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[2014] ZAGPJHC 373
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Central Authority for the Republic of South Africa v K (2013/47006) [2014] ZAGPJHC 373; 2015 (5) SA 408 (GJ) (4 December 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/47006
DATE:
4 DECEMBER 2014
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
THE
CENTRAL AUTHORITY FOR THE
REPUBLIC
OF SOUTH AFRICA
…
....................................................................................
Applicant
And
K,
T[…]
…
...............................................................................................................................
Respondent
JUDGMENT
SPILG,
J:
3
December 2014
THE
APPLICATION
1.
In December 2013 the Central Authority for the Republic of South
Africa brought an application under Article 12 of the Hague
Convention on Civil Aspects of International Child Abduction
(1980) (‘
the Convention’
) for the return of the
minor child born to the respondent and her husband. The applicant
alleges that the respondent abducted their
son from their residence
in the United Kingdom and removed him to South Africa where they had
previously lived.
2.
The Convention was incorporated into our domestic law through the
Hague Convention on the Civil Aspects of International Child
Abduction Act 72 of 1996
(‘the Act’
). Section 3 of
the Act empowers the applicant to bring the application, albeit that
the father was not joined as a party in the
proceedings. He did not
file a confirmatory affidavit to the founding papers and no
explanation has been tendered for the omission
(compare
Central
Authority v H
2008 (1) SA 49
(SCA) at para 12).
3.
It is however
evident that the application was brought at the instance of the
applicant’s counterpart in England and Wales
which sought
assistance from our authority after the father had submitted a
standard ICACU
[1]
application
form. The form was attached to the founding affidavit. Moreover the
failure to file a verifying affidavit was cured
in part when the
father subsequently filed his affidavits. The failure to either join
the father or obtain his supporting affidavit
when the application
was brought appears to be attributed to the late launching of the
application.
4.
The respondent filed an answering affidavit which was replied to in
early May 2014. The application then stalled. The applicant
explained
that the difficulties encountered were trying to set the case down on
the urgent roll and the need to appoint a curator
ad litem
for
the child. This court was then allocated to case manage the matter.
On
10 June 2014 and pursuant to agreement reached in chambers a
directive was issued facilitating the urgent appointment of a
mutually
acceptable curator. After obtaining consensus, directives
were also issued with regard to the date by when the curator’s
report would be filed, the date for filing heads of argument and the
date of hearing.
5.
The court order appointing
Advocate
Mbathe
as curator
for the child required that she conduct a thorough investigation,
prepare and file a report on her findings and represent
the interests
of the child in the proceedings.
This
was in line with section 279
[2]
of the
Children's Act 38 of 2005
which requires the appointment of a
legal representative for the child in order to protect the minor’s
interests. In this
regard I respectfully refer to the decision of my
brother Meyer J in
B
and others v G
2012
(2) SA 329
(GSJ) at para [12] which endorsed the view of CJ Davel &
AM Skelton in
Commentary
on the
Children's Act
(at
17 to 21) that where the child is very young the function of the
legal representative approximates that of a
curator
ad litem
.
6.
Section 275
of the
Children’s Act
[3]
provides that while the Convention is recognised as part of our
domestic law, its provisions remain subject to the Children’s
Act. In terms of
section 278(3)
[4]
the court, when considering a Hague Convention application, must
afford the affected child an opportunity to object and, having
regard
to the child’s age and maturity, give due weight to any such
objection. See generally Fabricius J in
Central
Authority v MV (LS intervening)
2011
(2) SA 428
(GNP) at para [13].
It
is therefore evident that certain cases on the application of the
Hague Convention which preceded the implementation of the Children’s
Act on 1 April 2010 may now have to be qualified.
7.
Ms Mbathe’s report prompted the respondent to file a
supplementary affidavit.
At
this stage the court expresses its gratitude to Ms Mbatha for the
thorough report she provided. It has been of great assistance.
THE
ISSUES
8.
The applicant contends that prior to the abduction their child had
habitually resided in the United Kingdom. It was submitted
that in
terms of Article 12 of the Convention this court was obliged to order
the boy’s immediate return as proceedings were
commenced less
than a year since he was abducted.
Ms
Mofokeng
on behalf of the applicant also challenged the
respondent’s entitlement to rely on the safe harbour defences
contained in
Article 13.
9.
The defences relied on are that;
a.
the child has now settled in his new environment. However this is not
an Article 13 defence but a proviso to Article 12 which
is limited to
instances where Convention proceedings are commenced more than a year
after the child was removed. It therefore cannot
assist the
respondent.
b.
The child would be placed in an intolerable situation if ordered to
return. This defence is provided for in Article 13(b).
