SIMPSON v HAMILTON [2019] NZCA 579

SIMPSON v HAMILTON [2019] NZCA 579 [22 November 2019]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA398/2018[2019] NZCA 579BETWEEN SIMPSONAppellantAND HAMILTONRespondentHearing: 23 July 2019Court: French, Miller and Gilbert JJCounsel: Appellant in personA E Ashmore and N J Fairley for RespondentT A Gunn lawyer for childM M Casey QC and D Sothieson for Central AuthorityJudgment: 22 November 2019 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONSFrench and Gilbert JJ [1]Miller J (concurring) [87]FRENCH AND GILBERT JJ(Given by Gilbert J)Table of ContentsIntroduction [1]BackgroundBreach of access orders in Germany [10]Abduction [12]Custody order in favour of the father is made in Germany [13]Arrest warrant issued for Mr Hamilton [14]The mother's appeal against the custody order is dismissed [15]Family arrives in New Zealand [16]The father's attempts to locate Anna [17]Arrest warrant issued for the mother [18]Surrender order for Anna [19]Orders preventing Anna's removal from New Zealand [20]Application under s 105 filed in the Family Court [21]Deportation notices issued [22]Three defences pleaded opposing order for Anna's return [24]Psychologist's report [25]Family Court decision [30]Appeal to the High Court [38]High Court decision [39]Appeal to this CourtGrounds of appeal [40]Issues [43]Was the settled defence made out?Submissions on appeal [45]Analysis [46]Was the child objection defence made out?Submissions on appeal [55]Analysis [59]Was the discretion to decline return appropriately exercised?Submissions on appeal [65]Analysis [66]Disposition [77]Result [86]Introduction[1] This appeal concerns whether an order should be made under s 105 of the Careof Children Act 2004 (the Act) for the return to Germany of a girl, now aged 12, whowas unlawfully abducted by her mother and brought to New Zealand on 23 January2015 in defiance of a German court order awarding sole custody of the child tothe father.[2] Subpart 4 of the Act (which includes s 105) implements the Hague Conventionon the Civil Aspects of International Child Abduction (the Hague Convention) whichresponded to the need to protect children internationally from the harmful effects oftheir wrongful removal or retention outside the State of their habitual residence.The dual objects of the Hague Convention are to secure the prompt return of childrenwrongfully removed to or retained in any Contracting State and to ensure that rightsof custody and of access under the law of one Contracting State are effectivelyrespected in the others.[3] The child and her parents are German nationals. So too is the child's stepfatherand her younger half-sister. Despite having no family or other support in this country,the mother, the child, her stepfather and half-sister arrived in Christchurch in January2015 and relocated to the Coromandel region in March 2015. The stepfather leftbehind in Germany his other daughter, then aged six, from a previous marriage.[4] To comply with the publication restrictions in s 139 of the Care of ChildrenAct, we anonymise the parties' names and adopt the same pseudonyms used inthe High Court. We refer to the child as "Anna", her father as "Mr Simpson", hermother as "Ms Hamilton" and her stepfather as "Mr Hamilton".[5] Because the family was in hiding, nearly two years passed before the fatherdiscovered that Anna was living in New Zealand. This explains why it was not until22 February 2017 that the Central Authority in New Zealand filed an application onbehalf of the father under s 105 seeking an order for Anna's return to Germany.[6] In a judgment delivered on 1 September 2017, the Family Court at Taurangadeclined to make an order for Anna's return.1 Judge Coyle found that two grounds forrefusing to make a return order were made out. First, the application was made morethan one year after removal and Anna was now settled in her new environment1 [Simpson] v [Hamilton] [2017] NZFC 6923 [Family Court judgment].(s 106(1)(a)).2 Secondly, Anna objected to being returned and had attained an age anddegree of maturity such that it was appropriate to take her views into account(s 106(1)(d)).3 The Judge considered that the discretion should be exercised by notmaking an order for return.4[7] The father's appeal from the Family Court judgment was dismissed bythe High Court in a results judgment delivered on 18 May 2018.5 Paul Davison J gavehis reasons in a judgment delivered on 11 June 2018.6[8] This Court granted leave for a second appeal on 26 February 2019.7The Secretary for Justice, as the Central Authority for New Zealand underthe Hague Convention, was given leave to intervene because the appeal raises issuesof general public importance. The Authority is particularly concerned to ensure thatthe objectives and purposes of the Convention are not diluted.[9] Following that brief introduction, it will be helpful to give a fuller overview ofthe background facts before addressing the grounds of appeal.BackgroundBreach of access orders in Germany[10] Anna was born in Germany on 3 July 2007. Her parents separated in 2009 andher mother has had day-to-day care of Anna ever since.8 The mother persistently failedto cooperate over access in breach of various access orders made by the Germancourts.9 As a result, the father's access became progressively less frequent: in 2011 hehad access to Anna on 25 days instead of the 72 ordered; in 2012 on three days insteadof 60; and in 2013 and 2014 he had no access at all.2 At [6]–[31].3 At [47]–[56].4 At [32]–[46] and [57].5 Simpson v Hamilton [2018] NZHC 1098.6 Simpson v Hamilton [2018] NZHC 1365 [High Court judgment].7 Simpson v Hamilton [2019] NZCA 21 [Leave judgment].8 There is a dispute about the date of separation, but it is recorded as having occurred in 2009 bythe Nüernberg Higher Regional Court in a judgment dated 31 May 2016.9 Ansbach District Court orders dated 8 July 2010 and 14 April 2011; Nüernberg Higher RegionalCourt dated 6 December 2012; Fürth District Court dated 9 July 2013; and Nüernberg HigherRegional Court dated 28 March 2014.[11] In about February 2014, the mother advised the Nüernberg Higher RegionalCourt that she and her husband, Mr Hamilton, had decided to travel to Costa Rica forsix months and wished to take Anna with them. The Court ordered that the father wasto have contact via Skype every Saturday for at least 15 minutes during this time.None of these contact sessions took place despite the father doing his best to makethem happen. It transpired that the family did not go to Costa Rica. Instead, theymade two separate overseas trips. They went first to Brazil in March 2014, returningto Fürth, Germany in May 2014. They then went to Scotland in July 2014 returningto a different town in Germany, Gräfenberg, in September 2014.Abduction[12] Anna, who was then aged seven, was enrolled in a school in Fürth in September2014. Six weeks later, the mother reported that Anna was sick, but she never returnedher to school and no reason was given. In fact, on 11 November 2014, the mother andMr Hamilton took Anna overseas (together with their daughter who was then agedthree) without telling anyone where they were going. This was in contravention ofthe existing access orders and just 15 days before the hearing in the Fürth DistrictCourt of the father's application for sole custody of Anna. The father initially applied,in November 2013, for the right to determine Anna's place of residence.Then, in August 2014, he amended his application to include sole custody.Although the mother absconded before the hearing, she was represented by counsel atthe hearing. She also provided written statements in opposition to the application.These were submitted both before and after her departure.Custody order in favour of the father is made in Germany[13] The Fürth District Court awarded sole custody of Anna to her father on17 December 2014. This outcome was supported by the Guardian ad litem for Anna.The Court made various pertinent observations which provide important context forthe present appeal. It is therefore helpful to set these out (translated as follows):While the [father] seeks to have regular contact with [Anna], the [mother], foryears, has been trying to completely thwart his right of access where possible.The [mother] has for many years harboured a deep-seated resentment towardsthe [father]. She is trying to hide from him and is practically on the run.That a joint parental custody is not possible under these circumstances andrequires no further explanation.The transfer of parental custody to the father is in the best interest of the child.The ingrained resentment the mother of the child holds against the father ofthe child, by now significantly impairs the mother's ability to raise herdaughter. It has now developed into the driving force behind the actions takenby the mother. With her actions, the mother wilfully and significantlydisregards the interests of her daughter. From numerous statements the childmade at access proceedings, from the psychological assessment created onthat occasion by expert Dr. Marianne Schwabe-Höllein, from statements madeby the Youth Welfare Office and the Guardian ad litem, it is not only knownto the court, but also to the mother of the child, that her daughter desperatelyyearns for contact with her father. This has not changed to this day. Even afterher having spent several months at an unknown location and even in light ofan incident that happened on 20.09.2013, where [Anna] became