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[2011] ZAGPJHC 191
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Central Authority for the Republic of South Africa and Another v B (2011/21074) [2011] ZAGPJHC 191; 2012 (2) SA 296 (GSJ); [2012] 3 All SA 95 (GSJ) (7 December 2011)
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REPORTABLE
SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
Case No. 2011/21074
DATE:07/12/201
In the matter between:
THE CENTRAL AUTHORITY
FOR
THE REPUBLIC OF SOUTH
AFRICA
.....................................
First
Applicant
J
-.......................................................................................................
Second
Applicant
and
B
........................................................................................................
Respondent
JUDGMENT
MEYER, J
[1] In
these proceedings under the Convention on the Civil Aspects of
International Child Abduction 1980 (the
Hague Convention) as
presently incorporated into South African Law by s 275 of the
Children’s Act 38 of 2005 (the Children’s
Act), the
mother (second applicant) seeks the immediate return to Australia of
her son (K), who was born on 20 October 1998 and
is thus now thirteen
years old and presently residing with his father (the respondent) in
Johannesburg.
[2] The
provisions of the Hague Convention are, in terms of s 275 of the
Children’s Act, subject to those
of the Children’s Act. A
legal representative must, in terms of s 279 of the Children’s
Act, represent the child involved
in all applications in terms of the
Hague Convention. I have in the as yet unreported judgment of
B &
Ors. v G
(SGHCJ (Case No. 2009/34223)) accepted the correctness
of 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.’ K was
represented before me by Mr HD Baer, who I, by agreement amongst all
the parties
concerned, appointed
amicus curiae
. K objects to
being returned to his mother in Australia.
[3] The
second applicant is an Australian citizen and the respondent has dual
Australian and South African citizenship.
They were married in
Australia on 8 February 1997. Their son, K, was born on 20 October
1998. Their marriage failed. A settlement
agreement concluded between
them - in terms whereof it was
inter alia
agreed that K would
reside with the second applicant and that the respondent would have
reasonable rights of contact with him -
was made an order of the
Family Court of Australia at Sydney, on 14 December 1999. The
respondent enjoyed regular contact with
V while he was residing in
Australia. The respondent settled in South Africa around May 2004. He
thereafter regularly visited K
in Australia. K, accompanied by his
paternal grandmother, also travelled to South Africa on two previous
occasions to spend the
2006 and 2008 summer holidays with the
respondent. The second applicant again permitted K to travel to South
Africa on 29 November
2010. He was due to return to Australia on 24
January 2011. On 24 December 2010, she received a text message from K
informing her
that he wished to stay in South Africa. He did not
return to Australia on 24 January 2011, and he is still residing with
the respondent
in Johannesburg.
[4] The
respondent’s retention of K in South Africa is wrongful within
the meaning of art 3 of the Hague
Convention and I must order his
return to Australia pursuant to the provisions of art 12, unless the
respondent or K establishes
the defence raised, which is provided by
art 13. The defence raised in this instance that K objects to being
returned to his mother
in Australia, requires an interpretation of
art 13, which reads:
‘
Notwithstanding
the provisions of the preceding article, 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 –
(a)
the person, institution or other body
having the care of the person of the child was not actually
exercising the custody rights
at the time of removal or retention, or
had consented to or subsequently acquiesced in the removal or
retention; or there is a
grave risk that his or her return would
expose the child to physical or psychological harm or otherwise place
the child in an intolerable
situation.
