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[2010] ZAGPPHC 193
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Central Authority v Reynders and Another (12856/2010) [2010] ZAGPPHC 193; 2011 (2) SA 428 (GNP) ; [2011] 2 All SA 438 (GNP) (10 November 2010)
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REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 12856/2010
Date:
10/11/2010
In
the matter between:
THE
CENTRAL
AUTHORITY
..........................................................................
Applicant
(THE
REPUBLIC CF SOUTH AFRICA)
and
MARGI
REYNDERS (born
JONES)
...............................................................
Respondent
L
S
........................................................................................................................
Intervening
party
JUDGMENT
FABR ICIUS
J:
1.
This
is
an
application
brought by the South African Central Authority, represented by the
office of th
e
Family
Advocate,
under the Hague Convention on the Civil Aspects of International
Child Abduction, Act 72 of 1996
(the
Act) (the Hague Convention).
An
order is sought that the particular minor child, LS
("l")
be
returned forthwith to the jurisdiction of Los Angeles, in the United
States of America, and into the care of 'her father, Mr
GG Speeckaert
("the
father).
2.
L
is at present in the care of her maternal grandmother in Hoedspruit
and at the hearing of this application I ordered that pending
my
decision and judgment, the child remain there and complete this
year's schooling.
3.
The
Applicant received a request dated 22 October 2009 from the US
Department of State, Bureau of Consular Affairs,
Office
of
Children's Issues, which is the US Central Authority for the Hague
Convention, on behalf of the
father
for
the return of his daughter L to the USA pursuant to the provisions of
the Convention. The relevant and necessary documents were
attached to
the founding affidavit, and I will refer to them where necessary. The
relevant facts were obtained by the Family Advocate
from the father,
I will also refer
hereinafter
to
an
ex
carle
application
of 21 August 2009 brought by the child's
maternal
grandmother,
and a draft answering affidavit to that application which also
contains facts that I will deal with in this judgment.
4.
The
father and his (then) South African girlfriend, Jacqueline Stein, had
a daughter called L who was born in Cape Town on 15 May
2002. Her
mother died on 21 September 2007. The father was not married to her,
but it is not in dispute that he is in fact the
biological father of
L. and (he father thereafter decided to
"take
responsibility
for
his daughter, and took her to Belgium with him during about December
2007. The child was then
"registered"
in
Belgium at the father's then
domicile
in
Merchtem on 17 January 2008. This is reflected by a so-called
"Composition
of the Family”
certificate,
which reflects details of the father as having been resident in
Belgium since 6 March 2001, his
"girlfriend"
Salas
Edurne. resident there since 28 December 2006, and L resident there
also since January 2008. It is common cause that the father
later
married the mentioned Salas. They were married on 3
January
2009.
The
father then
"officially
recognised"
his
daughter L according to Belgium law on 19 January 2008, and the child
then took the surname of her father and was officially
"registered"
as
L S. As a parent, the father therefor had parental authority and
rights of custody from that day on.
5.
The child then attended elementary school in Belgium from January
2008 until June 2008, whereafter she relocated with her father
and
his current wife, Salas, to Los Angeles USA. She attended an
elementary
school
in Los Angeles from September 2008 and completed Grade 1 there. In
September 2009 she was due to start at another elementary
school, but
before that she visited her
maternal
grandmother,
the present Respondent, in Hoedspruit during the school holidays, and
was supposed to return to Los Angeles on 24 August
2009.
6.
The State Attorney has alleged that Los Angeles was the child's
habitual place of residence in the USA, and I will deal with
that
topic hereunder.
7.
L has also previously visited her grandmother for a holiday in the
RSA and had returned without any problem. This time, however,
the
Respondent refused to put L on the airplane on 23 August 2003 and,
unbeknown to the father, had launched legal proceedings
ex parte
which resulted in an order granted on 21 August 2003, and therefore
two days before the Respondent was to have returned
L to her place of
residence. The father only received notice of the order by e-mail
after it was granted under case number 57277/2009.