The
respondent also relies on the more circumscribed defences of physical
or psychological harm under the same sub-article;
I
should add that the respondent initially relied on consent or
acquiescence under Article 13(a). This was not persisted with-
correctly so in my view.
10.
During argument two further issues arose.
The
first was the applicant’s submission that this court could
impose terms on the father that would require him to provide
maintenance and suitable accommodation for the child and the mother
in the United Kingdom if return was ordered.
The
other concerned the question of “
habitual residence
”.
It arose because of the court’s concern that the respondent may
not have formed a fixed intention to set up a new
life with her
husband in the United Kingdom because of the state of their marriage.
The
parties were afforded an opportunity to file additional heads of
argument.
11.
In summary the issues can be reduced to;
a.
whether the child was habitually resident in the United Kingdom at
the time of the abduction;
b.
if so, would he be placed in an intolerable situation as contemplated
in Article 13(b) if ordered to return whether by reason
of possible
physical or psychological harm or otherwise;
c.
if he would be placed in such a position then should this court
fashion an order directing the father, who is now domiciled and
resident in the United Kingdom, to provide the child and the
respondent with accommodation and maintenance while in the UK pending
the outcome of a custody hearing and would such an order be effective
in that country.
ARICLES
3, 12 AND 13 OF THE HAGUE CONVENTION
12.
Article 3 is the enabling provision which establishes wrongfulness.
Once its requirements are met then Article 12 of the Convention
requires this court to order the return of the child if its
preconditions are met and provided none of the safe harbour defences
circumscribed in Article 13 applies and Article 20 does not apply.
The provisions read;
Article
3:
The
removal or the retention of a child is to be considered wrongful
where-
(a)
it is in breach of rights of custody attributed to a person, an
institution or any other body, either jointly or alone, under
the law
of the State in which the child was habitually resident immediately
before the removal or retention; and
(b)
at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for the removal or retention. The rights of custody mentioned in
subparagraph (a) above, may arise in particular by operation
of law
or by reason of a judicial or administrative decision, or by reason
of an agreement having legal effect under the law of
that State.
Article
12:
Where
a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings
before the
judicial or administrative authority of the Contracting State where
the child is, a period of less than one year has
elapsed from the
date of the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
. . .
Article
13 which qualifies Article 12 provides;
'
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
b
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.
In
considering the circumstances referred to in this article, the
judicial and administrative authorities shall take into account
the
information relating to the social background of the child provided
by the Central Authority or other competent authority of
the child's
habitual residence.'
Sonderup
v Tondelli and another
2001 (1) SA 1171
(CC) at para [12]
identified Article 20 as a further ground under the Convention for
refusing the return of the child. It provides;
'The
return of the child under the provisions of art 12 may be refused if
this would not be permitted by the fundamental principles
of the
requested State relating to the protection of human rights and
fundamental freedoms.
'
13.
It appears unnecessary to contextualise the Hague Convention within
the framework of our domestic law and in particular our
Constitution.
These have been considered extensively in leading cases from
Sonderup
in the Constitutional Court and in the SCA from
Pennello
v Pennello (Chief Family Advocate as Amicus Curiae)
2004 (3) SA
117
(SCA) to more recent cases such as
Central Authority v H
2008 (1) SA 49
(SCA) and
KG v CB and Others
2012 (4) SA 136
(SCA). The broad general principles are now firmly established. and
essentially are;
a.
as a signatory to the Convention we subscribe to the principle that
it is necessary “
to protect children from the harmful
effects of their wrongful removal or retention and to ensure their
prompt return to the state
of their habitual residence”
(see
Sonderup
at para 10);
b.
the underlying rationale is directed at protecting the best interests
of the child and to act as a deterrent.
The
expeditious return of the child minimises the harm he or she may be
expected to suffer as a consequence of being uprooted from
a familiar
environment. Furthermore the court where the child was actually
living at the time of removal is generally best suited
to entertain a
custody dispute and receive evidence in an efficient and cost
effective manner
[5]
. Imposing an
obligation on the relevant judicial or administrative authority to
act promptly in securing the child’s return
may also act as a
deterrent
[6]
.
c.
the objective is not
to force the returned child to submit to the primary residence of the
resident parent. It is to ensure that
the child returns to the
jurisdiction of his or her habitual residence pending the outcome of
a custody hearing
[7]
(assuming
the marriage relationship has irretrievably broken down by this
stage). In
KG
v CB
the
Supreme Court of Appeal (‘
SCA’
)
ordered the return of the child to the jurisdiction of the English
courts but not to the father’s house; the order envisaged
that
the minor would reside with her mother in England and that the father
would be obliged to pay for their accommodation and
maintenance. This
was also the case in
Sonderup
(see
para 56, orders B3(2) and (3)).
d.
