Central Authority of SA Republic of South Africa and Another v L.L (2025/178969) [2025] ZAGPJHC 1101 (3 November 2025)

Case Note

Case Name: The Central Authority of the RSA and Another v L
Citation: 2025-178969 [2025] ZAGPJHC ---
Date: 3 November 2025

Reportability

This case is noteworthy within the context of the Hague Convention on the Civil Aspects of International Child Abduction as it addresses critical jurisdictional requirements. Specifically, it examines the wrongful removal of a child from their habitual residence and the defenses against applications for the child's return. While the court declared it "not reportable" and of "no interest to other judges," the implications for international child custody disputes remain significant. It underscores the rights of left-behind parents and the responsibilities of courts in addressing abduction scenarios, affirming the balance of child welfare with the enforcement of return orders.

Cases Cited

1. N M v Central Authority for the Republic of South Africa and Another 2024 JDR 5313 (SCA)
2. Ad Hoc Central Authority, South Africa and Another v Koch N O and Another 2024 (3) SA 249 (CC)
3. Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC)

Legislation Cited

• Hague Convention on the Civil Aspects of International Child Abduction
• South African International Child Abduction Act

Rules of Court Cited

The judgment does not explicitly cite any rules of court.

HEADNOTE

Summary

The case involved an application for the return of a minor child to Denmark, following his unlawful removal by the mother to South Africa. The court assessed whether the removal constituted an abduction under the Hague Convention and examined defenses raised by the mother, particularly regarding consent and potential psychological harm to the child if returned.

Key Issues

The key legal issues addressed included:
- Whether the second applicant (the father) consented to the child's removal.
- Whether the mother (the respondent) proved a grave risk of physical or psychological harm under Articles 13(a) and 13(b) of the Hague Convention.

Held

The court found that the father did not consent to the mother's removal of the child from Denmark, and the risks posed by the father's medical condition were not grave enough to prevent the child's return. The application succeeded, mandating the immediate return of the child to Denmark, subject to various protective measures.

THE FACTS

The second applicant, a South African residing in Denmark, sought the return of his son, born on July 7, 2019, following the child's wrongful retention by the mother, a Zimbabwean national, since August 5, 2025. The father alleged that the mother had unlawfully taken the child to South Africa, while the mother claimed she had the father's consent based on an email sent just before their departure.

Disputes arose over whether there was an agreement regarding where the mother would give birth to their second child and whether consent was indeed provided. The evidence indicated a contentious relationship where claims of abuse and mental health issues were central, culminating in the mother's argument that returning the child would create a grave risk of harm.

THE ISSUES

The court was required to resolve several pivotal legal questions:

1. Did the second applicant provide consent for the removal of the child?
2. Has the respondent successfully established a defense under Articles 13(a) or 13(b) of the Hague Convention regarding the perceived risk to the child if ordered to return?

ANALYSIS

The court undertook a detailed examination of the facts and evidence surrounding the claims of consent. Discrepancies in the respondent's narrative weakened her positioned claims. Notably, the circumstances of the perceived consent, purportedly sent during a tumultuous time in their relationship, were scrutinized closely. The court emphasized that the notion of consent must be interpreted strictly, and based on the evidential analysis, it supported the father's assertion of non-consent.

In evaluating the claim of grave risk under Article 13(b), the court rejected the respondent's arguments, emphasizing that the threshold required for such a defense is notably high. The court concluded that although the father had pre-existing health conditions, the evidence did not support the assertion that these constituted a grave risk to the child's welfare. The child’s expressed desire to return to Denmark and the father's demonstrated capability to provide care were emphasized as critical factors.

REMEDY

The court ordered the immediate return of the child to Denmark in accordance with Article 12 of the Hague Convention. The order included specific provisions to facilitate the child's safe return, including travel arrangements and stipulations regarding the mother's accommodation and support upon her return.

LEGAL PRINCIPLES

Key legal principles established by the court include:

1. The requirement of clear and compelling evidence to establish consent under Article 13(a) is crucial when considering defenses against return applications.

2. The threshold for demonstrating a "grave risk" of harm under Article 13(b) is set high, necessitating substantial proof that returning the child would result in serious risk, not mere discomfort.

3. A child's best interest is paramount; thus, it is essential that serious claims regarding harm are backed by credible and substantial evidence, taking into account the child's attachment to caregivers in the context of the Hague Convention's goals.

This case serves as a significant precedent in delineating the parameters for consent and risk assessments in international child abduction cases.