S v H

• Jurisdiction: South Africa
• Citation: 2007 (3) SA 330 (C)

S v H
2007 (3) SA 330 (C)

2007 (3) SA p330

Citation	2007 (3) SA 330 (C)
Case No	11592/2006
Court	Cape Provincial Division
Judge	Griesel J
Heard	December 14, 2006
Judgment	December 22, 2006
Counsel	P B Hodes SC (with P K Weyer) for the applicant.; P A L Gamble SC (with B Gassner) for the respondent.

Flynote : Sleutelwoorde G

Minor — Abduction of — International abduction — Hague Convention on Civil Aspects of H International 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 — Removal of child — Wrongfulness of — Breach of rights of custody — Right of custody of 'institution or any other body' as intended in art 3(a) of Convention — Court before which custody proceedings pending in country in which child habitually resident qualifying as I such — Rights of custody vesting in court on service of proceedings.

Minor — Abduction of — International abduction — Hague Convention on Civil Aspects of International Child Abduction (1980) as incorporated into South African law in terms of Schedule to Hague Convention on. J

2007 (3) SA p331

Civil Aspects of International Child Abduction Act 72 of 1996 — Removal of child — Wrongfulness A of — Determination of with reference to law of country in which child habitually resident — Court of country in which child habitually resident having jurisdiction to grant declarator regarding legal position even prior to launch of application for return of child in requested State. B

Headnote : Kopnota

The applicant and respondent were the unmarried parents of a minor child whom the respondent (the mother) had without prior notification to the applicant (the father) removed from his habitual place of residence in South Africa to Switzerland. At the time of the removal a counterclaim by the applicant was pending before the High C Court for co-guardianship and joint custody of the child and the right jointly to determine the child's place of residence. In anticipation of launching an application in Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction (1980) for the return of the child to him in South Africa, the applicant approached the High Court for an order declaring, inter alia, that for D purposes of art 3(a) of the Convention the High Court was 'an institution or any other body' to which rights of custody of a minor child could be attributed. In resisting the application the respondent contended that the application was premature because until such time as the applicant had launched an application in Switzerland for the return of the child and the Swiss Court had E requested a determination of wrongfulness in terms of art 15 of the Convention, the South African High Court had no jurisdiction to hear the application.

Held, as to jurisdiction, that in light of art 8 of the Convention the mother's objection to the Court's jurisdiction was unfounded, and that the father was entitled to approach the Court for a declarator regarding the legal position, even though he had F not yet launched an application in Switzerland for the return of the child. (Paragraph [23] at 333G - H.)

Held, further, as to whether the Court was vested with 'rights of custody', that it had been firmly established in Hague Convention jurisprudence in a number of international jurisdictions that where a court was seized with custody proceedings, the pending G proceedings could give rise to a right of custody in the court itself. (Paragraph [43] at 341E - F.)

Held, further, that a South African Court could therefore be the holder of rights of custody for purposes of the Convention. (Paragraph [46] at 342H.)

Held, further, that a court would generally become vested with rights of custody once the proceedings had been served. (Paragraphs [48] - [49] at 343D - E.) H

Held, further, that in the present case the pending action had reached close of pleadings, so that the Court was actively seized with the matter, and it was therefore vested with rights of custody. (Paragraph [50] at 343G - H.)

Held, accordingly, that it was declared that: (a) an action was pending before the High Court which raised the issues of custody, guardianship and place of residence of the minor child; (b) the High Court was deemed to be 'an institution or any I other body' to which 'rights of custody' could be attributed within the meaning of art 3 of the Convention; and (c) prior to the removal of the child, the Court had acquired 'rights of custody' within the meaning of art 3, read with art 5(a), of the Convention. (Paragraph [52] at 344C - F.). J

2007 (3) SA p332

Cases Considered

Annotations

Reported cases

Southern African cases

B v S 1995 (3) SA 571 (A): dictum at 575G - H applied

B v S 2006 (5) SA 540 (SCA): dictum in para [20] applied

K v K 1999 (4) SA 691 (C): referred to B

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

Senior Family Advocate, Cape Town, and Another v Houtman 2004 (6) SA 274 (C): referred to