“
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. The Convention
clearly recognises and safeguards the paramountcy of the best
interests of children in resolving custody matters. It is so recorded
in the preamble which affirms that the State parties who are
signatories to it, and by implication those who subsequently ratify
it, are '(f)irmly convinced that the interests of children
are of
paramount importance in matters relating to their custody'”.
(
Sonderup
at para 30)
e.
The manner in which the courts are to apply the Convention within
our constitutional framework is described as follows
by
Goldstone J in
Sonderup
at para 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
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.”
The
present case concerns the application of these principles to the
given facts and the factors that should be taken into account
when
determining habitual residence where the family had only recently
immigrated to the United Kingdom.
FACTS
RELEVANT TO THE CHILD’S RESIDENCE
14.
Mr and Mrs K first met in 1998 and towards the end of 2000 they
acquired a townhouse in Northriding. They subsequently married
in
February 2004. They both were domiciled in South Africa and, from at
least the time they had met, had been living in Johannesburg.
15.
The child was born in 2006 and will be eight years old this month.
16.
At the time of the child’s birth his father was facing a
disciplinary hearing on charges relating to insubordination.
Mr K
resigned before the tribunal made its findings known. However in
February 2007 Mr K purchased a franchised restaurant. By
2008 he had
incurred substantial debts and was forced to close the restaurant
doors. He then looking for work in the security industry
but with
little success. Mr K’s creditors were pressurising him. He owed
them in the region of R1.5 million and possibly
as much as R2
million. The family was now living with Mr K’s parents, who
appeared to be dependent on Mr K and the respondent.
It was at this
stage that Mr K decided to leave South Africa for the UK. By this
time the marriage was already experiencing difficulties.
17.
Mrs K in her answering affidavit states that Mr K “
indicated
that the primary reason for moving was to avoid having to pay his
creditors and get back on our feet financially”
She
continued: “
I was absolutely distraught as I did not want to
leave my family in Johannesburg and my support structure. I was
opposed to the
move as we were moving to a country without any
stability, no family, no home and no money”
Mr K
vigorously disputes these allegations.
18.
In May 2009 Mr K left for the United Kingdom to obtain employment and
set up a home. The child was two and a half years old.
19.
Mr K secured employment and the child and Mrs K then joined him
during September 2009. The respondent claims that she was extremely
reluctant to leave South Africa but her husband assured her that it
would be a new life and that he would try and be a good father
and
husband. Mr K in a replying affidavit claimed that the decision to
relocate to the UK was mutual.
20.
They moved into a small ground floor apartment in Oxfordshire. At the
end of 2010 Mr K resigned from his employment but had
not secured
work elsewhere. Mrs K had been able to secure
ad hoc
employment,
the income from which effectively only covered the child’s day
care costs. By this time the respondent and the
child were fearful of
Mr K’s reactions while Mr K grew more distant from both of
them. Mrs K was also fearful of his abusive
behavior towards both the
child and herself. He was also demonstrating aggressive behavior
towards the child.
21.
Mrs K’s parents who are South African citizens purchased return
airline tickets for her and the child to come out on holiday.
It is
common cause that at this stage Mrs K was desperately unhappy both
with the move to the United Kingdom and with her marriage.
Although
disputed, she was also concerned about her husband’s behavior
towards their son. She had told her husband that she
was unhappy
living in England. This was after he had intercepted an email she had
written to her sister stating that she wished
to return to South
Africa.
22.
Mrs K reluctantly returned to the UK with the child after her husband
had issued a threat regarding the consequences to her
family if she
did not do so. On her return, which was at the beginning of 2011, the
family moved to Windsor where Mr K had found
employment. They rented
a second floor flat which had no garden access.
23.
They continued to live in Windsor and by March 2012 Mrs K was able to
obtain permanent employment as a graphic designer. She
was however
obliged to work long hours resulting in her only arriving home at
about 18h30.
24.
It is evident that there was no longer any love between Mr and Mrs K.
Moreover, according to the respondent, not only was her
husband
becoming more distant and emotionally unstable but was actually
manhandling their son and humiliating him.
25.
At the end of September 2013 the respondent discovered that her
husband had again lost his job. By this stage he had worked
for six
different employers while in the UK. The loss of his employment
together with the verbal, emotional and psychological
abuse and her
fear of physical violence either towards the child or her culminated
in her deciding to leave the UK with the child.
Mrs K feared for her
and the child’s safety and security as she believed that her
husband posed a danger to them.
26.
It is common cause that their relationship had ended and she claims
that she was fearful of his reaction towards them if she
told him
that she was leaving with their child. She arrived in South Africa on
10 October 2013. At this stage the child was two
months shy of his
seventh birthday. He was seven and a half years old when I heard this
matter.