8.
It is necessary to refer to this
ex
parts
order
in some
detail:
Applicant
sought an order that pending the final outcome of the Family
Advocate's investigation and the final determination of Part
B of the
notice of motion, the full parental rights and responsibilities in
respect of L be granted to her which rights would
inter
alia
entail
that:
8.1.
she would be L's primary caregiver;
8.2
L's primary residence would be at her place of residence,
8.3.
she would act as L's guardian.
The
"matter'
was
referred to the Family Advocate to investigate as a matter of urgency
what would be in L's best interest pertaining, infer
alia,
to
the question as to which party was better equipped to be granted
primary residency and care in respect of L, and to make
recommendations
in this respect to the Court. The application
together with the order would be e-mailed to the father at his
residential address
in Belgium, and the father would thereafter be
allowed one month within which to enter an appearance to oppose the
application.
On 23 November 2009 an order was granted by this Court
staying the application under the mentioned case number, pending the
outcome
of the Hague Convention application which is now before me.
The Court also ordered that pending my decision, the primary care and
residency of the minor child would remain with the present
Respondent.
9.
Before I proceed with the brief history of this case, it is
convenient to refer to certain allegations made in the ex
parte
application.
Under the heading
"the
parties"
the
present Respondent referred to
herself
as being the biological maternal grandmother of the minor child, and
the Applicant as the biological unmarried father of
the minor child.
She alleged that the father had not required by operation of law
parental rights and responsibilities in respect
of L in terms of
section 21
of the
Children's Act. 38 of 2005
.
"nor
has he obtained custody and guardian by the operation of any laws
here in South Africa or elsewhere abroad in respect
of the minor
child".
She
also alleged that L spent a few months in Belgium from approximately
January 2008 to September 2008, whereafter she relocated
to Los
Angeles and resided there to date
"with
the person who is not
L's
parent
or custodian but who merely
assumes
the
care of L in the absence of the Respondent".
She
further alleged that the Respondent in that case had not formed a
definite intention that L should permanently reside in Los
Angeles.
Certain allegations were then made about the father's present wife
and her unhappiness about residing in Belgium, and
allegations
pertaining to the unhappy relationship between L”s father and
his new wife. She referred to section
1
of
the Domicile Ad which, in that context, meant that the child would
either be domiciled at the place with which she was most closely
connected, or otherwise, if she had her home with one of her parents,
it would be presumed, unless the contrary was shown, that
the
parental home concerned was the child's domicile. She then alleged
that the father had never formed a settled intention that
L would
reside in Los Angeles, and then referred to a Court in Belgium having
awarded the father certain parental rights. Ultimately,
she alleged
that the South African Courts would be in the best position to
determine parental rights and responsibilities in respect
of L. As
far as her reasons for launching the application ex
parte
was
concerned, the following reasons were given (in the context of no
prior service):
"1
It is exceedingly difficult a
s
he
does not remain in one place for
any
length
of time. He further does not inform me of his movements.
2
It is imperative for the above Honourable Court to intervene
as
Upper
Guardian of all minor children and to safeguard the interests of L
and to protect her.'
10.
The
concluding submission in that context then was that "due
to
time
constraints and the fact that
it
is
exceedingly difficult
to
get
hold of the Respondent to serve this application upon him by means of
edictal citation or otherwise.”
I
t
is,
however, clear from the objective facts and copies of electronic
mails attached to the application, that the Respondent was
in contact
with the father on 21 August and that she was also not correct (to
put it diplomatically) when referring to the lack
of parental rights
that the father had over his daughter. I expressed my grave
misgivings about the vague, and clearly not accurate
allegations made
in the founding affidavit pertaining to the reasons why the
application was brought
ex
parte,
I
r
equested
the Respondent to file a further affidavit explaining her reasons
which were clearly not correct, and was then handed an
affidavit
which is not inculpatory but exculpatory on the basis that
"one
now
Knows
better
with 20/20 hindsight
or
words to that effect. The supplementary affidavit on this topic
persists in a regrettable lack of insight as to what is actually
required, and what the problem was that I pointed out in Court.
