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[2018] ZAGPJHC 15
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Central Authority for the Republic of South Africa v O (19685/2015) [2018] ZAGPJHC 15 (13 February 2018)
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OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO: 19685/2015
Date of Hearing: 11
November 2018
Date
of Judgment: 13 February 2018
In the matter
between:
THE CENTRAL AUTHORITY FOR THE
REPUBLIC
OF
SOUTH
AFRICA
Applicant
and
Y
O
Respondent
JUDGMENT
MASHILE J:
[1] This
application concerns the return of a minor child, a seven and half
year old J O, (“
J
”)
to the jurisdiction of the Central Authority of the Republic of
Ireland. J’s father,
Je O
(“
J
”),
is an Irish citizen and his mother is the Respondent who
was born in South Africa. The application was
launched on 29
May 2015 and is brought in terms of Article 8 of the Convention on
the Civil Aspects of International Child Abduction
adopted at the
Hague in 1980 (“the Convention”) read with the Children’s
Act, No. 38 of 2005 (“the Children’s
Act”).
The provisions of the Convention are, in terms of section 275 of the
Children’s Act, subject to those
of the Children’s Act.
[2] Section 278(3)
of the Children's Act provides that the Court dealing with a Hague
application must afford the minor child the
opportunity to raise an
objection to be returned. In doing so, the Court must give
weight to the objection taken into account
the age and maturity of
the minor child. Section 279 of the Children's Act requires
that the minor child be represented by
a legal representative in all
Hague applications.
[3] In compliance
with Section 279 of the Children’s Act as aforesaid, the
Applicant caused
Advocate T
Eichner-Visser
(“
Advocate
Eichner
”) to be appointed as
curatrix ad litem
on 27 September 2016. As such, she has stepped into the shoes
of
J
and
has since compiled a report on 22 March 2017 wherein she describes
the wishes and objections of J. Her report will be
discussed
later in this judgment.
[4] This Court
notes the inexplicable inordinate delays in complying with the
prescribed time frames. Firstly,
Je
filed his request with the Central Authority of Ireland on 23 July
2014 but the application was only launched on 29 May 2015.
In
this regard, I note that the application was therefore launched a
month or so before the expiration of the 12 month period prescribe
under Article 12 of the Convention.
[5] Once the
proceedings had commenced, there were then further gratuitous
delays. The Respondent was given 5 days within
which to file
her opposing affidavit and the Applicant was to file its replying
affidavit within 5 days following receipt of the
opposing affidavit.
The Respondent filed her answering affidavit out of time on 17 June
2015 and even worse, the Applicant
only filed its replying affidavit
on 25 May 2016, almost 12 months later. I am aware that the
parties engaged in various
attempts to settle the matter to no
avail. It should suffice to state that after two pre-trial
conferences, this Court ultimately
heard the matter on 11 November
2017.
[6] This of course makes mockery of
the fact that these matters must be resolved within 6 weeks from the
date of commencement of
proceedings. It took 2 and half years
before this matter could come before this Court. The
significance of a speedy
resolution of proceedings of this nature was
underscored by
Van Heerden JA
who remarked as follows in
KG
v Cb and Others (748/11)
[2012] ZASCA 17
(22 March 2012)
about
delays in these
Hague
matters:
“
These
delays are totally unacceptable, especially in the context of
proceedings under the Convention. The primary object of the
Convention is to secure the speedy return of children removed to or
retained in any Contracting State, to restore the status quo
ante the
wrongful removal or retention as expeditiously as possible so that
custody and similar issues in respect of the child
can be adjudicated
on by the courts of the country from which the child was removed. Not
only is this explicitly stated in art
1 of the Convention, but art 11
expressly enjoins the relevant authorities to ‘act
expeditiously in proceedings for the return
of children1 and provides
that -:
‘
If
the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement
of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central
Authority of
the requesting State, shall have the right to request a statement of
the reasons for the delay.’”
[7] The background
facts are that
J
was born at Our Lady of Lourdes, Drogheda, in Ireland on or about 21
May 2010. The Respondent was born in South Africa and
in 2002
she moved to Ireland where she met Je. In 2009 The Respondent
and
Je
married in Krugersdorp, South Africa and
J
was born of that marital relationship.