eye-witnessto a dramatic encounter between her father and her mother's husband, whowas operating a passenger vehicle at the time, and on which the child only hasthe perspective of her mother for explanation, [Anna] told the contactsupervisor that she would like to do 'everything with her father' again.That [Anna], in light of her mother's hugely rejectionist attitude, which wouldnot have gone unnoticed by her and her mother's prerogative of interpretationof the events on 20.09.2013, also entrusted in the contact supervisor that shedid not have the courage, does not seem surprising and is not to be interpretedas a limitation of the clear wish of the child to see her father.The [mother], however, has been ignoring this, her daughter's dearest wish,all-out and consistently for years. For this, she is prepared to accept furthersignificant disadvantages for her daughter. She, time and again, changes theirplace of residence, practically being on the run from the [father], and keeps inhiding. After [Anna] started her primary schooling in September 2013,she had to leave the school again only a few months later. In the autumn of[2014], she briefly attended the school again, only to stop attending withoutan excuse being given. Since that time, there has been uncertainty, if andwhere the child has been attending school. The mother's game of hide andseek is certainly not suited to allow for or let alone encourage relatively solidsocial relationships for the child outside of the family.Although the court does not fail to appreciate that the child [Anna] has beenliving with her mother since birth and loves her for sure, it has to be concludedthat a transfer into the care of the father is in the best interest of the child.Other than the mother, who clearly puts living out her grudge towardsthe father of the child before the interests of her child, the father has alreadyagreed to allow generous contact with the mother of the child.He is living in well-ordered circumstances and there is no doubt that he is ableto give the child the opportunity to have a 'normal life', without one parent'sbehaviour being fuelled by hatred of the other parent and with contact to bothparents.As already illustrated above, the child loves her father and wishes to see himagain.The transfer of the parental custody to the father of the child does not seemundue either.The Nüernberg Higher Regional Court, with a decision dated 28.03.2014, triedto resolve the stagnant situation, especially the longstanding denial of accessthrough the [mother], by ordering a Right of Access decree. In thoseproceedings, the appointment of a contact supervisor was expressly seen asthe less severe means than the removal of the right to determine the place ofresidence.But the [mother] not only ignored the order of contact sessions via skype andafter that in person mediated through the contact supervisor, but alsounambiguously told the contact supervisor that she also is not willing to allowcontact sessions in the foreseeable future. Moreover, the [mother] has goneinto hiding since the adoption of said decision. It cannot be ascertained,whether the child regularly attends school.Arrest warrant issued for Mr Hamilton[14] On 27 November 2014, the Fürth District Court issued an arrest warrant forMr Hamilton on a charge of causing grievous bodily harm to the father by deliberatelyrunning into him with his car on 20 September 2013. This is the "incident" referredto by the Court at [13] above and witnessed by Anna, who was in the car at the time.The mother's appeal against the custody order is dismissed[15] The mother filed an appeal against the decision of the Fürth District Court on21 January 2015 but did not participate in the hearing. The Nüernberg HigherRegional Court appointed an independent expert psychologist, Professor Dr GottfriedSpangler, to report on the available options and make recommendations on howAnna's welfare requirements would best be served. Professor Spangler consideredthat by ignoring court decisions and not allowing the father to have access to Anna,the mother "endangered [Anna's] bond with the father". The Court found thatthe mother's conduct "hazarded significant developmental risks for [Anna]" andaccepted Professor Spangler's opinion that it would be in Anna's best interests to livewith her father while maintaining contact with her mother. The Court accordinglydismissed the appeal on 31 May 2016.Family arrives in New Zealand[16] After leaving Germany, the family travelled to Australia. They arrived inChristchurch on 23 January 2015 and were issued with three-month visitor visas.They travelled around New Zealand for two months before going back to Australia on21 April 2015. They re-entered New Zealand on 27 May 2015 and were again grantedthree-month visitor visas. These were subsequently extended to 27 November 2015.Three-year work visas were then granted to the mother and Mr Hamilton. The childrenreceived student and visitor visas. The mother procured these visas by falsely statingthat she had sole custody of Anna. In support of this claim, she produced a documentfrom the Nüernberg Higher Regional Court dated 13 February 2012 stating she hadsole custody of Anna. However, the mother knew that sole custody had been awardedto the father by the Fürth District Court on 17 December 2014. She was served withthat order on 23 December 2014 and she appealed against it on 21 January 2015,two days before her arrival in New Zealand. Unfortunately, ImmigrationNew Zealand failed to question whether the father had visitation rights or hadconsented to the mother removing Anna from Germany. The Immigration andProtection Tribunal subsequently described the document produced by the mother as"obviously on its face an incomplete and suspicious document that did not prove thatthe [mother] had the right to remove [Anna] from Germany".10The father's attempts to locate Anna[17] The father did not know where the mother was in hiding with Anna. On 7 June2015, he filed a missing person's report with the police in Germany. On 1 March 2016,public prosecutors in Germany issued an alert for the search of Anna and added her tothe international list of wanted persons.Arrest warrant issued for the mother[18] On 25 May 2016, the Fürth District Court issued an arrest warrant forthe mother on the basis she was suspected of misappropriating Anna's assets inviolation of her fiduciary duty in breach of the German Criminal Code and was"absconding" in terms of the Criminal Procedure Code in that she was "on the run oris keeping herself concealed". The assets comprised EUR 85,481 held in Anna's bankaccount and government bonds realised for EUR 14,682. The mother transferred thebulk of these funds to her own account on 8 December 2014, first to her bank account10 Re AE (Germany) NZIPT 503385 at [67].in Germany and then, on the same day, to her bank account in Australia.These investments are said to have been established for Anna by her paternal greatgrandmother and her father and were intended to fund her university education.A corresponding European arrest warrant was issued on 31 May 2016.Surrender order for Anna[19] In August 2016, following an extensive media and internet campaign,the father received an anonymous telephone call indicating Anna might be inNew Zealand. On 18 October 2016, the Fürth District Court issued a surrender orderfor Anna to be released to the father's custody.Orders preventing Anna's removal from New Zealand[20] On 10 November 2016, the father received a letter from the German Embassyin Wellington advising that a passport had been issued for Anna in New Zealand.On 6 December 2016, the father filed a request for Anna's return with the CentralAuthority in Germany. On 14 February 2017, orders were made on the application ofthe Central Authority in New Zealand preventing Anna's removal from New Zealandand for surrender of all passports and travel documents.Application under s 105 filed in the Family Court[21] On 22 February 2017, the Central Authority commenced the presentproceeding by filing on behalf of the father an application in the Family Court atThames for an order for the return of Anna to Germany. The proceeding wastransferred to the Family Court at Tauranga on 1 March 2017. The mother was servedon 3 March 2017.Deportation notices issued[22] On 22 May 2017, the mother was issued with a deportation liability notice byImmigration New Zealand on the basis she had concealed relevant information on hervisa application. Consequently, Anna and her half-sister also became liable fordeportation and they were issued with deportation liability notices on 30 May 2017.Mr Hamilton was also issued with a deportation liability notice, on 14 June 2017.