Brief Summary

Child Law — Hague Convention — Wrongful retention of children — Appeal concerning habitual residence and consent — The first respondent, the Central Authority for the Republic of South Africa, sought the return of two minor children wrongfully retained in South Africa by the appellant, their mother, after a visit from Norway. The court had to determine whether the children's habitual residence was Norway or South Africa and whether the father consented to their retention in South Africa. The court found that the habitual residence of the children was in Norway at the time of their retention, and there was insufficient evidence to establish that the father had consented to their removal or retention in South Africa. The appeal was dismissed, affirming the order for the return of the children to Norway.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an appeal in the Gauteng Local Division, Johannesburg, against a judgment by Monama J sitting as a court of first instance, with leave to appeal having been granted by the Supreme Court of Appeal. The appeal concerned the international return of two minor children under the Hague Convention on the Civil Aspects of International Child Abduction.

The appellant was the mother of the two minor boys and the respondent in the court a quo. The first respondent was The Central Authority for the Republic of South Africa (the Chief Family Advocate), which instituted the return proceedings pursuant to article 12 of the Hague Convention. The second respondent was the father of the two minor boys, who resided in O., Norway, and who had been the second applicant in the court a quo.

The procedural background, as treated by the appeal court, was that the Central Authority sought an order for the children’s return to Norway on the basis that they had been wrongfully retained in South Africa. The application was brought shortly after the children were retained, with the result that the Hague Convention’s one-year “settled in its new environment” provision was not engaged.

The general subject-matter of the dispute was whether the children’s continued presence in South Africa after March 2015 amounted to a wrongful removal or retention under article 3 of the Hague Convention, and whether the mother could rely on the article 13 exception based on consent or acquiescence by the father.

2. Material Facts

It was undisputed that the parties met in South Africa, married in Johannesburg on 11 November 2011, and that the two minor sons were both born in Johannesburg. A significant and undisputed factual milestone was that in June 2013 the parties relocated to O., Norway, and that the appellant was domiciled and resident there. The appeal court treated the parties’ conduct before June 2013 as not impacting materially on what followed from the relocation.

During the marriage, the parties travelled regularly to South Africa and stayed at a property in Parktown North, Johannesburg, which the father had donated to the mother in terms of their ante-nuptial contract. In March 2015, the family travelled to South Africa at the mother’s request to visit her mother, who was due to undergo medical procedures. Return flight tickets were purchased for all four family members, consistent with an intended return to Norway after the visit.

On 18 March 2015, the father returned to Norway. On the mother’s version, he did so to evade service of divorce summons; the judgment recorded that he was arrested and detained by security guards at the Gautrain station until the sheriff arrived to serve the summons, after which he proceeded to Norway. Shortly thereafter, Hague Convention proceedings were instituted, seeking the return of the children to their alleged habitual residence in Norway.

In assessing the children’s habitual residence immediately prior to their retention in South Africa, the appeal court relied on multiple objective indicators connecting the children (and the family unit) to Norway. The children were registered in the Norwegian peoples’ registry and were Norwegian citizens. The older child attended nursery school in Norway (T. K. Kindergarten) at the request of both parents, and there was no evidence that the school had been notified that he would be leaving permanently or not returning. The older child had been accepted to attend the same nursery school from August 2015, and there was no evidence that this intention had been cancelled or communicated to the school.

Both children received child welfare benefits under Norwegian law, which (as described in the judgment) were granted to residents only, and which depended on a residence criterion. The children had established medical and dental arrangements in Norway, including identified medical practitioners and scheduled medical and dental appointments for August and September 2015 respectively, with no evidence that those appointments had been cancelled.

The father was a Norwegian citizen who lived in Norway in 2015, conducted business there, and visited South Africa on a tourist visa limited to 90 days at a time. In addition, the mother had undertaken several steps consistent with residence and integration in Norway between June 2013 and March 2015. These included applications for family reunification and a Norwegian identity number, language classes aimed at qualifying for permanent residence or citizenship, proof of residence, driving lessons, opening a bank account, registering as a taxpayer with tax returns filed, receiving a Norwegian lump sum connected to the birth of the younger child (recorded as payable only to residents), and preparing an application for permanent employment in Norway supported by a CV stating that she was resident in Norway and that her earlier South African employment related to giving birth and moving to Norway.