27.
In the ICACU application form which was completed on 14 October 2013
Mr K provided his contact address as Church Crookham, Hampshire
and
disclosed his occupation as that of a regional business development
manager
28.
It is apparent that:
a.
The child and his parents lived in South Africa from the time of his
birth in December 2006 until September 2009, at which time
he was not
yet three years of age. He grew up within an extended family which
included both sets of grandparents:
b.
For a year after that, until the end of 2010 when he turned four
years old, the child lived with his parents in Oxfordshire.
He
attended a crèche. This period however is irrelevant if
consideration is given to actual locality of residence as opposed
to
country.; a distinction which in my view is significant where
there has been a change of national residence:
c.
For almost three years until the abduction they lived in Windsor and,
it appears, also in Hampshire. The child made friends and
attended
school. However Mr K again lost his job.
29.
Although an
application brought under the Convention is decided generally on
paper it is accepted that the applicant bears the onus
to show that
the child was habitually resident in the country from which he or she
was removed. The onus then shifts to the respondent
to demonstrate
one of the Article 13 defences
[8]
.
30.
In my view the applicant has failed to satisfy the court that the
family’s emigration was not involuntary and was not
in order to
evade Mr K’s creditors. The evidence is that Mr K saw no
future in South Africa. By contrast the
respondent joined
him in an attempt to make the marriage work as it was already
falling apart. However it is
evident that she went to the UK with the
child reluctantly and based on the condition that she would try and
make their marriage
work. This was in September 2009. Just over a
year later she still had not formed an intention to live in the UK.
On the contrary,
by the end of 2010, she had resolved to come back to
South Africa with the child. She only returned to her husband under
duress.
31.
In my view the child’s parents did not share a
mutual
intention to change their South African domicile or residence to the
UK. The mother’s position was always conditional.
32.
Insofar as the child’s residence is concerned; he had lived
with his parents in Windsor from 2011and his school reports
reflect
that he was enrolled at the Fleet Infant School, Hampshire from June
2011 to the end of May 2013. The father provided his
residential
address as Church Crookham, Hampshire. It therefore appears that
between 2011 and October 2013 the family had again
moved, although
the distance may not have been far.
33.
It is necessary to determine the meaning to be ascribed to the phrase
‘
Sytae in which the child was habitually resident’
for the purpose of Article 3 of the Convention.
HABITUAL
RESIDENCE OF THE CHILD UNDER THE CONVENTION
34.
The term which I
will reduce to ‘
child’s
habitual residence’
is
not defined. More importantly the Convention does not umbilically
link the child’s residence to that of the father or custodial
parent. This is a significant departure from the ordinary rules of
domicile which direct that a married woman cannot ordinarily
acquire
a separate domicile to that of her husband, even if they are living
apart
[9]
. A further
consequence of applying the principles of domicile of dependency is
that while the parents are married their minor
child ordinarily takes
on the father’s domicile.
35.
These general principles regarding the wife’s and minor’s
domicile are not founded on the same considerations. The
former is
justified on the basis of maintaining family unity and avoiding what
is perceived to be an “
intolerable situation”
that
would arise with split domiciles because of the mutual rights and
obligations existing between husband and wife (Kahn at 72
and 85).
36.
The principle is more relaxed in relation to minors. In particular
Kahn cites the case of
Hull v McMaster
(1866) 5 Searle 220
at
225 to 226 where Cloete J considered that in cases of a change of the
father’s domicile the primary rule that the minor’s
domicile will automatically change “
only applies wherever
the interests of these minors are not affected or prejudiced by such
a change of domicile”.
37.
It appears that the choice of phrase adopted in the Convention, when
regard is had to its main objects as set out earlier, is
intended to
direct a factual enquiry into where the child was actually and mainly
living for a reasonable period prior to the abduction.
38.
The enquiry under
the Convention is therefore shorn of the archaism on which the
domicile of dependency is based. In this regard
it is apposite to
refer to Lord Denning’s statement as Master of the Rolls in
In
re P (GE) (An Infant)
[1965]
Ch 568
(CA) at 583 that:
The
tests of domicile are far too unsatisfactory. In order to find out a
person’s domicile you have to apply a lot of archaic
rules.
They ought to have been done away with long ago. But they will
survive. Particularly the rule that a wife takes the domicile
of her
husband. And the rule that a child takes the domicile of his
father”
[10]
.