[23] Through counsel, the mother filed submissions under s 157 of the ImmigrationAct 2009 attempting to show good reason why deportation should not proceed.The mother claimed she understood that by lodging an appeal (on 21 January 2015),her position as the custodial parent was preserved and she did not learn the outcomeof the appeal (delivered on 31 May 2016) until 2 March 2017. This submission wasrejected by Immigration New Zealand on 27 July 2017. It advised that deportationwas to proceed. The mother filed an appeal to the Immigration and ProtectionTribunal, but this was not determined until 30 October 2017, after the release ofthe Family Court's decision on 1 September 2017.Three defences pleaded opposing order for Anna's return[24] The mother accepted that the jurisdictional requirements under s 105 of the Actwere met and no one has subsequently raised any issue about this. We thereforeproceed on that basis. The mother raised three defences in response to the father'sapplication for an order that Anna be returned to Germany. The first was in terms ofs 106(1)(a) of the Act, namely that the father's application was made more than oneyear after Anna's removal from Germany and she was now settled in her newenvironment. The second, relying on s 106(1)(c), alleged there was a grave risk thatAnna's return would expose her to physical or psychological harm or place her inan intolerable position. In her amended statement of defence, the mother also reliedon s 106(1)(d), contending that Anna objected to being returned and had attained anage and degree of maturity such that it was appropriate to give weight to her views.Psychologist's report[25] The Court appointed a clinical psychologist, Sue Lightfoot, to provide a reportunder s 133 of the Act. In her report dated 15 June 2017, Ms Lightfoot recorded herbrief as having two components. First, in relation to Anna's objection to returning toGermany: the basis for that objection; whether the objection is reality-based oraffected by undue influence; and whether Anna has sufficient maturity andunderstanding to recognise the implications of the objection. Secondly, having regardto the defence that Anna might be exposed to grave risk of physical or psychologicalharm or otherwise placed in an intolerable situation, the psychological impact on Annaof an order returning her to Germany and the measures that could be taken toameliorate this.[26] Ms Lightfoot's report was prepared following discussions and meetings withAnna and her mother. She did not speak to the father.[27] Ms Lightfoot reported that Anna was "very opposed to returning to Germany".She considered that Anna has a "very good level of maturity, and fully understands hercurrent position". Ms Lightfoot considered Anna's decision was "completely logicaland appropriate for her" and "likely to be the same decision most older children andadults would make in her situation".[28] It is necessary to examine Anna's understanding of "her situation" because itforms the foundation for her objection. Ms Lightfoot recorded in her report thatAnna's mother had "clearly explained" to Anna that if she is returned to Germany, shewill go alone, without her mother, her half-sister and Mr Hamilton, because theywould choose to remain in New Zealand. Ms Lightfoot accepted that this"would indeed be the reality for [Anna]"; "she will be leaving her whole significantworld behind". This no doubt explains why Ms Lightfoot considered that most olderchildren and adults would make the same decision as Anna faced with this choice.In her conclusion regarding Anna's opposition to returning to Germany, Ms Lightfootreported:[The mother] told me she has clearly explained to [Anna] the implications forher, if [her father] is successful in his Application to have [Anna] returned toGermany. Whilst [Anna] on occasion appeared not to believe she would needto return without her mother, overall her comments to both myself andMr Blair Lawyer for Child, clearly indicated she understood she would haveto leave her mother — her most important adult, her sister, and [Mr Hamilton],as well as her friends, and NZ lifestyle, behind. This would indeed bethe reality for [Anna].Ms Lightfoot considered that Anna's objection to returning to Germany was not basedon "parental influence, alignment, or alienation".[29] Ms Lightfoot concluded that the likely psychological impact for Anna ofan order for return to Germany would be trauma, anger and conflict with her father,loss of primary attachment to her mother, loss of sibling relationship with herhalf-sister and loss of sense of self, all at a particularly challenging stage of herdevelopment when insecurities are common.Family Court decision[30] Judge Coyle found that Anna was physically and emotionally settled in hernew environment and had achieved a high level of social integration.11 The Judgefound that the appeal against deportation was likely to fail, but he placed no weight onthis because it was only a future possibility, not a present certainty.12 He consideredthe immigration status would only be relevant if the appeal had been rejected beforethe Family Court hearing.13[31] Having found the "settled" defence under s 106(1)(a) of the Act made out,the Judge turned to consider the exercise of his discretion having regard tothe principles set out in s 5 for assessing the best interests of the child. In view ofthe German court's decision, confirmed on appeal, awarding sole custody of Anna tothe father, the Judge was satisfied that the father presents no safety risks to her in termsof s 5(a).14 The Judge considered the principles in s 5(b) and (c) (a child's care,development and upbringing should be primarily the responsibility of her parents andguardians and should be facilitated by ongoing consultation and cooperation betweenthem) were "entirely aspirational" because of the "ongoing lack of willingness" ofthe mother to allow the father to be involved in Anna's life. The mother's "actions inremoving Anna from Germany and hiding from [the father]" excluded all prospect ofthis.15[32] The Judge viewed the principles of continuity of care as set out in s 5(d) and(e) as particularly important in this case. He considered it impossible for Anna to havea relationship with both her parents because of the mother's decisions.16 The Judgeaccepted the mother's evidence that "she will not return with [Anna] and will remainin New Zealand with [Mr Hamilton] and [their daughter].17 The Judge accepted11 Family Court judgment, above n 1, at [23].12 At [30].13 At [31].14 At [34].15 At [35].16 At [36].17 At [36].Ms Lightfoot's evidence that returning Anna to Germany in these circumstanceswould place her in an "intolerable situation".18 The Judge considered this would be"too cataclysmic" for Anna and he therefore exercised his discretion against makingan order for her return:19... I have reached the view that to require [Anna] to return to Germany wouldbe too cataclysmic for her. It would require her to be in the primary care ofher father whom she has not physically seen since 2013. It would require herto leave behind her mother, her stepfather and her sister. It would require herto leave behind the life that she has in New Zealand and move to a life inGermany, the present realities of which are unknown to [Anna]. I agree withMs Lightfoot's evidence that for [Anna] that would be an intolerable situation(in a psychological sense).[33] The Judge also found the defence under s 106(1)(b) was established in thatAnna objected to returning to Germany and had obtained the age and degree ofmaturity at which it was appropriate to give weight to her views.20 The Judgesummarised the basis for Anna's objection as set out in Ms Lightfoot's report:211. She would be taken away from her mother who is veryimportant to her;2. She would be taken away from her family in New Zealand;3. She would be taken away from her friends and otherrelationships;4. She would be taken away from her home;5. She is "kiwi", enjoys living in New Zealand, and prefers tolive in this country in comparison to Germany; and6. She would be returned to an overall context of her father's care ina country, in which she associated with adult conflict and beingunhappy.[34] The Judge stated there was no evidence that Anna's views had been influencedby her mother.22 He accepted Ms Lightfoot's evidence that although she had justturned 10, Anna was more mature than many children her age and most older childrenor adults would make the same decision in her situation:23 [Anna] has an advanced developmental ability for her age, and would bemore mature than many children her age in most areas. I consider that she hasmade a decision that has been understandably, both emotionally logicallybased, and aimed at meeting her current needs.18 At [39].19 At [46].20 At [47]–[56].21 At [50].22 At [56].23 At [52] (footnote omitted).While [Anna] is perhaps yet too young to apply a high order analytical,multi-factorial assessment of her situation, her decision has been completelylogical and appropriate for her. It is also likely to be the same decision mostolder children or adults would make in her situation.