Brief Summary

Child Law — Hague Convention — Return of child — Urgent application for the immediate return of a child to her country of habitual residence following the death of her mother — Application brought by the Central Authority on behalf of the child’s father — Previous court order for return pending appeal — Legal representatives unable to file notice of appeal in time — Court's consideration of the implications of prolonged appeal processes on the objectives of the Hague Convention — Application granted for the immediate return of the child to the UK.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an urgent interlocutory application brought in the Western Cape Division of the High Court, Cape Town, seeking to secure the immediate implementation of an earlier order made in Hague Convention proceedings for the return of a minor child to the United Kingdom, notwithstanding a pending appeal.

The applicants were the Ad Hoc Central Authority for the Republic of South Africa (acting pursuant to a delegation in terms of section 277 of the Children’s Act 38 of 2005) and the child’s father, Mr Paul Graham Ball. The respondents were Ms Heidi Nicole Koch N.O. (in her capacity as executor of the deceased mother’s estate) and Ms Heidi Nicole Koch (in her personal capacity), who was also the child’s maternal aunt and primary caregiver in South Africa.

The procedural history was central to the dispute. A Hague Convention return application had been launched in July 2020 and culminated in an order granted by Saldanha J on 11 December 2020, directing that the child be returned to her country of habitual residence (the United Kingdom) within 30 days of the death of her mother, who later died on 8 December 2020. The respondents sought leave to appeal that return order; leave to appeal to the Supreme Court of Appeal was granted on 9 February 2021, in circumstances where the court a quo expressly noted the risks of delay in Hague matters. The present application was then brought under section 18 of the Superior Courts Act 10 of 2013, seeking enforcement of the return order pending the appeal.

The general subject-matter of the dispute was thus the suspension (or otherwise) of a Hague return order pending appeal, and whether the statutory requirements for immediate execution under section 18 were satisfied in the circumstances of an international child abduction/retention dispute.

2. Material Facts

The child, E[….] J[….] B[….], was born in the United Kingdom on 6 July 2017. The child’s mother (since deceased) was originally from Cape Town, where her mother (the child’s maternal grandmother) and her sister (the second respondent, the child’s aunt) lived.

The parents cohabited in the United Kingdom, but the relationship deteriorated around August 2018, and the father left the common home later that year while maintaining contact with the child. In April 2019, the mother was diagnosed with a severe cancer and underwent treatment in the United Kingdom. In August/September 2019, the parents travelled to South Africa for the mother to seek further medical attention. They arrived in Cape Town on 5 September 2019 and stayed with the aunt, where the child had access to the aunt and grandmother.

By late September 2019 the parents separated in South Africa. The father returned to the United Kingdom on 2 October 2019, and it was agreed that the child would remain in Cape Town with the mother while the mother continued receiving medical treatment. In an email of 10 October 2019, the mother indicated she would remain in South Africa while treatment prospects existed, and that she would return to the United Kingdom with the child if no further treatment was available; the father acquiesced in this arrangement at the time. Subsequently, the mother communicated that she intended to return alone to the United Kingdom to wind up affairs while the child would remain in Cape Town, and she indicated that if she could no longer care for the child (including if she died), the child would remain with her family in Cape Town and be cared for by the aunt. The mother’s health deteriorated and she did not return to the United Kingdom as contemplated.

The father approached the United Kingdom Central Authority for relief under the Hague Convention on the Civil Aspects of International Child Abduction, and the matter was pursued through the South African Central Authority. Separately, on 25 June 2020, the mother and the aunt brought an application in the High Court to regulate care and contact in respect of the child (the “care and contact application”). On 21 July 2020, the care and contact application came before Saldanha J, and on the same day the South African Central Authority launched the Hague Convention return application.

On 21 July 2020, the parties concluded an interim agreement made an order of court. Materially, that order stayed the care and contact application pending the outcome of the Hague proceedings, provided that the child would not be removed from South Africa other than in terms of a court order, and provided that the child would continue to reside primarily with the aunt pending the outcome of the Hague application (and, if the Hague application were unsuccessful, pending the outcome of the care and contact application).