Litigants ought to know, and legal practitioners do know, that
because an ex
parte
application
by its very nature places only one side of a case before the Court,
it requires the utmost good faith on the part of
an Applicant. All
Known material facts, i.e. facts that might reasonable influence a
Court to come to a decision must be disclosed.
See:
Harms,
Civil
Procedure in the Supreme Court
,
Butterworth, B
-41
and
the authorities referred to in footnote
1.
In
the present case I am of the view that the relevant facts in the
context of the reasons for the
ex
parte
application
are either incorrect, or have been misstated, and/or are only
partially correct.
See:
Harms, Civil Pro
cedure
in the Supreme Court
Butterworth,
B-41 and
footnotes
1
and
2
I
will return to this topic later in my judgment when I deal with the
questions of costs.
11.
The
child's father forwarded certain documentation to the present
Applicant, and I will deal with them in as much as they are relevant
to what the Applicant has to show herein to be able to succeed with
the prayers sought. It is at this stage therefore convenient
to turn
to the relevant Convention.
12.
The
Convention
was
enacted
in order to provide relief for parents of children who are under the
age of 16, and have been wrongfully removed in breach
of the parent's
rights. The main objective is to secure and ensure the prompt and
safe return of minor children wrongfully removed
in any of the
contracting States to the Convention. Its main purpose therefore is
to restore the
status
quo
as
soon as possible to what it was prior to the unlawful removal. For
present purposes, I will only refer to those Articles of the
Convention that are relevant to the dispute before me.
12.1.
Article
3:
This
Article states that 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 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 actually
exercised, either jointly or alone, or would have been so 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 judicial
or
administrative, or by reason of an agreement having legal affect
under the law of that State.
12.2.
A
rticle
4 of the Convention states:
The
Convention shall apply to any child who was habitually resident in a
contracting State immediately before any breach of custody
or access
rights.
12.3.
Article
12 states:
Where
a child has been wrongfully retained in terms of Article 3 and, at
the date of the commencement of the proceedings before
the judicial
or administrative authority of the contracting State where the child
is, a period of less than one (1) year has elapsed
from the date of
the wrongful removal of retention, the authority concerned shall
order the return of the child forthwith.
12.4.
Article
5 of the Convention:
Provides
certain definitions for the purpose of it and
"rights
of custody'
are
defined as including rights relating to the care of the person of the
child and, in particular, the right to determine the child's
place of
residence
"Rights
of access'
are
defined as including the right to take a child for a limited period
of time to a place other than the child's habitual residence.
13.
The South African Children's Act. Act 38 of 2005. came into effect on
1 April 2010 (it was amended by the Children's Amendment
Act, Act 41
of 2007 and the Child Justice Act, Act 75 of 2008). Chapter 17 of the
Act gives effect to the Hague Convention, and
in Section 275 states
that the Hague Convention is in force in the Republic of South
Africa, and its provisions are law in the
Republic subject to the
provisions of the Act. According to Section 278(3), the Court must,
in considering an application in terms
of this Chapter for the return
of a child, afford that child the opportunity to raise an objection
to being returned, and in so
doing must give due weight to that
objection, taking into account the age and maturity of the child.
Section 279 of the Act, in
turn, makes provision for the legal
representation of a child under such circumstances. In accordance
with the Act and the South
African Constitution, I allowed separate
representation of the child, admitted the child's affidavit as
evidence in the present
context and considered all relevant facts. I
will deal with that hereunder, under a separate heading. According to
Section 28(2)
of the Constitution,
a
child's
best interests are of paramount importance in every matter concerning
the child. It is necessary to keep that Constitutional
imperative in
mind in the context of the present proceedings before me. To complete
the contextual setting it is necessary to refer
to Article 13 of the
Convention
"Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requested State 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 his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable
situation
The
judicial administrative authority may also refuse to order the return
of the child if it finds that the child objects to being
returned and
has attained and age and degree of maturity at which it is
appropriate to take account of its views
."
