
Do all seven of these conditions apply in your case?
If they do, you may be able to ask for your child to be brought back to New Zealand, through government authorities. An application to the Courts in the other country will need to be made.
In some cases, the person who took your child out of New Zealand will oppose the child being returned to New Zealand, and the Court will consider their reasons for doing this.
If you want to seek the return of your child, it is important to take action as soon as you discover that he or she has been taken from New Zealand or kept overseas. Any delay may later be seen as a lack of concern about the child being overseas.
Who do I contact?
If you want to ask for your child to be returned to New Zealand, you should contact a lawyer in New Zealand, or the Central Authority. They will complete the necessary forms. The forms are sent from the New Zealand Central Authority office to the Central Authority in the country where your child has been taken.
If your child has been taken to a country which is not a party to the Hague Convention, you may still be able to apply for the child to be returned to New Zealand. However, different law will apply, and you may not be provided with financial assistance. You will need to talk to a specialist lawyer if you are in this situation.
Hague Convention Advisor
Ministry of Justice
Private Box 180
Direct Phone: (04) 918-8800
Fax: (04) 918-8820
Contact person: Ms Trish Bailey
Department of Internal Affairs
PO Box 10526
Call Free 0800 22 50 50
Last updated: 03/02/2006