[35] The Judge determined that his discretion in relation to this defence should beexercised in the same way as for the "settled" defence, for the same reasons.24[36] For completeness, the Judge stated that he would have dismissed the furtherdefence under s 106(1)(c). He did not consider that returning Anna to Germany wouldexpose her to a grave risk of physical or psychological harm or would place her inan intolerable situation.25[37] The Judge did not discharge the order preventing Anna from being removedfrom New Zealand because he was concerned there was a real risk that the mother andMr Hamilton would "attempt to flee the jurisdiction of this Court in order to prevent[the father] progressing proceedings under [the Act] relating to day-to-day care andcontact in relation to [Anna]".26Appeal to the High Court[38] There was no challenge by the mother in the High Court to the finding thatthe "grave risk" defence under s 106(1)(c) was not established. The father contendedthat the other two defences should also have been rejected. He argued that Annashould not have been regarded as settled in her new environment, particularly giventhe lack of immigration status to remain in New Zealand, the long history oftransience, the German court's finding that the mother was "on the run" andthe Judge's finding that the mother may attempt to flee the jurisdiction of the Court inNew Zealand. The father did not challenge the Family Court's finding that Annaobjected to returning to Germany and had attained an age and degree of maturity suchthat her views should be taken into account. However, he noted that Anna's objectionwas based on her understanding that her mother would not return to Germany withher. He submitted that this assumption should not have been accepted at face value.24 At [57].25 At [59]–[66].26 At [68].The father contended that Anna's views were clearly influenced by the mother.He also challenged the exercise of the discretion, contending that the Judge failed totake various matters into account including measures that could be taken to ameliorateAnna's understandable concerns about future care arrangements.High Court decision[39] Paul Davison J considered that to the extent the appeal concerned whetherthe defences were made out, it should be treated as a general appeal governed bythe principles set out by the Supreme Court in Austin, Nichols & Co Inc v StichtingLodestar.27 However, the second stage of the analysis — the discretion whether tomake an order — was to be approached applying the principles in May v May.28The exercise of this discretion could not be interfered with unless it were shownthe Judge acted on a wrong principle, failed to take into account some relevant matter,took account of some irrelevant matter, or was plainly wrong.29[40] The Judge agreed with the Family Court that Anna is now settled in her newenvironment.30 He did not consider the Judge made any appealable error in exercisingthe discretion.31 The Judge agreed that "Anna's return to Germany, without her motherand sister, to a live with her father is likely to have what Ms Lightfoot describes asa profoundly negative psychological impact on her".32 He agreed with Judge Coylethat these effects would be "too cataclysmic for her".33[41] The Judge also agreed with the Family Court finding that Anna has a strongobjection to returning to Germany and her views should be given considerableweight.34 Again, the Judge considered no appealable error had been demonstratedconcerning the exercise of the discretion in the Family Court.3527 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.28 May v May (1982) 1 NZFLR 165 (CA) at 169–170.29 High Court judgment, above n 6, at [71]–[72].30 At [97]–[98].31 At [125].32 At [119].33 At [119].34 At [139] and [141].35 At [143].Appeal to this CourtGrounds of appeal[42] The father's notice of appeal lists four grounds which may be summarised asfollows:(a) Anna cannot be regarded as being settled in New Zealand given she hasno legal entitlement to remain here.(b) Anna's objection to returning to Germany is influenced by her motherand Mr Hamilton.(c) Ms Lightfoot's evidence was unsound.(d) The High Court failed to consider that the alienation of Anna from herfather will have long-term developmental risks.Issues[43] It will be convenient to address these grounds with reference to the three mainissues:(a) Was the settled defence under s 106(1)(a) made out?(b) Was the child objection defence under s 106(1)(d) made out?(c) Was the discretion to decline return appropriately exercised?[44] Before addressing these issues, we note that the High Court should not havetreated any aspect of the appeal as being governed by the approach directed bythis Court in May v May. All counsel agreed that the standard to be applied is asdirected by the Supreme Court in Austin, Nichols. This was confirmed by the SupremeCourt in Kacem v Bashir.36 Because of the approach taken in the High Court, we willfocus our attention on the Family Court judgment.36 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.Was the settled defence made out?Submissions on appeal[45] The father submits that the grounds for refusal to order return should benarrowly construed to give effect to the objectives of the Convention. He contends itwill be very difficult for an abducting parent opposing an order for return to her placeof habitual residence to show that the child is settled in her new environment whenshe is being concealed or where she does not have legal status entitling her to remain.Analysis[46] The exceptions in the Hague Convention, relieving the obligation to returna child abducted from her place of habitual residence, were not intended to be givenan expansive interpretation. Professor Elisa Pérez-Vera, the official HagueConference reporter, made this clear in her explanatory report on the Convention:37 it would seem necessary to underline the fact that the three types ofexception to the rule concerning the return of the child must be applied onlyso far as they go and no further. This implies above all that they are to beinterpreted in a restrictive fashion if the Convention is not to become a deadletter. In fact, the Convention as a whole rests upon the unanimous rejectionof this phenomenon of illegal child removals and upon the conviction thatthe best way to combat them at an international level is to refuse to grant themlegal recognition. The practical application of this principle requires thatthe signatory States be convinced that they belong, despite their differences,to the same legal community within which the authorities of each Stateacknowledge that the authorities of one of them — those of the child's habitualresidence — are in principle best placed to decide upon questions of custodyand access. As a result, a systematic invocation of the said exceptions,substituting the forum chosen by the abductor for that of the child's residence,would lead to the collapse of the whole structure of the Convention bydepriving it of the spirit of mutual confidence which is its inspiration.[47] Neither the Hague Convention nor the Explanatory Report provide guidanceon what is intended by the concept of being "settled" in a new environment.However, its ordinary meaning suggests a relocation that is not just temporary but onethat is sufficiently established to provide a sense of stability and security.38The assessment will usually focus on the position at the time the application is heard.3937 Elisa Pérez-Vera Explanatory Report (Hague Convention on Private International Law, MadridApril 1981) at [34].38 Re N (Minors) (Abduction) [1991] 1 FLR 413 (HC).39 Secretary for Justice (New Zealand Central Authority) v HJ [2006] NZSC 97, [2007] 2 NZLR 289It is necessary to consider not only whether the child is physically and emotionallysettled, but also whether she is socially integrated.40 This is a broad ranging enquiryand could include consideration of a child's immigration status if relevant.For example, if there is a real and imminent threat of deportation, this is likely to bearon the assessment of whether a child is settled.41[48] It will likely be difficult for an abducting parent to demonstrate that a child issettled in her new environment, overcoming the Court's obligation to order return,in cases of concealment or subterfuge. The reasons for this were explained byThorpe LJ in Cannon v Cannon:42The fugitive from justice is always alert for any sign that the pursuers areclosing in and equally in a state of mental and physical readiness to move onbefore the approaching arrest. A very young child must take its emotional and psychological state in largemeasure from that of the sole carer. An older child will be consciously orunconsciously enmeshed in the sole carer's web of deceit and subterfuge. In cases of concealment and subterfuge the burden of demonstratingthe necessary elements of emotional and psychological settlement is muchincreased. The judges in the Family Division should not apply a rigid rule ofdisregard but they should look critically at any alleged settlement that is builton concealment and deceit especially if the defendant is a fugitive fromcriminal justice.[49] With these principles in mind, we turn to consider whether the motherestablished that Anna was settled in her new environment at the time of the hearing inthe Family Court in August 2017. By then, the family had effectively been on the runand in hiding since they had fled Germany in November 2014. After trips back andforth between Australia and New Zealand, Anna arrived in a remote area ofthe Coromandel Peninsula on 27 May 2015. Since then, she had lived at three[Secretary for Justice v HJ] at [57].40 At [55].41 Lozano v Alvarez 697 F 3d 41 (2d Cir 2012) at 56–58. See also Micheal Singer "Across the Borderand Back Again: Immigration Status and the Article 12 'Well-Settled' Defense" (2013) 81Fordham L Rev 3693.42 Cannon v Cannon [2004] EWCA CIV 1330, [2005] 1 WLR 32 at [56]–[61]. Approved inSecretary for Justice v HJ, above n 39, at [29] per Elias CJ and at [69] per Blanchard, Tipping andAnderson JJ.addresses in that general area, moving in February 2016 and in May 2017. By the timeof the hearing, she had been living at her current address for three months. Anna wasinitially enrolled at a local school on 15 June 2015 but she left in December 2016.She enrolled at a second school in February 2017 and at the time of the hearing shehad been there for six months. The principals of both schools confirmed that Annacould speak English fluently and had settled well to her studies. She had participatedin various activities including singing and guitar lessons, a school kapa haka groupand school sports. She had made friends and was evidently enjoying her newsurroundings. However, Anna was clearly not insulated from the effects of being inhiding. For example, her class teacher reported in a letter dated 20 March 2017 thatAnna "had moments of anxiety and has expressed that she feels worried about herfamily situation".