Sonderup v Tondelli and Another

• Jurisdiction: South Africa
• Judge: Chaskalson P, Langa DP, Ackermann J, Goldstone J, Kriegler J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Yacoob J and Madlanga J
• Judgment Date: 04 December 2000
• Citation: 2001 (1) SA 1171 (CC)
• Docket Number: CCT 53/00
• Hearing Date: 23 November 2000
• Counsel: P J de Bruyn SC (with him B J Pienaar) for the appellant. No appearance for the first respondent. G Goosen for the second respondent (the Family Advocate).
• Court: Constitutional Court

Goldstone J:

Introduction

[1] This appeal concerns a four-year-old girl who was brought to South Africa from Canada by her mother in June 2000 and who E is still here with her mother. The question which this Court has to consider is whether the mother is acting in violation of the provisions of the Hague Convention on the Civil Aspects of International Child Abduction [1] (the Convention). If so, further questions arise, including the constitutionality of the statute F incorporating the Convention into South African law.

[2] On 18 October 2000, Jennett J, sitting in the South Eastern Cape High Court (the High Court), ordered that Sofia Chilo Tondelli (Sofia) forthwith be returned to British Columbia, Canada. [2] The order was made pursuant to the provisions of the Hague Convention on the Civil Aspects of G International Child Abduction Act [3] (the Act). This Act gives statutory recognition to the Convention which has been ratified by many nations, including Canada and South Africa. The Act came into force on 1 October 1997. In terms of s 2, the Convention, which is a Schedule to the Act, applies in South Africa and, in terms of s 231(4) of the Constitution, [4] it has become law. It is the meaning and effect of this Act which falls to be interpreted in this H case.

[3] There were competing applications in the High Court. Lisa Tracy Sonderup, the mother of Sofia (the mother) claimed an order granting

Goldstone J

her custody of Sofia. Arturo Tondelli, the father of Sofia (the father), sought in a counterclaim to have an order of the Supreme Court A of British Columbia awarding him custody of Sofia made an order of the High Court, and to have Sofia returned forthwith to British Columbia. The Chief Family Advocate [5] (the Family Advocate), who is designated by s 3 of the Act as the Central Authority for the Republic, [6] brought her own B application for the return of Sofia to British Columbia in terms of art 12 of the Convention. It was the last-mentioned application that was granted by the High Court.

[4] On 9 November 2000 the mother sought leave to appeal directly to this Court in terms of Rule 18 of the Rules of the Constitutional Court. In considering the mother's application, we came C to the conclusion that there is a constitutional issue to be determined in the appeal and that this Court therefore has jurisdiction to entertain the matter. We were further of the view that it is in the interests of justice and of Sofia that this litigation should be finalised as soon as possible. The father and the Family Advocate did D not object. Accordingly this appeal was set down for hearing in this Court on an expedited basis. The father did not appear in this Court and filed a consent to abide our decision. We are indebted to counsel appearing for the mother and the Family Advocate for having filed helpful argument in the short time available to them. E

The background

[5] The mother was born in South Africa and the father in Italy. They were married to each other in South Africa on 19 June 1989. They lived for some years in Italy and in July 1997 they emigrated to Canada. They made their home at Owl Ridge, Mount Currie in British Columbia. The marriage foundered and during 1998 they F separated.

[6] On 7 July 1999 a consent paper was made an order of the Supreme Court of British Columbia. In terms thereof, the mother was granted sole custody of Sofia and the father rights of access to her. They were granted joint guardianship and the father was ordered to pay maintenance for the child. It was further provided that: G

'(N)either the plaintiff (the father) nor the defendant (the mother) shall remove the child from the Province of British Columbia without further Court order or the written agreement of the parties except that either party will be permitted to travel outside of British Columbia with the child once per year for a period not to exceed 30 H days.

(I)f the child is taken out of Canada for a period exceeding 30 days, without further Court order or written consent of both parties permitting the same, the child will have been wrongfully removed from the Province of British Columbia, Canada, in contravention of the Convention [on] the Civil Aspects of International Child Abduction (Convention). I

Goldstone J

. . . (T)he State of habitual residence of the child, within the meaning of the Convention, is the Province of British Columbia, A Canada.'

