KG v CB and Others

• Jurisdiction: South Africa
• Judge: Mthiyane DP, Van Heerden JA, Leach JA, Boruchowitz AJA and Plasket AJA
• Judgment Date: 22 March 2012
• Hearing Date: 22 February 2012
• Docket Number: 748/11 [2012] ZASCA 17
• Citation: 2012 (4) SA 136 (SCA)
• Court: Supreme Court of Appeal
• Counsel: A Willcock for the appellant. MS Baloyi for the respondents. J van Schalkwyk as curator ad litem.

Van Heerden JA (Mthiyane DP, Leach JA, Boruchowitz AJA and Plasket AJA concurring):

Introduction G

[1] At the heart of this appeal is a little girl, T, who is presently five years and ten months old. On 14 February 2009, T was removed by her mother, KG, from the United Kingdom, where she had been resident from birth, and taken to South Africa. This was done without the H knowledge or consent of either the first respondent, T's father (CB), or the second respondent, the Essex County Council (the Council). [1] Six months later, in August 2009, an application was brought to the South Gauteng High Court for the return of T to the United Kingdom under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention). The applicants were CB, the Council I and the third respondent, the Chief Family Advocate of South Africa, in her capacity as the Central Authority for the Republic of South Africa (the Central Authority). This application succeeded in the high court,

Van Heerden JA (Mthiyane DP, Leach JA, Boruchowitz AJA and Plasket AJA concurring)

which ordered the immediate return of T to the United Kingdom. This A appeal against that order serves before us with the leave of the high court. For reasons which I shall set out below, the second respondent, the Council, played no part either in the court below or before this court.

Factual matrix B

[2] T was born to KG and CB on 12 May 2006 in Harlow, England. Her parents have never been married to each other. When T was approximately one year and four months old, her parents separated. It would appear that T hereafter resided with CB for a period of time, although KG, who was living with a certain DC in an apartment in the same building as CB, continued to care for T. On 5 November 2007, after C CB had moved address without telling KG and allegedly left T in a stranger's care, KG collected T from her nursery and T lived with KB from that date.

[3] Following a number of disputes between the parents, KB refused D contact between T and CB. This led to an application by CB to the Harlow County Court in November 2007, in which CB claimed residence [2] and defined contact [3] orders in respect of T, as well as an order prohibiting KG from removing T from the jurisdiction of the court. On 12 December 2007, KG filed a counter-application for a residence order in respect of T. E

[4] On 18 December 2007, an interim contact order was made by the Harlow County Court granting to CB supervised contact with T. This contact was ultimately exercised at the Freshwaters Contact Centre. KG had also made allegations that CB had sexually abused his daughter from F a previous marriage, as also his sister, and that he viewed child pornography on the Internet. The court thus ordered KG to file a witness statement from herself and from CB's sister, setting out the allegations on which she relied. The matter was postponed to 31 January 2008 when the court was to consider whether a fact finding enquiry would be necessary. Meanwhile, T's passport was to be lodged with her mother's solicitors. G

[5] On 31 January 2008 KG was granted an interim residence order in respect of T. On 23 May 2008, the CAFCASS [4] officer's report was filed H

Van Heerden JA (Mthiyane DP, Leach JA, Boruchowitz AJA and Plasket AJA concurring)

A with the court, recommending that a fact finding hearing take place. Thereafter, on 2 June 2008, KG was given permission by the court to take T out of the jurisdiction of the court to South Africa for a holiday.

[6] In July 2008 DC assaulted KG. He was arrested and remanded in B custody until 8 December 2008. In the meantime, on 31 July 2008, upon it appearing to the court that the concerns of risk (physical, sexual and emotional) expressed by KG against CB were not substantiated by any of the professionals involved in the case or by the court, a fact finding hearing was scheduled to take place on 11 August 2008. This hearing C was adjourned as KG was in South Africa at the time.

[7] On 31 October 2008, the court ordered a consolidation of CB's application for residence and contact and KG's application (brought on 28 October 2008) for an order permitting her to remove T from the jurisdiction of the court to reside permanently in South Africa.

