In a landmark decision, the Court of Appeal has ruled that two New Zealand-born children, known as Andrew and Sophia, can remain in New Zealand with their father, overturning earlier Family Court and High Court judgments that would have sent them back to their mother in Spain.
The case revolved around whether the children’s “habitual residence” was Spain or New Zealand, with the Appeal Court ultimately determining that the children were now settled, happy, and integrated into their life in New Zealand. The judges said that the children’s welfare and strongly expressed wishes were pivotal in their decision.
The siblings, whose real names are protected under law, were born in New Zealand but lived in Spain for five years before returning with their father for what was initially agreed to be a one-year visit. When the father, identified as McDonald in the judgment, decided not to send the children back to their mother, Sanchez, she sought their return under the Hague Convention, which aims to prevent wrongful international relocations.
While the lower courts ruled in her favour, the Appeal Court found that the children’s circumstances had changed significantly, with their integration into New Zealand life outweighing the parents’ original agreement and Spanish court orders.
The ruling acknowledged the need for the children to maintain a meaningful relationship with their mother but stressed that forcing them to return to Spain against their will could harm their welfare and strain family relationships. The court was hopeful both parents would collaborate to ensure ongoing contact with Sanchez, including online communication and in-person visits in Spain, to preserve cultural and familial ties.