The judicial or
administrative authority may also refuse to order the return of the
child if it finds that the child objects to
being returned and has
attained an age and degree of maturity at which it is appropriate to
take account of its views …’
[5] Ms
Mansingh, who appeared for the applicants, submitted that the part of
art 13 which relates to the child’s
objection to being returned
does not constitute a separate defence and that a court may only
refuse to order the return of the
child if it finds that the child
objects to being returned in circumstances where his or her return
would expose the child to physical
or psychological harm or otherwise
place the child in an intolerable situation. I disagree. Even though
the part of art 13 which
relates to the child’s objection to
being returned is not separately numbered, it is separate from
paragraphs (a) and (b)
and constitutes a separate defence. I agree
with the following
dictum
of Balcombe LJ in
Re S (A Minor)
(Abduction: Custody Rights)
[1993] Fam 242
at p 250, sub nom
S
v S (Child Abduction) (Child’s Views)
[1992] 2 FLR 492
, at
p 499:
‘
It
will be seen that the part of Art 13 which relates to the child’s
objections to being returned is completely separate from
para (b),
and we can see no reason to interpret this part of the Article, as we
were invited to do by [counsel], as importing a
requirement to
establish a grave risk that the return of the child would expose her
to psychological harm, or otherwise place her
in an intolerable
situation.’
[6] It
is clear from the words used that the exercise of a discretion arises
under art 13. It provides that notwithstanding
the provisions of art
12, which require in mandatory terms that the child wrongfully
abducted or retained be returned, the court
‘may also refuse to
order the return of the child’ if it is found that the stated
requirements have been met. Such
discretion is also fortified by the
provisions of art 18. It seems to me from my reading of many decided
cases of foreign jurisdictions
that it is generally accepted that an
exercise of a discretion arises under art 13.
[7] Ms
Mansingh submitted that, in the exercise of the discretion arising
under art 13, the court may not have
regard to welfare
considerations, but must only balance the nature and strength of the
child’s objections against the Hague
Convention considerations.
There is, in my view, no merit in counsel’s submission in this
regard. It is not consistent with
the obligation to treat as
paramount, in every decision affecting a child, the well-being or
best interests of that child - the
paramountcy principle - which is
enshrined in s 28(2) of our Constitution. Counsel’s submission
is also in conflict with
clear authority of the Constitutional Court.
In
Sonderup v Tondelli and Another
2001 (1) SA 1171
(CC),
paras [32] – [35], Goldstone J said this:
‘
[28]
The Convention itself envisages two different processes – the
evaluation of the best interests of children
in determining custody
matters, which primarily concerns long-term interests, and the
interplay of the long-term and short-term
best interests of children
in jurisdictional matters. …
[29] …
One can envisage cases where, notwithstanding that a child’s
long-term interests will be protected
by the custody procedures in
the country of that child’s habitual residence, the child’s
short-term interests may not
be met by immediate return. In such
cases, the Convention might require those short term best interests
to be overridden. ….
[32] …
the exemptions provided by arts 13 and 20 … cater for those
cases where the specific circumstances
might dictate that a child
should not be returned to the State of the child’s habitual
residence. They are intended to provide
exceptions, in extreme
circumstances, to protect the welfare of children. …
[33]
The nature and extent of the limitations are also mitigated by taking
into account s 28(2) of our Constitution
when applying art 13. The
paramountcy of the best interests of the child must inform our
understanding of the exemptions without
undermining the integrity of
the Convention. The absence of a provision such as s 28(2) of the
Constitution in other jurisdictions
might well require special care
to be taken in applying
dicta
of foreign courts where the
provisions of the Convention might have been applied in a narrow and
mechanical fashion.
[35] 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 pruposes 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.’