On 11 December 2020, Saldanha J granted the Hague return order directing the child’s return to the United Kingdom within 30 days of the mother’s death. The mother died on 8 December 2020. The respondents delivered an application for leave to appeal on 31 December 2020; after procedural difficulties relating to substitution, the aunt was appointed executor and substituted, and an amended leave application was heard. On 9 February 2021, leave to appeal to the Supreme Court of Appeal was granted, notwithstanding the court’s stated view that the respondents had not established reasonable prospects of success or compelling reasons, because of the concern that delays in Hague matters could defeat the Convention’s purpose.

The present section 18 application was launched on 15 February 2021 on urgent timeframes to enforce the return order immediately, notwithstanding the pending appeal. At the time of hearing, it was reported that the notice of appeal had not yet been filed and no SCA hearing date had been allocated, though enquiries suggested the appeal might be heard in May 2021.

Facts relating to the child’s condition after the mother’s death were relied upon in assessing harm and best interests. The evidence before the court in these proceedings was that the child was confused and still processing the mother’s death, appeared more comfortable with the aunt and grandmother as attachment figures, had recently been hospitalised in early February 2021 with an unknown viral infection, and suffered from chronic asthma. The practicalities of international travel during the COVID-19 pandemic were also raised, including the asserted absence of a direct overnight flight from Cape Town to London and the likelihood of hotel quarantine in the United Kingdom.

3. Legal Issues

The court was required to determine, first, whether the interim order of 21 July 2020 (by agreement between the parties) legally precluded the applicants from obtaining immediate removal/return of the child while the Hague proceedings were still pending in the sense of awaiting the outcome, including any appeal.

If that preliminary question were answered against the respondents, the court was then required to decide whether the applicants satisfied the requirements of section 18 of the Superior Courts Act 10 of 2013 for an order that the operation and execution of the 11 December 2020 return order should not be suspended pending appeal. This entailed deciding whether exceptional circumstances existed, and whether the applicants had proved on a balance of probabilities that they will suffer irreparable harm if the order is not implemented, and that the respondents will not suffer irreparable harm if it is implemented.

The dispute concerned a combination of legal interpretation (the meaning and effect of the 21 July 2020 order), the application of statutory criteria to facts (section 18’s “exceptional circumstances” and “irreparable harm” thresholds), and evaluative judgments relating to harm and the child’s welfare considerations in the immediate term, in the context of Hague proceedings.

4. Court’s Reasoning

The court addressed, as a point in limine, the meaning and effect of the order of 21 July 2020. It rejected the applicants’ argument (advanced in oral submission rather than being clearly pleaded in the affidavits) that the phrase “pending the outcome of the Hague application” referred only to proceedings in the High Court and did not extend to appeals. The judgment emphasised that the interpretation of an agreed order (reflecting an agreement) had to follow the modern contextual approach to interpretation, with reference to Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) and Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun (Edms) Bpk 2014 (2) SA 494 (SCA), including the proposition that context is central and that an interpretation leading to impractical or oppressive consequences should be avoided.

Applying that approach, the court reasoned that, when the order was agreed, the parties would have been aware that either the Hague proceedings or the care and contact proceedings could be subject to appeal. The matter was characterised as heavily contested litigation with profound consequences for where the child would live, making it untenable to suggest the parties did not contemplate an appeal process. The court also relied on the father’s own evidence acknowledging that appeals could prolong his stay in South Africa (in relation to his fundraising efforts), treating this as relevant subsequent conduct bearing on interpretation.

On that footing, the court concluded that the reference to “the outcome” of the Hague application was intended to include the outcome of appeal proceedings arising from the Hague application. It held that the interim arrangement that the child would remain with the aunt and not be removed from South Africa other than by court order therefore remained binding pending the appeal. Because the applicants advanced no valid basis for escaping that binding order, the court considered the section 18 application liable to dismissal on this ground alone.

