By Ric Stevens of 
Photo: RNZ / Dan Cook
Two children caught in an international tug-of-love have been told they can stay in New Zealand with their father and don't have to return to their mother in Spain.
The judgment by the Court of Appeal overrules two earlier decisions - in the Family Court and the High Court - that would have required the New Zealand-born children to go back to Europe.
One of the deciding factors in the case was that the children were now "happy and settled" in New Zealand and did not want to go back to live in Spain.
The children are named as Andrew and Sophia in the newly-released Court of Appeal judgment. These are not their real names - the identities of children and vulnerable people caught up in Family Court proceedings are protected by law.
The brother and sister were born in New Zealand and spent their early years here, but lived in Spain for five years as children, before returning for what was supposed to be an extended visit.
The then primary-age siblings came back with their New Zealand-born father, who had separated from their Spanish-born mother when they were living in Spain.
Agreement was return for one year
The parents had an agreement, endorsed by a Spanish court, that the children would return to their mother in Spain at the end of a year.
However, when the time came, the father, who is given the name McDonald in the judgment, told his ex-wife that this would not be happening.
The mother, named as Sanchez, applied to the New Zealand Family Court to have the children returned to her under Section 105 of the Care of Children Act 2004.
This provision helps give effect to the Hague Convention, an international agreement that requires that children be returned to the country they usually live in if they have been wrongfully taken overseas, for example in breach of a parenting order.
The Appeal Court decision released on Tuesday - from Justices David Goddard, Francis Cooke and Anne Hinton - said that the Family Court made an order for the return of the children to Spain in November last year.
McDonald appealed that order in the High Court in July this year, but failed. Justice Robert Osborne dismissed his appeal and upheld the Family Court order to return the children to their mother.
McDonald then gained leave to appeal to the Court of Appeal, which came down in his favour and said the children could stay in New Zealand.
Spain no longer 'habitual residence'
The Appeal Court said the children were settled after a year back in New Zealand, and the justices determined that Spain was no longer their "state of habitual residence" as framed in the convention.
Both the Family Court and the High Court had held that the children were habitually resident in Spain when the mother made her application. The Appeal Court took the opposite view.
"We consider that ... the children's integration into social, family and community environments in ... New Zealand, and the stability they had enjoyed for a little over one year, lead to the conclusion that they were habitually resident in New Zealand," the Appeal Court justices said.
"In the case of Andrew, that conclusion is reinforced by evidence that ... he planned to continue to live in New Zealand unless required to leave.
"We consider that the courts below put too much emphasis on the parents' original plan for the children to live in New Zealand for one year, and the orders of the Spanish courts giving effect to that plan," the Appeal Court said.
'Circumstances change', says court
"Circumstances change, and plans change. And, importantly in this case, children grow up and form views and plans of their own."
The Appeal Court decision said the original intention of the parents, and the orders of the Spanish court, "provide important background".
But, it said that when the judges focused on a factual inquiry into each child's situation, they formed the firm view that Andrew and Sophia had become habitually resident in New Zealand.
"It follows that the appeal must be allowed," they said.
"If we had considered that Andrew and Sophia were habitually resident in Spain ... we would nonetheless have declined to make an order for their return in light of their clearly expressed and reasoned objections.
"Both children, and especially Andrew [who is now in his teens], are at an age and maturity where their objection to leaving New Zealand and returning to Spain should be given considerable weight.
"In those circumstances, the courts have a discretion to decline to make an order for (the) return of the children to Spain," the justices said.
"We consider that the courts below erred in their assessment of the welfare and best interests of the children.
"Insufficient weight was given to each child's views, and to the disruption and harm that would be caused by taking them out of their current settled living arrangement and compelling them to return to Spain contrary to their wishes."
The judgment said it was important for the welfare and best interests of the children that they maintain a meaningful relationship with their mother. Contact with her had been "problematic" over the last few years.
Caring and loving parents
"But Ms Sanchez and Mr McDonald are both loving, caring parents who are committed to the wellbeing of Andrew and Sophia.
"We are optimistic that once these proceedings are behind them they will be able to work together to ensure that Ms Sanchez has frequent online contact with the children, and regular contact in person, including spending time in Spain to maintain wider family and cultural connections."
The Appeal Court judgment also said that if the children were forced to go back to Spain, despite their reluctance to do so, that would cause tension in their relationship with their mother - particularly in Andrew's case.
Concerns might also arise about their ability to maintain their relationship with their father.
"On the evidence before us, it is not apparent that making an order for return would promote substantial and meaningful relationships between the children and both their mother and father.
"Weighing all relevant factors, we are satisfied that it would be contrary to the welfare and best interests of Andrew and Sophia to remove them from their settled life in New Zealand and require them to return to Spain despite their objections."
- This story was first published by NZ Herald.
