The French Family Court found that the children's habitual residence was France. Photo: 123RF
The Court of Appeal has ordered the return of two children from New Zealand to France, following their parents' marriage breakdown and "tortured" legal proceedings.
The primary school-aged children were born in France and lived there until October 2020 when their New Zealand mother brought them to this country for a holiday.
In April 2021 the mother and the children were supposed to return to France but were prevented from boarding their plane because one of the children did not have a negative Covid-19 test result.
Their mother did not take any further steps to fly back to France, so the children's father sought their return under the Convention on the Civil Aspects of International Child Abduction.
In December 2021 Family Court Judge Joanne Hambleton ordered the children's return to France, but their mother won a High Court appeal.
In quashing the Family Court order, Justice Jan‑Marie Doogue found that there was a grave risk that the children's move to France would put them in an intolerable situation.
Under French Family Court orders there was a risk the children would not be in the care of their mother for extended periods or either parent because of their father's business commitments, she found.
Justice Doogue also found that their mother suffered from post-traumatic stress disorder as a result of physical and psychological abuse and there was a grave risk it would be triggered if she returned to France, seriously impairing her parenting.
The children's father appealed to the Court of Appeal, with the French court modifying its orders to provide for shared care in the event their mother returned with them.
In February, the Court of Appeal found the children's return would not give rise to a grave risk of an intolerable situation, because the modified orders removed the possibility they would be separated from their parents for extended periods.
"We do not discount the real difficulties and stresses that a return to France will involve for the mother. She is likely to be significantly worse off than she would be in New Zealand. But the risk that this will impair her parenting to an extent that gives rise to an intolerable situation for the children is, in our view, too speculative to be described as a grave risk," the court found.
While the court acknowledged a return to France would be challenging for the children, they were expected to quickly adapt.
"There will be transitional challenges for the children, but they can be expected to quickly readapt to speaking French and to life in France: that is after all where the parents made their home, where the children were born, and where the children were initially raised," the judgment said.
"It follows that the appeal must be allowed, and the order for the children's return to France reinstated."
The French Family Court found that the children's habitual residence was France.
The children started school in France but generally travelled to New Zealand every year to visit their mother's family.
She claimed her marriage breakdown stemmed from family violence and her husband's infidelities, but he denied there was abuse of any kind and there was no suggestion he was abusive towards their children.
The children's mother also argued they were now settled in New Zealand and it would be extremely disruptive for them to return to France, but the Court of Appeal said it was confident they would benefit from the support of two loving, capable parents and their wider families.
"There will be disruption to the children in the short term if they return to France. But they have quickly adapted to life in New Zealand. There is no reason to think they will not equally quickly readapt to life in France," the court said.
"There will be significant challenges for the mother in returning to France. But the risk that these challenges will result in an intolerable situation for the children did not materialise before she came to New Zealand in October 2020, and the risk that that will occur on her return falls well short of the description 'grave'."
The court left both parties to bear their own costs, noting the proceedings had taken a "somewhat tortured path" and were unnecessarily protracted and complex.