It
is rather directed at ensuring that the court seized with the custody
hearing will be the one within whose jurisdiction the child
was
actually living for a sufficient time to have become acclimatised (to
the surroundings and those with whom he or she may interact)
and
gained both a sense of attachment and a belief that it would endure
with a relative degree of permanence. Here legal fictions
would only
serve to frustrate a fundamental objective of the Convention.
39.
I am of the view that the Convention means what it says when adopting
the concept the child’s habitual residence
.
It appears
to be a factual enquiry that might only yield to the intention of the
parents, considered individually, if an insufficient
period of time
has passed to find that the child has in fact settled into the
environment where he or she has been placed. This
may also apply to
infants and very young children who have not established
relationships with family and their own age group or
who have not yet
gained familiarity with their environment.
40.
I believe support for this approach, albeit not necessarily on
interpretational grounds, is found in a number of cases in the
United
States.
In
Feder v Evans-Feder
866 F Supp 860 (US Dist 1994) the Appeal
Court defined the habitual residence of the child to be;
‘
the
place where he or she from the point of view of the child has been
physically present for an amount of time sufficient for
acclimatization and which has a degree of settled purpose.’
[11]
In
the case of
Freidrich II
78 F 3d 1060
at 1402 the US Court of
Appeals stated that;
‘
habitual
residence can be ‘altered’ only by a change in geography
and the passage of time, not by changes in parental
affection and
responsibility’
[12]
41.
On the available evidence it appears that the child had integrated
into his Hampshire environment over the more than two years
he lived
there. The evidence is derived from the school reports mentioned
earlier. The important features of the reports are that
he had
integrated well with his peer group and had a number of close
friends. He appeared well adjusted and enjoyed the school
environment.
42.
Although a difficult set of facts has presented itself, in my view
the applicant demonstrated that for the purposes of the Convention
the child was habitually resident in the UK prior to the abduction,
since the child had established adequate roots within his environment
and significant relationships with his peers and others for a
sufficient period of time and he had no reason to believe that this
was to be transitory.
ARTICLE
13 (b) DEFENCE
43.
The respondent bears the onus of proving that the child would be
placed in an intolerable situation if returned to the UK, whether
by
reason of physical or psychological harm or as otherwise contemplated
under Article 13(b).
44.
The respondent has sought to demonstrate this by reference to past
conduct on the part of her husband which was directed particularly
at
their son.
45.
Mr K admitted to some of the incidents but explained them away on
occasion as a mistake or even negligence. The difficulty is
that a
profile has been built up in the papers of Mr K being aggressive,
prone to lose his temper with even strangers and that
the unfortunate
impact of the recession on his employment has from time to time
resulted in outbursts that he is unable to control.
This has included
physically manhandling, hitting and degrading the child.
Unfortunately he has also verbally abused the child
by humiliating
and belittling him. The reports of the occupational therapist and
educational psychologist reflect that these actions
not only affected
the child’s self-esteem but also alienated him from his father
to a significant degree.
46.
The applicant contends that an order returning the child to the UK
does not mean that the child has to reside with the father.
Assuming
that the court can fashion a suitable order it is nonetheless my view
that the tenuous nature of the parents residence
in the UK at the
time militates against such a course of action. This is not a case
where the one parent has absconded with the
child to an
unfamiliar country. Both were born in South Africa, the child in fact
lived in the grandparent’s
house before following Mr K to
England and they find a ready and familiar support base here .
47.
The respondent was also placed in an invidious position. Ordinarily
both parents have established ties to their place of residence,
which
normally would constitute the child’s habitual residence for
purposes of the Convention. At the best of times immigrating
to
another country is likely to be traumatic and it may take a number of
years before the family has settled to the point where
repatriating
is no longer a consideration.
48.
If the one party is in an abusive relationship, he or she would
simply leave and set up home elsewhere in the same city or country
amongst familiar friends and family.
However
where the victim of an abusive relationship has no family or friends
to turn to and no ties with the country at all
because it was
the partner’s wish to relocate, then one can more readily
understand why it would be very difficult
not to return to the
country of origin where all the support structures are present. In
the present case the respondent has been
staying with family who are
able to assist in caring for the child while she is at work,
something that was impossible to do in
the UK as there was no family
there and the respondent was extremely concerned about her husband’s
conduct to the child when
she was not present.
49.
While the fact that the respondent had no settled intention to change
her domicile unless the marriage worked out plays
no role in
the present case when determining the habitual residence of the
child because he had established bonds to the
UK in the respects
described earlier, it remains an important consideration in deciding
whether the child should be returned to
the UK in a manner which
would compel the mother to follow as the parent entrusted with
primary residence because of the grave
risk of the father causing
physical or psychological harm to the child.
50.
Moreover the assessments conducted of the child reveals that he has
fully integrated into his life in this country and is well
adjusted.