Je
has three children from a previous relationship, namely
M
O
aged 16,
A
O
aged 14 and
D
O
aged 11. According to
Je
,
J
’s
half siblings spent about three nights a week at the minor child’s
home and as such they have developed a strong
loving bond as a
family.
[8] The marital
relationship between
Je
and the Respondent came under a strain. According to the
Respondent the stress in their relationship was
Je
’s
abuse of alcohol and drugs, which is not specifically denied by
Je
.
He admits that their marital relationship was undergoing difficulties
and that he therefore indulged in drinking.
Insofar as drugs
are concerned, he states that both he and the Respondent took
recreational drugs especially cocaine during the
early days of their
marriage and that he had since stopped. In consequence of the
tension in their marital relationship,
in November 2013 they agreed
that the Respondent and
J
could visit South Africa for eight weeks whereafter they would return
to Ireland.
[9] When the
Respondent and
J
returned in January 2014, she lived for a week with
Je
during which she was essentially packing their belongings in order to
move out of the matrimonial home. From February 2014, with
the
assistance of financial grants from Government and maintenance of
Euros 60 from
Je
,
she moved to […], Abbey Toad, Navan, Co Meath.
Je
,
on the other hand, moved to […], Boyne Road Navan, CO Meath
where he still lives.
[10] On 25 February 2014,
Je
and
the Respondent entered into a mediated agreement. Among other
things, the mediated agreement provides:
10.1 The Respondent
and Je are the joint guardians of
J
;
10.2 The Respondent
and
Je
granted reciprocal consent to each other to take J out of the country
for holiday purposes only;
10.3 All decisions
concerning
J
’s
health, education and welfare would be made jointly;
10.4 The Respondent
and
Je
had
a fortnightly parenting arrangement and they agreed to give each
other adequate notice if there were to be any changes;
10.5
J
would be brought up as a born again
Christian
and would attend Educate Together School;
10.6 The Respondent
and
J
would
spend four weeks in South Africa during the summer holidays.
[11] Her weekly expenses were
R527.15
and her income per week was
241.80
. The shortfall was
covered by her parents in South Africa who transferred funds to her
account in Ireland. From the
beginning of May 2014, her weekly
income rose to
338.00
but her weekly expenses stayed at
R527.15
. Her parents continued to fill the gap to ensure
her survival. That said, I should add that Je questions these
claims
as he states that the Respondent engaged in transitory jobs
and that some of the expenses appear embellished. In the midst
of all these financial difficulties, she received news of her
mother’s illness as a result of which her parents advised her
that they could not afford to continue supporting her financially.
[12] Seeing that
she would face financial difficulties if she was to remain in Ireland
without the assistance of her parents, the
Respondent travelled to
South Africa with J on 13 June 2014 having sought and got
Je
’s
consent that the travel was for holiday purposes only As per
the agreement,.
Je
anticipated
that the Respondent and
J
would return after the agreed period of four weeks.
J
’s
removal from Ireland was for that reason lawful. The four week
period within which the Respondent should have returned
J
to Ireland came and went. To the extent that the Respondent did
not obtain
Je
’s
consent or that he did not acquiesce to
J
’s
retention in South Africa, her action is wrongful as envisaged in
Article 3 of the Convention.
[13] The Respondent
and
J
have
not returned to Ireland. They should have returned to Ireland on or
about 14 July 2014. The Respondent has wrongfully
retained
J
in South Africa.
Je
never
consented nor acquiesced to the retention of the minor child in South
Africa. Upon realising that the Respondent has
wrongfully
retained
J
in South Africa,
Je
requested the assistance of the Central Authority in Ireland.
He submitted his statutory application on or about 23 July
2014.
[14] In terms of
Article 7(c) and 10 of the Convention
Ms
Christina Van Eeden
, the Family
Advocate and the deponent to the founding affidavit, consulted with
the Respondent in an attempt to secure the voluntary
return of J.
She states that she was not successful in securing the voluntary
return of
J
.