14.
Attached
to the founding affidavit were translated copies of orders of the
relevant Belgium Court, after considering a petition
brought after
the Respondent's refusal to return the child ruled on 25 August 2009
that on a
prima
facie
basis
the father exercised sole parental authority at least on the
provisional basis pending a judgment from the relevant Juvenile
Court, in the relevant application it was stated on behalf of the
Applicant (the father) that the place of residence of the minor
child
was in Belgium, having also been registered in the Belgium Population
Registers.
15.
I
n
the context of the mentioned ex
parte
application,
the father by way of his then authorised attorney, forwarded an
unsigned answering affidavit to the present Respondent,
Certain
allegations are made therein by the father which are particularly
relevant to the present Respondents first ground of opposition,
namely that the child was not
habitually
resident
in Los Angeles and that the
jurisdictions
fact
of Article 4 of the Convention was therefore not proven. In this
particular context certain of the father's allegations in the
answering affidavit are particularly noteworthy. Amongst others
:
the following appear:
15.1.
"My
working area can be anywhere in the World but at this time if is
mainly the USA and Europe)
15.2.
'The
official domicile of my wife and me and also the official domicile of
L S is in Belgium, Dries 1, 1745 Merchtem
15.3.
'At
this moment we stay in ... Studio City. California. USA':
15.4
.
L
S came to Belgium with me. She got her official residence since 14
January 2008 ...at Merchtem. Belgium
15.5.
"She
has Belgian nationality".
16.
Under the heading of
"jurisdiction"
and
"residence”, the child's father then made the following
allegations and I quote them seriatim;
16.1.
"The
official domicile of L S is in ... Maechtem, Belgium;
16.2.
"She
was officially registered as a resident of Belgium with her address
in Belgium.. .since 14 January 2008;
16
.3.
"Since
September 2008 she stayed with me and my wife in ... Studio City,
California, USA:
16.4.
'Her
official domicile, until now is still Dries ... Merchtem. Belgium";
16.5.
"In
any case, this case should
De
tried
in Belgium in the ratione loci competent Court:
16.6.
"At
the end of May . . I launched a petition to the Juvenile Court in
Brussels, asking to confirm my parental rights the Belgian
law
assigned me:
16.7
"L
S has Belgian nationality:
16.8.
"She
is a Belgian citizen with her official domicile in Belgium.
17.
Under
the heading
"nationality
the
father and Applicant in those proceedings stated'
"From
the moment I recognised my daughter (19/01/2008) I had the parental
authority over L S. From the moment LS had her official
residence in
Belgium, the Belgian Courts had jurisdiction over any case concerning
the guardianship of L Just to make sure this
parental authority was
confirmed in a judgment. I asked the Juvenile Court in Brussels to
state that I had the full parental authority
over L I already asked
this confirmation at the end of May
2009.
The
law of Belgium is very clear at this point"
and
the Applicant then referred to Article 375 of the relevant Code.
18.
Regarding
the present Respondents action in the South African Courts, and her
alleged unlawful conduct, he made the following allegations
and I
deem it appropriate to quote them:
L
has her official residence in Belgium and is
a
Belgian
citizen She was only in South Africa on holiday with her grandmother.
Prior
to that he stated that the present Respondent waited until L was in
South Africa just to be able to bring the case before
a South African
Court, so that he could not defend himself, in as much as she
deliberately picked a Court that had no jurisdiction
in this case.
In
the context of the Hague application he said that he launched the
application and directed it to the American Central Authority
of the
Hague Convention. The reason for applying to the American Central
Authority was that he asked the return of L to the United
States of
America where all her social ties lay at that moment. It was also the
place where she went to school and had all her
friends. He stated
that all of her social and emotional connections for the last two
years were in Belgium and the USA. Apart from
her grandmother, and
the memory of her deceased mother, she had no emotional or social
bond with South Africa. The Belgian Court
has also suspended its
decision as to the final order that ought to be granted, pending the
outcome of the present application.