At the time of the hearing he had been in South Africa for over eight
months. He has made new friends since living
here and has
strong bonds with his relatives.
51.
Moreover once the court finds that an Article 13 defence is sound the
Convention itself does not require repatriation.
52.
It is apposite to return to
Sonderup
and the following
statements of Goldstone J:
‘
[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]
. . . (T)he 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.
53.
The Children’s Act now informs the court as to what may be
taken into account regarding the child’s best interests.
As
stated earlier the child’s own wishes may be considered and
weighed in the circumstances envisaged. Adv Mbathe established
the
child’s wishes. The child was over seven and a half years old
when asked for his views. He had no hesitation in stating
his
preference for remaining here. Indeed it would be most disruptive to
his schooling and his current milestones if he was to
be returned to
await the outcome of a custody battle.
ORDER
AD FACTUM PRAESTANDUM AGAINST PEREGRINUS FATHER
54.
The applicant submitted that terms could be imposed in a court order
which would require the father to provide maintenance and
suitable
accommodation for the child on returning to England. I expressed
concern regarding the effectiveness of such an order
even if the
English Central Authority agreed to it: The introduction of such
terms would appear to require the father’s consent
failing
which an enquiry into his financial position, which itself might be
problematic if this court could not effectively undertake
such an
enquiry.
55.
However, failing the father being afforded a fair opportunity to deal
with any proposal suggested by the applicant, the issue
becomes
transformed into a number of conflict of laws questions that might
arise if it becomes necessary to enforce this court’s
order in
England if the child is returned, or pending return if the father
does not consent.
56.
Ms Willcock
, on behalf of the respondent, raised concern
regarding the effectiveness of any proposed order that would require
the father, who
is a
peregrinus,
to take some positive act
within the jurisdiction of the English Courts. Ordinarily this court
would only have jurisdiction over
a
peregrinus
in cases where
the order requires him to perform a positive act within the court’s
jurisdiction. In general compare
Foize Africa (Pty) Ltd v Foize
Beheer BV and others
2013 (3) SA 91
(SCA) at para 10.
57.
There would still remain difficulties even if this court was to
assume that in order to give effect to our respective international
obligations both under the Hague Convention and the United Nations
Convention of the Rights of a Child (‘
UNCRC’
)
English Courts would be disposed to interpret the provisions of both
conventions purposively were this court to impose conditions
that the
aggrieved party needed to comply with.
58.
Moreover the type of order fashioned by our courts following
Sonderup
acknowledges that the final arbiter remains the foreign court.
59.
The difficulty, which would face our courts if the roles were
reversed, is that under the principles of conflict of laws, the
court
which is asked to enforce the order of a foreign jurisdiction must be
satisfied that to do so would not be contrary to public
policy. This
would generally require the observance of the rules of natural
justice whereby the party against whom the order is
sought to be
enforced was afforded a fair hearing. See
Jones v Krok
[1994] ZASCA 177
;
1995
(1) SA 677
(A) at 685B – E; compare
Society of Lloyd’s
v Price; Society of Lloyd’s v Price v Lee
2006 (5) SA 393
(SCA) at paras 42 to 48 and see the comprehensive analysis by van Zyl
J in
Society of Lloyd's v Romahn and others
2006 (4) SA 23
(C)
at paras 95 to 110).
60.
In the present case the father has not been given an opportunity to
consider the conditions which the applicant believes this
court
should impose on him to provide accommodation and maintenance for the
respondent and their child if this court were to order
the latter’s
return.
61.
Ms Willcock informed the court that difficulties were encountered in
a case where she represented the mother in a Hague Convention
abduction case. The mother had been ordered on appeal to return
her child to the United Kingdom and in terms of the order
the father
was obliged to provide suitable accommodation for her and the child
as well as maintenance (
KG v CB
). The relevant parts of the
order read;
'1.
It is ordered and directed that the minor child, T, be returned
forthwith, but subject to the terms of this order, to the
jurisdiction
of the Central Authority for England and Wales.
2.
In the event of KG (the mother) notifying the Office of the Family
Advocate, Johannesburg (the family advocate) within one week
of the
date of issue of this order that she intends to accompany T on
her return to the United Kingdom, the provisions of
para 3 shall
apply.
3.
CB (the father) shall within one month of the date of issue of this
order, institute proceedings and pursue them with due diligence
to
obtain an order of the appropriate judicial authority in the United
Kingdom in the following terms:
3.1
Any warrant for the arrest of the mother will be withdrawn and will
not be reinstated and the mother will not be subject to
arrest or
prosecution by reason of her removal of T from the United Kingdom on
14 February 2009 or for any past conduct relating
to T. The father
will not institute or cause to be instituted or support any legal
proceedings or proceedings of any other nature
in the United Kingdom
for the arrest, prosecution or punishment of the mother or any member
of her family, for any past conduct
by the mother relating to T.
