Central Authority for the Republic of South Africa and Another v LC

• Jurisdiction: South Africa
• Court: Gauteng Local Division, Johannesburg
• Judge: Opperman J
• Judgment Date: 15 September 2020
• Citation: 2021 (2) SA 471 (GJ)
• Hearing Date: 15 September 2020
• Docket Number: 20/18381
• Counsel: A Mofokeng for the first and second applicants. ML Haskins SC (with V Olivier) for the respondent. M Courtenay for the curator ad litem.

Opperman J:

Introduction

[1] This is an application brought in terms of art 12 of ch III of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Hague Convention). The first applicant (the Central Authority) and the second applicant (the father of the children forming the subject-matter of this application) seek the return of two minor children, aged 4 and 6, to the jurisdiction of the Ontario, Canadian Central Authority.

Opperman J

The Hague Convention at a glance

[2] The Hague Convention only applies if the Central Authority can show that the children have been wrongfully removed or retained. The Central Authority must demonstrate that (1) the child was habitually resident in the requesting state immediately before the removal or retention; [1] (2) the removal or retention of the children was wrongful in that it constituted a breach of 'custody rights' of the left-behind parent; [2] and (3) the left-behind parent was actually exercising these rights at the time of the wrongful removal or retention or would have exercised these rights but for the removal or retention. [3]

[3] If these requirements are satisfied, and if the application is brought within one year from the date of the removal or retention, the children must be returned. [4] In this regard art 12 of the Hague Convention provides as follows:

'Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.'

[4] There are certain narrow exceptions to the peremptory return of the child. These exceptions are: (a) The art 12(2) exception that provides that where proceedings have been instituted more than a year after the abduction and where it is demonstrated that the child has settled in his or her new environment, a court has a discretion to order the return; (b) the art 13(a) exception that provides that a court is not bound to return a child if it is demonstrated, inter alia, that the left-behind parent had consented to or subsequently acquiesced in the removal or retention of the child; (c) The article 13(b) exception that provides that a court is not bound to return a child if it is demonstrated that 'there is a grave risk that his or her return would expose the child to physical or psychological

Opperman J

harm or otherwise place the child in an intolerable situation'; (d) the art 20 exception entitles a court to refuse to return the child if this would not be permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms; (e) a child's right to object to his or her return is explicitly provided for in art 13 of the Hague Convention. The provision reads, in relevant part, as follows:

'The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.'

[5] A child, moreover, and in terms of s 278(3) of the Children's Act 38 of 2005, as amended (the Children's Act), also has a right to object. The provision reads as follows:

'The court must, in considering an application in terms of this Chapter for the return of a child, afford that child the opportunity to raise an objection to being returned and in doing so must give due weight to that objection, taking into account the age and maturity of the child.'

[6] If the court finds that the child has valid reasons for his or her objection to being returned, then it may refuse to order the child's return. [5]

Defences

[7] The respondent disputes that the children were habitual residents of Canada immediately prior to their retention. This defence, which is directed at one of the jurisdictional prerequisites, dovetails with the defence raised in terms of art 13(a), being that the second applicant had consented to, or subsequently acquiesced in, the removal or retention of the minor children from Canada.

[8] One of the children, G, currently 6 years of age, was bullied and has been diagnosed with Sensory Processing Disorder (SPD). It is contended that if he is returned there is a grave risk that he would be exposed to physical or psychological harm or otherwise be placed in an intolerable situation as contemplated in art 13(b).

[9] The respondent further argues that in applying the 'best interests' principle, as provided for in both the Constitution and the Children's Act, the children should not be returned. In this regard the respondent contends that the best interests principle is a self-standing consideration and enjoys hierarchical supremacy to the Hague Convention for children present in the jurisdiction of South Africa.

Curator ad litem

[10] Advocate Morgan Courtenay was appointed in terms of s 279 of the Children's Act to act as the legal representative of the children. This was

Opperman J

formalised on 7 August 2020 by a court order, granted by agreement between the parties. In terms of such court order Mr Courtenay was empowered to, amongst other things, appoint any expert necessary to assist him in his investigation and to file his report as soon as was practically possible.

[11] Mr Courtenay enlisted the assistance of Ms Filmer, a social worker, and provided her with a narrow mandate, ie to assist him in drawing out the actual views and wishes of the children; to, where necessary, offer an explanation for these views and to comment on the potential impact, if any, an order returning the children would have on their emotional and psychological wellbeing.

[12] Ms Filmer was, due to the pressing time constraints imposed on Mr Courtenay by this court to finalise the report, not requested to provide her own formal report but rather to provide her views to Mr Courtenay who included them in his report. Ms Filmer confirmed by way of affidavit both this arrangement and that he had accurately recorded her observations, views and opinions. Her curriculum vitae was also provided to the court.

[13] In a comprehensive report setting out in much detail the facts which underpin their opinions, they found that:

[13.1]

In the interviews that Mr Courtenay and Ms Filmer had with the children, neither of the children was prepared or willing to share any detailed information regarding Canada and their time there. The children could thus not assist the court in determining whether or not they were habitually resident in Canada.

[13.2]

The children raised an objection to returning to Canada. Both categorically indicated that they do not wish to return to Canada. Their explanations were, according to Mr Courtenay and Ms Filmer, woefully inadequate and based on immature reasoning. They concluded that the children are anxious about moving back to Canada, which is due to the continued uncertainty. They hold the view that the refusal to return has, likely, been spurred on by the respondent or another adult who has actively tried to influence them.

[13.3]

The bully that tormented G (the 6-year-old boy) at John Knox School has not been re-enrolled for the upcoming school year and G's SPD is not a reason to find that he cannot be returned, especially if protective measures are put in place to ameliorate these difficulties.

[14] I will return to these conclusions and views.

Factual matrix

[15] The second applicant and the respondent met during 2009. During that period he visited his family in Australia and suggested that they move there. They met with an immigration specialist but the respondent indicated that she was not keen on relocating to Australia as she has a close bond with her family and had a good job. She was not prepared to give it all up, made her position clear and considered the topic closed.

Opperman J

[16] They were married on 8 September 2012, and on 5 February 2014 G was born.

[17] The respondent describes their marriage relationship as one in which there was constant fighting and one in which they attended numerous counselling sessions and marriage-guidance courses.

[18] The second applicant and the respondent applied for relocation to Canada based on the levels of violent crime, 'an often ineffective Government overwhelmed by fraud and corruption as well as incompetence which in many cases leads to failed services and infrastructure resulting in a rapidly shrinking economy and job market'.

[19] The respondent commenced the entry application process by certifying her degree with WES in June of 2015 and enrolled herself and the second applicant for the IELTS language test which they wrote on 21 November 2015. During 2016 they created an online CIC express entry profile with the respondent as the main applicant.

[20] On 1 February 2016 X was born.

[21] During May of 2017 the second applicant secured a job offer and on 4 July 2017 signed the job offer. Shortly after securing the job, he told the respondent that he did not see her in his future. The respondent said that she was unaware that he had applied for positions in Canada. The couple attended marriage-counselling. The respondent...