[7] On 31 May 2000 the mother and the father were divorced in the Supreme Court of British Columbia. The order of 7 July 1999 was left in place. In June 2000 the father sought an urgent order from the Supreme Court of British Columbia restraining the mother from removing Sofia from British Columbia. The application was settled and B by consent it was ordered on 9 June 2000 that an investigation be conducted into issues of custody of and access to Sofia and that they be set for trial at the earliest date. It was further ordered that:

'. . . the defendant (the mother) be allowed to travel to South Africa with the child, for a one-month period from June 12, 2000 and C returning July 14, 2000 on the following conditions:

(a)

the plaintiff (the father) will have sole custody of the child in the event that the child is not returned to British Columbia by July 14, 2000;

(b)

the defendant will deposit the sum of $5 000 with her counsel to be held by him or her as security for the return of the child and be immediately paid over to the plaintiff or his counsel if D the child is not returned to British Columbia on or about July 14, 2000'.

[8] The mother and Sofia left for South Africa where they moved in with the mother's family in Port Elizabeth. When it became clear to the father that neither Sofia nor the mother was returning to Canada, he approached the Supreme Court of British Columbia and on 21 E July 2000 obtained an order, without notice to the mother, to the effect that he was awarded sole custody and guardianship of Sofia, ordering the mother forthwith to deliver Sofia to the father and providing for the arrest of the mother in the event of her breaching the order. F

[9] Thereafter, the Family Advocate received a request, in terms of the Convention, from the Central Authority of British Columbia, for steps to be taken to ensure the prompt return of Sofia to British Columbia.

The Convention G

[10] According to its preamble, the purpose of the Convention is to protect children from the harmful effects of their wrongful removal or retention and to ensure their prompt return to the state of their habitual residence. I agree with L'Heureux-Dubé J's comments in Thomson v Thomson [7] that: H

'(T)he necessity of international agreements with regard to the abduction of children has been abundantly demonstrated, particularly in recent years. The increase in rapid international transportation, the freer crossing of international boundaries, the continued decrease in documentation requirements when entering foreign jurisdictions, the increase in ''international families'', where parents are of different countries of origin, and the escalation of family breakups I worldwide, all serve to multiply the number of international abductions.'

[11] The Convention provides for a mandatory return procedure whenever a child has been removed or retained in breach of the rights of

Goldstone J

custody of any person or institution 'under the law of the State in which the child was habitually resident immediately before the removal A or retention' and where those rights were actually being exercised or would have been but for the removal or retention. These rights, according to the Convention, may arise by operation of law, by judicial or administrative decision or by an agreement having legal effect. [8] The Convention defines 'rights of B custody' to 'include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence'. [9] In applying the Convention 'rights of custody' must be determined according to this definition independent of the meaning given to the concept of 'custody' by the domestic law of any State party. Whether a person, an institution or any other body has the right to determine a child's habitual residence C must, however, be established by the domestic law of the child's habitual residence. As L'Heureux- Dubé J correctly points out:

'(H)owever, although the Convention adopts an original definition of ''rights of custody'', the question of who holds the . . . ''right to determine the child's place D of residence'' within the meaning of the Convention is in principle determined in accordance with the law of the State of the child's habitual place of residence. . . .' [10]

(Emphasis added.) At all material times Sofia's habitual place of residence was British Columbia, and the law of that province prohibited her from residing in any other place without the authority of an order of Court or written agreement between the mother and the father. E

[12] Where a child has been wrongfully removed or retained in terms of art 3, and a period of less than a year after the wrongful removal or retention has elapsed, the judicial or administrative authorities of the requested State 'shall order the return of the child forthwith'. [11] Such judicial or administrative F authority is granted a discretion to refuse to order such return by the provisions of art 13. It reads as follows:

'Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that - G

a

the person, institution or other body having the care of the person of the child was not actually exercising the custody...