[8]
Courts of foreign jurisdictions have in many cases considered the
interpretation of art 13, and specifically
what factors are to be
taken into account in the exercise of a court’s discretion
under art 13 and the approach which a court
should adopt in weighing
the various factors. A concise and in my view accurate statement of
the considerations established by
the decided cases in England and in
Scotland is to be found in the following passage of the judgment in
Singh v Singh
1998 S.L.T. 1084
, which was delivered by Lord
Posser:
‘
A
detailed review of these cases does not seem to us to be necessary in
this case. It is clear that where there is an objection
to return, by
a child of sufficient age and maturity for his views to be taken into
account, these particular factors, of objection
and maturity, do not
merely open the door to an exercise of the court’s discretion,
but are themselves factors to be taken
into account in the exercise
of that discretion. Thus the court must put in the balance not merely
the fact of an objection, but
its nature and basis; and as well as
taking into account the views of the child, the court will give
greater or lesser weight to
these views, in accordance with the
child’s actual age and the degree or level of maturity which
the court considers it to
have. In addition to these factors, it is
clear that in exercising its discretion, the court must bear in mind
the general policy
of the Convention which, subject to exceptions
such as those permitted in terms of art 13, envisages and is designed
to achieve
the return, forthwith, of children wrongfully removed or
retained, to the state of their habitual residence. Orders for return
are not intended to be determinative of questions of custody or
access, or even return the child de facto into the care and control
of a parent resident in that state. But the general policy is to
return such children into the jurisdiction of that state, which
will
thus normally become the jurisdiction in which such questions as
custody and access will be determined. The discretion conferred
upon
the court by art 13, allowing it to refuse to order the return of the
child, thus permits a departure from what the policy
would normally
require. And one consequence of this may well be that issues of
custody and access will come to be determined not
in the state of
original habitual residence, but in the state where the child is
wrongfully retained (although issues of custody
and access are not
determined when the court exercises its discretion under art 13). The
general policy is nonetheless a factor
to which the court must have
regard when considering how to exercise its discretion; the policy is
an important one, and while
an exception is permissible in the
situation of objection by a sufficiently mature child, it must be
seen as an exception, only
to be allowed in situations which are
indeed exceptional. …
[I]t was clear from the
decided cases that the welfare of the child was a general factor
which the court should take into account
in exercising this
discretion above and beyond the factors already mentioned. Reference
was made to Re S (A Minor) (Abduction:
Custody Rights); Re R; Re A
(minors) (abduction: acquiescence) (No 2); Re M (A Minor) (Child
Abduction); Marshall v Marshall; and
Urness v Minto. It was not
suggested that in this case any issue of intolerability arose, as it
had in Urness. But in exercising
its discretion, the court must have
regard to the general welfare of the child not only in cases where
intolerability was in issue,
and cases where (as in Re R) there was
an issue as to acquiescence, but also in cases arising from the fact
of objection by a sufficiently
mature child. …
The child’s welfare
being a matter which must be taken into account, we do not think that
in principle any rule can be laid
down as to whether the court should
consider welfare “broadly” or in detail: that will be a
matter within the discretion
of the court concerned.’
[9] A
most helpful collection and discussion of some of the leading
decisions by the English and Scottish courts
appear in
M
2005
S.L.T. 2.
, paras [24] - [38]. In applying art 13, the court asked:
‘
1.
Does S object to being returned to Ireland? 2. Is S of an age and
maturity at which it is appropriate to take account of his
views? 3.
If the answers to 1 and 2 are in the affirmative, whether I should
exercise the discretion available to me and refuse
to order his
return? This involves considering questions of comity, convenience
and the general principle that it is in the best
interests of a child
that his welfare be determined by the court of his habitual
residence. A review of the authorities to which
I have referred,
other than W v W, indicates that this also involves me considering
why, if he does, S objects, the strength of
any such objection,
whether any objection is independent of the views of his mother,
whether he appreciates that the purpose of
the order for return to
which he objects would be to enable the court in Ireland to decide on
his future, and his welfare in the
immediate future.’
[10] This approach
to the application of art 13, in my view, accords with the obligation
of a South African court ‘…
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.’ See:
Sonderup
(supra)
.
[11] As regards the
first question, it is not disputed that K objects to being returned
to Australia. I return to his objections.
The second question whether
or not he is of an age and maturity at which it is appropriate to
take account of his views should
in my view also be answered in the
affirmative. Ms N Khanyile, who is a registered social worker and
appointed as a family counselor
at the Office of the Family Advocate,
was requested by the Family Advocate to assist in this matter. K, in
her assessment, is ‘…
at a stage of development where
his wishes need to be considered.’ K’s legal
representative, Mr Baer, informed this
court that K impressed him ‘…
as an intelligent young man, who understands the nature of the
present proceedings and
knows what he wants.’ At some stage
during argument of the matter before me, K instructed Mr Baer to
convey to me that if
I were to order his return to Australia in order
for an Australian court to decide the issue of his custody, he would
prefer to
reside with his paternal grandmother pending such
resolution of his future custody. I interpolate to add that I
observed K carefully
during the hearing, which lasted several hours.
