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

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

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 occurre nce of international pa rental child abduction is a moder n-day

phenomenon that has been exace rbated by increased i nternational tr avel,

the softening of inter national borders and t he incidence of multinational

marri ages.1 Additionally, the rise in the divorce rate has also c ontributed to

the growing number of child abduc tions worldwide.2

International ch ild abduction typically occ urs when a parent wrong fully3

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 i n the jurisdiction of anothe r country to prevent the

custodian parent f rom exercising custody rights t hat 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 contr ibution is a prod uct of the firs t mentioned aut hor’s LLB dissert ation at the Nort h-West

University (Pot chefstroom Campu s)

1 CMA Nicholson “Ca n South Afr ica follow England’s Example an d apply the Stric t Interpr etation 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 actual ly exercised, eit her jointly or alon e, or would have been exer cised but for the rem oval 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 Rec ognition and E nforcement of Foreig n Custody Ord ers 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 Hag ue Convention on the Civil Aspects of

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

between different st ates with regard to pare ntal child abduction.6 Cour t

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 Afr ica became a contract ing state to this C onvention 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 ar e set out in article 1

thereof. Firstly, it aims to secure the prompt ret urn of childre n wrongfully

removed or retained in any cont racting state.11 The se cond 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 primar y purpose of the Convention is to re store the status quo

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

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

at preventing the wrongf ul circumvention of the appropriat e forum by the

unilateral act ion of one parent, it encourages comit y between contract ing

states to facilitate c o-operation in c ross-border child abduction mat ters, and

ensures appropr iate jurisdiction for custody disputes.13

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

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

that the child has been re moved from his familiar s urroundi ngs, family and

co un tr y.15 Se condly, the courts located in t he country of the child’s habitual

residence will be the best su ited to decide custody issues as t hey 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 Chi ld Abduction and C ustody Act of 1985 and in the United Stat es it was implement ed

through th e Internation al Child Abduction Re medies Act 42 which came in to effect on 1 July 1988

10 The 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

part of 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

11 In Central Au thority v H 2008 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

12 It 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

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

14 C 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

15 Accordingly, the a bduction wil l be trauma tic for the child a s he or she leaves behi nd the known

environme nt, family and othe r parent

72 STELL LR 2011 1

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