The Interpretation and Application of Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction

• Jurisdiction: South Africa
• Date: 16 August 2019
• Published date: 16 August 2019
• Author: J Weideman
• Pages: 71-93
• Citation: (2011) 22 Stell LR 71

71

THE INTERPRETATION AND APPLICATION OF

ARTICLE 13(b) OF THE HAGUE CONVENTION

ON THE CIVIL ASPECTS OF INTERNATIONAL

CHILD ABDUCTION

J Weideman

LLB

Student, North-West University*

JA Robinson

B Iuris LLD

Professor, North-West University

1 Introduction

The occurrence of international parental child abduction is a modern-day

phenomenon that has been exacerbated by increased international travel,

the softening of international borders and the incidence of multinational

marriages.1 Additionally, the rise in the divorce rate has also contributed to

the growing number of child abduc tions worldwide.2

International child abduction typically occurs when a parent wrongfully3

removes a child from the jurisd iction of his or her habitual residence or retains

a child in a countr y that is not the child’s habitual residence with t he intention

to retain the child in the jurisdiction of another country to prevent the

custodian parent from exercising custody rights that he or she has in respect

of the abducted child. Because custody order s are not nal they cannot be

recognised and en forced in the ordinary cours e of things in other jurisdictions

in the same manne r as other orders of court.4

* This contribution is a product of the first mentioned author’s LLB dissertation at the North-West

University (Pot chefstroom Campu s)

1 CMA Nicholson “Can South Africa follow England’s Example and apply the Strict Interpretation of

Article 13(b) of the Hag ue Convention on the Civ il Aspects of Inte rnational Ch ild Abduction?” (1999) 32

De Jure 248

2 Nicholson (1999) De Jure 248

3 In terms of a rt 3 of the Hague Conventio n on the Civil Aspects of In ternational Chi ld Abduction (1980)

removal or retent ion will be wrongful wh ere it is in breach of rights of cu stody attributed to a p erson,

institut ion or any other body, either jointly or a lone, under the law of the state i n which the child was

habitually r esident immediately befor e the removal or retention It is fur ther required that t hose rights

were actually exercised, either jointly or alone, or would have been exercised but for the removal or

retention and a t the time of removal or ret ention

4 Nicholson(1999) De Jure 248 Based on the doctr ine of territorial sovereig nty, a state with exclusive

territo rial jurisdiction over it s territory and pop ulation is not obliged to recog nise or enforce a foreign

judgment See C Nicholson “The Recognition and Enforcement of Foreign Custody Orders and the

Problem of Inter national Child Ab duction” (1993) 44 Codicillus 4

(2011) 22 Stell LR 71

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Prior to the existence of the Hague Convention on the Civil Aspects of

International Ch ild Abduction5 (“the Convention”) there was lit tle co-operation

between different states with regard to parental child abduction.6 Court

orders made in one jur isdiction were generally not enforced or maintained in

another.7 The Convention was adopted on 24 October 1980 in The Hague, the

Netherlands.8 South Africa became a contracting state to this Convention in

19979 and t he Convention is currently explicitly incorporate d in the Children’s

Act 38 of 2005.10

The Convention has two main objectives which are set out in article 1

thereof. Firstly, it aims to secure the prompt return of children wrongfully

removed or retained in any contracting state.11 The second aim is to ensure

that the rights of custody a nd access under the law of one contracting stat e are

effectively respected and protect ed in that of another.

The primary purpose of the Convention is to restore the status quo

ante, therefore placing the child in his or her habitual residence where the

child resided before his or her abduction.12 The Convention further aims

at preventing the wrongful circumvention of the appropriate forum by the

unilateral action of one parent, it encourages comity between contracting

states to facilitate co-operation in cross-border child abduction matters, and

ensures appropr iate jurisdiction for custody disputes.13

According to Du Toit14 the Convention is based on three theories. Firstly,

the abduction of a child will be prejud icial to his or her welfare due to the fact

that the child has been removed from his familiar surroundings, family and

country.15 Secondly, the courts located in the country of the child’s habitual

residence will be the best suited to decide custody issues as they are better

5 The Hague Conve ntion on the Civil Aspe cts of Internat ional Child Abduct ion (1980)

6 See B Clark “Chi ld Abduction” Division P in B Cl ark (ed) Butterworth s Family Law Service ( RS 2008)

para 1

7 Clark “Child Ab duction” in Family Law S ervice par a 1

8 The adoption wa s at the fourteent h session of the Hague Co nvention on Private I nternational L aw

9 In terms of t he Hague Convention on the Civ il Aspect of Intern ational Child Abduct ion Act 72 of 1997

This Act has be en repealed by t he Children’s Act 38 of 2005 (“t he Children’s Act”) Ch 17 of the Children’s

Act specific ally deals with chil d abduction In the Uni ted Kingdom the Conve ntion was implemented b y

Part I of the Child Abduction and C ustody Act of 1985 and in the United States it was implement ed

through th e Internation al Child Abduction Re medies Act42 which came in to effect on 1 July 1988

10The relevant se ctions of the Children’s Act (ss 274-280) which deal wit h child abduction entered i nto

force on 1 April 2010 South A frica follows a duali stic system, which en tails that an in strument bec omes

partof the South Af rican law after it has be en incorporated int o domestic legislation The Convent ion

is therefore bin ding in the Republic on the i nternational pla ne as well as on the subjects of th e country

See JM Hlophe “T he Judicial Approa ch to ‘Summary A pplications for the C hild’s Return’: A Move away

from ‘Best Int erests’ Principle s?” (1998) 115 SALJ 439 439

11In Central Au thority v H2008 1 SA 49 (SCA) 60J it was he ld that expeditiou sness is essenti al at all stages

of the Convention pro cess, including a ppeals

12It is assumed t hat in the vast majorit y of abduction cases it wi ll be in the best inter ests of the child to be

return ed to the place of his or her h abitual residence T he underlying pre mise is that the auth orities’ best

placed to resolve t he merits of a cust ody dispute are t he courts of th e state of the child’s habit ual residence

See Penello v Penello (Chie f Family Advocate as Amic us Curiae) 2004 3 SA 117 (SCA) 134C

13Sonderup v Tondelli 2001 1 SA 1171 (CC) 1185C-E

14C du Toit “The Hague Con vention on the Civil Aspe cts of Internatio nal Child Abduction” i n T Boezaart

(ed) Ch ild Law in South Afri ca (2009) 351 353 -354

15Accordingly, the abduction will be traumatic for the child as he or she leaves behind the known

environme nt, family and othe r parent

72STELL LR 2011 1

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