[50] The Family Court recognised that, now the father had located Anna inNew Zealand, there was a real risk the mother and Mr Hamilton would continue theirdetermined efforts to evade him by fleeing to another jurisdiction.43 We agree withthat assessment. This is the reason why the Court did not discharge the orderpreventing Anna from being removed from New Zealand.[51] The family's immigration status at the time of the hearing was precarious.Deportation liability notices had been served and the mother's attempt to show goodreason why deportation should not proceed had failed. The Judge accepted it wasmore likely than not that their appeal to the Immigration and Protection Tribunalwould also fail and they would be deported.44 We do not agree with the Judge that thisissue could be disregarded on the basis it was not "a certainty".45 At the time ofthe hearing, there was a real and imminent threat of deportation and this was clearlyrelevant to whether Anna could be regarded as being settled in New Zealand.[52] It is clear the family would have been deported had it not been for the FamilyCourt decision finding that the consequences for Anna of returning to Germany to live43 Family Court judgment, above n 1, at [68].44 At [30].45 At [30].with her father would be "cataclysmic" and "intolerable". This is apparent fromthe following extracts from the Tribunal's decision:[71] The consequences for [Anna] if she has to return to Germany and beplaced in the custody of her father have been assessed by the Family Courtand found to be "cataclysmic" and "intolerable". Even though this assessmentappears to accept a scenario where the daughter will leave her family behindin New Zealand, rather than the whole family having to return to Germany,the Tribunal has found that, even if all the family return so that contact withthem would be maintained, the experience of enforced living with her fatherwill still be traumatic for her.[72] The appellants have no family or particular nexus to New Zealand.They hold only temporary visas based on the wife's employment and whetherthey can establish a pathway to residence is not known. The wife and husbandappear to have come to New Zealand with the intention of ensuring thatthe father could not have custody of or contact with [Anna].[73] Had the family been able to return to Germany without the prospectthat [Anna's] father would seek to enforce the December 2014 custody order,which the New Zealand Family Court has found not to be in [Anna's] bestinterests, the Tribunal would unhesitatingly have dismissed the appeals, eventhough returning to Germany would expose [Anna] to further conflict overthe father's contact. Regrettably, that conflict has been a given in her life thusfar and has continued in New Zealand.[80] If the Tribunal allows these appeals the appellants will remain here ontemporary visas only. If the High Court was to uphold the father's appeal,[Anna] will have to return to Germany regardless. Having regard for [Anna's]exceptional humanitarian circumstances, the Tribunal finds that it would notin all the circumstances be contrary to the public interest for the appellants toremain in New Zealand on a temporary basis pending resolution of the HagueConvention proceedings and for the Family Court to consider any applicationof the father for contact.[53] The mother's claim of settlement in New Zealand was, to borrow Thorpe LJ'sexpression, "built on concealment and deceit". The mother left Germany secretively,without telling anyone where she was going. She obtained temporary immigrationstatus by falsely claiming she had sole custody of Anna. She ended up hiding withAnna in a remote location on the other side of the world from her place of habitualresidence, all the while knowing that the father and the authorities would be in pursuit.Inevitably, Anna became enmeshed in her mother's deceit. For example, one ofthe strategies employed to avoid detection was to prohibit Anna from usingthe internet at school even though this restricted her learning. Anna, like manychildren, quickly adjusted to her new surroundings but that does not mean she wassettled. By the time of the hearing in the Family Court, the chosen hiding place wasno longer serving its purpose. We agree with the Judge's assessment that it is likelythe family would have attempted to move on again once the authorities and the fathercaught up with them. An order preventing Anna's removal from New Zealand wastherefore necessary.[54] We do not consider the mother discharged the onus of proving that Anna wassettled in New Zealand in the required sense at the time of the Family Court hearingin August 2017. To summarise, the "settled" defence was founded on a strategy ofconcealment and deceit. The family had come to a remote part of New Zealandunlawfully with the intention of hiding and frustrating the German Court ordersdesigned to serve Anna's best interests. Anna had been living at her current addressfor only three months. She had been at her current school for six months. The motherhad procured visas allowing them to enter and temporarily remain in New Zealand bymaking false claims about her right to be here with Anna. The family had been issuedwith deportation liability notices and their initial attempt to show good reason whythey should not be deported had failed. It was unlikely their appeal against deportationto the Immigration and Protection Tribunal would succeed. In any event, the hidingplace having been discovered by the German authorities and the father, the familywould likely have moved on again had it not been for an order preventing Anna fromleaving the country. We do not consider Anna could be said to be physically andemotionally settled in all the circumstances.Was the child objection defence made out?Submissions on appeal[55] The father submits that Anna's attitude towards him is plainly influenced byher mother, as was accepted by the courts in Germany. He contends that the FamilyCourt wrongly disregarded this evidence.[56] The mother's estranging behaviour had an important bearing on Anna'sobjection in two respects. First, as the Family Court observed based on Ms Lightfoot'sreport, Anna's concern about seeing her father related to the car incident on20 September 2013 (referred to by the Fürth District Court in the quotationat [13] above). This is the incident in respect of which a warrant for Mr Hamilton'sarrest has been issued on a charge of causing grievous bodily harm to the father(referred to at [14] above). Ms Lightfoot reported Anna's perception that her fatherwas "in the wrong" and the incident had "upset her, made her feel scared, and changedhow she felt about seeing her father". The father says Anna has obviously adopted hermother's view about this incident. Judge Coyle said it did not matter what hadhappened, only its effect on Anna:46What did or did not happen outside [Anna's] school in September 2013 isirrelevant. What is relevant is that [Anna] has a strong recollection of thatevent and for her it is traumatic and associated with her father. It is my findingthat [Anna] has a strong objection to returning to Germany.[57] Secondly, the father submits that Anna's objection was founded on the falseassumption, based on what her mother had told her, that she would have to return toGermany on her own and the rest of the family would remain in New Zealand.The father states that if Anna returns with her mother, he recognises that Anna wouldneed to remain living with her mother, at least initially.[58] While the father does not suggest that Anna's views should be disregarded,he submits that involving children under 14 years of age in custody or relocationdecisions is fraught. He argues they should not be expected to make such difficultdecisions and confront serious loyalty conflicts when they are not sufficientlydeveloped to be able to evaluate the consequences of their decisions. In the unlikelyevent Anna's mother did not return with her, the father says he would pay for Anna tospend her school holidays in New Zealand or wherever her mother was living atthe time.Analysis[59] There is no contest that despite having just turned 10 at the time of the hearingin the Family Court, Anna's views were properly taken account of. The real issueconcerns what she was objecting to and the basis for that objection.46 Family Court judgment, above n 1, at [51].[60] Anna was understandably concerned about, and objected to, being forced toreturn to Germany alone, leaving her family in New Zealand, to live with her fatherwho she currently fears. Despite Anna's scepticism, this is the scenario her motherhad impressed upon her. In addition to the references already given at [28] above,Ms Lightfoot recorded in her report:[The mother] said she tried to explain the implications of the current Courtproceedings to [Anna], several weeks prior to my visit, to clarify the rest ofthe family would not be able to follow her back to Germany — "we gotthe papers and I thought she needed to know what was happening. She ismature enough to work it out, so I explained what would probably happen ifI lose this case. And her reaction to that was I'm not going anywhere.And she's tried to ignore it all, but yes she does get how totally bigthe situation is and she said to [the first lawyer for the child], why wouldsomeone who loves me take me away from my home".