[8] On 8 December 2008 a nine-months' suspended jail sentence was D imposed on DC who was also ordered to attend alcohol-treatment and a domestic-violence programme. The pre-sentence report assessed him as posing a medium risk of harm to KG and future partners. The report also stated that, should DC resume his relationship with KG, or reside with a new partner, then the level of risk would be deemed to increase, E especially if DC continued his pattern of alcohol abuse. Shortly hereafter, KG resumed her relationship with DC on his release from prison and, it would seem, was again physically abused by him in February 2009. These events gave rise to concerns for T's safety on the part of the Council. Thus, on 10 February 2009, the Chelmsford County Court made an interim care order [5] to the effect that T be placed in the care of F the Council. This order was to expire on 7 April 2009. At the same time, KG was ordered to file an updating-position statement dealing with her domestic circumstances and her proposed move to South Africa, while CB was ordered to file a statement in relation to his application for a residence order. The return date of these proceedings was 16 March 2009. G

[9] On 14 February 2009 KG took T to South Africa. She did so without notice to, or the consent, of either CB or the Council. On 16 March 2009, the Chelmsford County Court noted [6] that KG had left the

Van Heerden JA (Mthiyane DP, Leach JA, Boruchowitz AJA and Plasket AJA concurring)

jurisdiction with T on 14 February 2009, without notifying any of the A parties or her solicitor and also that KG was 'no longer pursuing the allegation that CB abused his daughter' from his previous marriage. The court then ordered that —

'(t)he Applicant father and the Local Authority shall jointly make an application forthwith to the International Child Abduction and Contact Unit for the purposes of the repatriation as soon as possible of [T]'. B

[10] On 17 March and 20 March 2009, respectively, CB and the Council applied to the International Child Abduction and Contact Unit (ICACU) — the Central Authority for England and Wales — for the return C of T to the United Kingdom. As stated in para [1] above, the three respondents then launched a Hague Convention return application on 13 August 2009 in South Africa (the so-called 'requested state', the United Kingdom being the 'requesting state'). By the time the matter was argued before Satchwell J in the South Gauteng High Court in March and June 2010, the interim care order granted to the Council had expired (in April 2009) and the Council had D not sought another such order. The third respondent, the Central Authority, was informed by its United Kingdom counterpart that the removal of T from the United Kingdom had obviated the need to protect T from the dangerous domestic environment that was a cause of concern to the County Court and the Council, and which was the basis for the interim care order. In E the circumstances, the Council had no further interest in the proceedings for T's return. [7] The Council thus abandoned its prayer for the relief claimed in the return application.

[11] On 14 July 2010, Satchwell J handed down her judgment in this matter in the court below, ordering the immediate return of T to the F United Kingdom and directing that —

'(i)f counsel are unable to agree (within ten days of handing down of this order . . . on the form of the order to give effect to that immediate return . . . then the court will receive further submissions (preferably in writing) to be received on or before 6 August 2010 so that the court can rule thereon without the expense of a further oral hearing'. G

As will be discussed below, counsel for the parties were not able to agree on the form of the order to give effect to T's immediate return and no further submissions were made to the court on or before 6 August 2010.

[12] On 14 October 2010, Satchwell J granted KG leave to appeal to this H court. The notice of appeal was lodged on 11 November 2010. KG's appeal lapsed on 11 March 2011 due to non-lodging of the appeal

Van Heerden JA (Mthiyane DP, Leach JA, Boruchowitz AJA and Plasket AJA concurring)

A record. Prior to the appeal lapsing, KG did not seek an extension of the period for the lodging of the record as contemplated in SCA rule 8(2). On 28 March 2011, the Registrar of this court notified the parties that KG's appeal had lapsed, as a result of her failure to lodge the appeal record. The appellant's legal representatives hereafter informed the B respondents' legal representatives that the appellant nevertheless intended to pursue the appeal and that the reason for the failure to have lodged the appeal record was their inability to obtain the transcript of proceedings before Satchwell J from the duly appointed transcribers. On 16 May 2011, the appellant's legal representatives wrote to the respondents' legal representatives confirming that they were experiencing much C difficulty in obtaining the transcript of the hearing and requesting the respondents' legal representatives to 'consent to the late filing of the transcripts'. This request was refused.

[13] On 21 September 2011, the respondents applied to the D South Gauteng High Court for an order giving effect to the order made by Satchwell J. [8] As Satchwell J was not available, the matter was heard on 4 October by Meyer J who mero motu raised the issue of legal representation of T, as contemplated in s 279 of the Children's Act 38 of 2005 (the Children's Act). [9] Meyer...