Brief Summary

Child Law — International Child Abduction — Hague Convention — The applicant sought a declaratory order that the removal of the minor child from South Africa was wrongful under the Hague Convention. The respondent, residing in England, had removed the child without the applicant's consent. The court considered whether the applicant and respondent were co-holders of parental rights at the time of removal and whether the child was habitually resident in South Africa. The court held that the applicant failed to establish jurisdiction as the child was not habitually resident in South Africa at the time of removal, and thus the removal was not wrongful under the Hague Convention.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an application in the Western Cape High Court, Cape Town, for a declaratory order related to an alleged international child abduction under the Hague Convention on the Civil Aspects of International Child Abduction 1981 (“the Hague Convention”). The applicant was the biological father of a minor child, and the respondent was the child’s mother. At the time of the proceedings, the respondent was residing in England with the minor child (approximately 16 months old), while the applicant was permanently resident in Cape Town.

The proceedings arose after the respondent left South Africa with the child. In earlier Hague proceedings in the United Kingdom, Mr Justice Coleridge made an order on 28 September 2010 directing the father to obtain from the South African authorities a decision on whether the removal of the child from South Africa was wrongful for the purposes of Articles 3 and 5 of the Hague Convention. This reflected the procedure contemplated in Article 15 of the Hague Convention, which allows an applicant to seek a determination from the state of the child’s alleged habitual residence as to whether the removal was wrongful.

The general subject-matter of the dispute concerned whether the respondent’s departure with the child constituted a wrongful removal under the Hague Convention. That, in turn, required the court to determine whether the child was habitually resident in South Africa immediately before the removal, and whether the applicant held parental responsibilities and rights (and thus “rights of custody” for Hague Convention purposes) at the relevant time under South African law, particularly section 21 of the Children’s Act 38 of 2005.

2. Material Facts

The applicant and respondent were both South African nationals who had also acquired British nationality. They met in 2005 and had a relationship but never married. During the relationship they lived in both England and South Africa. At the time the child was conceived, the parties were cohabiting in London, but the relationship ended acrimoniously shortly thereafter.

The child was born in the United Kingdom on 1 August 2009. The respondent chose the child’s name, registered the child under her surname only, and did not include the applicant’s name as the child’s father in the UK birth registration documents, although it was not in dispute that the applicant was the child’s biological father.

The court treated as material that the applicant was initially reluctant to become a father, including that he urged the respondent to consider an abortion and ended the relationship around the time of the pregnancy. There was a dispute on the papers as to how long this attitude persisted (the applicant placing it at around 12 weeks and the respondent at 24 weeks), but the court’s assessment was that, at best for the applicant, he was a reluctant potential father for the first three months of the pregnancy.

Shortly after the child’s birth, the applicant travelled to London and spent a limited period with the respondent and the newborn. The parties differed on the duration of that visit, with the respondent alleging about two and a half days and the applicant alleging five days. The court accepted that he spent time with the child, but treated the extent of his involvement as limited and contextualised by his professional commitments and the broader history between the parties. The applicant asserted that during this visit he conveyed a desire to play a role in the child’s life and asked the respondent to provide a budget so that he could contribute to maintenance, but the court regarded it as significant that he did not make or offer an actual monetary contribution at that stage.

On or about 29 August 2009, the respondent travelled with the child to Durban, South Africa. A central factual dispute was whether this return was intended to be permanent. The applicant contended it was permanent, relying in part on the respondent having sold her flat in London, while the respondent contended the stay in South Africa was temporary, stating that she sought family support during maternity leave and that she intended to acquire a more suitable property in due course. The court relied on evidence that the respondent arrived with a return air ticket, entered into a one-year lease for accommodation in Durban, and produced documentation supporting her version of temporary stay, including steps inconsistent with a settled relocation.

While the respondent was in Durban, the applicant’s mother and extended family spent time with the child regularly, while the applicant—resident in Cape Town—spent time with the child sporadically. The respondent later left South Africa with the child. The circumstances of departure were described as unclear; the applicant was advised on 15 April 2010 that the respondent and child would be leaving for Thailand the next day, which was later shown to be inaccurate, as they had left for London. An urgent order in the Durban High Court sought by the applicant to prevent removal was obtained too late.

By the time the present proceedings were instituted on 19 October 2010, the respondent and child were domiciled in the United Kingdom.

3. Legal Issues

The court was required to determine whether the removal of the child from South Africa was wrongful under the Hague Convention for the purposes of Articles 3 and 5, as sought in the applicant’s requested declarator. This required the determination of two central questions.

