Care of Children Act 2004

106 Grounds for refusal of order for return of child

(1)

If an application under section 105(1) is made to a court in relation to the removal of a child from a Contracting State to New Zealand, the court may refuse to make an order under section 105(2) for the return of the child if any person who opposes the making of the order establishes to the satisfaction of the court—

(a)

that the application was made more than 1 year after the removal of the child, and the child is now settled in his or her new environment; or

(b)

that the person by whom or on whose behalf the application is made—

(i)

was not actually exercising custody rights in respect of the child at the time of the removal, unless that person establishes to the satisfaction of the court that those custody rights would have been exercised if the child had not been removed; or

(ii)

consented to, or later acquiesced in, the removal; or

(c)

that there is a grave risk that the child’s return—

(i)

would expose the child to physical or psychological harm; or

(ii)

would otherwise place the child in an intolerable situation; or

(d)

that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate, in addition to taking them into account in accordance with section 6(2)(b), also to give weight to the child’s views; or

(e)

that the return of the child is not permitted by the fundamental principles of New Zealand law relating to the protection of human rights and fundamental freedoms.

(2)

In determining whether subsection (1)(e) applies in respect of an application made under section 105(1) in respect of a child, the court may consider, among other things,—

(a)

whether the return of the child would be inconsistent with any rights that the child, or any other person, has under the law of New Zealand relating to refugees or protected persons:

(b)

whether the return of the child would be likely to result in discrimination against the child or any other person on any of the grounds on which discrimination is not permitted by the United Nations International Covenants on Human Rights.

(3)

On hearing an application made under section 105(1) in respect of a child, a court must not refuse to make an order under section 105(2) in respect of the child just because there is in force or enforceable in New Zealand an order about the role of providing day-to-day care for that child, but the court may have regard to the reasons for the making of that order.

Compare: 1991 No 19 s 13

Section 106(1): amended, on 20 September 2007, by section 5(1) of the Care of Children Amendment Act 2007 (2007 No 44).

Section 106(1)(d): amended, on 20 September 2007, by section 5(2) of the Care of Children Amendment Act 2007 (2007 No 44).

Section 106(2)(a): amended, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).