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[2011] ZAGPJHC 166
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B and Others v G (2009/34223) [2011] ZAGPJHC 166; 2012 (2) SA 329 (GSJ) (21 October 2011)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case No. 2009/34223
DATE: 21/10/2011
In the matter between:
MR.
B
….............................................................................................................
First
Applicant
ESSEX
COUNTY
COUNCIL
......................................................................
Second
Applicant
CENTRAL
AUTHORITY FOR THE REPUBLIC OF SOUTH AFRICA
…...
Third
Applicant
and
MS.
G
….........................................................................................................
Respondent
JUDGMENT
MEYER, J
[1] This is a case under the
Hague Convention on the Civil Aspects of International Child
Abduction 1980 (the Hague Convention).
The provisions of the Hague
Convention are, in terms of s 275 of the Children’s Act 38 of
2005 (the Children’s Act),
law in this country, subject to the
provisions of the Children’s Act.
[2] The first applicant is the
mother and the respondent the father of a minor child who was born on
12 May 2006 in the United Kingdom
and who Satchwell J, on 16 July
2010, held to have been wrongfully removed by the respondent from the
jurisdiction of the Chelmsford
County Court in the United Kingdom on
or about 14 February 2009 when she was brought to this country.
Satchwell J granted an order
for the immediate return of the child to
the United Kingdom under Article 12 of the Hague Convention. The
court order also reads:
‘
If counsel are
unable to agree (within 10 days of the date of handing down of this
order (16
th
July 2010)) on the form of the order to give effect to that immediate
return, and I very much hope they will be able to agree,
then the
court will receive further submissions (preferably in writing) to be
received on or before 6
August
2010 so that the court can rule thereon without the expense of
further oral hearing.
This part of the order is
clearly aimed at providing for the imposition of conditions designed
to mitigate the
interim
prejudice to the child caused by the court ordered return.
[3] In delivering the leading
judgment in
Sonderup
v Tondelli and Another
2001
(1) SA 1171
(CC), par [35], Goldstone, J said:
‘
A South African
court seized with an application under the Convention is obliged to
place in the balance the desirability, in the
interests of the child,
of the appropriate court retaining its jurisdiction, on the one hand,
and the likelihood of undermining
the best interests of the child by
ordering her or his return to the jurisdiction of that court. As
appears below, the court
ordering the return of a child under the
Convention would be able to impose substantial conditions designed to
mitigate the interim
prejudice to such child caused by a court
ordered return. The ameliorative effect of art 13, an appropriate
application of the
Convention by the court, and the ability to shape
a protective order, ensure a limitation that is narrowly tailored to
achieve
the important purposes of the Convention. It goes no further
than is necessary to achieve this objective, and the means employed
by the Convention are proportional to the ends it seeks to attain.’
[4] In delivering the leading
judgment in the Supreme Court of Canada in
Thompson
v Thompson
FN (57)
[1994] 3 SCR 551
at 599, La Forest, J said:
‘
Given the
preamble’s statement that ‘the interests of children are
of paramount importance’, courts of other jurisdictions
have
deemed themselves entitled to require undertakings of the requesting
party provided that such undertakings are made within
the spirit of
the Convention: see Re L [(Child Abduction) (Psychological Harm)
[1993] 2 FLR 401
; C v C [(Minor: Abduction: Rights of Custody Abroad)
[1989] 1 WLR 654
; P v P (Minors) (Child Abduction)
[1992] 1 FLR
155
; and Re A (A Minor) (Abduction)
[1988] 1 FLR 365.
Through the
use of undertakings, the requirement in Article 12 of the Convention
that ‘the authority concerned shall order
the return of the
child forthwith’ can be complied with, the wrongful actions of
the removing party are not condoned, the
long-term best interests are
left for determination by the court of the child’s habitual
residence, and any short-term harm
to the child is ameliorated.’
[5] The parties in these
proceedings have not agreed on the form of the order to give effect
to the court ordered return of the
child to the United Kingdom, and
such is the relief that the applicants now seek.
[6] On 14 October 2010,
Satchwell, J granted the respondent leave to appeal to the Supreme
Court of Appeal. The Registrar of the
Supreme Court of Appeal, by
letter dated 28 March 2011, notified the parties that the appeal had
lapsed as a result of the respondent’s
failure to file the
required record of the proceedings. The respondent’s legal
representatives informed the applicants’
legal representatives
that the respondent nevertheless intended to pursue the appeal and
that the reason for the failure to have
lodged the record of the
proceedings with the Registrar of the Supreme Court was their
inability to obtain the complete transcript
of the proceedings from
the officially appointed transcribers. Details of the endeavours
made to obtain a transcript of the proceedings
are set out in the
answering affidavit in these proceedings.