He sat listening attentively throughout. My subsequent interview with
K in chambers
confirmed to me the recommendation of the family
counselor and the observations of K’s counsel, who is an
advocate of many
years’ standing and experienced in family
related matters. K turned 13 during October. He was nervous, but
confident, and
he addressed me appropriately. He is articulate. He
answered my questions appropriately and directly without touching on
unrelated
matter. When I required elucidation, he furnished it
without hesitation. His views are firm and cogent. He fully
appreciates that
the present proceedings are only jurisdictional in
nature. I have no hesitation in finding that he is of above average
intelligence,
despite his academic performance at school. It is, in
my view, not only appropriate to take K’s views and strength of
feelings
into account, but they should be given considerable weight.
[12] My findings on
the threshold requirements (see:
Zaffino v Zaffino (Abduction:
Children’s Views)
[2005] EWCA Civ 1012
, para [40],
necessitate that I consider the remaining questions. Before doing so,
I pause to deal with Ms Mansingh’s submission
on behalf of the
applicants that K’s views were the result of his father’s
influence. There is ample and persuasive
authority from foreign
jurisdictions, which I unhesitatingly endorse, that if the court
should come to the conclusion that the
child’s view has been
influenced by the abducting or retaining parent, or that he objects
to return is because of a wish
to remain with the abducting or
retaining parent, then it is probable that little or no weight will
be given to those views. One
example is
Re K (Abduction: Child’s
Objections)
(FD) [1995] 1 FLR, at p 944 F – H.
[13] The second
applicant infers that K’s objection to returning to Australia
has been influenced by the respondent.
This is denied by the
respondent. Ms Mansingh submitted that the content of an e-mail that
a former girlfriend of the respondent
had sent to the second
applicant in which allegations of undue influence and of manipulative
conduct on the part of the respondent
are made, confirms the
applicant’s suspicion of undue influence. The respondent agreed
to the admission of the e-mail into
evidence. No weight should,
however, in my view be given to the content of this e-mail. The
author thereof refused to depose to
an affidavit. She and the
respondent were involved in what appears to have been a stormy
relationship that ultimately ended and
their present relationship
seems to be very acrimonious.
[14] Mr Baer
conveyed to me his instruction from K that he had planned not to
return to his mother and to remain with his
father once he arrived in
South Africa before he had left Australia at the end of November
2010. K also informed me during my interview
with him that while he
resided in Australia he had over time resolved to reside with his
father once he became older and that his
ultimate decision to reside
with his father and not to return to Australia had been taken before
he had left Australia at the end
of November 2010. The veracity of
K’s version on this aspect cannot, on the totality of the
evidence before me, be rejected.
[15] K has
maintained his objection to returning throughout this year. He raised
his objection to his parents, to the family
counselor, to his counsel
and ultimately to me during my interview with him in chambers. His
reasons are consistent and of substance.
He was unhappy at home and
at school in Australia. His home environment was not harmonious and
home cooked meals were, according
to him, the exception. The family
counselor summed it up as follows:
‘
It
emerged during the interview that K loves both his parents very much
and is missing his mother in Australia. However, he expressed
his
unhappiness about the kind of life that he and his mother were
leading in Australia and does not want to live in that environment
again. He threatened to run away if he is forced to return to
Australia.’
K informed me that his
adjustment to the South African school which he currently attends had
initially been difficult. He had to
adjust to a more disciplined
school environment and to a higher academic standard to what he had
been used to in the past. He persevered
and is now fully settled at
school and he enjoys a wide circle of friends, which he did not have
in Australia. He received extra
tutoring in mathematics and in
Afrikaans throughout this year and he has improved academically. He
also received extra English
tutoring during the first term of this
year. He actively participates in sport, namely cricket, soccer, and
rugby, which, apart
from playing rugby only when it took place at the
school which he attended in Australia, he was not able to do in the
past due
to his mother’s lack of involvement in his sporting
activities. He informed me that his mother did not participate in
activities
with him and had not taken him on holiday. He formed a
very close bond with his father, who often visited him in Australia
in the
past, and who presently assists him with his school work,
supports him in his sporting activities, and actively participates
with
him in various outdoor activities, such as jet-skiing, hiking
and fishing. A two week holiday in Mozambique is planned for this
summer holiday and he will be accompanied by a friend from school
about which he is very excited. He and his father’s new
wife
enjoy a good relationship. The three of them have home-made meals
together every evening, unless they occasionally go out
for dinner. K
informed me that he now has ‘a stable family’ and that he
feels ‘secure’.
