Family Advocate, Cape Town, and Another v EM

• Jurisdiction: South Africa
• Judge: Madima AJ
• Judgment Date: 28 November 2008
• Docket Number: 15972/2008
• Court: Cape Provincial Division
• Hearing Date: 28 November 2008
• Citation: 2009 (5) SA 420 (C)

Madima AJ:

Introduction E

[1] This sad case concerns a little girl called M who was born on 26 December 2004 in the district of Torbay in the United Kingdom of Great Britain. M was brought to the Republic of South Africa by her mother, the respondent, whose marriage to her father, the second applicant, was in some sort of trouble. Both M and her mother are F currently in the Western Cape, South Africa.

[2] The instant application is brought 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 G 72 of 1996 (the Act), for an order directing, inter alia, the immediate return of M to the United Kingdom.

[3] The first applicant is the Family Advocate who brings this application in her representative capacity as the designated and delegated Central Authority for the Republic of South Africa in terms of s 3 of the H Act. The second applicant is a United Kingdom national and the biological father of M, the subject of this application.

[4] The respondent is the biological mother of M, a South African, currently resident in Paarl, Western Cape, Republic of South Africa (South Africa). Second applicant and respondent were married to each I other on 25 November 2000 at Porterville, Western Cape, South Africa.

[5] As already stated above, M was born in the United Kingdom on 26 December 2004. The family lived together in the United Kingdom until September 2007 when respondent and M travelled to South Africa to spend the holidays with respondent's family. Return air tickets were J purchased as respondent and M would be returning to the United

Madima AJ

Kingdom after the holidays in South Africa. All these arrangements were A done with the consent of second applicant.

[6] Some several weeks into her stay in South Africa, respondent indicated to second applicant that she intended to remain in South Africa permanently with M and would therefore not be returning to the United Kingdom. I need to emphasise that respondent neither sought B nor obtained second applicant's consent in this regard, that is, that M would not be returning to the United Kingdom. Second applicant was merely informed to that effect.

[7] However, a month later, on or about 27 November 2007, M travelled to the United Kingdom together with her grandmother (Mrs H) to pay C second applicant a visit for two weeks. M and her grandmother returned to South Africa on 6 December 2007. Prior to their return to South Africa, Mrs H informed second applicant that she had experienced difficulties at various passport control points when she was travelling into the United Kingdom with M. At her request, second applicant wrote the following letter dated 4 December 2007 (the letter of 4 December 2007) D to facilitate easy travel for both Mrs H and M:

'To whom it may concern

I KM, father of M, has given permission for my mother-in-law, RH to accompany my daughter to Cape Town on 6 December 2007. E

Please grant them safe passage.

Please do not hesitate to contact me for any assistance.

Yours Faithfully'

[8] The letter of 4 December 2007 was duly signed by second applicant. M has been in South Africa since then. F

Applicants and respondent's respective cases

[9] The gist of applicants' case on the one hand is that M's removal from the United Kingdom and her retention in South Africa by respondent is unlawful in terms of the Act. Second applicant in particular seeks that M be returned to the United Kingdom where she was habitually resident G before her unlawful removal and retention. The respondent, on the other, relies on the provisions of art 13(a) of the Act relating, inter alia, to consent and/or acquiescence in the said removal and/or retention of M.

Relevant provisions of the Hague Convention H

[10] The Act aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. (See preamble to the Act.) I

[11] Further, to (a) secure the prompt return of the children wrongfully removed to, or retained in, any Contracting State; and (b) ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. (See art 1 of the Act.) J

Madima AJ

A [12] Article 3 of the Act provides instances where the removal or the retention of a child is to be considered wrongful. It is, for example, wrongful where -

'(a)

it is in breach of rights of custody attributed to a person, . . . either jointly or alone, under the law of the State in which the child was B habitually resident immediately before the removal or retention; and

(b)

at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.'

C [13] Article 12 provides for the remedy of return where there has been a wrongful removal or retention. It is stated in the provision that:

'Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the 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 D date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.'

[14] Article 13 provides that:

'Notwithstanding the provisions of the preceding Article, the judicial or E administrative authority of the requested State is not bound to order the return of the child if the person . . . [who] opposes its return establishes that -

(a)

the person . . . having the care of the 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)

F 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.' [Own emphasis.]

[15] Article 14 provides that:

G 'In ascertaining whether there has been wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of . . . the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.'

Onus of proof H

[16] Our courts have laid down the following requirements for an applicant who wishes to secure the return of a child in terms of the Act:

(a)

That the child was habitually residing in the requesting State I immediately before the removal or retention;

(b)

That the removal or retention was wrongful in that it constituted a breach of custody rights by operation of law of the requesting State;

(c)

That the applicant was actually exercising those rights at the time of the wrongful removal or retention and...