[7] I interpolate by first
referring to three matters, which are the enrolment of this matter in
the urgent motion court, the appointment
of a legal representative
for the child, and the extraordinary delay in the finalisation of the
Hague Convention proceedings in
this instance.
[8] The present application
was issued as an urgent one on 22 September 2011 and it was enrolled
in the urgent motion court before
me on Tuesday, 27 September 2011.
The only grounds of urgency are stated in paragraph 29 of the
founding affidavit, which reads:
‘
Urgency
I respectfully submit
that the matter is to be heard as urgent by virtue of a directive of
the Deputy Judge President, South Gauteng
dated 23 March 2009,
paragraph 8, a copy of which is attached as annexure ‘FP14’.’
[9] The relevant paragraph of
the practice directive on which the applicants relied provides that
‘[a]s a matter of cause
matters under the Hague Convention are
to be dealt with as urgent in nature.’ This is undeniably
correct. However, in order
to facilitate that Hague Convention
matters are dealt with expeditiously, the relevant practice directive
provides a specific ‘route’
which such a matter should
follow after its issue. It requires that:
‘
The court file
is to be taken to the Deputy Judge President, who is to allocate a
judge to case manage the matter and ultimately
hear it when it is
ripe for hearing, irrespective of the court in which that judge is
doing duty when the matter becomes ripe for
hearing.’
[10] Practitioners should know
that Hague Convention matters should accordingly not ordinarily be
enrolled in the urgent court.
The file in this matter ought to have
been taken to the Deputy Judge President for its special allocation
to a judge. This matter
was also not ripe for hearing when it was
called in the urgent motion court. The respondent had had
insufficient time to file
an answering affidavit.
[11] On 4 October 2011, the
matter was allocated to me by the office of the Deputy Judge
President. I understood from counsel that
Satchwell J was unable to
hear further argument and I know that she is presently abroad. The
child was not legally represented.
S 279 of the Children’s Act
reads:
‘
A legal
representative must represent the child, subject to section 55, in
all applications in terms of the Hague Convention on
International
Child Abductions.’
[12] The submission by CJ
Davel and AM Skelton:
Commentary
on the Children’s Act
,
at p 17 – 21, that ‘…in cases where very young
children are involved, the role of the legal representative
would be
more akin to that of a
curator
ad litem
,
while with older children, the legal representative would take
instructions from the child, act in accordance with those
instructions
and represent the views of the child’, is, in my
view correct. Both parents and the Central Authority agreed to the
appointment
of Mr. J.H. van Schalkwyk, who is a practicing attorney
at the Legal Aid of South Africa, Johannesburg. Mr. van Schalkwyk,
in
his role akin to that of a
curator
ad litem
due
to the young age of the child in this instance, prepared a written
report and he reported back to this court on Tuesday, 18
October
2011. He recommends
inter
alia
that
the minor child ‘…ought not to be relocated to her
father until such time as the appeal is finalised and the cloud
surrounding the allegations of molestation is clear.’
[13] There has been an
extraordinary delay in the finalisation of the Hague Convention
proceedings in this instance. The child
was brought to this country
on 16 March 2009, and the Hague Convention application for her
immediate return to the United Kingdom
was launched on 13 August
2009. It is now more than two years later. Kerby J, in
De
L v Director–General, NSW Department of Community Services
[1996] HCA 5
;
(1996) 187 CLR 640
made the following remarks, with which I agree, in
a matter where there was a delay of more than 18 months to complete a
Hague
Convention matter:
‘
No one could
contest the objective record of the substantial time which had passed
since the unilateral removal of the children
and the orders under
appeal. The assumption is that the return of a child to a foreign
jurisdiction, if concluded within a very
short time, will not
ordinarily cause irreparable harm to the child. The longer the
delay, the greater the potential for harm
to the child. Similarly
the longer the delay, the more likely is it that a counsellor’s
report or the impression of the
primary judge (even if directed to
the correct issue) would become invalid as a basis for decisions of
the judicial authority at
a later time. Amongst the many reasons
which explain the urgency reflected in the language of the Convention
and the Regulations
are:
[i] There is a need, by
prompt response, to deter those parents who might be tempted to take
the law into their own hands and to
bring home to those advising such
parents that, ordinarily, such conduct would not avail them.
[ii] There is also a
need to prevent an abducting parent from gaining the benefit of
delays by profiting from their wrongdoings
by invoking the legal
system of the country of resort. If such action were to succeed it
would undermine confidence in the Convention
and in the municipal
laws designed to give it effect.