Before he took L to Belgium,
legal proceedings in South Africa at a prior stage allowed her to
come with him to Belgium and at
that stage it was clear for all the
parties, he said
"that
I had the intention to relocate L with me. This could mean at my
official domicile in Belgium or in my residence (USA)'.
He
again repeated that the child's official domicile was in Belgium.
Other allegations concerned facts relevant to the best interests
of
the child, and I will deal with some of those later on herein.
19.
In a
"supporting
affidavit to Applicant's replying affidavit
dated
23 July 2010, the father confirmed the allegations in the founding
affidavit, and the relevant annexures thereto, including
the orders
of the Belgian Court that I have mentioned, and the draft answering
affidavit to the
ex
parte
application.
In the context of the present issue, namely what the childs habitual
residence was, he said the following:
“
I
am
a
director of photography which means that I am often on film-sets all
over the World. I divide my time between film-sets in Europe
and the
USA. My official domicile is recorded as Belgium. However, my family
and I live in LA. USA..'.'.
Nevertheless
he continues to say that the child's habitual residence at the time
of her wrongful retention in the Republic, was
in Los Angeles, it is
clear that he makes a distinction between his and his daughters
official domicile, which is in Belgium, and
his and her place of
habitual residence which is in Los Angeles,
20.
What does
"habitual
residence"
mean
in the present context?
This
concept is not defined by the Convention itself. II has been
interpreted according to
"the
ordinary and natural meaning of the two words it contains, as a
question of fact, to be decided by reference to all the
circumstances
of any particular case"
The
intention thereby is to avoid the development of restrictive rules as
to the meaning of habitual residence, so that the facts
and
circumstances of each can be assessed free of presuppositions and
presumptions. However, the fact that there is no
"objective
temporal baseline"
on
which to base a definition of habitual residence, requires that close
attention be paid to the subjective intent when evaluating
an
individual's habitual residence. When a child is removed from its
habitual environment, the implication is that it is being
removed
from the family and social environment in which its life has
developed, The word
"habitual'
implies
a stable territorial link, which may be achieved through length of
stay, or through evidence of a particularly close tie
between the
person and the place. A number of reported foreign judgments have
established that the possible prerequisite for
"habitual
residence"
is
some
"degree
of settled purpose"
or
"intention''.
A
settled intention or settled purpose is clearly one which will not be
temporary. However, it is not something to be searched for
under a
microscope. If it is there at all it will stand out clearly as a
matter of general impression. I do not lose sight of the
fact that it
is often impossible to make a distinction between the habitual
residence of a young child and that of its custodian's.
See:
Senior Family Advocate, Cape Town, & Another
v
Houtman
,
2004
(6)
SA
274
(C), paragraphs 8 to 11
21.
I noted with interest that the child herself stated that her home was
in South Africa. She is apparently well adjusted at school
in
Hoedspruit, and obviously has been in South Africa for longer tha
n
a
year,
which fact is due largely to the actions of the Respondent herein.
Having regard
to
the
father's
own allegations in the mentioned legal proceedings in Belgium, the
allegations made in his draft answering affidavit to
the
ex
parte
application,
and his supporting affidavit to the present replying affidavit, it is
abundantly clear that his and his daughter's
domicile is in Belgium.
My overwhelming impression in the context of
"habitual
residence"
in
Los Angeles, is that this is at the best of a temporary nature having
regard to the father's profession and its uncertainties.
There is no,
or insufficient evidence, which convinces me that either the father
or his daughter have a particularly close tie
with either Los Angeles
or the United States, They seem to have moved there merely as a
matter of convenience, and there is no
indication on the evidence
before me that their residence there will be of some permanence, or
even that the father had any intention
at all of changing his
domicile from Belgium to the United States. At his own instance,
legal proceedings in Belgium are pending,
and all the allegations he
made in those proceedings, as in the present proceedings, point to
the fact that his own closest ties
are with Belgium, that he regards
himself and his daughter as being domiciled there, and there is no
allegation pointing to the
fact of his intention to abandon that.
