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[2010] ZAGPPHC 261
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Central Authority of the Republic of South Africa and Another v LG (32652/2009) [2010] ZAGPPHC 261; 2011 (2) SA 386 (GNP) (22 April 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE:32652/2009
DATE:
22/04/2010
In
the matter between:
CENTRAL
AUTHORITY OF THE
REPUBLIC
OF SOUTH
AFRICA
.......................................................................
1st
APPLICANT
KSG
.................................................................................................................
2nd APPLICANT
And
LG
.....................................................................................................................
RESPONDENT
JUDGEMENT
MOLOPA
- SETHOSA J
This
is an application in terms of the Hague convention on the Civil
Aspects of International Child Abduction (1980), ("the
convention"), as incorporated into South African Law by the
Hague Convention on the Civil Aspects of International Child
Abduction Act 72 of 1996, (the Act"), for the return of the
minor child, OG, ("Oliver"), born on 15 October 2007,
to
the jurisdiction of the Central Authority, of England and Wales.
The
first Applicant is the family Advocate employed as such by the
Department of justice and Constitutional Development representing
the
Central Authority of the Republic of South Africa. The power to act
herein has been duly delegated to the first (1st) Applicant
in terms
of section 4 of the Act.
The
second Applicant is the biological father of the minor child
concerned in this matter, who (2nd Applicant) is resident in the
United Kingdom. The Respondent is the biological mother and wife to
the second Applicant. The second Applicant and the Respondent
were
married to one another on 30 June 2003. Oliver is a child born
between second Applicant and the Respondent.
The
Hague-Convention on the civil aspects of International Child
Abduction Act adopted on 25 October 1980 at Den Hague, forms the
underlying basis of this application.
The
Central Authority of the Republic of South Africa ("the first
applicant") received a request from the contracting
state, and
more specifically the Central Authority for England and Wales, for
the return of the minor child, in terms of the convention.
The
application is premised on Article 3 of the convention. The
Applicants contend that the minor child, Oliver, was wrongfully
removed from Oliver's place of habitual residence, the United
Kingdom, on 3 February 2009 and is retained by his mother, Loni
George ("'the Respondent"), in South Africa. This is denied
by the Respondent.
It
is common cause that the Respondent and the minor child have been
living in South Africa under the jurisdiction of this Court
since
during or about the 3rd of February 2009.
The
second Applicant contends that it was agreed between him and the
Respondent that the Respondent and Oliver would travel to South
Africa on 03 February 2009 to attend a family wedding and would
return to the United Kingdom after the wedding on 28 February 2009;
refer FA par. 26 pl6 of the paginated papers ("the papers"),
second Applicant's statement in Annexure "BM2"
to the FA,
p30 of the papers.
In
his statement aforesaid, p30 of the papers, the second Applicant
states as follows:
"Approximately
early January, Mrs George and I had an argument and separation was
discussed. We have had many arguments in
the past and when big
enough, Mrs George has gone to South Africa to see her parents.
Although the flight was booked following
this argument we continued
with life. The flight was booked with a 6 month return, we did this
so she had flexibility for her return
as we know that she has many
friends and family that she would like to catch up with before coming
home. We went shopping together,
ate together and everything seemed
to have calmed down. On her flight day February 3rd 2009 we drove
calmly to the airport, we
had bought a new phone so we could talk
from either side of the departure gates, had lunch and again all
seemed well. I was given
the impression that she would be returning
following her aunt's wedding which was on 28 February 2009. However
she has become despondent
and is refusing to return with our son,
despite many conversations (mostly heated) and emails. It was only
days after she landed
that my wife announced that our marriage was
over and she would not return with our son. In the meantime it is
apparent that this
was somewhat orchestrated as personal things like
DVD's have been removed while leaving their cases so I did not become
suspicious.
Mrs George has been to South Africa several times with
our son in the past and has always returned without any issues. "(My
underlining).