[61] We are troubled that the mother threatened to abandon Anna as part of herongoing efforts to ensure Anna's father is not involved in her life. This threat musthave been very distressing for Anna. We consider the scenario the mother carefullyexplained to Anna in preparation for her meeting with Ms Lightfoot was not realistic.First, it is clear Anna's mother loves her and would not want to abandon her. Secondly,the mother has gone to extraordinary lengths over many years to defeat the father'sright (and Anna's right) to have any form of father-daughter relationship. That wasthe reason she brought Anna to New Zealand in the first place. It is highly unlikelythat she would completely change course, give up all she sought to achieve, and remainhere while Anna goes back to Germany alone to live with her father. Thirdly, it is veryunlikely the mother would be permitted to remain in New Zealand if an order wasmade returning Anna to Germany. The Immigration and Protection Tribunal onlyallowed the mother to remain in New Zealand on a temporary basis pending resolutionof the present proceedings.47[62] Contrary to the Family Court's finding referred to at [34] above, there is ampleevidence that Anna's views have been influenced by her mother. For example,Professor Spangler reported in February 2016 that Anna's fear of contact with herfather "seemed hardly authentic, but influenced by the mother". The NüernbergHigher Regional Court noted that Anna had told the contact supervisor that her wish47 Re AE (Germany), above n 10, at [80].to have contact with her father was conditional on him not being allowed to "start anynonsense or go to court again". The Court observed that these were "arguments adultswould use" and indicated "manipulation of [Anna] with a tendency to achieveestrangement".[63] In our assessment, Anna's objection was vitiated by the undue influence of hermother and was founded on an entirely false premise. Anna understandably objectedto being separated from her family, not to returning to Germany with them. We do notconsider this exception was made out either.[64] Given our findings that none of the pleaded exceptions was established atthe time the application was heard, the Family Court had no discretion to decline tomake an order for Anna's return. Such an order should have been made.Nevertheless, we turn to consider whether the discretion was correctly exercised,assuming it had existed.Was the discretion to decline return appropriately exercised?Submissions on appeal[65] The father submits the discretion ought to have been exercised in favour ofordering return. He argues this would be in Anna's best interests. He notes thatalienation, loss of attachment and instrumentalisation of children can cause lifelongnegative consequences for children. A return to Germany would not preclude Annafrom continuing to live with her mother, indeed the father now strongly supports this.While acknowledging the inevitable short-term disruption, he says that returning Annato Germany would have the benefits of promoting her relationship not only with him,but also with her wider family including grandparents. He says a return would giveAnna security and stability. It would enable her to live in her country of birth andparticipate in all it has to offer. The father submits that an order for return would alsopromote the objectives of the Hague Convention. He argues that the Family Court andthe High Court did not recognise or respect the decisions of the German courtsregarding Anna's care and welfare.Analysis[66] In Secretary for Justice (as the New Zealand Central Authority on behalf of TJ)v HJ, the majority (Blanchard, Tipping and Anderson JJ) concluded that the discretionin a "settled" case under s 106(1)(a) of the Act requires the Court to balancethe welfare and best interests of the particular child against the general purpose ofthe Convention in the circumstances of the case.48 The majority continued:[86] When undertaking this exercise the judge should consider whetherreturn would or would not be in the best interests of a child who hasnecessarily already been found to be settled in its new environment. That verysettlement implies that an order for return may well not be in the child's bestinterests. Matters relevant to the assessment include the circumstances inwhich the child is now settled; the circumstances in which the child came tobe wrongfully removed or retained; and the degree to which the child wouldbe harmed by return. Other factors capable of being relevant will bethe compass and likely outcome of the dispute between the parties, andthe nature of any evidence directed to another ground of refusal, whether ornot that ground is made out. In short, everything logically capable of bearingon whether it is in the best interests of the child to be returned should beconsidered.[67] Even if the Court determines that return is not in the child's best interests, thatis not necessarily the end of the matter. The Court must consider whether return shouldnevertheless be ordered to promote the objectives of the Hague Convention,for example to avoid perverse incentives created by rewarding concealment.49[68] We have already addressed the circumstances in which Anna was wrongfullyremoved from Germany and the circumstances relied by on by her mother to supporther claim that Anna was settled in New Zealand as at August 2017, the date ofthe hearing in the Family Court. These factors weigh in favour of exercisingthe discretion by ordering return.[69] We now consider the likely harm to Anna, assessed as at that date, of an orderfor her return to Germany. Judge Coyle accepted Ms Lightfoot's evidence that thiswould place Anna in "an intolerable situation" and would be "too cataclysmic for48 Secretary for Justice v HJ, above n 39, at [85].49 At [87].her".50 Ms Lightfoot's reasons for this conclusion were set out in her report and maybe summarised as follows:(a) Loss of primary attachment — the effects of Anna losing her secureattachment to her mother will be considerable and will extend overtime.(b) Loss of sibling relationship — Anna and her half-sister have a veryclose bond which would be lost if Anna returned to Germany.(c) Loss of emerging sense of self — Anna has "recently begun to develop"a sense of self that identifies with New Zealand and the lifestyle here.A return to Germany would require her to redevelop her sense of selfwhich is likely to be problematic "given she does not now identify asbeing German, and does not want to live there".(d) Relationship with her father — returning Anna to Germany wouldrequire her to live with her father, effectively a stranger, with whom sheassociates "a traumatic memory" (the September 2013 car incident).Anna would likely experience "considerable anxiety, fears about hersafety, and hyper-vigilance" in the company of her father until shebegan to know him.[70] Once it is accepted, as we do, that the mother would not have been permittedto remain in New Zealand and would have returned to Germany with Anna and the restof her family, the Judge's primary concerns based on Ms Lightfoot's evidence ((a) and(b) above) fall away. The "cataclysmic" consequence of "severing" Anna's primaryattachment and separating her from her stepfather and half-sister was not a realisticprospect. An order for Anna's return would not have placed her in this "intolerablesituation".[71] The father has consistently maintained that he wishes to share Anna's care withher mother. He has always regarded this as being in Anna's best interests as he made50 Family Court judgment, above n 1, at [39] and [46].clear in his submissions to the Family Court and to the High Court. He confirmedbefore us that he does not expect Anna would be ready to live full-time with him andhe would not seek to enforce such an outcome. To the contrary, he acknowledges thatif Anna is returned to Germany, she should continue to live with her mother, at leastinitially. All he seeks at this stage is access. That would be a matter for the courts inGermany to determine. However, the prospect of Anna being returned alone toGermany to live solely with her father ((d) above) can be discounted.[72] Leaving Anna in her mother's sole care in New Zealand clearly carries its ownrisks for Anna's future development. For example, Professor Spangler assessedthe mother as having "[s]ignificant weaknesses and risk factors" shown by"her perception and interpretation of [Anna's] emotions and needs, which are mainlychannelled by her own needs and points of view". He went on to say that the motheris "only to a limited extent able to orient her behaviour towards [Anna's] needs".