[iii] A child removed
from one parent and taken to a country different from that in which
the child was habitually resident (Art
3) is then likely to be
subject to the concentrated influence of the custodial parents.
Unless firm steps are taken to ensure
the prompt implementation of
the Convention procedures, in a prolonged separation from a parent
his or her influence on the child
would have a tendency to wane.
Time would favour the abductor.
[iv] The parent
remaining in the place of the child’s habitual residence, from
which the child is taken, would ordinarily
be at a considerable
disadvantage in litigating a contested claim for custody and access
(or equivalent orders) in the courts of
another country rather than
those of the place of habitual residence. Few persons can readily
afford litigation in their own jurisdiction,
still less contemplate
the prospect of participating in courts (or administrative
authorities) far away, where the legal system
may be different, laws
and even language unfamiliar, costs substantial and facilities for
legal assistance difficult to obtain
or non-existent.
[vi] Time may also
affect the operation of the Convention or the Regulations. What may
have been no more than a “preference”
at the time of
abduction (as here, in February 1995) or at the time of the
preparation of a counsellor’s report (as here,
in October 1995)
or even at the time of the trial before the primary judge (as here,
in November 1995) may have matured into an
objection twelve or
eighteen months later (by the time of final appellate review). This
might be so by reason of nothing more
than the passage of time, the
advancing age of the child or children concerned and the
establishment, during critical childhood
years, of bonding with a
custodial parent, that parent’s family, school friends,
teachers and others. Particularly as the
child approaches the age of
16 years, the longer the interval of time between abduction and
decision, the more likely is it that
the child will have “attained
an age and degree of maturity at which it is appropriate to take
account of its views”.’
[14] A considerable part of
the delay in finalising this matter is attributable to the inability
of the respondent or her attorneys
to have obtained a transcript of
the proceedings before Satchwell, J earlier on. I was informed by
the respondent’s counsel
that a transcript of such proceedings
had finally been obtained on Thursday, 6 October 2011. Insofar as
parts of the recorded
proceedings ought to be included in the record
of the proceedings to be lodged with the Registrar of the Supreme
Court of Appeal,
no attempts have been made to reconstruct the record
and to reach agreement thereon. The rest of the record is in the
form of
an application and the judgment of Satchwell, J, is a written
one that she handed down. I afforded the respondent the opportunity
to have her application for condonation and the reinstatement of her
appeal as well as the record of the proceedings duly lodged
with the
Registrar of the Supreme Court of Appeal and served upon the
applicants’ attorneys of record before 20 October 2011.
[15] I consider it appropriate
to suspend the present proceedings pending the determination by the
Supreme Court of Appeal of the
respondent’s application for
condonation and the reinstatement of her appeal. Satchwell J, in
granting leave to appeal against
the whole of her judgment on 14
October 2010, must have concluded that the respondent has a
reasonable prospect of success on appeal.
I also accept that the
respondent’s application for condonation and the reinstatement
of her appeal will be finalised expeditiously.
To stay the present
proceedings will, in my view, mitigate the short-term disruption and
other potential prejudice which the child
may suffer should she
forthwith be returned to the United Kingdom before a decision is
taken on her mother’s application
to the Supreme Court of
Appeal. The child, according to her
curator
ad litem
, is
very settled in her present environment.
[16] I accordingly make the
following order:
The determination of the minor
child’s conditions of return to the United Kingdom in order to
give effect to her court ordered
return is suspended pending the
determination of the respondent’s application for condonation
and reinstament of her appeal
by the Supreme Court of Appeal.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
21
October 2011
Dates of hearing: 27
September 2011, 4 October 2011, 11 October 2011, 18 October 2011, and
21 October 2011.
Date
of judgment: 21 October 2011
Counsel
for the 1
st
and 3
rd
applicants: Adv. C.S. Baloyi
Counsel
for the respondent: Adv. A. Willcock
Counsel
for the minor child: Mr. J. van Schalkwyk
Attorneys for the 1
st
and 3
rd
the applicants: The State Attorney Johannesburg
10
th
floor
North State Building
95 Market Street
Cnr Kruis
Johannesburg
2000
Ref: 1505/09/p12
Attorneys for the
Respondent: Schumann Van Den Heever & Slabbert
32 Kempton Road,
Kempton Park
Ref: J Supra / CE /
GRE77/0001
c/o MM Garber
Star Court, 298 Jules
Street
Jeppestown,
Johannesburg
Attorneys
for the minor child: Legal Aid South Africa
41
Fox Street
Ground
Floor, Edura Building
Johannesburg