WS v LS

• Jurisdiction: South Africa
• Citation: 2000 (4) SA 104 (C)

WS v LS
2000 (4) SA 104 (C)

2000 (4) SA p104

Citation	2000 (4) SA 104 (C)
Case No	6986/99
Court	Cape Provincial Division
Judge	Foxcroft J
Heard	September 17, 1999
Judgment	September 17, 1999
Counsel	M W Verster for the applicant.; M Donen for the respondent.

Flynote : Sleutelwoorde

Husband and wife — Divorce — Custody of children — Hague Convention on Civil Aspects of International Child Abduction (1980) — Application of — Application for return of unlawfully removed or retained child in terms of art 13 of Convention as incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996 — Article 13 providing that requested State not bound to return child if opposing party establishing that 'grave risk' existed that return of child would expose it 'to physical or psychological harm or otherwise place the child in an intolerable situation' — Words 'grave risk' not imposing onus greater than that ordinarily applicable in civil proceedings — Meaning that there has to be serious or well-founded reason why situation of child would be intolerable if application granted — Objective basis required to conclude existence of grave risk — Age of children and nature of undertakings given by applicant to be taken into account.

International law — International treaties and conventions — Hague Convention on Civil Aspects of International Child Abduction (1980) as incorporated into South African law in terms of Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996. See Minor — Abduction of — International abduction.

Minor — Abduction of — International abduction — Hague Convention on G Civil Aspects of International Child Abduction (1980) — Application of — Application for return of unlawfully removed or retained child in terms of art 13 of Convention as incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996 — Article 13 providing that requested State not bound to return child if opposing party establishing that 'grave risk' existed that return of child would expose it 'to H physical or psychological harm or otherwise place the child in an intolerable situation' — Words 'grave risk' not imposing onus greater than that ordinarily applicable in civil proceedings — Meaning that there has to be serious or well-founded reason why situation of child would be intolerable if application granted — Objective basis required to conclude existence of grave I risk — Age of children and nature of undertakings given by applicant to be taken into account.

Headnote : Kopnota

On 4 June 1999 the father of two very young boys applied in a Provincial Division under chap 3 of the Hague Convention on the Civil Aspects of J

2000 (4) SA p105

International Child Abduction Act 72 of 1996 for the handing over of the children by their mother for the purpose of their return A with the applicant to the United Kingdom. This Act came into operation in October 1997 by virtue of a presidential proclamation that made the provisions of the Hague Convention of 1980 part of South African law. The parties were married in South Africa in April 1996 and had two children (one in June 1997 and another in September 1998) while the parties were living in the UK. The respondent had been granted an B ancestry visa that allowed him to work in the UK for four years and would eventually have been entitled to apply for residency. Domestic difficulties arose between the parties and the respondent and the children left the UK for South Africa in January 1999 for what was supposed to be a holiday. While in South Africa the respondent decided not to return to the UK. She took the attitude that her visa would not permit her to remain there for any length of time even if she C were to return. In March 1999 the respondent informed the applicant that she would not return to the UK and instituted divorce proceedings in South Africa. The applicant then served the Hague application on the respondent. In issue was whether art 13 of the Hague Convention applied. Chapter 3 of the Convention provides for applications by the Central Authority of the child's habitual residence to the Central D Authority of another contracting State for the return of unlawfully removed or retained children and art 13 provides, inter alia, that '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 - . . . (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or E otherwise place the child in an intolerable situation'. A number of undertakings were made by the applicant to the respondent both before and during the present hearing. These included offers providing for the payment of the air fares to the UK of the respondent and the children as well as undertakings in regard to the occupation of the former matrimonial home by the respondent and the children and the institution of custody proceedings in the UK. The Court pointed out (at F 5) that, since it was unable to decide on the papers whether the youngest child in particular might suffer any physical or psychological harm if removed from his mother, the question was whether the proposed return would 'otherwise place the child(ren) in an intolerable situation'. The Court referred to certain English cases in which a high risk of an intolerable situation as well as suitable undertakings G to prevent that risk had been required and pointed out (at 112A - B) that, if the requested State only needed to be told to return the child without proffering any undertakings, it was difficult to see why the need for such undertakings arose as a strict matter of law. The Court then

Held, that the word 'otherwise' indicated that the intolerability of the situation did not necessarily have to be based on proof of physical or psychological harm. (At 109F/G.) H

Held, further, that it could for the purposes of the present case be accepted that both the applicant and the respondent were habitually resident in the UK not only when their children were lawfully removed to South Africa but also at the time of the subsequent prima facie wrongful retention. This suggested that the children, despite having spent some months in South Africa, were also I still habitually resident in the UK. (At 111B/C - E.)

Held, further, that the framers of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996, knowing of the protection of the child in South African law and the Bill of Rights, could not have intended to impose upon a child, or the mother of a child seeking to protect that child, an onus any greater than that ordinarily applicable in civil J

2000 (4) SA p106

proceedings. The words 'grave risk' did not introduce an onus above that normally A applicable, but meant that there had to be a serious or well-founded reason why the situation of a child would be intolerable if the Hague application were granted. The high test for intolerability set by the English Courts was not, given the provisions of the South African Bill of Rights, required in our law. (At 112I and 113G/H.)

Held, further, that because it was impossible to decide on the papers whether the children might suffer physical or psychological B harm if removed from their mother, the matter had to be dealt with on the basis of intolerability, and that it was clearly intolerable for a child under the age of one year (like the youngest child in the present case) to be parted from his mother. (At 113B.)

Held, further, that, although the undertakings given by the applicant were inadequate (particularly with regard to adequate C provision for the continued support of the respondent in the UK), this did not mean that an intolerable situation would necessarily result for the children: there had to be an objective basis for holding that there was a grave risk of intolerability and the undertakings served only to alleviate the hardship that might ensue. (At 115E/F.) D

Held, further, that, while the harm to the older child might not be as great as that to the younger one, it was well-accepted in our law that very young children could not be separated from each other, and that it was unthinkable to separate the children at a stage when the matter was not yet finally determined. There was thus a grave risk that they would face an intolerable situation if removed from their mother. (At 116A - C.) E

Held, further, that the applicant's undertakings did not make adequate provision for the continued support of the respondent in the UK: she had very real fears that she would not be able to stay in the UK for any length of time and no guarantee of employment there during what could turn out to be protracted custody proceedings. (At 116C - D.) F

Held, accordingly, that the application had to be dismissed. (At 116D/E.)

Cases Considered

Annotations

Reported cases

Re A (Abduction: Habitual Residence) [1996] 1 FLR 1: applied

Re B (Minors: Abduction) No 2 [1993] 1 FLR 995: dictum at 995 applied

C v C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 (CA): distinguished but G dictum at 469h applied

Re F (Minor: Abduction: Rights of Custody Abroad) [1995] 3 All ER 641 (CA): dictum at 645 applied but dictum at 647f doubted

Re H (Abduction: Acquiescence) [1998] AC 72 ([1997] 1 FLR 872): applied

Re I (Abduction: Acquiescence) [1999] 1 H FLR 778: considered

Re J, a minor (Abduction: Custody Rights) [1990] 2 AC 562: dictum at 578 - 9 applied

K v K 1999 (4) SA 691 (C) ([1999] 2 B All SA 193): referred to

Re M (Abduction: Habitual Residence) [1996] 1 FLR 887...