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[2010] ZAGPPHC 526
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Central Authority for the Republic of South Africa and Another v G (32652/2009) [2010] ZAGPPHC 526 (22 April 2010)
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Certain
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IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE NO:
32652/2009
DATE: 22 APRIL
2010
In the matter
between:
CENTRAL AUTHORITY
OF THE
REPUBLIC OF SOUTH
AFRICA
........................................................................................
1
st
APPLICANT
K[...] S[...]
G[...]
......................................................................................................................
2
nd
APPLICANT
And
L[...]
G[...]
..................................................................................................................................
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, O[...] G[...],
(“[...]”), born on [...],
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 (1
st
) 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 (2
nd
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. O[...] 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 tor England and Wales, tor
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. O[...], was wrongfully
removed from O[...]'s place of habitual residence, the United
Kingdom, on 3 February 2009 and is retained by his mother, L[...]
G[...] (“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
3
rd
of February 2009.
The
second Applicant contends that it was agreed between him and the
Respondent that the Respondent and O[...] 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 Januar
y, Mrs
G[...] and I had an argument
and
separation was discussed
.
We have had many arguments in the past and when big enough, Mrs
G[...] 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 3
rd
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 G[...] 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
O[...]:
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
O[...] 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 12],
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 O[...];
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 O[...] would
suffer grave psychological harm if he were to be removed from her
care, it would be traumatic for him (O[...]).
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
pi 28 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
andfundamental 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 bom 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
O[...], 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 O[...].
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 w
ith both his parents. Further.
I am prepared to accept that the
parties having been married and having lived together with O[...] 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 O[...] while the
Respondent and O[...] 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
O[...] 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, w hich he had agreed with the
Respondent, including that the Respondent
would take custody of
O[...]. 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 O[...]’
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
O[...].
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 O[...] 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 w as 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