Central Authority v H

• Jurisdiction: South Africa
• Judge: Farlam JA, Heher JA, Van Heerden JA, Maya JA and Hancke AJA
• Judgment Date: 04 June 2007
• Citation: 2008 (1) SA 49 (SCA)
• Docket Number: Case No 262/06
• Hearing Date: 17 May 2007
• Counsel: M Naidoo and GJ Gajjar for the appellant C Lamont SC (with S Lessick) for the respondent
• Court: Supreme Court of Appeal

Van Heerden JA:

Introduction

[1] This appeal concerns a little boy (N) who was born on 1 May 2002 and is now 5 years old. He was brought to South Africa by his mother, the respondent, from Zandvoort, the Netherlands, in September 2003. Both he and his mother are still in South Africa, C presently living in Pretoria with the maternal grandparents.

[2] On 24 June 2004 the appellant applied to the Pretoria High Court 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 D International Child Abduction Act 72 of 1996 (the Act), [1] for an order directing the immediate return of N to the Netherlands.

[3] On 14 June 2005 Van Oosten J in the Pretoria High Court made an order in, inter alia, the following terms: E

1.

That the respondent [the mother], if oral evidence is required:

1.1

Be ordered to return to the Netherlands for the purpose of attending and/or opposing the custody hearing in respect of the minor child, [N] . . . ('the minor').

1.2

Return to the Netherlands seven days prior to the hearing of F the custody hearing.

2.

That the father of the minor child shall give the respondent's attorneys 30 days' notice prior to the date of the hearing in the Netherlands of such date.

3.

That the father of the minor child is ordered to:

3.1

Purchase a return ticket for the respondent and the minor G child.

3.2

Provide free accommodation for the respondent and the minor child at 85 K Street, Zandvoort and the father will move out from such address for the duration of the respondent's stay aforementioned in the Netherlands.

3.3

Pay the respondent 500 euro maintenance upon her arrival H in the Netherlands and which amount will be a maintenance payment for a period of 10 days. If the matter should proceed after this period he shall be obliged to pay a further amount of maintenance in the amount of 50 euro per day.

4.

If the custody hearing is postponed for any reason whatsoever the respondent and N will return to South Africa. I

Van Heerden JA

5.

In the event of the respondent and the minor child having to return to the Netherlands for a continuation of the custody hearing, A the provisions as set out in para 3 above will apply.

6.

Each party to pay their own costs.

This order was more or less identical to a draft order prepared by counsel for the mother at the request of the court a quo. In fact, it appears from the judgment that, after hearing argument, the learned B judge requested counsel for the parties to each prepare a draft order providing for N's return to the Netherlands 'for the purpose of determination of the custody dispute' and that both duly complied with his request.

[4] On 28 June 2005 the appellant applied to the Pretoria High Court for leave to appeal to the full court, which application was C refused on 28 September 2005. On 23 February 2006 this court [*] condoned the late filing of the appellant's application for leave to appeal and granted leave to appeal to this court 'conditional upon the appeal against the order of the Haarlem court dated 27 September 2005 succeeding'. I will return in due course to the significance of D the proceedings in the Dutch courts. Suffice it at this stage to say that the appeal against the said order of the Haarlem court did indeed succeed, on 23 March 2006, hence the present proceedings.

Background E

[5] The father, who is presently 31 years old, is a citizen of the Netherlands. He met N's mother, who was born and bred in South Africa and who is now also 31 years old, in 1998 in the Netherlands, where she was working as an au pair. After living together for several years, first in Haarlem and then in Zandvoort, they were married in Pretoria F on 15 July 2000 and thereafter returned to the Netherlands. Their son, N, was born in Zandvoort on 1 May 2002 and is also a citizen of the Netherlands. The mother has dual South African and Dutch citizenship.