The first question was whether the child was habitually resident in South Africa immediately before the removal. This was a mixed inquiry involving the application of a legal concept (“habitual residence”) to the factual circumstances of the child’s presence in South Africa and the character of that stay.

The second question was whether, at the time of removal, the applicant and respondent were co-holders of parental responsibilities and rights as envisaged in section 18(1)(a)–(c) of the Children’s Act, and specifically whether the applicant (as an unmarried biological father) had acquired full parental responsibilities and rights under section 21(1)(b)(i)–(iii). This entailed applying statutory requirements to the proven facts concerning the applicant’s conduct, including his contributions (or attempts in good faith to contribute) to the child’s upbringing and maintenance.

A further issue arose as to whether the Western Cape High Court had jurisdiction to entertain the matter given that the respondent and child were abroad when proceedings were instituted. While jurisdiction was contested, the court approached this aspect in light of the nature of child-related litigation and the Hague Convention context.

4. Court’s Reasoning

The court first addressed the jurisdictional objection. It noted that jurisdiction is assessed at the date of commencement of proceedings, namely 19 October 2010, by which time the respondent and child were domiciled in the United Kingdom. With reference to the Domicile Act 3 of 1992, the court noted the presumption that a child’s domicile is the domicile of the parent with whom the child resides, and observed that because the child had never resided with the applicant, she was at no stage domiciled in the Western Cape. The respondent’s counsel argued that no jurisdictional basis existed because the respondent was not subject to the court’s authority and no legislative provision conferred jurisdiction.

The court nevertheless declined to dispose of the matter on jurisdiction alone. Relying on the approach endorsed in S v J 695/10 [2010] ZASCA 139, it emphasised that in child matters formalism and inflexible rules should be discouraged and that a child’s interests should not be subordinated to legal technicalities. The court reasoned that, although Durban was the only South African jurisdiction where the respondent had resided, it was not contended that the Durban High Court was a more appropriate forum; rather, the respondent’s position was that no South African court had jurisdiction. The court concluded that it was sufficiently connected to the dispute—particularly because the applicant was an incola and because the matter’s unique Hague Convention context required a determinative ruling capable of operating as res judicata between the parties. It referred in this connection to Swanvest 234 (Pty) Ltd versus Nkwazi Resources Investments (Pty) Ltd and Another (an unreported decision, case number 871/2010, Northern Cape High Court).

Turning to the merits under the Hague Convention, the court held that a removal is wrongful only if it is from a country where the child was habitually resident, and that the onus rested on the applicant. It noted that “habitual residence” is not defined in the Hague Convention or the applicable legislation, but relied on local authority describing habitual residence as implying a stable territorial link, potentially demonstrated by length of stay or a close tie with the place, and permitting consideration of intention where the position is not otherwise clear. The court quoted and applied the approach set out in Senior Family Advocate Cape Town and Another v Houtman 2004 (6) SA 274, emphasising that habitual residence is assessed as a matter of general impression based on the circumstances and the nature of the connection.

Applying these principles, the court accepted that the respondent arrived in South Africa with a return ticket, and found that immediately upon arrival she had decided to leave in the near future. The court reasoned that, at the least, the applicant knew or should have known that the respondent was considering returning to the United Kingdom. It considered supportive indicators for the respondent’s case of a temporary stay, including the one-year lease in Durban and additional documentation (including an application relating to a “green card” and insurance-related matters) which the court treated as consistent with her version that her South African stay was not intended to be permanent.

The court further reasoned that South Africa could not be regarded as a social environment in which the child’s life had developed. The child had been in South Africa only briefly at an early stage of life, was not born there, and there was no evidence of connection in the cultural, social, or linguistic senses contemplated in the cited authority. The court concluded that the matter did not fit the kind of situation the Hague Convention was designed to address, and held that the applicant had not discharged the onus of proving habitual residence in South Africa immediately before removal.

Although that conclusion was dispositive of the wrongful removal enquiry, the court proceeded to consider the applicant’s alleged custody rights under South African law on the assumption that it might be wrong on habitual residence. It outlined that the relevant provisions of the Children’s Act 38 of 2005 were fully in force by the time of the child’s removal from South Africa, and that because the biological parents were not living together in a permanent life partnership at the time of the child’s birth, the applicant could only acquire full parental responsibilities and rights via section 21(1)(b)(i)–(iii). The court stressed that the applicant had to meet all requirements in section 21(1)(b), and that while consent to be identified as father was not in issue, the dispute centred on whether he had contributed (or attempted in good faith to contribute) to the child’s upbringing for a reasonable period, and whether he had contributed (or attempted in good faith to contribute) towards maintenance expenses.