[15] On 1 September
2014, the Respondent pointed out that she was willing to return to
Ireland with
J
subject to certain provisions to safeguard his return. The
Respondent has since withdrawn this qualified offer on the
basis that there has been a long delay and that
Je
was not prepared to comply with some of the stipulated conditions
meant to safeguard
J
’s
return to Ireland. The conditions as set out in the
Respondent’s letter of 1 September 2014 were the following:
15.1
Je
must provide proof that he has arranged and paid for suitable
accommodation for the Respondent and
J
;
15.2
Je
must confirm that he has not yet taken any legal action against the
Respondent and must furthermore undertake that he will not
do so in
future;
15.3
Je
would pay for the return flights for the Respondent and
J
in full;
15.4
Je
would provide proof that he has
withdrawn all legal actions from government and/or any other sources
against the Respondent regarding
this application to ensure that she
would not be taken into custody upon her arrival in Ireland;
15.5
J
would not be taken from the Respondent upon arrival in Ireland and
that the primary residence of
J
would still vest in the;
15.6
Je
would sign an undertaking to:
15.6.1 Refrain from
any domestic act of violence, which includes, but not be limited to
verbal, emotional and psychological abuse
towards the Respondent and
J
;
15.6.2 Refrain from
his harassing means;
15.6.3 Refrain from
any conduct of intimidation towards the Respondent and
J
;
15.6.4 Refrain from
contacting the Respondent other than for reasons relating to
J
;
15.6.5
Je
would not leave J in
the care of his other minor children without the supervision of a
reasonable adult;
15.6.6
Je
would return the Respondent’s motor vehicle to her upon her
arrival in Ireland
15.6.7 The
Respondent’s personal belongings which were removed from her
previous rental apartment by
Je
be returned to her on her arrival in Ireland;
15.6.8 The
mediation agreement entered into between
Je
and the Respondent on 21 February 2014 would stay in force until the
formal divorce settlement is in place.
[16] In his letter
dated 29 September 2014, Je refused to undertake to provide
accommodation for the Respondent and
J
on their arrival in Ireland and would not undertake to pay for the
return flight of the Respondent stating that she had to see
to that
payment on her own. He further stated that he and the
Respondent needed to revisit the mediation agreement which
they had
concluded prior to her departure to South Africa in June 2014.
Je
’s
letter mentioned nothing about payment of maintenance to
J
and the Respondent on their arrival in Ireland.
[17] However, in
his replying affidavit he acceded to virtually all the conditions
albeit that his financial ability to perform
remain suspect, a fact
that leaves the Respondent understandably apprehensive. The
Respondent has pointed out that Je is
currently unemployed and he has
admitted this. If this is so the question is how will he afford
to look after J and the Respondent
when they get to Ireland?
[18] By way of
allaying the Respondent’s fears,
Je
has undertaken to make an amount of
1
000.00 Euros
available to the
Respondent and
J
on their arrival in Ireland. In addition, he hopes to be
compensated handsomely for his motor vehicle accident the proceeds
of
which he will also utilise to take care of the financial needs of the
Respondent,
J
and his other children. The Respondent contends that both the
1
000.00 Euros
and the accident related
payment will ultimately dissipate leaving her and
J
vulnerable. If that happens, she
will be in no different position from that which prevailed prior to
her eventual departure
to South Africa. That will indubitably
expose
J
to psychological harm and place him in an intolerable situation.
[19] It is manifest
that the facts described above require this Court to determine
whether or not the retention of J in South Africa
by the Respondent
is wrongful. The question of the wrongfulness or otherwise of
his retention cannot be considered without
providing answers to the
following questions:
19.1 Should this
Court intransigently adhere to Article 12 of the Convention?
19.2 Has
J
settled in this country such that it will be undesirable to return
him to his habitual residence?
19.3 Will the
granting of an order for the return of
J
to Ireland expose him to physical or psychological harm or put him in
an intolerable situation?