22.
I am therefore not persuaded that the Applicant his discharged the
onus of proving that the child was habitually resident in
the United
States immediately before any breach of custody or access rights. I
do, however, accept, contrary to the Respondent's
argument, that the
father had rights of custody on the present facts, and this is
abundantly clear having regard to the proceedings
before the Belgium
Court. It is also clear the removal or retention of the child was
wrongful, in that it constituted a breach
of the valid custody
rights, and that the father actually exercised those rights. There is
no merit in any argument to the contrary,
and I do not therefore
intend dealing with it in any detail at all. The application
therefore ought to fail on the basis of Applicant
failing to prove
one of the necessary jurisdictional facts, namely that of Article 4
of the Convention applying.
23.
There are, however, two further reasons why the application ought to
be refused. One reason pertains to the provisions of Article
12 of
the Convention which reads as follows:
-Where
a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings
before the
judicial or administrative authority of the contracting State where
the child is,
a
period
of Iess than one (1} year has elapsed from the date of the wrongful
removal or retention, the authority concerned shall order
the return
of the child forthwith'.
The
present proceedings have beer, launched within a period of one year
from the date of the wrongful retention of the child, but
at date of
judgment hereof (November 2010), the child has been in the care of
the Respondent since August 2009. That is a separate
fact which I
will deal with hereunder. I accept, of course, that according to the
provisions of Article 19 of the Convention, a
decision thereunder
concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue.
One must not lose
sight of the purpose of the Convention, which is to ensure, save in
exceptional cases provided for in Article
13
(and
possibly also in Article 20) that the best interests of a child whose
custody is in dispute should be considered by the appropriate
Court,
It would be quite contrary to the intention and terms of the
Convention, were a Court hearing an application under the Convention,
to allow the proceedings to be converted into a custody application.
See:
Sonderup v Tondell S Another
.
2001 (1) SA 1171
(CC)at paragraph 30
24.
Article 13:
This
Article provides that I need not order the return of the child if the
person which opposes its return establishes, amongst
others, that
there is a grave risk that his/her return would expose the child to
physical or psychological harm, or otherwise place
the child in an
intolerable situation. The Respondent sought to make out a case on
that basis, and there were some comments by
psychologists who were of
the view that a return to the father in the USA would destabilise the
child, take her away from a present
safe and pleasant environment,
and place her in an environment that would be relatively new to her,
and would further involve living
with her father and his wife, whose
relationship was allegedly in the process of breaking down. Some of
these allegations were
very general and others were exaggerated In
any event, in the mentioned
Sonderup
decision, the Constitutional Court held that Article 13 contemplated
risk of harm of a
grave
nature, in the present case I cannot find the return of the child
would result in her suffering physical harm, and the psychological
harm that was relied on herein would, in my view, not be the serious
harm contemplated by Article 13, but rather the type of harm
that all
children who were subjected to abduction and Court-ordered return,
were likely to suffer, and which the Convention contemplated
and took
into account in the remedy it provided (see paragraph 44 of the
judgment),
25.
Article 13 of the Convention also empowers the judicial authority to
refuse to order the return of the child if it fines that
the child
objects to being returned, and has attained an age and degree of
maturity at which it is appropriate to take account
of its views.
26.
The
child's rights:
The
above mentioned part of Article 13 found resonance in
Section 278
of
the
Children's Act of 2005
, as amended, which I referred to above.
There are other Sections of the Act which are relevant in my view
26.1.
The
objects of the Act (Section 2) are amongst others, that the best
interests of a child are of paramount importance in every matter
concerning the child. This is of course also a Constitutional
imperative according to the provisions of Section 28(2) of the
Constitution,
As I have said, the Act also has as one of its objects
to give effect to the Republic's obligations concerning the
well-being of
children in terms of international instrument binding
on the Republic, such as the Convention.
26.2.
