If a child is removed from the country of its habitual place of residence without the consent of a parent who has rights of custody over that child, and is taken to another country which is a signatory to the Convention, then the latter country is obliged to send that child back to the first country if :
- the application for its return is brought within one year of its removal; and
- by doing so the child would not be subject to a grave risk of physical or psychological harm, or be placed in an intolerable position.
If the application is brought more than a year after the removal, then the court is not obliged to return the child if it is settled in its new environment.
In the matter of Neuville v Central Authority of SA:
- the father did not have rights of custody when the child was removed; and
- the child had been living in Durban for more than a year after her removal from Ireland, she was settled in her community, attending school and Sunday school, had made friends etc.
Notwithstanding all of the above, the KZN ordered her immediate return to Ireland.
This matter is presently on appeal.