Although it regarded the point in limine as dispositive, the court proceeded to address the merits under section 18 in case it was wrong on the preliminary interpretation issue. It reaffirmed that section 18 relief is an extraordinary deviation from the norm that execution is suspended upon appeal, referencing the common-law position described in South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) and the statutory framework of section 18. The court relied on the approach articulated by the Supreme Court of Appeal in University of the Free State v Afriforum and another 2018 (3) SA 428 (SCA), including that section 18 sets a higher threshold than the prior common-law and rule-based framework, requiring proof of exceptional circumstances plus proof (on a balance of probabilities) of irreparable harm to the applicant if execution is refused and the absence of irreparable harm to the respondent if execution is granted.

On the requirement of exceptional circumstances, the applicants argued that the return order was correct and that the respondents’ Hague Convention defence under Article 13(b) had been rejected by Saldanha J, who had also found poor prospects of success on appeal. Gamble J, however, did not accept that the adverse prospects finding in the leave judgment created exceptional circumstances favouring execution; instead, after considering what was placed before him, he concluded there were reasonable prospects of success on appeal. This conclusion was grounded in the existence of an expert opinion by Emeritus Professor Astrid Berg, a child and adolescent psychiatrist, which had not been countered by a similar expert for the applicants, and which expressed strong concern about the psychological consequences of immediate return for the child. The court rejected an attempt to minimise the opinion on the basis that it used the word “dire” rather than the Convention’s phrase “grave risk”, holding that the semantic distinction did not justify dismissing the expert’s concerns.

The applicants further relied on the inherent urgency of Hague matters and concerns that failure to secure return might be viewed negatively by the United Kingdom Central Authority. The court held that Hague urgency is not, in itself, a “truly exceptional circumstance” for section 18 purposes, describing delays through appeals as an unfortunate part of ordinary judicial processes. It also rejected the suggestion that the United Kingdom Central Authority would view the South African Central Authority’s inability to secure immediate return “in a dim light”, reasoning that the counterpart authority would be aware of systemic delays and would allow ordinary legal processes to run their course.

Turning to irreparable harm, the applicants contended that the father’s inability to exercise parental rights and responsibilities and the loss of time with his child constituted irreparable harm. The court did not accept that the distress and frustration experienced by a left-behind parent in Hague proceedings was the type of “irreparable harm” contemplated by section 18(3), noting that section 18(3) imports a demanding standard akin to what is typically evaluated in interim interdict contexts and requiring proof that harm will occur. The court found, moreover, that the applicants failed to establish the further statutory requirement that the respondents will not suffer irreparable harm if execution were ordered. It accepted that the respondents faced at least potential patrimonial harm in the form of legal costs and financial consequences if the child were removed and later had to be returned to South Africa (including the possibility that further Hague-type litigation would be required abroad), particularly given the absence of an undertaking by the father to return the child should the appeal succeed.

The court also considered the position of the child directly. Referring to Sonderup v Tondelli 2001 (1) SA 1171 (CC), it accepted that Hague proceedings are constitutionally compatible, but recognised the Constitutional Court’s acknowledgement that short-term best interests may, in some cases, not align with immediate return. The court regarded itself as entitled, and indeed obliged in context, to consider whether immediate execution pending appeal might be inimical to the child’s best interests. Based on the evidence of the child’s recent bereavement, attachment to the aunt and grandmother, recent illness and asthma, and the risks and disruption inherent in international travel and quarantine during a global pandemic, it held that immediate return pending appeal would be detrimental and carried the risk of the child being shuttled between countries depending on the appellate outcome.

5. Outcome and Relief

The application for immediate implementation of the 11 December 2020 return order under section 18 of the Superior Courts Act 10 of 2013 was dismissed.

The applicants were ordered to pay the respondents’ costs, including the costs of two counsel where employed. The court considered that the application raised important legal issues and that the extremely tight timeframes imposed by the applicants justified the employment of two counsel in opposing the matter.

