Central Authority v B

• Jurisdiction: South Africa
• Judgment Date: 20 August 2008
• Citation: 2009 (1) SA 624 (W)

Central Authority v B
2009 (1) SA 624 (W)

2009 (1) SA p624

Citation	2009 (1) SA 624 (W)
Case No	008/16120
Court	Witwatersrand Local Division
Judge	Van Oosten J
Heard	July 31, 2008; August 1, 2008
Judgment	August 20, 2008
Counsel	URD Mansingh for the applicant.; KI Foulkes-Jones SC (with AW Pullinger) for the respondent.

Flynote : Sleutelwoorde E

Minor — Abduction — International abduction — Application for return of unlawfully F removed or retained child — Application brought more than one year after removal of child — Role of Family Advocate — To remain objective even where required to adopt adversarial role in regard to one parent — To assist court to enable it to properly consider and impose appropriate conditions to mitigate interim prejudice to child caused by return order — Convention on Civil Aspects of International Child Abduction (1980) as G incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996, s 12.

Minor — Abduction — International abduction — Application for return of unlawfully H removed or retained child — Approach of court — Application brought more than one year after removal of child — Court obliged to order return of child unless child settled in new environment — Whether court may to redetermine one-year period — Delays occasioned by factors outside control of applicant parent — Whether court to take account of delays beyond applicant parent's control — Hague Convention on Civil Aspects of International I Child Abduction (1980) as incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996, s 12.

Headnote : Kopnota

The applicant approached the High Court under art 12 of the Hague Convention on the Civil Aspects of International Child Abduction (1980), incorporated into South African law by the Hague Convention on the Civil J Aspects of International Child Abduction Act 72 of 1996, for an order

2009 (1) SA p625

directing the immediate return of a 4-year-old child to the Central A Authority in the USA. The child was allegedly abducted from the USA to South Africa by her mother (the respondent) almost two years prior to the launching of the application. The respondent raised various 'defences' to the application, including the fact that it was launched more than a year after the removal of the child from the USA, by which time the child had become settled in her new environment. The applicant replied that the B father should not be prejudiced by the delay in launching the application inasmuch as it was occasioned by factors outside of his control and, if account were taken of those factors, the period of time between the removal of the child from the USA and the launching of the application should be reckoned as being less than one year.

Held, that the Convention provided for the mandatory or non-discretionary C return of the child where more than one year had elapsed between the removal of the child and the institution of proceedings for the return of the child 'unless it is demonstrated that the child is now settled in its new environment'. Notwithstanding that provision, art 18 of the Convention vested the court with a discretion to order the return of the child. (Paragraph [7] at 631D - E.) D

Held, further, that the applicant's argument that the relevant period should be reckoned as being less than one year was simply not acceptable on a proper reading of art 12, which clearly made no allowance for a discretionary determination of the one-year period. Accordingly, the proceedings in the present matter commenced outside the one-year period provided for in art 12. (Paragraph [8] at 632B.) E

Held, further, that it appeared from the evidence that the child was settled in her new environment, and that in the circumstances the court could not grant an order for her return to the USA. (Paragraph [9] at 633B.) Application dismissed.

The court added the following obiter remarks on the conduct required of the Family Advocate in the discharge of his or her duties under the Convention: F He or she must, even where it is necessary to adopt an adversarial role in regard to one of the parents, above all remain objective or assume the role of an advocate for either of the parents of the child. The Family Advocate must also properly address the conditions our courts normally impose to mitigate the interim prejudice to the child caused by a return order. The court must be provided with information or firm undertakings in regard to G the respondent parent or child's welfare in the event of a return order being made. (Paragraphs [14] - [15] at 634B - 635D.)

Cases Considered

Annotations

Reported cases H

Central Authority v H 2008 (1) SA 49 (SCA): referred to

Central Authority (South Africa) v A 2007 (5) SA 501 (W): referred to

Chief Family Advocate and Another v G 2003 (2) SA 599 (W): referred to

Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA) ([2004] 1 All SA 32): referred to

Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) (2001 (2) BCLR 152): referred to I

WS v LS 2000 (4) SA 104 (C): referred to.

Statutes Considered

Statutes

The Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996: Schedule (The Hague Convention on the J

2009 (1) SA p626

A Civil Aspects of International Child Abduction (1980)), art 12: see Juta's Statutes of South Africa 2007/8 vol 5 at 2-114.

Case Information

Application for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction (1980). The facts appear B from the reasons for judgment.

URD Mansingh for the applicant.

KI Foulkes-Jones SC (with AW Pullinger) for the respondent.

Cur adv vult. C

Postea (August 20).

Judgment

Van Oosten J:

D [1] This is an application, initially brought by way of urgency, in terms of the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the Convention), as incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), for an order directing the immediate return of a little girl, M, to the jurisdiction of the Central E Authority in the United States of America. M was brought to South Africa by her mother, the respondent, from their place of habitual residence in Illinois, United States of America, on 13 May 2006. Both she and her mother are still in South Africa, presently living in Benoni. The applicant seeks relief in this application in terms of art 12 of the F Convention, which provides for the summary return of a child who has wrongfully been removed from his or her habitual place of residence.

[2] The respondent, who is presently 27 years of age, was born and bred in South Africa. Her husband JB, who is presently 30 years old, is a citizen of the United States of America. They met in the USA in G 2002 where the respondent was working as an au pair and JB studying at a college. In November 2002 the respondent resigned and returned to South Africa. JB followed her during the college summer recess in July 2003. He, however, stayed in South Africa for over a year and took up employment as a restaurant manager. They were married to each other H at Benoni, South Africa, on 2 December 2003. Soon after the wedding they decided to return to the USA. JB returned to the USA in June 2004 and the respondent, who was then pregnant, followed him there a few months later. M was born to the couple in Elgin, Illinois, on 31 October 2004. On 13 May 2006 the respondent left their habitual place of residence in Illinois, USA, with the minor child and returned to the I Republic of South Africa where she and the child, as I have mentioned, are presently living.

[3] The reasons for the respondent leaving her husband and returning to South Africa are in dispute. It is necessary to briefly deal with the disputed facts as they relate to the alleged wrongfulness of the respondent's J conduct, as well as the first 'defence' raised by the respondent

2009 (1) SA p627

Van Oosten J

which is that the father expressly consented to, or at least acquiesced to, A them leaving the USA. JB contends that the removal of M occurred without his knowledge or consent and that it therefore was unlawful. He states that he was absent from home for a week on a military training session at the time. On his return home he found that his wife and child had left. A letter left behind by the respondent informed him that they B had left for South Africa, that they would temporarily live with relatives and that they would not be returning to the USA. The respondent's conduct, he maintains, was nothing but a 'deceitful plot' to abduct the child. He says she had no reason to leave and had in the past only complained about their poor living conditions and the meagre income C they had to live on. Significantly he makes no mention of any problems of the kind referred to by the respondent, which I will refer to later in the judgment. Such problems as there were he played down to those normal difficulties one would expect in a 'stable and healthy relationship'. As illustration he refers to the night before she left for South Africa, D when she, at a romantic candlelit dinner, confirmed her love for him and added that she was already looking forward to his return from the training session. Shortly after she had left, an e-mail bearing the date 2 March 2006 that she had sent to a mutual friend who lived in South Africa coincidentally came to his notice. In it she informs her friend that she was thinking of staying behind in South Africa in E September 2006, which was when she had planned to attend her brother's...