[20] Contending
that proceedings for the return of J commenced before the expiry of a
period of 12 months, the Applicant places
significant reliance on
article 12 of the Convention for the return of
J
to his habitual residence, the Republic of Ireland. Article 12
stipulates that in those circumstances where a child has been
wrongfully removed or retained for a period less than a year when
proceedings commence before a judicial or administrative authority,
it is mandatory for a Court to order the return of the minor child
forthwith. The return of the child can still be so ordered
in
instances where a period longer than a year lapsed unless it is
demonstrated that the child is now settled in the new environment.
[21] To sustain its
contention above, the Applicant necessarily had to deny claims by the
Respondent that while the proceedings
indeed commenced within 12
months,
J
has now settled in his new environment thus making it
objectionable to return him to his habitual residence. In
addition,
the Applicant fervently asserted that, contrary to what the
Respondent would let this Court believe,
J
will not be exposed to physical or
psychological harm if the order for his return is granted, or
otherwise place him in an intolerable
situation as provided for under
Article 13(1) (b) of the Convention.
[22]
Article 3 of the Convention
describes what wrongful removal or retention is:
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 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 exercised but
for the
removal or retention.
[23] The Court in
KG v CB and Others
supra
was
giving effect to the provisions of
Article
3 of the Convention
when it upheld the
judgment of this Court per
Satchwell J
to return the child after a stay of 1 year and 5 months in the
Republic of South Africa. Like in the case in
casu
,
the proceedings commenced prior to the expiry of 12 months. The
only apparent difference with the instant case though is
that
J
was older when he came to this country and that he has been living
here for over three years.
[24]
Article
1 of the Convention
describes the major
objectives of the Convention as follows:
24.1. To secure the
prompt return of children wrongfully removed to or retained in any
Contracting State; and
24.2. To ensure
that rights of custody and of access under the law of one Contracting
State are effectively respected in other Contracting
State.
[25]
At
paragraph 19 of KG v CB
supra
,
the Supreme Court of Appeal elaborated on those two objectives of the
Convention in the following terms:
“
to
secure the prompt return (usually to the country of their habitual
residence) of children wrongfully removed to or retained in
any
Contracting State, viz to restore the status quo ante the wrongful
removal or retention as expeditiously as possible, so that
the
custody and similar issues in respect of the child can be adjudicated
by the courts of the state of the child’s habitual
residence.
The Convention is premised on his assumption that the abduction of a
child will generally be prejudicial to his or her
welfare and that,
in the vast majority of cases, it will be in the best interests of
the child to return him or her to the state
of habitual residence.
The underlying premise is that the authority’s best placed to
resolve the merits of a custody dispute
are the courts of the state
to which the child has been abducted”.
[26]
Article
5 of the Hague convention
defines
‘rights of custody’ and ‘rights of access’ as
follows:
(a)
‘
rights
of custody’ shall include rights relating to the care of the
person of the child and, in particular, the right to determine
the
child’s place of residence;
(b)
‘
rights
of access’ shall include the right to take a child for a
limited period of time to a place other than the child’s
habitual residence.
[27] The parties
are agreed on the following:
27.1 The minor
child was habitually resident in Ireland prior to retention in South
Africa;
27.2 The father had
custody rights in respect of J as noted in the mediated agreement
which the parties concluded on 25 February
2014;
27.3
Je
did not consent to the minor child
remaining in South Africa.
[28] Principally
and as I have mentioned earlier in this judgment, the Respondent,
invokes the defences referred to in Article 13(1)(b)
of the
Convention which are to the effect that a court is not bound to order
the return of an abducted child if the person opposing
the return
shows that there is a grave risk that his or her return would expose
the child to physical and psychological harm or
otherwise place the
child in an intolerable situation. In the second place, J has
expressly asked
Advocate Eichner
and
Ms Henig
not to be returned to Ireland.
[29] The defences
mentioned in Article 13(1)(b) in particular that
J
will be exposed to physical and
psychological harm are inextricably bound with settlement in a new
environment. In other words,
if returning him to Ireland will
involve ‘uprooting’ him from an environment to which he
has become accustomed then
the implication that he has settled in
South Africa is inexorable. The idea of Article 12 is therefore
that a minor child
can still be returned to his habitual residence
after 12 months unless it is established that he has settled in his
new environment.
If he has so settled in his new environment
then it will be undesirable to return him to the requesting State.