Section
6
of the
Children's Act deals
with its general principles which,
according to
Section 6(2)(a)
, all proceedings, actions or decisions
in a matter concerning a child must respect, protect, promote and
fulfil the child's rights
set out in the Bill of Rights, the best
interests of the child standard set out in
Section 7
, and the rights
and principles set out in the Act, subject to any lawful limitation.
According to Section 6(5), a child, having
regard to his or her age,
maturity and stage of development must be informed of any action or
decision taken in a matter concerning
it, which significantly affects
it.
26.3.
Section 7 sets out the "Pest
interests
of a child standard".
In
that context I need to take into account the nature of the personal
relationship between the child and the father and the caregiver,
their capacity to provide for the needs of the child, including
emotional and intellectual needs, the likely affect on the child
of
any change in its circumstances, the need of the child to maintain a
connection with his or her family, culture or tradition,
obviously
the child's age maturity and stage of development and background, its
physical and emotional security, and its intellectual,
emotional,
social and cultural development and the need for a child to be
brought up within a stable family environment. There
are other
standards, but I have mentioned the ones that are particularly
apposite herein, although I appreciate that I am not sitting
in
custody proceedings properly so called.
It
ts, however, abundantly clear both from Article 13 of the Convention,
Section 278
of the
Children's Act. and
obviously Section 28(2) of the
Constitution, that l am by-law required to take those considerations
into account, over and above
the relevant articles of the Convention,
the Convention itself being subservient to those provisions. This is
abundantly clear
from the provisions of
Section 275
of the
Children's
Act. which
specifically makes the Hague Convention subject to the
provisions
of
that
Act, and obviously subject to the provisions of the Constitution.
26.4.
Not only does Article 13 of the Convention require it but Section
10
of
the
Children's Act requires
that I must give due consideration to the
views expressed by the child, and allow it to participate in the
matter before me, obviously
with due regard to the child's age,
maturity and stage of development,
27.
I have therefore mentioned the relevant statutory framework which I
must have regard to in the context of the proceedings before
me. It
is therefore clear that it is, since the advent of the Constitution
and the
Children's Act, not merely
a question
of
applying the Hague Convention, and making an order in terms of its
relevant provisions, but rather applying the Convention subservient
to the relevant provisions of the
Children's Act and
the
Constitution.
28.
The
best interests of the child:
I
am not sitting as a Court in custody proceedings, and therefore have
decided to mention only the relevant considerations which
seen
collectively, have persuaded me after long and anxious deliberations,
that the best interests of the child are paramount,
and that those
considerations would mean that I ought to refuse the application,
which, in turn, would mean that the order of 21
August 2009 remains
in force, and that this Court in due course would finally determine
whether or not the present Respondent ought
to be granted the full
parental rights and responsibilities sought for in the motion
proceedings under case number 57277/09. I
therefore mention the
following most important considerations:
28.1.
the
child has had very little relevant contact with the life in Belgium:
28.2.
it
has had more
"experience"
of
life in the United States, but certainly substantially more in the
extended family and scholastic environment in South Africa,
with its
relevant culture and tradition that goes along with it;
28.3.
the
child has settled into its life in Hoedspruit, and for present
purposes seems to be well adjusted and stable;
28.4.
she
obviously has an ambivalent attitude towards her father and his way
of life, which view is no doubt less objective than if ought
to have
been, taking into account the nature of the present proceedings and
her participation therein;
28.5.
she
has had less contact with her father than is generally desirable and,
again, she is not to blame;
28.6.
there
is a general consensus among the school teacher, the social worker,
the educational psychologist and the counselling psychologist
that
the child is at present well adjusted, stable and settled;
28.7.
that
subject to further counselling, she would in the context of the
present proceedings generally be better off in Hoedspruit with
the
present Respondent until the
Court
in the mentioned custody proceedings decides otherwise, and once her
father has had the full opportunity to put all the relevant
facts
before the Court (which he has not done at present). I have, for
instance, very little, if any, facts pertaining as to exactly
how
often he is absent from his home In Los Angeles, be that as
at
present,
or as envisaged in the future, who exactly and under which
circumstances, looks after the child during such absences, and
exactly what the relationship between him and his wife is. I mention
this only as an example, and there are other questions that
need to
be answered in full in a proper answering affidavit to the
ex
aerie
proceedings.