The
Respondent is clearly denying that she contravened Article 3 of the
convention in any way or form, and avers that the removal
of the
child was indeed with the consent and with the support of the second
Applicant; refer AA par. 2.1.2 pp64-65 of the papers.
The
Respondent contends that during early January 2009 she and the second
Applicant indeed had an argument and they agreed that
they should
permanently separate and they further agreed that she (the
Respondent) would then return back to South Africa with
Oliver; refer
AA par. 9. 2 pp86-87 of the papers.
It
is trite that in order to succeed with an application under the
convention the Applicants need to convince the court, on a balance
of
probabilities, that the convention was contravened in that the
Respondent "wrongfully removed" the minor child from
the
state where the minor child was "habitually resident"
immediately before the removal there from.
As
already stated above, the Respondent is denying that she contravened
Article 3 of the convention in any way whatsoever, and avers
that the
removal of the minor child was indeed with the consent and with the
support of the second Applicant. The second Applicant
concedes that
Oliver was removed from England to South Africa with his consent;
refer RA par. 5.3 pl26 of the papers.
It
is significant to state further that, the relief claimed by the
Applicants, can only be granted if the Applicants can show, that
the
relief sought in terms of Article 12 of the convention, as is
required in Article 3 of the convention, has the effect, that
the
minor child is being withheld, in contrast with the "rights the
second Applicant had, by way of legislation, alternatively
rights
actually exercised". In terms of Article 3 of the convention,
"The removal or 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 exercised,
either jointly or alone, or would have been exercised but for
the
removal or retention. The rights of custody mentioned in
sub-paragraph 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.
"
In
terms of Article 13 of the convention, "notwithstanding the
provisions of the preceding Article fi.e. Article I2f, the judicial
or administrative authority of the requested state, [therefore the
Republic of South Africa in this case], 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 of retention; or
b.
there is a grave risk that the child's return would expose the child
to physical or psychological harm or otherwise place the
child in an
intolerable situation. "
Basically,
the Respondent relies, amongst others, on the provisions of Article
13(a) and (b) for her defence. The onus is borne
by the Respondent in
this regard; refer Smith v Smith
2001 (3) SA 845
(SCA) at 851[par
11]; Pennello v Pennello
2004 (3) SA 117
at 138 [par 38].
If
one has regard to the facts/evidence set out in the
papers/affidavits, including the second Applicant's statement
aforesaid,
set out on page 30 of the papers, the following facts can
be established:
■
That
the parties frequently had arguments, and mostly "heated"
as declared by the second Applicant.
■
That
the Respondent frequently travelled with the minor child, for
extended periods to South Africa, especially after the "heated"
arguments between the parties.
■
That
during all this time the minor child was solely under the care of the
Respondent.
■
That
shortly before the Respondent left for South Africa, more
specifically in or around January 2009, the parties had an argument
and discussed their separation.
■
That
according to the second Applicant himself, the Respondent's flights
were booked immediately following the argument aforesaid
[after the
parties had discussed separation], with a six (6) months' return,
allegedly so that she (the Respondent) had flexibility
for when she
needed to return. This evidence is contradicting the evidence of the
first Applicant, in paragraph 26 on page 16 of
the papers where it is
stated as a fact that the Respondent would return after her aunt's
wedding on 28 February 2009.
■
That
the second Applicant had no problem in at least agreeing on being
separated from the minor child, for a period of at least
six (6)
months.
■
That
the second Applicant was under the "impression" that the
Respondent would return, as she always returned in the past
after she
had come to South Africa following an argument between the parties.
The
second Applicant's evidence aforesaid as such, somewhat supports the
Respondent's evidence; refer to par. 4.14 p78 of the papers,
where
the Respondent declares as follows:
"The
second Applicant and I regularly had heated arguments and on or about
early January 2009 we decided to separate and divorce
one another.