[30] This explains
why courts have held that delays in the resolution of proceedings
might result in the minor child declared settled
in the State
requested to return him. Thus, in
Family
Advocate v R (2004/2012) [2013] ZAECPEHC 10 (15 February 2013)
the court refused to return the minor child notwithstanding that the
proceedings were commenced 11 months and 10 days, within the
12
months envisaged in Article 12 of the Convention. Although
Article 12 of the Convention stipulates that it is mandatory
to
return a child if proceedings were commenced within 12 months, the
court considered the late resolution of the matter into account
when
deciding whether to return the child or not.
[31] The basis of the dismissal of the
application was primarily that the minor child had settled in his new
environment and the
court took his wishes not to be returned to the
Requesting State as per
Section 278 of the Children’s act
into consideration
. In this regard the reports of
Advocate
Eichner
and the social worker,
Ms Leonie Colyn Henig
(“
Ms
Henig
”), which I shall discuss below are significant.
[32] While it is
common cause that
J
was habitually residing in the Requesting State, Ireland, immediately
before the retention and that
Je
exercised his rights of custody at the time of the retention and that
now but for the retention he cannot exert them, the Respondent
denies
that her retention of
J
is wrongful and maintains that it is legally excusable in terms of
the provisions of the Convention, in particular the defences
referred
to in Article 13(1)(b).
[33] I turn to
consider whether the Court should be rigorous in its observance and
application of Article 12 of the Convention or
not. It is
obvious that the application of Article 12 was never intended to be
strict as it posits the existence of circumstances
that could
constitute legal justification for the retention. Moreover,
Article 13(1)(b) of the Convention postulates other
legal excuses to
retain - returning the child will make him vulnerable to physical or
psychological harm or place him in an intolerable
situation.
[34] In the
Family
Advocate v R
matter
supra
,
circumstances were such that even though the proceedings had
commenced within 12 months, it was undesirable to return the minor
child because he had become settled. The instant case is not
different from the
Family Advocate v R
matter
supra
insofar as it commenced within 12 months but the resolution of the
matter was only two and half years later. In the matter
of
Central Authority for the Republic of South Africa v B (2011/21074)
(7December 2011)
the court stated:
“
[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
.’”
[35] As alluded to
earlier,
Advocate Eichner
,
as the
curatrix ad litem
,
represented the interests of
J
in these proceedings. Her report forms part of the documentary
evidence that was placed before this Court. She understood
her
mandate as having been:
“
authorised
to investigate any matter related to the application; to
interview the minor child, to interview any other relevant
person in
the matter, to investigate the full familial and social background of
the minor child, to obtain records related to the
minor child from
any institution and to conduct any other enquiries I deem necessary
related to the application.”
[36] While her
instructions were somewhat broader than what I have cited above, she
confesses that she has only been able to investigate
the personal
circumstances of
J
,
his frame of mind and his wishes as described in the Children’s
Act. Consequently her investigation focused on those
issues
alone. As I understand, her report is therefore mainly intended
to show how well-adjusted
J
has become living in South Africa and that it will therefore be
undesirable to return him to Ireland.
[37]
According to her report she reached that conclusion after
consultation with the Respondent,
Je
via Skype
,
the head master of Kenmare Laerskool,
Mr
Immelman
,
J
’s
class teacher,
Ms
Rina Botha
,
the school Psychologist,
Ms
Jeanette Seronio
,
social Worker,
Ms
Henig
,
J
’s
grandmother
M
B
,
grandfather
Mr
B
at their home, which is also the home of the Respondent and
J
,
and the Hague Convention.
[38] She visited
J
at his home and observed how he
interacted with his grandparents. She noted that he liked being
around them and that they
too found fun in having him. They
related to her how well he has integrated and blended with his
environment and friends
in the area. She could not find a
different account of
J
when she an
Ms Henig
visited his school. The head master, class teacher and
psychologist, all sang his praises and remarked at how well-adjusted
he had become among his school mates and generally with the school
atmosphere. He has never been referred to the psychologist,
not
even once.
