P M P -v- K T P [2007] IEHC 217 (19 January 2007)

P M P -v- K T P [2007] IEHC 217 (19 January 2007)

The removal of the children by the respondent from South Africa on 20th September 2006 was wrongful as rights of custody were vested in the South African court, the order relied upon by the respondent was void ab initio and fraudulently obtained, and no legally excusing circumstances existed. The Article 13(b)...

Source-derived case information.

Citation
[2007] IEHC 217
Parties
Applicant: P. M. P.; Respondent: K. T. P.
Jurisdiction
Ireland
Judgment Date
19 January 2007
Procedural Posture
Child Abduction Application Under Hague Convention / High Court Judgment
Outcome
Order for return of the children to South Africa granted
Legal Topics
Child Abduction, Hague Convention, Custody Rights, Habitual Residence, Wrongful Removal, Article 13(b) Grave Risk Defence
Family Law International Law Child Abduction Hague Convention Custody Rights Habitual Residence Wrongful Removal Article 13(b) Grave Risk Defence

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Summary, issues, holding and outcome

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Parties

P. M. P.

Applicant

K. T. P.

Respondent

Procedural Posture

Child Abduction Application Under Hague Convention / High Court Judgment

Legal Issues

  1. 1 Whether the removal of the children from South Africa by the respondent was wrongful under the Hague Convention
  2. 2 Whether rights of custody were vested in the South African court at the time of removal
  3. 3 Whether any defence under Article 13(b) of the Hague Convention (grave risk/intolerable situation) applies

Ratio Decidendi

The removal of the children by the respondent from South Africa on 20th September 2006 was wrongful as rights of custody were vested in the South African court, the order relied upon by the respondent was void ab initio and fraudulently obtained, and no legally excusing circumstances existed. The Article 13(b) defence was not established as the risk of intolerable situation could be addressed by undertakings and the probability of visas being granted.

Court Disposition

Order for return of the children to South Africa granted

Orders

  • Applicant entitled to an order for the return of the children to the jurisdiction of South Africa
  • Court to hear the parties on the nature, extent, and type of undertakings necessary and appropriate