Judgment: 2007-01-19 · Court archive

High Court finds children were wrongfully removed from South Africa

The court held that custody rights remained with the South African court when the mother brought three children to Ireland. It ruled that they should be returned, with the details of protective undertakings still to be heard.

High Court, Dublin · [2007] IEHC 217

Who, what, where, when and why

Who

See the report below for the parties involved.

What

The court held that custody rights remained with the South African court when the mother brought three children to Ireland. It ruled that they should be returned, with the details of protective undertakings still to be heard.

Where

Places mentioned in the report

  • Ireland
When

Judgment:

Other dates in the report
  • 20 September 2006

    The mother relied on an ex parte order made on 20 September 2006, which allowed the children’s passports to be released and permitted travel to Ireland. But a South African High Court order made on 5 October rescinded that order and dismissed her application. That rescission order had not been appealed. The Irish court therefore treated the September order as void from the outset and unavailable as a legal excuse for the removal. It also noted that the September order did not determine the children’s ultimate residence or custody.

Why

Reasons reported in the judgment

The family had lived in South Africa from 2002. Divorce proceedings there remained ongoing, with custody, guardianship and possible relocation of the children among the issues awaiting a hearing. The High Court found that the South African court had retained custody rights while those matters were unresolved, including the right to decide where the children should live.

The High Court has ruled that three children were wrongfully removed from South Africa to Ireland in September 2006 and that they should be returned to South Africa. The court has not yet settled the terms of that return: it said it would hear the parties about the nature and extent of undertakings to protect the children and their mother.

Mr Justice Feeney delivered the judgment on 19 January 2007 in proceedings under the Child Abduction and Enforcement of Custody Order Act 1991 and the Hague Convention. The children’s father sought their return. Their mother opposed the application, relying on the South African court order that had permitted her to travel with the children and arguing that their return would expose them to grave risk or an intolerable situation.

The family had lived in South Africa from 2002. Divorce proceedings there remained ongoing, with custody, guardianship and possible relocation of the children among the issues awaiting a hearing. The High Court found that the South African court had retained custody rights while those matters were unresolved, including the right to decide where the children should live.

The mother relied on an ex parte order made on 20 September 2006, which allowed the children’s passports to be released and permitted travel to Ireland. But a South African High Court order made on 5 October rescinded that order and dismissed her application. That rescission order had not been appealed. The Irish court therefore treated the September order as void from the outset and unavailable as a legal excuse for the removal. It also noted that the September order did not determine the children’s ultimate residence or custody.

The court rejected the mother’s grave-risk defence. It considered concerns raised about visas, family unity, financial support and access to legal representation. The parties’ common position was that the mother and children were very likely to receive visitor visas allowing them to remain in South Africa for six months. The father also undertook to fund necessary travel for visa renewal and to provide financial support and accommodation pending the South African proceedings. The court said it would hear the parties further about funding for legal assistance.

The judgment determines that the removal breached custody rights held by the South African court and entitles the father to an order for return. It does not specify a return date or the final terms of the supporting undertakings; those matters remained for the court to address.

Read the original court judgment

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