[39]
Apart from the above and conscious that
J
is
still of tender age and that his views should be approached as such,
he has nonetheless expressed a view that he does not wish
to return
to Ireland. His wish not to be returned to Ireland does not
exclude his love for his father and his half siblings
in Ireland.
Ms
Henig
states in her report that
J
communicates
with them
via skipe
from
time to time and that he visibly appears filled with exhilaration
when he talks to them.
[40] The opinion
expressed by
Ms Henig
,
with whom
Advocate Eichner
agrees, that ‘
uprooting
’
J
from
South Africa could be traumatic and that returning him to Ireland is
undesirable in that he may become exposed to psychological
harm
cannot be viewed lightly. The report of
Ms
Henig
is also part of the evidentiary
material with which this Court is saddled.
[41] Having
considered the outcome of her consultations with the various parties
mentioned above including
Ms Henig
and taken into account the views of
J
,
Advocate Eichner
found as follows:
“
63.
J
is very happy in South Africa living with the Respondent.
J
is settled and I believe very strongly that moving him from this
environment would be very detrimental to his wellbeing.
64. I agree with
COLYN SCHUTTE
under the heading “Conclusion” at paragraph 7 of his
report, that separating
J
from his biological mother and returning him to Ireland would
undoubtedly expose him to severe psychological trauma and that
J
would find himself in an intolerable situation.
65. I further find
that
J
has
a very loving relationship with
Mr O
and that this relationship must, at all costs, be maintained.
This includes the relationship with his three half siblings.”
[42] Those findings
led her to recommend that
J
should remain in South Africa with the Respondent but must continue
to have meaningful and regular contact with Je and his three
half
siblings in Ireland.
[43] In a separate
report,
Ms Henig
recommends no differently from
Advocate
Eichner
, after consulting and visiting
the same institutions and persons respectively when she states:
“
J
should be allowed to remain living with his mother in South Africa.
To take him away from the school he loves, from his grandparents
to
whom he has become securely attached and to uproot him from his very
comfortable home environment which he has become accustomed
to, would
be traumatic for him and it would be deleterious to his emotional
well being.
J
should
maintain regular Skype and or Face Time contact with his father and
with his three half siblings.
J
should
have holiday contact with his father at least once a year.”
[44] Understanding
his mandate to have been to conduct a clinical assessment of
J
,
determine his specific ‘situatedness’, compile a report
for court purposes and lodge such report with the legal
representative
of the Respondent,
Mr
Colyn Schutte
(“
Mr
Schutte
”), the educational
psychologist, had clinical interview, clinical history and screening
of the Respondent. He carried
out a further clinical interview
with J and performed an Interaction analysis of J and the
Respondent. He also conducted
a psychometric assessment of
J
and interpreted the data.
[45] The
information that he elicited from the above led him to conclude that
J
is in a
pedagogical state of emergency primarily caused by his specific
situation of parents undergoing divorce. The dynamics
themselves of such a process are potentially overwhelming to any
child and actually cause the unfavourable psychodynamics with
which
J
presents. The Respondent, who is
the primary care giver, source of security and support does not
regard Ireland as a viable
option for her to make a living and raise
her child.
[46]
Mr
Schutte
maintains that separating him
from the Respondent and returning him to Ireland will certainly
expose him to ‘severe psychological
trauma and he will find
himself in an intolerable situation.’
Mr
Schutte
found that in consequence of
J
’s
exposure to his ‘parent’s hostile divorce he anticipates
danger to himself and the Respondent, his primary
source of security
and care.
J
presents with freeflowing anxiety but has begun ‘to adapt to
his current situation and exists within an authentic pedagogical
setup in which he has begun to stabilise.’
[47]
Mr
Schutte
concludes that ‘it can be
realistically anticipated that removal from his mother will induce in
J
severe
psychological trauma which could have a permanent and debilitating
effect on him. Placing
J
O
in any
situation other than an authentic pedagogical situation will be
fraught with danger. However loving and caring members of
a family
can be, mere placement of a child in their care does not
automatically mean that the child will adapt and thrive. Therefore
removal of a child from an existing and nurturing pedagogical
situation will place such a child in an intolerable situation and
will not be in his best interest.’