3.2
Unless otherwise ordered by the appropriate court in the United
Kingdom:
3.2.1
The father is ordered to arrange, and pay for, suitable accommodation
for the mother and T in the United Kingdom.
The father shall provide
proof to the satisfaction of the family advocate, prior to the
departure of the mother and T from South
Africa, of the nature and
location of such accommodation and that such accommodation is
available for the mother and T immediately
upon their arrival in the
United Kingdom. The Central Authority for England and Wales shall
decide whether the accommodation thus
arranged by the father is
suitable for the needs of the mother and T, should there be any
dispute between the parties in this regard,
and the decision of the
Central Authority for England and Wales shall be binding on the
parties.
3.2.2
The father is ordered to pay the mother maintenance for herself and T
from the date of T's arrival in the United Kingdom at
the rate of
£350 per month. The first pro rata payment shall be made to the
mother on the day upon which she and T arrive
in the United Kingdom
and thereafter monthly in advance on the first day of every month.
Should the mother receive state support,
then the monthly amount
thereof shall be deducted from the £350 per month payable by
the father.
3.2.3
The father is ordered to pay any medical and dental expenses
reasonably incurred by the mother in respect of T, such as are
not
covered by the National Health Service in the United Kingdom.
3.2.4
The father is ordered to pay for the reasonable costs of T's
schooling and also the costs of her other reasonable educational
and
extramural requirements in the United Kingdom, such as are not
provided by the state.
3.2.5
The father is ordered to purchase and pay for economy-class air
tickets, and if necessary, pay for rail and other travel,
for the
mother and T to travel by the most direct route from Johannesburg,
South Africa, to Harlow, United Kingdom.
3.2.6
The father and the mother are ordered to cooperate fully with the
family advocate, the Central Authority for England and Wales,
the
relevant court or courts in the United Kingdom, and any professionals
who are approved by the Central Authority for England
and Wales to
conduct any assessment to determine what future residence and contact
arrangements will be in the best interest of
T.
3.2.7
The father is granted reasonable supervised contact with T, which
contact shall be arranged without the necessity of direct
contact
between the father and the mother.
4.
In the event of the mother giving the notice to the family
advocate referred to in para 2 above, the order for the
return of T
shall be stayed until the appropriate court in the United Kingdom has
made the order referred to in para 3 and, upon
the family advocate
being satisfied that such an order has been made, he or she shall
notify the mother accordingly and ensure
that the terms of para 1 are
complied with.
5.
In the event of the mother failing to notify the family advocate in
terms of para 2 above of her willingness to accompany T on
her return
to the United Kingdom, it is to be accepted that the mother is not
prepared to accompany T, in which event the family
advocate is
authorised to make such arrangements as may be necessary to ensure
that T is safely returned to the custody of the
Central Authority for
England and Wales and to take such steps as are necessary to ensure
that such arrangements are complied with.
6.
…
C.
The family advocate is directed to seek the assistance of the Central
Authority for England and Wales in order to ensure that
the terms of
this order are complied with as soon as possible.
D.
In the event of the mother notifying the family advocate, in terms of
para B.2 above, that she is willing to accompany T to the
United
Kingdom, the family advocate shall forthwith give notice thereof to
the registrar of the South Gauteng High Court, to the
Central
Authority for England and Wales, and to the father.
E.
In the event of the appropriate court in the United Kingdom failing
or refusing to make the order referred to in para B.3 above,
the
family advocate and/or the father is given leave to approach this
court for a variation of this order.
F.
…..
62.
The orders in para 3.2.1 to 3.2.6 are
ad factum praestandum
.
They follow the form of order made in
Sonderup
with due
deference, by means of appropriate
caveats
, to the sovereignty
of the English courts.
63.
Ms Willcock produced the orders made by the English High Court
(Principal Registry of the Family Division) on 2 July 2012 by
Hughes
QC sitting as a High Court Judge and by Brasse J on 4 October 2012
and 13 February 2013. In order to retain the anonymity
of the parties
so as to protect the interests of the child, I will refrain from
providing the full citation. It may be referred
to as
CB v KG and
another
case number HA07P00139. Hughes QC recorded the following
in her order;
“ …
with regard to the Order of
the Supreme Court of South Africa … ordering the child …
to be returned to the UK and
setting certain conditions for the
applicant father to comply with so as to facilitate her return, that
the father has complied
with the stated conditions to date but that
the Court noted that he is not obliged to provide accommodation
beyond the terms of
the tenancy of the property provided for the
child and the mother
“
64.
