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Family Court decision – Jelicich case

Family Court decision – Jelicich case

The Chair of The Family Law Section of the New Zealand Law Society Simon Maude has noted that the coverage given to the recent decision of the Family Court at Waitakere in respect of the Jelicich case on Television New Zealand's "Sunday " programme last night (8 May) did not cover satisfactorily the fact that the case was decided under the provisions of the Hague Convention.

He points out that in deciding that Caitlin Jelicich should return to Wales, the Family Court was not deciding which parent should have custody. Rather, it was saying that, under the Hague Convention, the court in Wales had to decide that question.

Both New Zealand and the United Kingdom, of which Wales is a part, are parties to the Hague Convention, an international convention intended to prevent international abduction of children. It substantially ties the hands of judges making determinations as to whether a child should be allowed to remain in New Zealand or not.

Specifically, in the Jelicich case, the court was required to decide:

If the child, at the time that she was withheld in New Zealand, was habitually resident in Wales or not.

If so, whether the mother had consented to the child remaining in New Zealand.

If the mother had not consented, whether there was " grave risk" for the child if returned to Wales.

These were the only decisions the court was able to make. If the court found that the child was "habitually resident" in Wales, that the mother had not consented to her remaining in New Zealand and that there was no grave risk for the child in being returned to Wales, then the court was bound in law to order her return.

In the section's view, it is important the public understands that the Hague Convention exists to prevent international abduction of children and to ensure that decisions relating to children are made in their country of "habitual residence". In these cases, no consideration is to be given to the merits of childcare arrangements as between the parents, that being a matter to be determined in the country of origin (unless consent has been given to retention in another country or where grave risk exists for the child if returned).

For older children, issues of their own views can come into play. However, due to the age of the child, that was not a factor for consideration in the Jelicich case.

Simon Maude says it would be unfortunate if the public was to conclude that this decision was in any way affected by considerations as to who was a better parent or what an optimal childcare arrangement should be for this child, as those considerations were beyond the jurisdiction of the court.


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