Smith v Smith 2001 (3) SA 845 (SCA) ([2001] 3 All SA 146): referred to

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

Foreign cases

Brooke v Director-General, Community Services [2002] Fam CA 258: applied

C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 1 FLR 403 ([1989] 2 All ER 465): referred to D

C v S (A Minor) (Abduction) [1990] 2 FLR 442: referred to

H I v M G (Child Abduction: Wrongful Removal) [2000] IR 110: applied

In re B (A Minor) (Abduction) [1994] 2 FLR 249 (CA): referred to

In re C (Child Abduction) (Unmarried Father: Rights of Custody) [2002] EWHC 2219 (Fam) ([2003] 1 FLR 252): dictum in para [73] applied E

In re D (A Child) [2006] UKHL 51: dictum in para [7] applied

In re F (Abduction: Unmarried Father: Sole Carer) [2003] 1 FLR 839: applied

In re G (Abduction: Rights of Custody) [2002] 2 FLR 702: referred to

In re H (Abduction: Rights of Custody) [2000] 1 FLR 201 (CA): referred to F

In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291 (HL) ([2000] 1 FLR 374): applied

In re J (Abduction: Declaration of Wrongful Removal) [1999] 2 FLR 653: applied

In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562: referred to

In re O (Child Abduction: Custody Rights) [1997] 2 FLR 702: referred to

In re W; In re B (Child Abduction: Unmarried Fathers) [1998] 2 FLR 146: compared G

In re W; In re B (Minors) (Abduction: Father's Rights) [1999] Fam 1: referred to

Secretary, A-G Department v T S [2000] Fam CA 1692: dictum in para [54] et seq applied

Seroka v Bellah 1995 SLT 204: applied

Thomson v Thomson, Attorney-General of Canada et al Interveners [1994] 3 SCR 551 ((1995) 119 DLR (4th) H 253): applied.

Unreported cases

Re Olson v Olson Family Court of New Zealand 1994 FP 37/94: applied.

Statutes Considered

International Conventions

The Hague Convention on the Civil Aspects of International Child Abduction 1980, arts 3, 5(a), 8 and 15: I see Juta's Statutes of South Africa 2005/6 vol 5 at 2 - 113, 2 - 115 and 2 - 116.

Case Information

Application by an unmarried father for certain declaratory relief in anticipation of launching an application abroad for the summary return J

2007 (3) SA p333

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

P B Hodes SC (with P K Weyer) for the applicant.

P A L Gamble SC (with B Gassner) for the respondent.

Cur adv vult. B

Postea (December 22).

Judgment

Griesel J:

[1] This is an application by an unmarried father for certain declaratory orders as a precursor to the bringing of an application in C Switzerland under the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the Convention) [1] for the summary return of a young boy, M, to South Africa.

[2] This case raises interesting and difficult issues surrounding the interpretation of the Convention and its D interrelationship with our domestic law. Most of these issues are res nova in our law, although a vast body of jurisprudence has developed internationally involving various aspects of the Convention. I find myself in a similar position to Dame Elizabeth Butler-Sloss P, who remarked as follows in In re F (Abduction: Unmarried Father: Sole Carer): [2] E

'In an ideal world, I would give myself time to consider with care the careful and erudite submissions of [counsel for the parties]. However, there is no possibility in the last-but-one week of term for a judgment to be ready and handed down before the end of term. It would be unjust to the parties and unjust to the child if I were to adjourn this case for my judgment to be written until the beginning of F next term because this is a Hague Convention application. Consequently, there is no advantage to waiting and I therefore intend to give an ex tempore judgment in which I shall do the best I can.'

[3] In the present case the matter was argued before me over two days during the last week of term and the first week of recess. For the same reasons as those mentioned in the above extract, I felt G constrained to finalise this judgment before Christmas, doing the best I can in the circumstances.

Factual background

[4] The parties, who were never married, are the biological parents of M, who was born in Cape Town on 9 January 2006. The father is a H South African citizen by birth and is a self-employed economist/researcher, residing in Newlands, Cape Town.

[5] The mother was born and grew up in Switzerland. She matriculated there and went on to obtain a PhD in natural sciences at a university in J

2007 (3) SA p334

Griesel J

Zurich. She...