Immelman v Clements

• Jurisdiction: South Africa
• Judge: Gabriel AJ
• Judgment Date: 24 March 2014
• Docket Number: 11137/2013
• Court: KwaZulu-Natal High Court, Durban
• Hearing Date: 24 February 2014
• Citation: 2014 JDR 0755 (KZD)

Immelman v Clements
2014 JDR 0755 (KZD)

2014 JDR 0755 p1

Citation	2014 JDR 0755 (KZD)
Court	KwaZulu-Natal High Court, Durban
Case no	11137/2013
Judge	Gabriel AJ
Heard	February 24, 2014
Judgment	March 24, 2014
Appellant/; Plaintiff	Scott Donald Immelman
Respondent/; Defendant	Kim Laurie Verne Clements; Office of the Family Advocate

Summary

Children — Parents — Responsibilities and rights — Rights of unmarried fathers — Respondent leaving for UK with 4-month-old son without informing applicant — Hague Convention proceedings — Whether applicant co-holder of parental rights and responsibilities — Children's Act 38 of 2005, s 21.

Judgment

A.

Introduction

1.

This matter involves the interpretation of section 21 of the Children's Act 38 of 2005. This section deals with parental responsibilities and rights of unmarried fathers.

2.

The need for the interpretation of this section arises from a request from the High Court of Justice Family Division in the United Kingdom (UK High Court) in

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terms of the Hague Convention on International Child Abduction ("Hague Convention"). That Court requested this Court to determine the following question:

"In November 2012, was it lawful under South African law, having regard to the circumstances of this case, for the respondent to change the place of residence of the child from a place in South Africa to a place in England and Wales without the prior permission or consent of the applicant or other appropriate South African Court?"

3.

This question arose in the UK High Court because of proceedings instituted in that Court by the applicant seeking the return of a child born to him and the first respondent ("respondent"), at a time when they were not married. The respondent left to the UK with the child Sebastian when the child was four months old. She did so without informing the applicant. That gave rise to the Hague Convention proceedings brought by the applicant in the UK seeking the return of Sebastian under the Hague Convention.

4.

The determination of this question depends on whether the applicant was a co-holder of parental rights and responsibilities as contemplated by section 18(1)(a) to (c) of the Children's Act which in terms of section 18(3)(c)(iii) requires the consent of a parent or guardian for a child's departure or removal from the Republic.

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5.

Ms Annandale SC appeared for the applicant. Mr Gordon SC appeared for the respondent, with the heads of argument having been prepared by Ms Julyan SC. I am grateful to all of them for the written and oral argument.

B.

Jurisdictional Objections

6.

Mr Gordon SC argued that this Court has no jurisdiction to hear this matter because the matter had not been referred to mediation first, as required by section 21(3)(a) of the Children's Act. This requires disputes regarding paternity rights of unmarried fathers to be referred to mediation. He argued that in the determination of this matter, this Court has only a "reviewing power" as contemplated by section 21(3)(b). However, this is belied by the respondent's acceptance on the papers that she believed that mediation was not appropriate in this matter. Ms Annandale argued that it is not practical to mediate this matter given that both parties are in different countries – the applicant is in the Republic and the respondent is in the UK. I agree that this is so.

7.

Ms Annandale argued that this is not a dispute about the paternity rights of the unmarried biological father emanating in this country and that section 21(3)(b) finds no application. I agree. This case concerns the resolution of a question posed by the UK High Court which is dealing with proceedings initiated there in terms of the Hague Convention. In those proceedings, the UK High Court will determine whether the applicant had rights of custody when Sebastian was removed, as contemplated in Article 3 of the Hague Convention. A resolution of, inter alia, that matter will determine whether that Court will order the return

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of Sebastian to the Republic. I am not required to answer any of those matters in this application.

8.

Mr Gordon SC also argued that I have no jurisdiction to hear this matter because the UK High Court has to make a decision, in terms of Article 15 of the Hague Convention, whether the respondent's removal of Sebastian was wrongful.

9.

Article 15 of the Hague Convention provides:

"The Judicial or Administrative Authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the Applicant obtain from the Authorities of the State of the habitual residence of the child a decision of other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. ..."

10.

Mr Gordon SC argued that the question presented by the UK High Court was not whether the removal was "wrongful" but whether the removal was "lawful". He argued that I have no jurisdiction to hear this matter because that Court has no jurisdiction to ask such a question.

11.

I find this argument difficult to understand. In its order of 21 August 2013, Mr Justice Keehan of the UK High Court said the following as a preface:

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"AND UPON IT BEING RECORDED THAT this court is unclear whether the Respondent was lawfully entitled in November 2012 to change the place of the residence of the child from a place in South Africa to a place in England and Wales without the prior permission or consent of the Applicant or appropriate South African court, and accordingly this court is unclear as to whether or not the Applicant has Rights of Custody within the meaning of article 3 of the Hague Convention on the Civil Aspects of International Child Abduction 1980."

12.

As stated, the UK High Court will make a determination on the questions before it, inter alia, whether the applicant had rights of custody over Sebastian and whether the respondent's removal of Sebastian was wrongful – I am not required to do so.

13.

I therefore agree with Ms Annandale that the UK High Court has simply requested the assistance of this Court on the determination of the legal question presented. The question involves a consideration of our Children's Act, including sections 21 read with section 18(3)(c)(iii) and (iv) of the Children's Act.

14.

The Republic is in any event a contracting party to the Hague Convention and has a duty to assist other contracting states in this regard. Principles of comity would dictate so. [1] South Africa is a signatory to the Hague Convention

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and adopted it as law by the enactment of The Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 which was repealed by the Children's Act. Section 275 of the Children's Act now provides that the Hague Convention is law in the Republic subject to the provisions of the Act.

15.

I conclude therefore that I have jurisdiction to hear this matter. The respondent has in any event accepted this position and the jurisdiction of this Court. The respondent asserts on the papers:

"The application before this Honourable Court is in effect an application in terms of Article 15 of the Hague Convention...".

The matter is thus properly before me.

C.

The Interpretation of Section 21 of the Children's Act

17.

The applicant and respondent were not married or living together in a permanent life-partnership. Accordingly, the applicable provisions are those in section 21(1)(b) of the Children's Act:

"21 Parental responsibilities and rights of unmarried fathers

(1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of that child –

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(a)

...

(b)

if he, regardless of whether he has lived or is living with the mother –

(i)

consents to be identified or successfully applies in terms of section 26 to be identified as the child's father or pays damages in terms of customary law;

(ii)

contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and

(iii)

contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period."

18.

How am I to be guided in the interpretation of the section? Since the decision of the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality 202(4) SA 593 (SCA), paragraph 18, we know that an interpretation of the section requires a consideration of the...