As to consent or acquiescence, the mother alleged that the father had consented or acquiesced in the children remaining in South Africa. The appeal court treated the mother’s reliance on an utterance made by the father during an acrimonious incident as the high watermark of her case on this issue, and it further recorded a concession made in argument that the mother had acted “deviously and surreptitiously” in bringing the children to South Africa with the intention of staying and not returning to Norway.

3. Legal Issues

The appeal court confined the appeal to two issues.

The first issue was whether the children’s habitual residence immediately before the alleged wrongful retention was O., Norway or Johannesburg, South Africa during 2015, for purposes of article 3 of the Hague Convention. This issue required the court to apply a legal standard (habitual residence within the Hague scheme) to largely objective facts, and to reach an evaluative conclusion on where the children were habitually resident at the material time.

The second issue was whether the father had consented to or subsequently acquiesced in the children’s removal to or retention in South Africa, as contemplated in article 13(a) of the Hague Convention. This issue concerned the application of the article 13 exception to the facts and, in particular, required a value-laden assessment of whether the father’s conduct could amount to clear consent or unequivocal acquiescence.

Other potential Hague Convention issues were not pursued on appeal. The appeal court proceeded on the basis that the father had rights of custody at the relevant time while the children were in Norway with both parents, and that proceedings were brought promptly so that the one-year “settlement” provision in article 12 did not apply.

4. Court’s Reasoning

The appeal court approached the matter through the purpose of the Hague Convention, emphasising that the Convention is directed at ensuring that the court seized with the custody hearing should ordinarily be the one within whose jurisdiction the child was living long enough to become acclimatised and develop a sense of attachment and permanence. In this respect, the court relied on The Central Authority v TK 2015 (5) SA 408 (GJ), including the rationale that expeditious return minimises harm from uprooting and that the court of the habitual residence is generally best placed to determine custody disputes.

On the question of habitual residence, the appeal court considered the factual matrix showing that the family had relocated to Norway in 2013 with the intention of making it their residence. The existence of a home in Parktown North, Johannesburg (and the circumstances of its donation and renovation), was treated as a neutral factor when weighed against the acquisition of a standard home in Norway and the broader indications of settlement there. The court regarded the father’s evidence as not materially disputable in key respects and viewed the mother’s conduct regarding herself and the children as pointing to the conclusion that the parties had settled in Norway during 2013. On this footing, the court held that the court a quo’s finding that the children’s habitual residence was Norway in March 2015 could not be faulted.

On consent, the appeal court found no evidence substantiating that the father had consented to the removal or retention. The court held that reliance on an utterance by the father, made in the heat of a marital dispute and after an unpleasant arrest incident, could not constitute consent. The judgment treated the absence of other supporting evidence as decisive against the mother’s reliance on consent.

On acquiescence, the appeal court applied South African principles describing acquiescence as requiring unequivocal conduct, with knowledge of rights, that is inconsistent with an intention to challenge the situation, and which demonstrates an intention to abide by it. The court referred to Gentiruco AG v Firestone SA (Pty) Limited 1972 (1) SA 589 (A) and Standard Bank v Estate Van Rhyn 1925 AD 246, and recorded that the onus lies on the person alleging acquiescence, with reference also to Dabner v SAR&H 1920 AD 583.

Applying those principles, the court held that the father’s crude statement during a dispute could not be construed as a knowing abandonment of rights or a decision to accept the children’s retention in South Africa. The court further reasoned that the father’s conduct after returning to Norway contradicted acquiescence: he instituted divorce proceedings in Norway and commenced Hague Convention proceedings within 18 days seeking the children’s return, which was inconsistent with any intention to accept the South African situation.