29.
I have, however, also not lost sight of the fact that some of the
observations by the educational psychologist in these proceedings
are
a gross exaggeration, and if not properly placed into a meaningful
context, may be prone to guide a Court into the wrong direction
For
instance, his comment that
"LS
w
as
exposed
to some of the most traumatising events known to man"
are
simply a gross exaggeration of the actual facts, and led me to
suggest it, Court that perhaps Respondent's counsel would like
to
present him with one or two history books, I do not at present accept
that the child would be sadly neglected In the United
Stales but I do
find that there are sufficient objective facts at present before me
to hold that it is in the best interests of
the child that the
application be refused, and that she remain in the custody and care
of the Respondent, subject to the finalisation
of the proceedings in
terms of the mentioned ex
parte
application.
In that context I deem it practical and expedient that I order the
father (the Respondent in those proceedings) to
file an answering
affidavit within 30 (thirty) days of this order if he wishes to
oppose those proceedings. A consideration of
all the relevant
affidavits of the teachers and counsellors have persuaded me that the
child's own view, although they largely
refer to short-term views and
interests, are worth taking into account It is clear to me that she
is intelligent, well motivated
and has a strong personality. Like all
other children she deserves respect, and she has mine. She does,
however, need and deserve
a close relationship with her father as
well.
30.
In
the light of all of the above, the application for the return of the
child to the United States is refused.
31.
Costs:
Although
costs normally follow the result, the Court obviously has a
discretion
in the context of any given case to make an order as to costs that is
appropriate and fair, having regard to the relevant
facts and
circumstances, and the conduct of the parties, I have already
mentioned that it is abundantly clear that;
31.1.
the
Respondent herein retained the child in South Africa without
informing her father, as she could have done, as to her intentions
and reasons timeausly;
31.2.
she
launched the
ex
parte
application,
making allegations that were not only vague, unsubstantiated and
inaccurate, but as so without the necessary utmost
good faith that
was expected of her, and of which she and her legal advisors ought to
have been aware of;
31.3.
she
clearly planned the abovementioned:
31.4.
she
had to that extent manipulated the proceedings in the South African
Courts, as well as through her intervention in the proceedings
before
the Belgium Court. I do not believe that a Court ought to tolerate
such conduct, be it in proceedings involving a child,
or in any other
proceedings launched on an
ex
parte
basis,
where the utmost good faith and candour is required. As a sign of my
strong disapproval for such conduct therefore, I am
of the view that
she should pay the costs of these proceedings.
32.
In the result, the following order is made:
1)
The
application by the Central Authority for the return of the child is
refused:
2)
The
proceedings under case number 57277/09 are to continue, and the
Respondent therein is ordered to file his answering affidavit
(if
any) within 30 (thirty) days of the date of this order. This judgment
is to be communicated to him by electronic mail forthwith
(by
Respondent's attorney).
3)
The
Respondent in the present proceedings is ordered to pay the costs of
this application.
DATED
at PRETORIA on this the 10
th
day of NOVEMBER 2010.
SIGNED:
HJ FABRICIUS
JUDGE
OF THE HIGH COURT.
NORTH
AND SOUTH GAUTENG DIVISION
PRETORIA
Counsel
for Applicant: Adv. C Woodrow
Instructed
by The State Attorney, Pretoria
Counsel
for Respondent: Adv, M Van Nieuwenhuizen
Instructed
by Leigh De Sauza Attorneys. Johannesburg
Counsel
for Intervening
Party:
Adv.
MK Steenekamp
Instructed
by Pretoria Justice Centre, Pretoria
Date
of Hearing:
18
to 22 October 2010
Date
of Judgment:
10
November 2010