P. M. P. v K. T. P
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE FEENEY |
| Judgment Date | 19 January 2007 |
| Neutral Citation | [2007] IEHC 217 |
| Date | 19 January 2007 |
| Court | High Court |
| Docket Number | No. 2006/37 HLC |
[2007] IEHC 217
THE HIGH COURT
DUBLIN
CHILD ABDUCTION & ENFORCEMENT OF CUSTODY ORDERS ACT 1991
EEC REG 2201/2003
NATURAL FATHERS OF CHILDREN BORN OUT OF WEDLOCK ACT 1997 S2 (SOUTH AFRICA)
RULES OF COURT r43 (SOUTH AFRICA)
RULES OF COURT r33(4) (SOUTH AFRICA)
HAGUE CONVENTION ART 3
M (C) v DELEGACION PROVINCIAL DE MALAGA 1999 2 IR 363 1999 2 ILRM 103 1999 16 4846
HAGUE CONVENTION ART 1
HAGUE CONVENTION ART 5
I (H) v G (M) 2000 1 IR 110 2002 FAM LJ 11 2000 11 4017
D (T) v P (A-M) & R (J) UNREP FINLAY GEOGHEGAN 8.3.2006 2006 IEHC 68
H (A MINOR) (ABDUCTION:RIGHTS OF CUSTODY), RE 2000 2 WLR 337
HAGUE CONVENTION ART 13(b)
K v K 2000 2 IR 416 2003 FAM LJ 30 1998 22 8496
THOMSON v THOMSON 1994 CAN SCR 551
STATE CENTRAL AUTHORITY OF VICTORIA v ARDITO UNREP FCA 29.10.1997
HAGUE CONVENTION ART 13(c)
K (ABDUCTION: PSYCHOLOGICAL HARM), RE 1995 2 FLR 550
R (S) v R (M M) UNREP SUPREME 16.2.2006 2006 IESC 7
FAMILY LAW
Child abduction
Custody - Hague Convention - Wrongful removal - Whether removal wrongful where order of foreign court allowing removal subsequently set aside - Whether custody rights capable of vesting in foreign court - Whether return of child would create intolerable situation - Onus and burden of proving return of child would create intolerable situation - HI v MG (Child abduction: Wrongful removal) [2000] 1 IR 110, TD v AMP [2006] IEHC 68 (Unrep, Finlay Geoghegan J, 8/3/2006), In Re H (Abduction: Rights of Custody) [2000] 2 AC 291, RK v JK (Child Abduction: Acquiescence) [2000] 2 IR 416 and SR v MMR [2006] IESC 7 (Unrep, SC, 16/2/2006) followed; Re K (Abduction: Psychological Harm) [1995] 2 FLR 550 and Thomson v Thomson [1994] 3 S.C.R. 551 considered - Child Abduction and Enforcement of Custody Orders Act 1991 (No 6) - Hague Convention on the Civil Aspects of International Child Abduction 1980, articles 3 and 13 - Return of children ordered (2006/37HLC - Feeney J - 19/1/2007) [2007] IEHC 217
P(PM) v P(KT)
The applicant was the father of the three children named in the title to these proceedings and the respondent was the mother of those children. In the course of divorce proceedings between the parties herein, issues regarding custody, guardianship and potential relocation were raised. Both the applicant and respondent were citizens of Ireland but were resident in S.A. with their children between 2002 and 2006. Pending the determination of the divorce proceedings the respondent, on 20 September 2006 applied for and was granted an ex parte order permitting her to travel to Ireland with the children. The respondent failed to mention, when making that application, the existence of the divorce proceedings, the fact that the applicant had an application for access listed on the following day and also that the applicant paid maintenance in relation to the children. Subsequent to the respondent’s departure from S.A. with the children, the applicant obtained an order rescinding the order of 20/09/06 on the basis that it was obtained by fraud. That order was not appealed. In these proceedings the applicant sought the return of the children to S.A.
Held by Feeney J. in determining that the applicant was entitled to an order for the return of the children to the jurisdiction of S.A.: That the applicant, respondent and the children named in the title to the proceedings were all habitually resident in S.A. at the time the children were removed from that country. As of 20 September 2006, the rights of custody in relation to the children vested in the S.A. court and consequently the removal of the children from S.A. was wrongful and was in breach of Article 3 of the Hague Convention. Furthermore, there were no legal excusing circumstances in this case. The respondent was not entitled to rely on the order of the 20th September 2006, as that order was deemed to be void ab initio. Furthermore, the respondent failed to establish that if the children were returned to S.A. an intolerable situation would arise.
