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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.
For a New Zealand passport to be issued to a child, the consent of only one parent is required. A passport will be refused only if there is a court order made in New Zealand, or an overseas court order registered in New Zealand which has the intent or effect of preventing the issue of a passport or removal of a child from New Zealand or his or her country of residence.
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. You will need to apply for an order preventing removal through 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 yourCommunity 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.
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:
Your child cannot be taken out of New Zealand without a further order of the Court.
Any passports (from any country) which are held by your child are given to the Court (this will include any parent's passport which has your child's name in it).
No further New Zealand passports can be issued to your child (or, if they have never had a New Zealand passport, that one is not issued to them). If your child is entitled to a foreign passport, your lawyer should ask the relevant Embassy or High Commission not to issue a passport to your child.
If someone has already organised travel plans to take your child out of New Zealand, the passport of that person and any travel tickets for the journey be handed over to the Court.
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 (CAPPS Listing). 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.
Your lawyer must make an application for an alert to be entered onto the Customs system. 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:
In an urgent situation, you can ask for an order to be made without telling the person who you think is going to take your child out of New Zealand. This type of order is able to be changed (varied) or cancelled (discharged) if the other person, when they find out about the order, can show the Court that it should not have been made.
In other situations, when you apply for an order, a copy of the application you have made is given to the person you think may take your child out of New Zealand. This occurs BEFORE the order is made. This permits that person (and their lawyer, if they have one), to come to Court when your application is heard, and to tell the judge why they think that the order should NOT be made. The Court may ask that you discuss the situation with the other person before the hearing happens.
I have my child's passport. Isn't this enough to stop them being taken overseas.
No. We recommend that you obtain an order preventing removal and a CAPPS Listing. If your child has more than one citizenship, they may also be able to obtain a passport from another country to travel on.
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:
The rights of the child are the primary consideration.
Custody of the child should be determined in the country where the child usually lives.
Children should not be taken or kept overseas without the prior agreement of other people who are entitled by law to give their consent. If these people refused to consent, the correct thing would have been to seek the consent of the Court in New Zealand BEFORE the child was taken overseas.
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:
your child is under 16
your child was habitually resident in New Zealand right before he or she was taken overseas
your child has been taken to or retained in a country which is a party to the Hague Convention
your child was taken or retained out of New Zealand without your prior consent or the consent of the Court, AND
you were entitled to be consulted about your child being taken or kept out of New Zealand because of your rights in relation to the child.
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:
You were exercising the rights you had in relation to your child when he or she was taken out of New Zealand. (For example - if you had access rights, you were using these rights to spend time with your child, and you can no longer do this), AND
Your child was taken out of New Zealand after the date that the Hague Convention came into force between New Zealand and the country where he or she was taken. (The Central Authority can tell you if this is the case).
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.