[6] On 25 September 2003 the mother and N left the Netherlands for South Africa, travelling on return tickets. It is G common cause that the father consented to his wife's taking N to South Africa at that time. However, according to the father, the agreed purpose of the visit to South Africa was an extended holiday, for no longer than three months, as the mother was homesick and needed some time to herself. The mother's version is that they had jointly decided H to emigrate to South Africa and make their permanent home there with N; that it was agreed that she and N would travel to South Africa by themselves in September 2003, leaving the father behind to wind up the family's affairs in Holland, and that the father would join them in South Africa 'by December 2003'. I

[7] In about January 2004 the mother informed the father that she was not returning to the Netherlands, but would remain in South Africa with N on a permanent basis. The mother says that the father informed her J

Van Heerden JA

during December 2003 that he would be joining them in South Africa only in March 2004 and that, after December, it became apparent A to her that their marriage relationship, which had been deteriorating for some time, had broken down irretrievably. In consequence, she telephonically discussed the question of divorce with him in January 2004, only to be told that he had already consulted a lawyer in Holland in that regard. According to her, they agreed that they should be B divorced and that she would have custody of N and stay with the child in South Africa. It is her case that there is no question of a 'wrongful removal' of N from the Netherlands or a 'wrongful retention' of N in South Africa within the Convention meaning of these concepts. [2] C

[8] The father's version is again quite different. He states that, when he asked his wife, in about December 2003, exactly when she would be returning to the Netherlands with N, she indicated that she wanted to stay in South Africa a little longer. He did not agree to this and, in the weeks that followed, he realised that she had misled him and that she had in fact 'abducted' his son by retaining him in D South Africa after the period of the agreed holiday visit had expired. It was at this stage (in about February 2004) that he consulted the Dutch Central Authority with a view to effecting N's return to the Netherlands under the auspices of the Convention. His case is that, sometime in December 2003, the mother wrongfully retained N in South E Africa and that it was this wrongful retention that gave rise to the application to the Pretoria High Court.

[9] It is common cause that, at the time of the alleged wrongful retention of N in South Africa in December 2003, the little boy was habitually resident in the Netherlands. It is clear from the extract F from the Dutch Civil Code annexed to the appellant's founding affidavit, as well as from the correspondence addressed by the Dutch Central Authority to the (Acting) Chief Family Advocate of South Africa which forms part of the record, [3] that both parents were exercising equal custody rights in respect of their child at that time. G

Van Heerden JA

[10] On 3 February 2004 the father completed and signed the necessary documentation to request the Dutch Central Authority for its A help in securing N's return. That Central Authority in turn transferred the father's application under the Convention to the (Acting) Chief Family Advocate of South Africa [4] in terms of art 9 of the Convention. [5] On 6 April 2004, the latter delegated her Convention powers and duties in respect of this return application to Mr Gerhard B van Zyl, then a family advocate based in Pretoria. [6] Mr Van Zyl attempted to correspond with the mother by registered mail dated 19 April 2004, but this letter was returned unclaimed. A few days later, upon receipt of a copy of the divorce summons issued by the mother against the father in the Pretoria High C Court, he ascertained that she was represented by attorneys, with whom he immediately made telephonic contact and arranged a meeting with the mother and her local attorney for 28 April. Pursuant to that meeting, Mr Van Zyl informed the mother's attorneys in writing that she was 'retaining N wrongfully in South Africa' and put her to terms to agree to a voluntary return with N to the Netherlands. Shortly thereafter, Mr Van Zyl resigned from the Office of the Family Advocate D and, on 10 May 2004, Ms Cheryl Grobler, also a family advocate based in Pretoria, was delegated by the (Acting) Chief Family Advocate to deal with this matter in Mr Van Zyl's stead. The latter's delegation was withdrawn on the same day. E

[11] By letter dated 9 June 2004 Ms Grobler informed the mother's attorneys that an application under the Convention for the return of N to the Netherlands was about to be launched against her. Ms Grobler requested the attorneys to suspend the South African divorce proceedings instituted by the mother against the father in March 2004 - in which she was claiming, inter alia, custody of F and maintenance for N - as well as her subsequent application in terms of uniform rule 43, pending a decision in the forthcoming return application. [7] G

Van Heerden JA

[12] As indicated above, the return application was instituted in late June 2004. Ms Grobler deposed to the main founding affidavit. A For some (unexplained) reason, the father was not joined as a co-applicant, as is usually the case when a return application under the Convention is instituted by the Central Authority. [8] The application was opposed by the mother. In her answering affidavit, filed only on 15 November 2004, she relied B mainly upon her allegation that the father had consented to the permanent removal of N to...