The court gave considerable weight to the children’s firm objections to returning to Spain
The Court of Appeal overturned lower court rulings requiring two children to return to Spain under the Hague Convention, finding they had become habitual residents of New Zealand.
The children, aged 13 and 11, were born in New Zealand but spent much of their lives in Spain after their parents moved there in 2016. They relocated back to New Zealand in 2021 with their father under a Spanish court order that allowed a one-year stay. The plan was for the children to return to Spain after the 2022 school year. However, the father decided not to return with the children, citing their strong ties to New Zealand and their objections to leaving.
Lower courts ruled that the children’s habitual residence remained in Spain, primarily because of the parents’ agreement and the Spanish court order. They also determined that returning the children to Spain was consistent with the Hague Convention’s principles of deterring international child abduction and maintaining certainty about international custody arrangements.
The Court of Appeal disagreed, finding that the children had become habitual residents in New Zealand by December 2022. It emphasised that habitual residence is determined by a factual inquiry into the child’s circumstances, not by parental agreements or past court orders. The court noted that the children had integrated into their New Zealand community, attending school, participating in activities, and forming strong relationships. This, along with their settled and stable lives in New Zealand, led the court to conclude that their habitual residence had shifted from Spain.
The court also gave considerable weight to the children’s firm objections to returning to Spain. It found their views to be thoughtful and authentic, reflecting their maturity and understanding of their situation. Both children expressed a strong desire to remain in New Zealand, where they felt at home, and concerns about the emotional impact of returning to Spain.
The court emphasised that the welfare and best interests of the children were paramount in its decision, as required by New Zealand law. While acknowledging the importance of their relationship with their mother, who resides in Spain, the court expressed optimism that both parents could work together to ensure meaningful contact through visits and online communication. It concluded that forcing the children to return to Spain against their wishes would likely harm their emotional well-being and their relationships with both parents.