[73] In the context of considering whether Anna was settled, Judge Coyle referredto Ms Lightfoot's evidence that Anna sees herself as a "kiwi kid" in the sense that"a kiwi outdoors life" is important to her, "particularly the ability to be involved withanimals".51 This was the "sense of self" referred to by Ms Lightfoot in her report —"a well-stated sense of self that identifies with NZ and the lifestyle here". We placelittle weight on this factor ((c) above). It must be kept in mind that the presentapplication is concerned with the forum in which Anna's best interests should beconsidered and does not require an analysis of all the factors that might weigh in anyfurther decision about custody and access.52 In any event, there is no reason to supposethat Anna's opportunities for development and fulfilment will be any less in Germany.She will still be able to enjoy the outdoors and be involved with animals. For example,her father owns 60,000 m2 of parkland in Mönchengladbach where Anna was born.He is also responsible for the restoration of a nature reserve of some 250,000 m2 inthat area.51 At [22].52 A v Central Authority for New Zealand, [1996] 2 NZLR 517 (CA); and S v S [1999] 3 NZLR 513(CA) at [9].[74] The likelihood of ongoing dispute between the parents could not be avoidedby Anna remaining in New Zealand. The father did not abandon the prospect ofhaving any involvement in Anna's life even in the face of her disappearance for overtwo years. He has the time, the means and the determination to pursue his rights(and what he perceives to be in Anna's best interests) and has demonstrated he will doso regardless of whether the forum is Germany or New Zealand. This was a neutralfactor in determining whether an order for return should have been made.[75] The mother's strategy of running and hiding to prevent the German courts frombeing able to implement care and access arrangements assessed as being in Anna'sbest interests should not have been encouraged by declining to make a return order.This risked creating perverse incentives. It tended to justify the mother's decision todefy the authority of the German courts and come to New Zealand unlawfully.The decision rewarded her behaviour in fleeing that jurisdiction with Anna andconcealing her in New Zealand, contrary to Anna's best interests. It also effectivelylent assistance to the mother's ongoing efforts to defeat the father's right to be involvedin Anna's life. These consequences ran directly counter to the objectives of the HagueConvention.[76] The courts in Germany were perfectly well-placed to determine what was inAnna's best interests. Those courts, and the independent experts in Germany who hadbeen involved with this family, had accumulated significant knowledge aboutthe issues having dealt with them over the course of six years, from early 2010 toFebruary 2016. In our view, at the time of the hearing in the Family Court, the FederalRepublic of Germany was the appropriate forum to resolve all questions of custodyand access for Anna, not the courts in New Zealand. In conclusion, we see no goodreason why any discretion should have been exercised against ordering Anna's returnto Germany at that time.Disposition[77] Regrettably, two years have passed since the Family Court decision. Anna isnow aged 12 and has lived more than a third of her life in New Zealand. The principalobjective of the Hague Convention of securing the prompt return of an abducted childcan no longer be met. What course should now be taken? For reasons we now cometo, this issue has caused us the greatest difficulty.[78] Delay occasioned by the appeal process will not generally justify declining tomake an order for return if no exception was established at the time of the hearing ofthe application.53 In the normal course, decisions under the Hague Convention aredealt with promptly and any delay in the appeal process will be inconsequential.54However, as this Court observed in B v Secretary for Justice, the possibility cannot beexcluded that there may be cases where a significant change of circumstancesoccurring during the appeal process dictate that a return order can no longer bejustified at the time an appeal is heard, even though such an order would have beenappropriate at first instance.55 The Supreme Court left open this possibility inSecretary for Justice v HJ.56 Although the paramountcy principle does not apply,Anna's welfare and best interests must always be considered. For these reasons, andin view of the father's criticisms of Ms Lightfoot's report, an updated psychologist'sreport was commissioned by this Court from Dr Sarah Calvert.57[79] Before addressing Dr Calvert's report, it is necessary to relate a significantincident that occurred on 28 September 2017, some four weeks after the Family Courtjudgment was delivered. Shortly after 10 am that day, the father, accompanied bya man and a woman, arrived at Anna's school classroom without any forewarning andforcibly uplifted Anna in front of her teacher and classmates while the class was insession. The male associate stood in front of the teacher and blocked her attempt toprotect Anna while her father picked her up out of her seat. The three adults bundledAnna into a car and took her away.58 They drove to the nearby town of Tairua wherethey had a short stop before continuing to an address in Auckland where Germanfriends of the father were living. Seeing that Anna was upset, the female at the addresscontacted the police and advised them where Anna was and that she was in a distressed53 Pérez-Vera, above n 37, at [108]; and Nigel Lowe and Michael Nicholls International Movementof Children: Law, Practice and Procedure (2nd ed, LexisNexis, Bristol, 2016) at [22.11].54 Care of Children Act, s 107.55 B v Secretary for Justice [2007] NZCA 210, [2007] 3 NZLR 447 at [23].56 Secretary for Justice v HJ, above n 39, at [57].57 Section 145(2)(b) of the Care of Children Act authorises the receipt of further evidence on appealif the interests of justice so require.58 It appears a third person assisted by presenting papers at the school office purporting to show thatthey were authorised to uplift Anna.state. The mother was informed and immediately made a without notice applicationfor an interim parenting order. This order was granted by Judge Coyle that day alongwith a warrant to uplift Anna and return her to her mother's care. The police executedthe warrant and Anna was returned to her mother later that same evening.[80] This incident has had a profound effect on Anna. Dr Calvert says in her reportthat Anna suffers from Post Traumatic Stress Disorder directly associated with herexperience on that day. Dr Calvert reports that Anna was "extremely distressed,anxious and displayed frank hypervigilance" throughout the time she spoke to herabout this incident even though this was some 18 months after it happened. Anna toldDr Calvert she thought her father was taking her to Germany. She remembered shewas "shaking", "terrified" and "thought [she] was going to die". Anna says sheremains scared of her father because of this incident. She reports that sometimes shehas "bad dreams" because she is worried it might happen to her again.[81] In Dr Calvert's opinion, this event clearly traumatised Anna and it "now formsa very significant component of her views about a potential return to Germany and herfather's care". She reports that Anna is now strongly opposed to returning to Germany.Anna says she is "scared of her father because of 'one big thing' that is his removal ofher from her school in 2017".[82] Consistent with the view we have already expressed at [62] above, Dr Calvertconsiders that Anna will have been influenced by her mother and stepfather's viewsof her father. Nevertheless, she reports that Anna consistently indicated a willingnessto engage with her father until he uplifted her from her school. Dr Calvert saysthis event "changed [Anna's] perception of what she felt and thought". Relying onacademic literature, Dr Calvert considers Anna became more "realistically estranged"from her father as a result of this event. The change in Anna's position from the timeof the Family Court hearing and now is summarised in the following passage fromDr Calvert's report:At the time of the initial Family Court hearing in New Zealand, although likely'influenced' by her mother and by her own experiences, [Anna's] evidence isthat she was prepared to engage with her father and even (it transpires) to thinkabout going to Germany to see him.However, in my opinion, currently (and for the last 18 months) [Anna's] viewsare most significantly impacted by her direct experiences of the events ofSeptember 2017. That is her uplift/abduction, by her father and personsunknown to her, in front of her classmates at school. I have provided tothe Court data about that event as perceived by [Anna] and independentcollateral data provided contemporaneously. I have indicated that it is myprofessional opinion that the uplift/abduction caused [Anna] to develop(or re-develop) Post Traumatic Stress Disorder because she did believe shemight die and she was terrified. There have been alterations in her cognitionand in her emotional and social responses as a result of this experience andthey persist into the present.[83] Dr Calvert's firm view is that Anna will be adversely psychologically impactedif an order is made for her to return to Germany despite her objection. Dr Calvert saysAnna is "a traumatised child currently and her need (in terms of her welfare andwellbeing) is for stability and consistency within her 'secure attachments' so that shecan make effective use of the therapy now being provided for her (finally)". Dr Calvertconsiders that if the Court were to make an order returning Anna to Germany it wouldreplicate the damaging process created when her mother removed her from Germanyin 2014. Dr Calvert warns of the "very real danger" that if an order is made requiringher to return to Germany, Anna, who she describes as "a highly vulnerable child" will"grow into an adult who distrusts all adult relationships and who has a significant riskof major mental illness".