On upbringing, the applicant’s case was essentially that he had spent some time with the child and had exercised sporadic access over about six or seven months. While the respondent acknowledged multiple visits in the relevant period, the court held that the high-water mark of the applicant’s conduct amounted to a few visits over a relatively short period during infancy and while the child was living with the respondent. In the court’s assessment, in the contextual setting of section 21, such limited contact could not qualify as a contribution to upbringing. The court referred to a dictionary meaning of “upbringing” as the treatment and instruction received from parents through childhood, and found the applicant’s conduct did not fall within that category, while acknowledging the child’s young age.

On maintenance, the court found the applicant’s case even weaker. It was common cause that he had not paid any maintenance expenses at all, and the court rejected as inadequate his attempt to rely on incidental purchases made during shopping. It considered it decisive that he could easily have transferred money to the respondent, given that he knew her banking details, and that on his own version he had been told specific amounts the respondent needed for food and medical aid contributions, yet he paid neither those amounts nor any amount he considered reasonable.

The court also examined the applicant’s reliance on a NatWest bank account opened in his own name, concluding that this did not demonstrate bona fide attempts to contribute in good faith to maintenance. It contrasted the account with an earlier affidavit in Durban proceedings where the applicant indicated an intention to set up an offshore account in future, finding that the NatWest account did not align with that earlier position and did not evidence a genuine maintenance contribution.

On this basis, the court held that the applicant did not acquire parental responsibilities and rights under section 21 of the Children’s Act, and therefore did not have the relevant rights for the purposes of the Hague Convention. Consequently, the respondent’s removal of the child from South Africa was held not to be wrongful for the purposes of Articles 3 and 5.

5. Outcome and Relief

The application for a declarator that the child’s removal from South Africa was wrongful for the purposes of the Hague Convention was dismissed. The court made an order that the application was dismissed with costs.

Cases Cited

In re D [2006] UKHL 51.

S v J 695/10 [2010] ZASCA 139 (19 November 2010).

Swanvest 234 (Pty) Ltd versus Nkwazi Resources Investments (Pty) Ltd and Another (unreported, Case Number 871/2010, Northern Cape High Court).

Smith versus Smith 2001 (3) SA 845.

Senior Family Advocate Cape Town and Another v Houtman 2004 (6) SA 274.

Legislation Cited

Children’s Act 38 of 2005 (as amended), including sections 18(1)(a)–(c), 20, 21(1)(a) and 21(1)(b)(i)–(iii), and section 26.

Domicile Act 3 of 1992.

Hague Convention on the Civil Aspects of International Child Abduction 1981, including Articles 3, 5, and 15.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Western Cape High Court entertained the application notwithstanding jurisdictional objections, finding there was a sufficient connection to determine the matter in the Hague Convention context and that rigid formalism in child matters should be avoided.

On the merits, the court held that the applicant failed to prove that the child was habitually resident in South Africa immediately before removal, and therefore failed to establish a prerequisite for wrongful removal under the Hague Convention.

In any event, the court held that the applicant, as an unmarried biological father, did not satisfy the requirements of section 21(1)(b)(ii) and (iii) of the Children’s Act because he did not contribute or attempt in good faith to contribute for a reasonable period to the child’s upbringing and did not contribute or attempt in good faith to contribute to the child’s maintenance expenses. The applicant therefore did not acquire full parental responsibilities and rights, and the removal was not wrongful under Articles 3 and 5 of the Hague Convention.

The application was dismissed with costs.

LEGAL PRINCIPLES

Habitual residence under the Hague Convention is a factual-legal concept implying a stable territorial link, assessed as a matter of general impression in light of the child’s circumstances and connections, and may include consideration of intention where habituality is not otherwise evident. The party alleging wrongful removal bears the onus of proving habitual residence in the relevant state immediately before removal.

Under section 21 of the Children’s Act, an unmarried biological father acquires full parental responsibilities and rights only if the statutory requirements are met. Where the parents were not living together in a permanent life partnership at the child’s birth, the father must satisfy the cumulative requirements in section 21(1)(b), including contributing or attempting in good faith to contribute to the child’s upbringing for a reasonable period and contributing or attempting in good faith to contribute to maintenance expenses. Sporadic visits, without more, and a failure to make bona fide maintenance contributions, may be insufficient to establish acquisition of such rights.

In child-related matters, courts should avoid rigid reliance on formalistic jurisdictional rules where doing so would be inconsistent with the appropriate approach to disputes affecting children, particularly in contexts implicating international instruments such as the Hague Convention.

R.R.S v D.A.L (22994/2010) [2010] ZAWCHC 618 (10 December 2010)