Victoria University of Wellington Law Review, 2017, 48(1): 81-106

"This article explores the current approach by New Zealand courts to the "grave risk" exemption in cases of domestic violence. New Zealand courts, similarly to other jurisdictions, have adopted a narrow approach, requiring the abductor to show that the habitual residence cannot adequately protect the child, in order to establish the defence. Due to the principle of comity, which emphasises respect for another nation's legislative and judicial jurisdiction, it is rare that courts will make such a finding as this may be seen to undermine the principle. Thus, the current approach effectively blocks the latter discretionary inquiry which balances Convention purposes and a child's welfare and best interests in deciding whether a return order should be made. Whilst this aligns with Convention principles of deterrence, speedy return and a focus on forum over merits, victims of domestic violence are different to the "stereotypical abductor" the Convention was drafted to deal with and consequently a different approach is needed." (From the Introduction). Record #5473