Central Authority of the Republic of South Africa and Another v B

• Jurisdiction: South Africa
• Judgment Date: 07 December 2011
• Citation: 2012 (2) SA 296 (GSJ)

Central Authority of the Republic of South Africa and Another v B
2012 (2) SA 296 (GSJ)

2012 (2) SA p296

Citation	2012 (2) SA 296 (GSJ)
Case No	2011/21074
Court	South Gauteng High Court, Johannesburg
Judge	Meyer J
Heard	December 5, 2011
Judgment	December 7, 2011
Counsel	URD Mansingh for the applicants.; A Van der Merwe for the respondent.; HD Baer as amicus curiae.

Flynote : Sleutelwoorde B

Minor — Abduction — International abduction — Application for return of unlawfully removed or retained child — Refusal — Grounds — Child objecting to return — This an independent ground not to be read with art 13(b) — Hague Convention on Civil Aspects of International Child Abduction (1980), art 13. C

Minor — Abduction — International abduction — Application for return of unlawfully removed or retained child — Refusal — Grounds — Child objecting to return — Factors court has to take into account in exercise of its discretion — Comity — Convenience — That in best interests of child that its court D of habitual residence decide its welfare — Child's reasons for objection, and their strength and independence — Child's understanding of purpose of order of return — Delay in resolution of proceedings — Hague Convention on Civil Aspects of International Child Abduction (1980), art 13.

Headnote : Kopnota

E The second applicant applied for the return of her son K to Australia. K had come to South Africa to holiday with his father and had remained on. K objected to being returned. In issue was the interpretation of art 13 of the Convention on the Civil Aspects of International Child Abduction (incorporated in South African law by the Children's Act 38 of 2005.) Article 13 reads:

F 'Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —

(a)

the person, institution or other body having the care of the G person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

(b)

there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

H 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.

In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the I information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.'

In issue firstly was whether the child's objection defence was to be read with art 13(b) or independently of it. The court held that the part of art 13 which relates to the child's objection is separate from paragraphs (a) and (b) and J constitutes a separate defence. (Paragraphs [4] – [5] at 299D – 300A.)

2012 (2) SA p297

Further in issue were the factors to be taken into account by a court in the A exercise of its discretion under the child's objection part of art 13, and the weight to be accorded to them. The court adopted the approach of M 2005 SLT 2:

'1.

Does [the child] object to being returned to [the state in which it was habitually resident before the removal or retention]? B

2.

Is [the child] of an age and maturity at which it is appropriate to take account of [its] views?

3.

If the answers to 1 and 2 are in the affirmative, whether [the court] should exercise the discretion available to [it] and refuse to order [the child's] return. This involves considering C questions of comity, convenience and the general principle that it is in the best interests of a child that his welfare be determined by the court of his habitual residence. A review of the authorities . . . indicates that this also involves [the court] considering why, if [the child] does, [it] objects, the strength of any such objection, whether any objection is independent of the views of [its parent], whether [it] appreciates that the D purpose of the order for return to which [it] objects would be to enable the court in [the state of habitual residence] to decide on [its] future, and [its] welfare in the immediate future.'

And a further factor to take into account in the exercise of discretion was the delay in the resolution of proceedings. (Paragraphs [9] – [10] and [17] E at 302D – I and 304J – 305C.)

With regard to the independent-view factor, the court held that, were it to conclude that the child's views had been influenced by the abducting or retaining parent, that it was probable that little or no weight would be given to them. However, the active involvement and participation of a parent in the life and activities of a child did not amount to undue influence, and F while such might influence a child's objection, could not be said to manipulate or unduly influence it. (Paragraphs [12] and [16] at 303E – G and 304I.)

The court weighed the factors and refused to order the return of K. (Paragraph [20] at 305J – 306A.) G

Cases Considered

Annotations:

Reported cases

Southern Africa

B and Others v G 2012 (2) SA 329 (GSJ): dictum in para [12] applied. H

Central Authority v B 2009 (1) SA 624 (W): referred to

Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) (2001 (2) BCLR 152): dictum in para [33] applied.

Australia

De L v Director-General, NSW Department of Community Services (1996) FLC 92-706: I referred to

Re K (Abduction: Child's Objections) [1995] 1 FLR 977: applied.

England

Re L (A Minor) (Abduction: Jurisdiction) [2002] 1 WLR 3208: dictum in para [65] applied J

2012 (2) SA p298

Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242: dictum at 250 applied A

Zaffino v Zaffino [2005] EWCA Civ 1012: dictum in para [40] applied.

Scotland

M 2005 SLT 2: dictum in para [38] applied

Singh v Singh 1998 SLT 1084: considered. B

Statutes Considered

Statutes

The Hague Convention on the Civil Aspects of International Child Abduction (1980), art 13.

Case Information

C Application for the return of a child to its mother in Australia.

URD Mansingh for the applicants.

A Van der Merwe for the respondent.

HD Baer as amicus curiae.

Cur adv vult. D

Postea (December 7).

Judgment

Meyer J:

E [1] In these proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the Hague Convention), as presently incorporated into South African law by s 275 of the Children's Act 38 of 2005 (the Children's Act), the mother (second applicant) seeks the immediate return to Australia of her son (K), who was born on 20 October 1998 and is thus now 13 years old and presently F residing with his father (the respondent) in Johannesburg.

[2] The provisions of the Hague Convention are, in terms of s 275 of the Children's Act, subject to those of the Children's Act. A legal representative must, in terms of s 279 of the Children's Act, represent the child G involved in all applications in terms of the Hague Convention. I have in the as yet unreported judgment of B and Others v G 2012 (2) SA 329 (GSJ) accepted the correctness of the submission by CJ Davel & AM Skelton Commentary on the Children's Act at 17 – 21 that —

H 'in cases where very young children are involved, the role of the legal representative would be more akin to that of a curator ad litem, while with older children, the legal representative would take instructions from the child, act in accordance with those instructions and represent the views of the child.' (In para [12].)

K was represented before me by Mr HD Baer, whom I — by agreement I among all the parties concerned — appointed amicus curiae. K objects to being returned to his mother in Australia.

[3] The second applicant is an Australian citizen and the respondent has dual Australian and South African citizenship. They were married in Australia on 8 February 1997. Their son, K, was born on 20 October 1998. J Their marriage failed. A settlement agreement concluded between

2012 (2) SA p299

Meyer J

them — in terms whereof it was, inter alia, agreed that K would reside A with the second applicant and that the respondent would have reasonable rights of contact with him — was made an order of the Family Court of Australia at Sydney, on 14 December 1999. The respondent enjoyed regular contact with K while he was residing in Australia. The respondent settled in South Africa around May 2004. He thereafter regularly B visited K in Australia. K, accompanied by his paternal grandmother, also travelled to South Africa on two previous...