[16] The active
involvement and participation of the respondent in the life and
activities of his son do not amount to undue
influence of the child.
Such involvement and participation form part of parenthood. Such
involvement and participation might have
influenced K’s
objection, but cannot be said to have manipulated or unduly
influenced him.
[17] K has settled
well and to move him back to Australia now would be a disruption in
his life, physically and emotionally.
The assumption of the Hague
Convention 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.
Per
Kerby J, in
De L v
Director–General, NSW Department of Community Services
[1996] HCA 5
;
(1996) 187 CLR 640.
I also agree with the following
dictum
by
Wall J in
In re L (A Minor) (Abduction: Jurisdiction) (Fam D)
[2002] 1 WLR 3208
, para [65]:
‘
In
my judgment, although the Convention lays down a 12-month period
before which it can be said that a child is “settled in
its new
environment” under article 12, I am of the view that once the
door is open to discretion (as it is here) delay in
the resolution of
the proceedings is a factor which can properly be taken into account
in deciding whether or not a child should
be returned.’
[18] Hague
Convention matters in this Division are to be dealt with in
accordance with the relevant Practice Directive, which
facilitates
their expeditious finalisation by providing a specific ‘route’
that they should follow once an application
is issued. It requires
that the court file be taken to the Deputy Judge President, who will
then allocate a judge to case manage
the matter and ultimately hear
it when it is ripe for hearing. The case management in this instance
seems to have been assumed
by the functionary who had been designated
to discharge the duties imposed by the Convention.
[19] I deal briefly
with the background chronology. The request from the Australia was
signed on 3 February 2011, and received
by the Central Authority for
the Republic of South Africa on 22 March 2011. Mediation took place
on 20 April 2011. The present
application was launched on 2 June
2011. The answering affidavit was filed on 30 June 2011. The Family
Counselor’s report
became available on 11 July 2011. The
replying affidavit was filed on 31 August 2011. The matter was
brought before this court
on 4 October 2011. Because K was not
legally represented, Mr Baer was appointed
amicus curiae
. The
hearing was postponed to 10 October 2011, which was a few weeks
before K’s final school examination for this year. His
immediate return to Australia at that stage before he had written his
final examinations would have seriously compromised his best
interests, especially after he had worked so hard at school this
year. I was informed by counsel that the school year of Australian
schools coincides with that of South African schools. There was
accordingly no urgency for an immediate judgment in this matter
and
it was reserved. An interlocutory application was thereafter launched
on behalf of the applicants for the handing down of judgment
to be
stayed pending the finalisation of that application and for the
admission of further evidence in the form of the e-mail to
which I
have made reference earlier on in this judgment. Answering and
replying affidavits were filed and this application was
heard on 5
December 2011. There was evidently an extraordinary delay in bringing
this matter before this court on 4 October 2011.
I echo the warning
expressed by Wall J in
In re L (supra)
‘… that
delay in Hague Convention cases would not be tolerated.’
[20] A balancing of
all the relevant considerations leads me to conclude that this is a
matter in which the child’s
objection should prevail. I
consider it appropriate for each party to pay his or her own costs.
Compare:
Central Authority v B
[2008] ZAGPHC 261
;
2009 (1) SA 624
(W), para [13].
[21] In the result
I make the following order:
1.
The application for the return of the child
to the jurisdiction of the Central Authority of Australia is
dismissed.
No order as to costs is
made.
P.A. MEYER
JUDGE OF THE HIGH COURT
7 December 2011