The second Applicant indicated that he is of the view that I should
institute the proceedings in South Africa as I
would be returning to
my country of birth, with our son. This fact was never in dispute.
The second Applicant knew all along that
I felt trapped, never
settled in the UK and always wanted to return to my country of birth.
"
The
Respondent further avers that it was always her clear intention that
she and the minor child, would be returning to South Africa
on a
permanent basis, and the Second Respondent is the one who paid for
their tickets; refer par 4.15 pp 78-79.
According
to the Respondent- the second Applicant accepted this, at that point
in time, and she contends that he therefore consented
in no uncertain
terms to the Respondent removing the parties' minor child with her.
The Respondent denies ever having returned
to South Africa under
"false pretence".
The
Respondent avers that she initially booked her airplane tickets as
this so called "open ended" tickets, with a six
(6) months'
window as this costs the same as a one way ticket. She declared that
this was never done as a sign or fact that she
would be returning,
but was done, in her view, because of the practicality and further
that she had stated that if she at any stage
should agree to
reconcile, the return might be possible.
It
is clear from the facts that the Second Applicant in the first place
consented to the child being removed by the Respondent.
It is clear,
from the papers that the Second Applicant only realized, that no
reconciliation would be possible, after the Respondent
had left the
UK.
It
is common cause that sometime in March 2009 the second Applicant and
the Respondent discussed divorce [through skype], and even
agreed on
the division of their assets and custody of Oliver; refer AA par.
2.3.3, p67, par.4.19-4.23, pp81-83 of the papers, RA
par. 8.1-8.2
pl28 of the papers. The Respondent contends that the second Applicant
clearly consented to the removal of the minor
child, on a permanent
basis, after agreeing to a divorce.
The
Respondent annexed confirmatory affidavits to the effect that her
parents were also aware about the fact that if no reconciliation
would be possible, she would be permanently resident in South Africa,
with the minor child. Also that her parents heard when she
and the
second Applicant discussed the divorce and settlement issue on Skype.
The
Respondent avers that as instructed by the second Applicant, she
consulted an Attorney, Mr Van Wyk, in Klerksdorp, and that
the
attorney had a telephonic discussion with the second Applicant. She
further avers that at no stage did the second Applicant
allude to any
of the allegations made in his application, nor did he indicate to
attorney Van Wyk that he was not satisfied with
the arrangement or
that the Respondent had allegedly "abducted" the minor
child; refer AA par. 4.23 on p83.
The
Respondent contends that the second Applicant might have subjectively
placed his hopes on reconciliation, despite his consent.
She further
contends that the fact that he (the second Applicant) declares that
he was under the "impression" that the
Respondent would
return, and did not know this as a fact, supports the contention of
"consent".
Further
grounds for opposing the application have been set out by the
Respondent, amongst others, as follows [more particularly
on grave
risk of harm:
"...the
Second Applicant in fact did not fulfil the role of primary caregiver
to our child, and never has........ our minor
child does not have a
very close bond with the second Applicant, and received very little
attention from him. " Refer par.2.2.3
p66 of the papers.
The
Respondent further contends that it would not be in the minor child's
best interest if he were to be placed in the care of the
second
Applicant in that the second Applicant would not be able to care for
the minor child physically, nor emotionally; also that
Oliver would
suffer grave psychological harm if he were to be removed from her
care, it would be traumatic for him (Oliver). Refer
par.4.27 p85 of
the papers.
The
Respondent further contends that the minor child would suffer grave
psychological harm and would be placed in an intolerable
situation,
in that (as summarized in the Respondent's heads of argument):
■
The
minor child is still of tender age.
■
The
second Applicant has never cared for the minor child.
■
The
second Applicant would not be able to care for the minor child
physically.
■
The
second Applicant has formed no emotional bond with the minor child
whatsoever.
■
The
Respondent has always been the minor child's primary caregiver and
caretaker, and no emotional bond exists between the second
Applicant
and the minor child.