It is evident that the English court did not consider itself
necessarily obliged to follow the SCA decision despite the English
and Welsh Central Authority agreeing with its South African
counterpart to respect the SCA order. This was anticipated by the SCA
if regard is had to the preamble to para 3.2 of the order it made.
65.
The residual requirement of effectiveness appears to be addressed by
means of the caveats and the pre-conditions before the
child is
obliged to be returned to the UK. Nonetheless the father remains in
England, outside the reach of this court’s jurisdiction
(compare
Bisonboard Ltd v K Braun Woodworking Machinery (Pty) Ltd
[1990] ZASCA 86
;
1991 (1) SA 482
(A) at 499E-F).
66.
The main issue however relates to whether the English courts would
respect the order bearing in mind the principle of sovereignty,the
territorial limitations of a domestic court’s order and, even
leaving that aside, whether under conflict of laws jurisprudence
a
foreign court could be satisfied that the rules of natural justice
were adhered to; particularly with reference to whether the
father
was given notice and afforded a hearing.
67.
There was no evidence on the papers before me to suggest that the
father was precognised of this possibility. There is no evidence
presented of the father’s attitude in this regard. On the
contrary the evidence indicated that he was struggling financially.
68.
It appears that unless the father agrees to provide suitable
accommodation and pay adequate maintenance it would be difficult
for
the respondent to seek enforcement of this court’s order in the
UK without having afforded him an opportunity to address
those issues
before the order is made.
69.
I am accordingly not prepared to find an accommodation to have the
child returned to the UK albeit in the custody of the respondent
where it is evident that the Article 13(b) defence is sound.
COSTS
70.
The applicant has an obligation under Article 12 of the Convention to
bring applications of this nature. There may be little
scope for
exercising an independent discretion when requested to institute
proceeds by its foreign counterparts provided the request
complies
with the necessary requirements and presumably is not frivolous.
71.
The respondent has sought to criticise the applicant’s handling
of the matter. It is correct that there was a lengthy
initial delay.
In part this was claimed to be due to difficulties in establishing
the respondent’s whereabouts. The
respondent is the
successful party and costs will follow.
ORDER
72.
It is for these reasons that on 28 July 2014 I dismissed the
application with costs, including the costs of two counsel.
DATES
OF HEARING:
DATE
OF ORDER: 28 July 2014
DATE
OF JUDGMENT: 4 December 2014
LEGAL
REPRESENTATIVES:
FOR
APPLICANT: Adv A Willcock SC
Adv
Alan Levine & Associates
FOR
RESPONDENT: Adv Mofokeng
State
Attorney
AMICUS
CURIA FOR CHILD: Adv Mbathe
[1]
Acronym for the International Child Abduction & Contact Unit
[2]
Section 279 of the Children’s Act:
Legal
representation
A
legal representative must represent the child, subject to section
55, in all applications in terms of the Hague Convention on
International Child Abduction.
[3]
Section 275 of the Children’s Act:
Hague
Convention on International Child Abduction to have force of law
The
Hague Convention on International Child Abduction is in force in the
Republic and its provisions are law in the Republic,
subject to the
provisions of this Act.
[4]
Section 278(3) of the Children’s Act provides that:
The
court must, in considering an application in terms of this Chapter
for the return of a child, afford that child the opportunity
to
raise an objection to being returned and in so doing must give due
weight to that objection, taking into account the age and
maturity
of the child.
[5]
eg;
Sonderup
at
para30;
Chief
Family Advocate and another v G
2003(2)
SA 599 (W) at 606G
[6]
See
generally on this paragraph, the article by Rhona Schuz in
Child
and Family Law Quarterly vol 13 no.1, 2001
at
p1 titled
Habitual
residence of children under the Hague Child Abduction Convention-
theory and practice;
[7]
In
Sonderup
Goldstone
said at para 30:
“
The
purpose of the Convention is important. It is to ensure, save in the
exceptional cases provided for in art 13 (and possibly
in art 20),
that the best interests of a child whose custody is in dispute
should be considered by the appropriate court.”
See
also
Sonderup
at
para 28
[8]
Central
Authority v H
2008
(1) SA 49
(SCA) at para 18 to 21 and
Pennello
v Pennello
(Chief
Family Advocate as Amicus Curiae)
2004 (3) SA 117
(SCA)
at
paras 17 to 18
[9]
eg;
Rooth
v Rooth
1911
TPD 47
and the other cases cited by Ellison Kahn in
South
African Law of Domicile of Natural Persons
(1972)
at 76 ftn 520
[10]
See
further Kahn at p72
[11]
See
Schuz CFLQ at 14
[12]
Schuz
ibid at 14