[48] The authors of
these reports are impartial notwithstanding that they have been
commissioned by the Applicant. I would
have thought that they
would have been more inclined to render advice that would be
palatable to the party from whom the brief
emanated, the Applicant.
However, they maintained their independence regardless of who has
briefed them. Their advice
to this Court is unanimous –
J
has settled in South Africa and returning him to Ireland could expose
him to psychological harm and even place him in an intolerable
situation. It is their apparent display of independence in
their reports that convinces this Court that their advice must
be
correct.
[49] The Applicant
did not really raise any argument in opposition to the assertion that
J
has
settled in South Africa instead it persisted in its reliance on
Article 12 of the Convention for his return. As it has
been
seen in the matter of
Family Advocate v
R supra
, commencement of proceedings
within 12 months, under appropriate circumstances, will not
necessarily lead to an order for the return
of the minor child to the
Requesting State. In the circumstances, this Court unreservedly
accepts that
J
has settled in South Africa as a result of his length of stay, his
adoption of the South African ideals and customs. It will
therefore be undesirable to return him to Ireland on that ground
alone.
[50] That leaves
this Court to reflect on the possibility of
J
becoming exposed to physical or psychological harm or be placed in an
intolerable situation if returned to Ireland. This
part
requires reference to the history of the lives of J and the
Respondent in Ireland. The periods can be divided into three
categories:
50.1 Dur
ing
marriage in particular towards their separation;
50.2
The Respondent and J’s return to Ireland in January 2014 after
the eight week visit to South Africa; and
50.3
The R
espondent and
J
’s
permanent departure for South Africa in June 2014.
[51] If the
contents of paragraph 12 of the answering affidavit, which the
Applicant has not seriously challenged, are anything
to explain the
parties’ relationship, it appears that their marriage was
turbulent,
Je
drank
excessively and the Respondent found this insufferable and not being
in the best interest of
J
.
That situation prompted her to desperately look for accommodation for
her and J without success. As a result, the
parties agreed that
the Respondent and
J
could leave for South Africa to spend time with family for eight
weeks and return thereafter, which they did.
[52] It is also
apparent from the contents of paragraph 12 in particular, paragraph
12.3 that the parties were financially struggling
throughout the
marriage. The Respondent states that
Je
was the sole provider for J while she took care of accommodation and
rent. She got assistance with clothing and other day
to day
expenses from her parents in South Africa. The air tickets for
her and
J
were
purchased by her parents and this is admitted by
Je
.
[53] When she
returned to the matrimonial home in January 2014, the situation had
not improved and was therefore still not conducive
to live with
J
.
After a week, she, her sister, who had accompanied her for emotional
support, and
J
moved out to stay with her friend for three weeks. She applied
and approximately three months later received financial assistance
from the Department of Community, Social and Family Affairs but it
was still not enough for their maintenance in consequence of
which
her parents had to partially subsidise her for the rentals.
[54] The Respondent
agrees that she accepted maintenance in the amount of
Euros
60.00
from
Je
at a time when she was somewhat still
emotional about her separation and not realistic with the Irish
living costs. She adds
that the amount was not adequate as she
and
J
remained financially vulnerable without support from her parents.
Her weekly expenses amounted in all to
Euros
527.15 Cents
while she received income
of
Euros 241.80 Cents
living her with a shortfall of
Euros
285.35 Cents
per week.
[55] The situation
did not improve much after April 2014 during which time she received
housing allowance. Her total income
per week became
Euros
338.70 Cents
while her weekly expenses
remained at
Euros R527.15 Cents
.
Adding to all these financial woes was her parents’ advice that
they could no longer afford to bankroll her as they
did previously as
a result of her mother who had taken ill. This meant of course
that there would be a large unfilled hole,
which would spell disaster
for her and
J
if they remained in Ireland.
[56] With no family and friends to
support her both financially and emotionally in Ireland, she opted to
leave for South Africa
and to remain here permanently. The
history therefore gives this depressing financial background in
Ireland during living
together with
Je
and post the
separation.