[84] This is a very sad case for which there is no ready resolution. While we aresatisfied that a return order should have been made in 2017, we cannot overlook whathas occurred in the two years since and ignore Anna's consequent present fragile stateand vulnerability. What would be achieved now if we were to make an order for herreturn? And at what cost? As Baroness Hale observed in Re M, "the further away onegets from the speedy return envisaged by the Convention, the less weighty thosegeneral convention considerations must be".59 The opportunity for a prompt return toAnna's place of habitual residence has long passed. The father acknowledges thatAnna could not now be expected to live with him in Germany, at least forthe short-term. It is accepted that Anna needs to remain with her mother for the timebeing. It follows that the custody rights the Hague Convention was designed to protectcannot currently be exercised. The father can seek orders for access and has the meansto exercise any such rights whether Anna is in New Zealand or Germany. Anna has59 Re M (Children) (Abduction) [2007] UKHL 55, [2008] AC 1288 at [44].now lived more than a third of her life in New Zealand. Given her past transientlifestyle with her mother, she is probably more settled now than she has ever been.She has been placed under the guardianship of the Family Court and is currentlyreceiving therapeutic counselling weekly. She has been granted a student visa validuntil May 2021. The lawyer for the child reports that Anna is very happy at her schooland has made good friendships. Anna is now aged 12 and she strongly objects to beingreturned to Germany, particularly after what happened in September 2017. Her viewsare important and must be taken into account. In the light of Dr Calvert's report,we consider that the significant risks to Anna's mental health and future developmentthat would now be hazarded by a return order cannot be justified by any prospectivebenefit in terms of the Convention or otherwise.[85] The appeal must accordingly be dismissed.Result[86] The appeal is dismissed.MILLER J[87] I generally adopt the reasoning in the principal judgment, which I respectfullyfind compelling until it reaches the troubling issue of disposition. I write separatelyon that issue.[88] I accept that Dr Calvert's report can be relied upon as evidence forthe following:(a) Anna suffers anxiety and PTSD from traumatic events in 2013 (whenthe mother's partner drove a car at the father) and 2017 (when her fatherabducted her from school), and she associates that fear with her father;and(b) she now has a fear of her father and a desire not to go back to Germanydue, in part, to that fear;It need not follow, however, that return to Germany is inappropriate or contrary toAnna's best interests.[89] Regrettably, Dr Calvert's report rests on some of the same false assumptionsthat lead us to discount the report of Ms Lightfoot. Notably, she assumes that on returnto Germany Anna would live with the father and the mother and partner would notreturn. She concludes that return to Germany will cause psychological harm for tworeasons: the return will be to Anna's father's sole care and she will be in a situationwhere she will have no meaningful supports. This assumption is wrong on bothcounts, as is Dr Calvert's important conclusion that return would sever Anna'srelationships with her mother, her mother's partner and her sibling. These errorsrequire that those whose task it is to implement the Convention should subjectDr Calvert's conclusions to critical scrutiny. They also mean that Anna's ownexpressed views, which might otherwise prevail at her age, must be discounted tothe extent that they are the product of a misunderstanding on her part.[90] Dr Calvert's report also assumes that the psychological harm likely to resultfrom "entrenched parental conflict" will not happen should Anna remain here.We have rejected that assumption, finding rather that the likelihood of ongoing disputebetween the parents is high. There is every reason to think that the mother will go toalmost any lengths to prevent contact.[91] There is also every reason to think that a relationship with her father is essentialfor Anna's future wellbeing. Nothing in that regard has changed sincethe Fürth District Court explained its reasons in the compelling passage cited at [13]above. The evidence that has accrued since then rather confirms that there is muchcause for concern about what the Court described as the mother's impaired parentingability.[92] Notably, it is a disturbing feature of this case that the mother has been preparedto manipulate Anna by "clearly" explaining that should the Hague Conventionproceeding succeed the mother would not accompany Anna to Germany. This kind ofmanipulation appears to be a longstanding behaviour, as we note at [62]. It can onlyhave exacerbated Anna's anxiety about return to Germany; indeed it seems calculatedto do so. It was also dishonest; at that time the mother was facing imminentdeportation and knew full well that her own immigration status depended on Annabeing permitted to remain. I am also troubled by evidence that Anna is denied use ofthe internet at school, presumably to prevent contact with her father, and that placesher at an educational and social disadvantage in the school environment. Althoughnot immediately harmful to Anna, the mother's misappropriation of a fund set up forher education is also evidence of an inability to separate Anna's interests from herown. In short, there is every reason to think that Professor Spangler's assessment,to which we refer at [72], is correct.[93] Dr Calvert finds that Anna has supports here in the form of her school and herfriends and activities. I accept that is so, and I recognise that these things areimportant. But Dr Calvert's implicit assumption that this situation will continue is notnecessarily correct. I make two points. First, the father is seeking contact, which isimportant and should be encouraged and appropriately managed. As just noted,the mother is likely to respond in ways that are harmful to Anna. Second, the motherand her partner remain at real risk of deportation, although the risk now appears to beless imminent. As explained at [48]–[53], Anna's present circumstances arethe product of concealment and deceit, some directed at New Zealand immigrationauthorities. We have found that at the time of the Family Court hearing there wasa real and imminent threat of deportation. The mother and her partner have evadeddeportation for a time (pending resolution of these proceedings) by persuadingthe Immigration and Protection Tribunal that Anna would experience "emotionaltrauma" caused by placement in the sole custody of her father in Germany.60 We havefound that that assumption is incorrect. I add that, as the Tribunal also recognised,now Anna is no longer in hiding the risk of emotional turmoil cannot be avoided.[94] Dr Calvert makes one other assumption which must be called into question.It is that the counselling to which Anna has been given access in New Zealand willbetter serve her than the counselling she would be offered in Germany, which shewould associate with her father. This assumption, which presumably underpinsDr Calvert's assumption that Anna would lack support in Germany, seems to me60 AE (Germany), above n 11, at [75].unwarranted. We were given to understand that Anna has had limited professionalsupport in New Zealand and its provision has been belated. There is no reason tosuppose that she would experience delay in Germany, or that counsellors there wouldbe any less capable of gaining her trust. It likely remains the case that Anna's fear ofher father is in part a product of her mother's manipulation, as Professor Spanglerfound. And of course her extended family is there.[95] The policy of the Convention also remains a relevant consideration. We havefound that an order for removal ought to have been made in September 2017.There was never any question of "grave risk"; on the contrary, a German court foundthat the father is the more suitable parent and we have no reason to disagree.The "settled" defence was not made out in the Family Court. Nor was the childobjection defence; we have found that Anna's objection was vitiated by the undueinfluence of her mother. This case is a striking example of the sort of self-helpbehaviour that the Convention is intended both to discourage and to remedy. As atthe date of the Family Court hearing all criteria for decision pointed to return.[96] However, I accept that the unhappy combination of delay in rectifying the errormade in the Family Court and the father's decision to take matters into his own handsfollowing the Family Court hearing has made a difference. Anna experienced herremoval from school as an abduction. It has led to her becoming fearful of him,as Dr Calvert has found, and that consequence cannot be discounted as the product ofher mother's undue influence. She is now 12, an age at which her views must be givensignificant weight. I accept Dr Calvert's opinion that this is an important considerationin Anna's case. The Family Court has taken steps to ensure the mother cannot removeAnna from the jurisdiction, and it appears to be addressing Anna's need fora relationship with her father. It is for these reasons, and with the greatest reluctance,that I concur in the result.Solicitors:Office of Legal Counsel, Wellington for Central Authority