■
The
second Applicant has no support system whatsoever to enable him to
care for the minor child.
■
The
second Applicant refused all along to contribute financially to the
minor child's maintenance needs.
These
accord with the evidence set out by the Respondent in her Answering
Affidavit ("AA").
The
following appears from the second Applicant's Replying Affidavit
((RA");
In
the RA par 8.1 on pl28 of the papers, the second Applicant avers that
he did concede that the parties should obtain a divorce
although he
(the second Applicant) states that he was emotionally charged; the
Respondent contends that it cannot be disputed that
the second
Applicant accordingly acquiesced to the retention of the minor child.
The
second Applicant avers in the RA par 8.4 on pl29 of the
papers
that in matters regarding the Hague-convention, the best interest of
the minor child test is "not applicable ".
In the matter of
Senior Family Advocate Cape Town and another v Houtman
2004 (6) SA
274
at 286, NC Erasmus J held:
"Two
points can be made in this regard. Firstly South African courts are
compelled to place particular emphasis on the best
interest of the
child, not only because of their role as upper guardian of all minors
but also because of the constitution Act
108 of 1996. Section 28(2)
of the Constitution states that: A child's best interests are of
paramount importance in every matter
concerning the child.
The
drafters of the convention have made provision for the reference to
the law of independent states with the insertion of Article
20, which
states that:
the
return of the child under the provisions of Article 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 ". Compare Sonderup v Tondelli
and another
2001(1) SA 1171 (CC) at ppl 184-1186.
The
Applicants maintain that the minor child was "habitually
resident" in the United Kingdom, refer RA par. 11.4, pl30.
According to the second Applicant this is based upon the fact that
the minor child was born in the United Kingdom and has lived
there
all his life. The Applicants further contend that the Second
Applicant was exercising custody at the time the minor child
was
removed from the UK in that the parties are still married to each
other and both have parental responsibility to the minor
child.
The
Respondent contends that she (the Respondent) was the primary
caretaker and that she (the Respondent) has lived apart from the
second Applicant during numerous periods of their marriage, as the
parties' marriage was in turmoil and the Respondent often returned
to
South Africa [with Oliver, when their arguments were "big
enough” per second Applicant].
In
the matter of Senior Family Advocate Cape Town and Another v Houtman
2004(6) SA 274 (C) at 282 it was held that "it is clear
that
habitual residence must be determined by reference to the
circumstances of each case "; that "the word 'habitual'
implied a stable territorial link; this may be achieved either
through length of stay or through a particular close tie between
the
person and the place and connoted something which will not be
temporary. " Refer also Central Authority (SA) v A
2007 (5) SA
501
(W) at 510 where it was held that "habitual residence...is
dependent on the habitual residence of the parents. Where the parents
do not have a common habitual residence, the habitual residence of
the child follows that of the parent with whom he has a home
at the
time. "
The
second Applicant further contends on page 130, that he has a strong
bond with Oliver, In this regard he annexed to his RA statements
by
his colleagues and friends to confirm this, as evidence, however,
such statements are not under oath and thus cannot be regarded
as
evidence but merely as hearsay evidence.
It
is important to note that the second Applicant contradicts his own
evidence, in denying that he ever agreed to separate and divorce,
refer RA par. 12.6 on page 131, whilst in par. 8.1 p 128 he concedes
that he did agree.
It
is also important to note a significant factor, that the second
Applicant has denied the Respondent and the minor child, which
he
professedly so deeply cares for, and has such a strong bond with, any
funds whatsoever for subsistence. The second Applicant
avers that he
has been advised by "a solicitor'" in England not to send
the Respondent any maintenance for the minor
child. The Respondent
contends that such advice can in no terms be regarded as being in the
best interest of the minor child, that
it is indicative of the lack
of bona fides and commitment by the second Applicant, and should be
considered with suspicion.