Reporter: L.O’S.
This judgment is circulated in redacted form to avoid identification of parties
The Applicant is a businessman who is a citizen of Ireland and who has been resident in S. A. since 2002. He is the father of the three infant children named in the title hereof who are all citizens of Ireland. The infants are B. P. P. who was born in Ireland and twins, namely O. R. P. and P. D. P., who were both born in Ireland. The Respondent is an Irish citizen and is the mother of each of the three children and is also the mother of a fourth child, namely a son B., who was born during the Respondent's marriage to P. J. S.
The Respondent and P. J. S. were married in R., I. The Respondent obtained a decree of divorce in respect of her marriage to P. J. S. in the D. R. in A. of 1993. The Respondent obtained a declaration from the Irish High Court on 25th June, 2002 that the divorce granted to the Respondent in the D. R. was capable of recognition in Ireland.
The Applicant and the Respondent commenced a relationship in late 1993 and the parties were purportedly married at a marriage ceremony in N. S.
W., A.,. Thereafter, the Applicant and the Respondent lived together as man and wife and the three children named in the proceedings herein were born. The Applicant and the Respondent, together with their three children and with the Respondent's eldest son, B., moved to S. A. in and during 2002. Thereafter, up until 20th September 2006, those six persons continuously resided in S. A.
The relationship between the Applicant and the Respondent deteriorated and the Respondent, proceeding on the basis that she was lawfully married to the Applicant, commenced divorce proceedings in the High Court of S. A. on the 1st day of February, 2005.
Those proceedings record No. 000/2005 and are in the High Court of S. A. (C. of G. H. P. D.) and the Respondent in these proceedings was the plaintiff in those divorce proceedings and the Applicant in these proceedings was the defendant therein. It was expressly contended for by the Respondent, within her divorce proceedings, that she was ordinarily resident within the jurisdiction of S. A., having lived in the R. of S. A. for more than one year prior to the institution of proceedings. It was claimed that the marriage between the parties had irretrievably broken down and that there was no reasonable prospect of the restoration of a normal marriage relationship between them and K. P. claimed joint guardianship of the three infant children, B., O. and P., together with other reliefs.
The Applicant in these proceedings defended the S.
A. divorce proceedings and contended that there was no marriage and that the parties had not been validly married and that the recorded marriage of June, was voidab initio. P. P. sought that the parties to those S. A. proceedings be awarded joint custody of the three children and sought to rely on the terms of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997. In a document entitled 'Defendant's claim in reconvention' dated the 24th day of March, 2005 P. P. asserted that it was in the best interests of the three minor children that he be granted rights as co-guardian and joint custodian of the said children pursuant to the provisions of s. 2 of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 and he expressly sought an order that he be afforded rights as co-guardian and joint custodian and also other relief in relation to his entitlement to contact the said children and also an order in relation to the maintenance of the said three children, and he further expressly sought a declaration that the purported marriage was invalid and void ab initio.
The plaintiff within the S. A. divorce proceedings, the Respondent herein, put in a plea in reconvention wherein, in para. 4, she averred that it was in the best interests of the three children that herself and P. P. be awarded joint guardianship and that she be awarded custody of the three children subject to P. P.'s rights of reasonable access and it was denied that the provisions of the Natural Fathers of Children Born out of Wedlock Act 86 of 1997 applied.
During the course of the said divorce proceedings a hearing took place in relation to arrangements pending the hearing of the action. That hearing took place on 4th March, 2005 and an order was duly made dated the 8th day of April, 2005 which incorporated therein a agreement between the parties as a term that the order granted on the 3rd day of February, 2005 in respect of residency of the children should remain in forcependente lite. The order of 3rd February, 2005 which was made pursuant to rule 43 and which was incorporated into the order made in the High Court on 4th March, 2005 provided that the three children should reside with their mother for eight out of every fourteen days and with their father for the remaining six days and that the school holidays should be equally shared. That order also provided for assessments to be carried out by experts to identify what was in the best interests of the children and the mother and father undertook to co-operate with the experts who were appointed.
In an affidavit sworn by P. P. on the 30th day of June, 2006 within the divorce proceedings it was averred at para. 10 thereof, that in the light of Mrs. P.'s stance that in the event that the marriage is invalid that she is the sole guardian and that Mr. P.'s consent for her to remove the children from S. A....
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