Je
has admitted that he is currently
unemployed and referred to an amount of
Euros 1 000.00
which
he will make available to the Respondent and
J
upon their
arrival and that he was awaiting a generous settlement of his truck
accident.
[57] The problem
with his undertaking is that it is not sustainable because the amount
of
Euros 1 000.00
is obviously exhaustible and the settlement remains a pie in the
sky. Besides, it is not known how much it will be.
These
amounts, assuming of course that he receives a pay-out ultimately,
will probably be sufficient temporarily but with
time the situation
will in most probabilities deteriorate and the Respondent and
J
will again face financial hardship in a country where she will have
no family emotional support. It is hard not to think
of those
financial privations as exposure to physical and psychological harm
and placement in an intolerable situation.
[58] It is evident
from the exposition of the facts above that the Respondent and
J
’s
lives, especially towards the parties’ separation and
subsequently, had turned into a financial nightmare.
From
February until June 2014 when she and J departed Ireland for South
Africa she could not without assistance from her parents
manage to
live in Ireland. Ordering her and
J
to return to Ireland will be exposing them to a situation that
prevailed prior to coming to South Africa Permanently and perhaps
even worse because this time around they will be without the help of
her parents.
[59] Lastly, with
his tender age and state of maturity in mind, this Court is obliged
to carefully weigh
J
’s
views and decide whether or not to incorporate his wishes into its
judgment as required in terms of Section 278 of the
Children’s
Act. The Children’s Act is unambiguous that the child’s
wishes is one factor that may be considered
depending on his/her age
and maturity.
J
is
now over 7 and half years old and was two months short of attaining
age 7 at the time when
Advocate Eichner
and
Mr Henig
consulted with him. All the experts have already stated how
matured and forthright he was when he expressed the view that
he
loved and missed his father and half siblings but that he did not
wish to be returned to Ireland.
[60] I have already
accepted the reports of the various experts unreservedly.
Having interviewed and interacted with
J
,
the opinions of the experts were that this Court must, in addition to
all the other matters, seriously consider incorporating
his wishes
not to be returned to Ireland into its judgment. I have little
difficulty to do so especially because Section
28(2) of the
Constitution of the Republic of South Africa also enjoins this Court
to make such decision with in mind the ‘best
interest of the
minor child’. If it will be detrimental to ‘uproot’
J
from his
well-adjusted environment, South Africa, I consider it wise not to
return him.
[61] One might be tempted to argue
that
J
will be taken care of by his father and therefore that
he will not be exposed. The point is that he will be living
with his
mother and her exposure to poverty in Ireland will impact
directly on him. Accordingly, for as long as
J
is
inseparable from the Respondent, he will be vulnerable to
psychological harm and the situation therefore intolerable.
In
the result I find:
61.1
J
has settled in South Africa;
61.2 Uprooting him
from South Africa will expose him to physical and psychological harm;
61.3 His return to
Ireland will place him in an intolerable situation;
61.4 His wish not
to be returned to Ireland is taken into account notwithstanding his
tender age.
[62] Both parties
have urged this Court to award costs against the other. I have
considered their respective arguments and
I am of the opinion that
this is not an ideal case to award costs against the one or the
other. Accordingly, I direct that
there shall be no cost order.
[63] Against
that background I make the following order:
1.
The
application to return J to Ireland is dismissed;
2.
Je
shall exercise his rights of access to J as follows:
2.1
Via
skype and telephone on any day of the week;
2.2
To
visit J in South Africa at least for two weeks during the June/July
or December/January school holidays;
2.3
While
visiting South Africa, Je shall have the right to remove J from the
care of the Respondent during which time he can visit
anywhere with
him provided it will be within the borders of South Africa;
2.4
Je
will bear the costs of travelling to South Africa to visit J;
2.5
Je
will also bear all the costs associated with his stay in South Africa
while visiting J;
2.6
There
is no order as to costs.
_______________________________________
BA MASHILE
Judge of the High Court of South
Africa
Gauteng Local Division,
Johannesburg
APPEARANCES:
For the Plaintiff:
Adv. A Mofokeng
Instructed by:
State Attorney
For the Respondent:
Adv. I Delport
Instructed by: Couzyn Hertzog &
Horak