Cases Cited

Gallagher v Norman’s Transport Lines (Pty) Ltd 1992 (3) SA 500 (W)

Transnet Ltd v Rubinstein [2005] 3 All SA 425 (SCA)

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun (Edms) Bpk 2014 (2) SA 494 (SCA)

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA)

Sonderup v Tondelli 2001 (1) SA 1171 (CC)

Penello v Penello 2004 (3) SA 117 (SCA)

In re D (a child) [2007] 1 All ER 783 (House of Lords)

In re E (children) [2011] All ER 517 (United Kingdom Supreme Court)

KG v CB 2012 (4) SA 136 (SCA)

South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (Appellate Division)

Incubeta Holdings (Pty) Ltd and another v Ellis and another 2014 (3) SA 189 (GJ)

Liviero Wilge Joint Venture and another v Eskom Holdings SOC Ltd [2014] ZAGPJHC 150 (12 June 2014)

Minister of Social Development, Western Cape and others v Justice Alliance of South Africa and another [2016] ZAWCHC 34 (1 April 2016)

Ntlemeza v Helen Suzman Foundation and another 2017 (5) SA 402 (SCA)

University of the Free State v Afriforum and another 2018 (3) SA 428 (SCA)

Legislation Cited

Children’s Act 38 of 2005 (including sections 275 and 277, and Schedule 2)

Superior Courts Act 10 of 2013 (including sections 17 and 18)

Constitution of the Republic of South Africa, 1996 (including sections 28(2) and 36)

Hague Convention on the Civil Aspects of International Child Abduction (including Articles 10, 13, and 16)

Rules of Court Cited

Uniform Rule 49(11)

Held

The court held that the consent order of 21 July 2020, properly interpreted in context, remained binding pending the final outcome of the Hague Convention proceedings, including any appeal, with the consequence that the child’s continued primary residence with the aunt in South Africa and the restriction on removal remained operative. On this basis alone, the application for immediate return pending appeal could not succeed.

In any event, the court held that the applicants did not satisfy the stringent requirements of section 18 of the Superior Courts Act 10 of 2013. It found that exceptional circumstances were not established, that the applicants failed to prove the statutorily required form of irreparable harm to themselves if execution were refused, and that they failed to prove that the respondents would not suffer irreparable harm if execution were granted. The court further considered that immediate execution would be detrimental to the child’s immediate welfare and best interests, given the risk of reversal on appeal, the child’s recent bereavement and health circumstances, and the pandemic-related travel and quarantine implications.

LEGAL PRINCIPLES

The judgment applied the modern contextual approach to interpretation of written instruments (including agreed court orders embodying agreements), emphasising that interpretation is a unitary exercise in which the text is construed in light of relevant context, surrounding circumstances, and subsequent conduct, and that interpretations producing impractical or oppressive consequences are to be avoided.

It affirmed that section 18 of the Superior Courts Act 10 of 2013 codifies and strengthens the default position that the operation and execution of a decision is suspended pending appeal, and that a court may depart from that norm only upon proof of truly exceptional circumstances, together with proof on a balance of probabilities that the applicant will suffer irreparable harm if execution is not ordered and that the respondent will not suffer irreparable harm if execution is ordered.

The judgment reflected the principle that, in assessing exceptional circumstances under section 18, the enquiry is fact-specific and may include consideration of prospects of success on appeal (while recognising that the court hearing the section 18 application is not bound by the prior court’s view on prospects). It further applied the statutory insistence on proof of harm that will occur, not merely harm that might occur, and treated the failure to negate irreparable harm to the respondent as fatal to section 18 relief.

In the Hague Convention context, the judgment applied the understanding (derived from Constitutional Court authority) that, while the Convention is constitutionally valid and directed at protecting children’s longer-term interests through prompt return to the habitual residence, a court may still be required to consider whether immediate steps taken in related interlocutory relief may negatively impact a child’s short-term best interests, particularly where the child faces disruptive cross-border movement pending the finalisation of appellate processes.

Ad Hoc Central Authority of the Republic for South Africa and Another v Koch N.O and Another (2821/2021) [2021] ZAWCHC 53 (1 March 2021)