The court also dealt with reliance on a prior settlement proposal made by the father in 2014 in which one suggestion was that the mother and children should return to South Africa. The appeal court found that the proposal was never accepted or implemented and held that it could not constitute acquiescence, adding that it could not be said that a person acquiesced “in advance”.

A further evaluative consideration was the concession recorded in argument that the mother had acted surreptitiously in bringing the children to South Africa intending not to return. The court reasoned that such conduct undermined the mother’s case on consent or acquiescence: if the father had agreed to relocation, the deception would have been unnecessary. The court considered this conduct as cutting across both the habitual residence and consent/acquiescence disputes, reinforcing that the parties lived in Norway and that the mother sought to change that position unilaterally.

On costs, the appeal court rejected the submission that the costs order of the court a quo should be set aside on the basis that the matter was “mainly matrimonial”. It held that the mother’s conduct forced the father to institute Hague proceedings and that she was solely to blame for the state of affairs in that litigation. It further clarified that the court a quo had not allowed costs for counsel holding a watching brief. On appeal, the court accepted that the first respondent was entitled, given the nature of the matter, to employ senior counsel, but confined recoverable costs to one counsel (senior).

5. Outcome and Relief

The appeal was dismissed. The appellant was ordered to pay the costs of the appeal, including the costs of one counsel being a senior counsel.

In addition, the appeal court issued an extensive agreed order regulating the mechanics of the children’s return to Norway, including timelines and cooperation measures. The order required that the minor children be returned to Norway on or before 20 March 2018, recorded the visa and passport difficulties, authorised steps to secure travel documentation (including authorisation for the mother to act without the father and, failing her compliance, authorisation for the sheriff to sign), and provided for contingencies if the mother refused to travel. It also included undertakings and interim support arrangements by the father, provision for Norwegian legal representation for the mother in Norway in relation to custody/access/maintenance disputes, and recorded that the father undertook not to initiate criminal prosecution against the mother in relation to Hague Convention or other offences to date.

Cases Cited

The Central Authority v TK 2015 (5) SA 408 (GJ)

Gentiruco AG v Firestone SA (Pty) Limited 1972 (1) SA 589 (A)

Standard Bank v Estate Van Rhyn 1925 AD 246

Dabner v SAR&H 1920 AD 583

Legislation Cited

Hague Convention on the Civil Aspects of International Child Abduction, 1980 (articles 3, 12 and 13)

Norwegian Children’s Act (as referenced in relation to child welfare benefits and residence requirements)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court upheld the finding that the minor children’s habitual residence immediately prior to their retention in South Africa in March 2015 was O., Norway, and not Johannesburg. It further held that the father had not consented to, and had not acquiesced in, the children’s removal to or retention in South Africa for purposes of article 13(a) of the Hague Convention. On that basis, the appeal against the return order failed, and the children were to be returned to Norway in accordance with the agreed implementation order.

LEGAL PRINCIPLES

The Hague Convention is applied to secure the expeditious return of children wrongfully removed or retained, in order to minimise harm from disruption and to ensure that custody disputes are ordinarily determined by the court in the jurisdiction of the child’s habitual residence, being the place where the child has been living sufficiently long to become acclimatised and develop a settled attachment.

For purposes of article 3 of the Hague Convention, habitual residence is determined through an evaluative assessment of the child’s living reality immediately before removal or retention, drawing from objective indicators of settlement and integration, rather than from the mere existence of property or intermittent travel ties to another country.

The article 13(a) exception requires proof that the left-behind parent consented to or subsequently acquiesced in the removal or retention. Acquiescence, as applied by the court, requires unequivocal conduct by a person who knows their rights and acts inconsistently with an intention to challenge the position, showing a clear intention to abide by the situation. The onus rests on the party alleging acquiescence.

Statements made in the heat of conflict, without more, and subsequent conduct promptly invoking legal remedies to secure return, are inconsistent with consent or acquiescence as contemplated by article 13(a).

L v Center Authority for the Republic of South Africa and Another (A5055/2016, 24108/2016) [2018] ZAGPJHC 71 (20 February 2018)