Having
regard to the totality of the evidence before this court, and on the
facts before this court as well as on the authorities
referred to by
the parties, which I have duly considered, I am satisfied that the
minor child's habitual residence before coming
to South Africa with
his mother on 03 February 2009 was in the United Kingdom (UK), where
he resided with both his parents. Further,
I am prepared to accept
that the parties having been married and having lived together with
Oliver in the UK as at 03 February
2009 aforesaid, the second
Applicant, if one adopts the English concept of custody in convention
matters, viz. parental responsibility
towards the child, enjoyed
custody in terms of the provisions of the convention, in that there
is no evidence that he did not contributed
to the maintenance of
Oliver while the Respondent and Oliver were still in the UK. This in
my view amounts to parental responsibility.
However,
from the facts it is clear to this court that prior to the Respondent
and the minor child leaving the UK for SA, there
was an agreement to
separate, followed by an agreement to divorce; further I am satisfied
on the facts set out above that the second
Applicant had consented to
Oliver living permanently in South Africa with his mother.
It
is appalling that these proceedings were initiated by the second
Applicant merely a day after he had spoken to the Respondent's
then
attorney of record confirming the terms of the divorce, which he had
agreed with the Respondent, including that the Respondent
would take
custody of Oliver. The fact that the second Applicant also
contradicts himself on this aspect, as already stated above,
is
indicative of the fact that he is not playing open cards with the
court. He may have harboured hopes that "as usual"
the
Respondent would return to the UK despite the parties having finally
agreed on separation and divorce, including Oliver' custody;
this,
however, does not detract from the fact that they had agreed on the
terms of the divorce and he had confirmed these with
Van Wyk. Nowhere
during these discussions did the second Respondent raise the issue of
"abduction" and/or his objection
to the minor child being
in South Africa with his mother. The second Applicant, in my view, is
not genuine in these proceedings.
Interestingly,
even if one were to accept that the parties had not agreed to
separation, divorce and custody issues as alleged by
the second
Respondent, he, on his own version, was prepared to stay away from
his son, who was only 17 months old at the time,
for at least six (6)
months. This is not indicative of the "close bond" he
alleges to have with Oliver.
I
find it disturbing that the First Applicant states in her Replying
Affidavit that "the second Respondent is under extreme
stress
and anxiety as a direct result of the retention of the minor child in
South Africa." Refer RA par 5.2 pi 19. how can
this be so since
the Second Respondent, on his own version was prepared to stay for at
least six (6) months without seeing his
young child! I think that it
is imperative that the Central Authority represented by the first
Applicant herein should strive to
stay as objective as possible in
these matters, and not create an impression that he/she is
subjective. Basically the fight in
these matters is between the
parties concerned and the first Applicant is merely a facilitator in
terms of the convention.
The
other worrying factor raised in the papers, the first Applicant
contends in her FA that during mediation proceedings the Respondent
agreed to voluntarily return Oliver to the UK, which aspect is
vehemently denied by the Respondent and her former attorney. There
is
mention by the Respondent of a social worker who was present during
the mediation process, the first applicant is silent on
this aspect,
despite having had the opportunity to deal with this aspect in her
RA, she simply did not deal with it, no confirmatory
affidavit/reports from the social worker, to whom the first
Respondent had access, were annexed to the papers. This makes the
court wonder if the first Applicant was being candid to the court.
Be
that as it may, returning back to the issues before court, on the
facts before court I am also satisfied that the minor will
be exposed
to grave risk of harm if he were to be returned to the second
Applicant. The second Applicant does not portray the best
interests
of this child at heart. Also, there is undisputed evidence that since
the child has been in South
Africa
has health has improved tremendously; this is of utmost importance
and cannot be ignored.
On
all the facts before court I am not satisfied that the Applicants
have made out a case for the order sought in terms of the convention.
In
the result the application is dismissed with costs. Such costs,
including the costs of the previous postponements are to be borne
by
the second Applicant.
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT