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[2012] ZASCA 17
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KG v CB and Others (748/11) [2012] ZASCA 17; 2012 (4) SA 136 (SCA); [2012] 2 All SA 366 (SCA) (22 March 2012)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 748/11
Reportable
In the matter between:
KG
.......................................................................................................
A
ppellant
and
CB
….......................................................................................
First
Respondent
ESSEX COUNTY COUNCIL
…......................................
Second
Respondent
CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH AFRICA
....................................
Third
Respondent
Neutral Citation
:
KG v CB & others (748/11)
[2012] ZASCA 17
(22 March 2012)
Coram
: MTHIYANE DP, VAN HEERDEN & LEACH JJA, BORUCHOWITZ &
PLASKET AJJA
Heard
: 22 February 2012
Delivered
: 22 March 2012
Summary
:
Hague Convention on the Civil Aspects
of International Child Abduction 1980 – child wrongfully
removed to South Africa from
the United Kingdom – application
for return of child – meaning of ‘rights of custody’
in articles 3 and
5 of Convention – defence of consent to or
acquiescence in removal of child in terms of art 13(1)(
a
) of
Convention – ‘safe harbour’ defence in terms of art
13(1)(
b
) of Convention – terms of return order
Order
On appeal from:
South
Gauteng High Court, Johannesburg (Satchwell J sitting as a court of
first instance):
A The appeal is dismissed, with no order as to costs.
B The order of Satchwell J in the South Gauteng High Court dated 14
July 2010 is replaced by the following order:
‘
1. It is ordered and directed that the
minor child, T, be returned forthwith, but subject to the terms of
this order, to the jurisdiction
of the Central Authority for England
and Wales.
2. In the event of KG (the mother) notifying the Office of the Family
Advocate, Johannesburg (the family advocate) within one week
of the
date of issue of this order that she intends to accompany T on her
return to the United Kingdom, the provisions of para
3 shall apply.
3. CB (the father) shall within one month of the date of issue of
this order, institute proceedings and pursue them with due diligence
to obtain an order of the appropriate judicial authority in the
United Kingdom in the following terms:
3.1 Any warrant for the arrest of the mother will be withdrawn and
will not be reinstated and the mother will not be subject to
arrest
or prosecution by reason of her removal of T from the United Kingdom
on 14 February 2009 or for any past conduct relating
to T. The father
will not institute or cause to be instituted or support any legal
proceedings or proceedings of any other nature
in the United Kingdom
for the arrest, prosecution or punishment of the mother or any member
of her family, for any past conduct
by the mother relating to T.
3.2 Unless otherwise ordered by the appropriate court in the United
Kingdom:
3.2.1 The father is ordered to arrange, and pay for, suitable
accommodation for the mother and T in the United Kingdom. The father
shall provide proof to the satisfaction of the family advocate, prior
to the departure of the mother and T from South Africa, of
the nature
and location of such accommodation and that such accommodation is
available for the mother and T immediately upon their
arrival in the
United Kingdom. The Central Authority for England and Wales shall
decide whether the accommodation thus arranged
by the father is
suitable for the needs of the mother and T, should there be any
dispute between the parties in this regard, and
the decision of the
Central Authority for England and Wales shall be binding on the
parties.
3.2.2 The father is ordered to pay the mother maintenance for herself
and T from the date of T’s arrival in the United Kingdom
at the
rate of £350 per month. The first pro rata payment shall be
made to the mother on the day upon which she and T arrive
in the
United Kingdom and thereafter monthly in advance on the first day of
every month. Should the mother receive state support,
then the
monthly amount thereof shall be deducted from the £350 per
month payable by the father.
3.2.3 The father is ordered to pay any medical and dental expenses
reasonably incurred by the mother in respect of T, such as are
not
covered by the National Health Service in the United Kingdom.
3.2.4 The father is ordered to pay for the reasonable costs of T’s
schooling and also the costs of her other reasonable educational
and
extra-mural requirements in the United Kingdom, such as are not
provided by the State.
3.2.5 The father is ordered to purchase and pay for economy class air
tickets, and if necessary, pay for rail and other travel,
for the
mother and T to travel by the most direct route from Johannesburg,
South Africa, to Harlow, United Kingdom.
3.2.6 The father and the mother are ordered to co-operate fully with
the family advocate, the Central Authority for England and
Wales, the
relevant court or courts in the United Kingdom, and any professionals
who are approved by the Central Authority for
England and Wales to
conduct any assessment to determine what future residence and contact
arrangements will be in the best interest
of T.
3.2.7 The father is granted reasonable supervised contact with T,
which contact shall be arranged without the necessity of direct
contact between the father and the mother.
4. In the event of the mother giving the notice to the family
advocate referred to in para 2 above, the order for the return of
T
shall be stayed until the appropriate court in the United Kingdom has
made the order referred to in para 3 and, upon the family
advocate
being satisfied that such an order has been made, he or she shall
notify the mother accordingly and ensure that the terms
of para 1 are
complied with.
5. In the event of the mother failing to notify the family advocate
in terms of para 2 above of her willingness to accompany T
on her
return to the United Kingdom, it is to be accepted that the mother is
not prepared to accompany T, in which event the family
advocate is
authorised to make such arrangements as may be necessary to ensure
that T is safely returned to the custody of the
Central Authority for
England and Wales and to take such steps as are necessary to ensure
that such arrangements are complied with.
6. Pending the return of T to the United Kingdom as provided for in
this order, the mother shall not remove T on a permanent basis
from
the Province of Gauteng and, until then, she shall keep the family
advocate informed of her physical address and contact telephone
numbers.
7. Pending the return of T to the United Kingdom, the father is to
have reasonable telephone access to T.
8. There is no order as to costs.’
C The family advocate is directed to seek the assistance of the
Central Authority for England and Wales in order to ensure that
the
terms of this order are complied with as soon as possible.
D In the event of the mother notifying the family advocate, in terms
of para B.2 above, that she is willing to accompany T to the
United
Kingdom, the family advocate shall forthwith give notice thereof to
the registrar of the South Gauteng High Court, to the
Central
Authority for England and Wales, and to the father.
E In the event of the appropriate court in the United Kingdom failing
or refusing to make the order referred to in para B.3 above,
the
family advocate and/or the father is given leave to approach this
court for a variation of this order.
F No order as to costs is made in respect of either the mother’s
application to this court for condonation of the late lodging
of the
record, or the mother’s application to this court for
reinstatement of the appeal.
G A copy of
this order shall forthwith be transmitted by the family advocate to
the Central Authority for England and Wales.
JUDGMENT
VAN HEERDEN JA (MTHIYANE DP, LEACH JA, BORUCHOWITZ & PLASKET AJJA
concurring):
Introduction
At the
heart of this appeal is a little girl, T, who is presently five
years and ten months old. On 14 February 2009, T was removed
by her
mother, KG, from the United Kingdom, where she had been resident
from birth, and taken to South Africa. This was done
without the
knowledge or consent of either the first respondent, T’s
father (CB), or the second respondent, the Essex County
Council (the
Council).
1
Six months later, in August 2009, an application was brought to the
South Gauteng High Court for the return of T to the United
Kingdom
under the Hague Convention on the Civil Aspects of International
Child Abduction 1980 (the Convention). The applicants
were CB, the
Council and the third respondent, the Chief Family Advocate of South
Africa, in her capacity as the Central Authority
for the Republic of
South Africa (the Central Authority). This application succeeded in
the high court, which ordered the immediate
return of T to the
United Kingdom. This appeal against that order serves before us with
the leave of the high court. For reasons
which I shall set out
below, the second respondent, the Council, played no part either in
the court below or before this court.
Factual matrix
T was
born to KG and CB on 12 May 2006 in Harlow, England. Her parents
have never been married to each other. When T was approximately
one
year and four months old, her parents separated. It would appear
that T hereafter resided with CB for a period of time, although
KG,
who was living with a certain DC in an apartment in the same
building as CB, continued to care for T. On 5 November 2007,
after
CB had moved address without telling KG and allegedly left T in a
stranger’s care, KG collected T from her nursery
and T lived
with KB from that date.
Following
a number of disputes between the parents, KB refused contact between
T and CB. This led to an application by CB to the
Harlow County
Court in November 2007, in which CB claimed residence
2
and defined contact
3
orders in respect of T, as well as an order prohibiting KG from
removing T from the jurisdiction of the court. On 12 December
2007,
KG filed a counter-application for a residence order in respect of
T.
On 18
December 2007, an interim contact order was made by the Harlow
County Court granting to CB supervised contact with T. This
contact
was ultimately exercised at the Freshwaters Contact Centre. KG had
also made allegations that CB had sexually abused
his daughter from
a previous marriage, as also his sister, and that he viewed child
pornography on the Internet. The court thus
ordered KG to file a
witness statement from herself and from CB’s sister, setting
out the allegations on which she relied.
The matter was postponed to
31 January 2008 when the court was to consider whether a fact
finding enquiry would be necessary.
Meanwhile, T’s passport
was to be lodged with her mother’s solicitors.
On 31
January 2008, KG was granted an interim residence order in respect
of T. On 23 May 2008, the CAFCASS
4
officer’s report was filed with the court, recommending that a
fact finding hearing take place. Thereafter, on 2 June 2008,
KG was
given permission by the court to take T out of the jurisdiction of
the court to South Africa for a holiday.
In
July 2008, DC assaulted KG. He was arrested and remanded in custody
until 8 December 2008. In the meantime, on 31 July 2008,
upon it
appearing to the court that the concerns of risk (physical, sexual
and emotional) expressed by KG against CB were not
substantiated by
any of the professionals involved in the case or by the court, a
fact finding hearing was scheduled to take
place on 11 August 2008.
This hearing was adjourned as KG was in South Africa at the time.
On 31
October 2008, the court ordered a consolidation of CB’s
application for residence and contact and KG’s application
(brought on 28 October 2008) for an order permitting her to remove T
from the jurisdiction of the court to reside permanently
in South
Africa.
On 8
December 2008, a nine months’ suspended jail sentence was
imposed on DC who was also ordered to attend alcohol treatment
and a
domestic violence programme. The pre-sentence report assessed him as
posing a medium risk of harm to KG and future partners.
The report
also stated that, should DC resume his relationship with KG, or
reside with a new partner, then the level of risk
would be deemed to
increase, especially if DC continued his pattern of alcohol abuse.
Shortly hereafter, KG resumed her relationship
with DC on his
release from prison and, it would seem, was again physically abused
by him in February 2009. These events gave
rise to concerns for T’s
safety on the part of the Council. Thus, on 10 February 2009, the
Chelmsford County Court made
an interim care order
5
to the effect that T be placed in the care of the Council. This
order was to expire on 7 April 2009. At the same time, KG was
ordered to file an updating position statement dealing with her
domestic circumstances and her proposed move to South Africa,
while
CB was ordered to file a statement in relation to his application
for a residence order. The return date of these proceedings
was 16
March 2009.
On 14 February 2009, KG took T to South Africa. She did so without
notice to or the consent of either CB or the Council. On 16
March
2009, the Chelmsford County Court noted
6
that KG had left the jurisdiction with T on 14 February 2009,
without notifying any of the parties or her solicitor and also
that
KG was ‘no longer pursuing the allegation that CB abused his
daughter’ from his previous marriage. The court
then ordered
that –
‘
[t]he
Applicant father and the Local Authority shall jointly make an
application forthwith to the International Child Abduction
and
Contact Unit for the purposes of the repatriation as soon as possible
of [T]’.
On 17
March and 20 March 2009, respectively, CB and the Council applied to
the International Child Abduction and Contact Unit
(ICACU) –
the Central Authority for England and Wales – for the return
of T to the United Kingdom. As stated in para
1 above, the three
respondents then launched a Hague Convention return application on
13 August 2009 in South Africa (the so-called
‘requested
state’, the United Kingdom being the ‘requesting
state’). By the time the matter was argued
before Satchwell J
in the South Gauteng High Court in March and June 2010, the interim
care order granted to the Council had
expired (in April 2009) and
the Council had not sought another such order. The third respondent,
the Central Authority, was informed
by its United Kingdom
counterpart that the removal of T from the United Kingdom had
obviated the need to protect T from the dangerous
domestic
environment that was a cause of concern to the County Court and the
Council and which was the basis for the interim
care order. In the
circumstances, the Council had no further interest in the
proceedings for T’s return.
7
The Council thus abandoned its prayer for the relief claimed in the
return application.
On 14 July 2010, Satchwell J handed down her judgment in this matter
in the court below, ordering the immediate return of T to
the United
Kingdom and directing that –
‘
[i]f counsel are unable to
agree (within ten days of handing down of this order . . . on the
form of the order to give effect to
that immediate return . . . then
the court will receive further submissions (preferably in writing) to
be received on or before
6 August 2010 so that the court can rule
thereon without the expense of a further oral hearing.’
As will be
discussed below, counsel for the parties were not able to agree on
the form of the order to give effect to T’s
immediate return
and no further submissions were made to the court on or before 6
August 2010.
On 14
October 2010, Satchwell J granted KG leave to appeal to this court.
The Notice of Appeal was lodged on 11 November 2010.
KG’s
appeal lapsed on 11 March 2011 due to non-lodging of the appeal
record. Prior to the appeal lapsing, KG did not seek
an extension of
the period for the lodging of the record as contemplated in SCA rule
8(2). On 28 March 2011, the Registrar of
this court notified the
parties that KG’s appeal had lapsed as a result of her failure
to lodge the appeal record. The
appellant’s legal
representatives hereafter informed the respondents’ legal
representatives that the appellant nevertheless
intended to pursue
the appeal and that the reason for the failure to have lodged the
appeal record was their inability to obtain
the transcript of
proceedings before Satchwell J from the duly appointed transcribers.
On 16 May 2011, the appellant’s
legal representatives wrote to
the respondents’ legal representatives confirming that they
were experiencing much difficulty
in obtaining the transcript of the
hearing and requesting the respondents’ legal representatives
to ‘consent to the
late filing of the transcripts’. This
request was refused.
On 21
September 2011, the respondents applied to the South Gauteng High
Court for an order giving effect to the order made by
Satchwell J.
8
As Satchwell J was not available, the matter was heard on 4 October
by Meyer J who
mero motu
raised the issue of legal
representation of T, as contemplated in s 279 of the Children’s
Act 38 of 2005 (the Children’s
Act).
9
Meyer J ordered that a
curator ad litem
be appointed to
represent T’s interests and postponed the matter to 11 October
2011 for the curator to be appointed. Mr
Johan van Schalkwyk from
Legal Aid South Africa was thereafter appointed. In his report dated
17 October 2011, Mr van Schalkwyk
recommended that T not be returned
to the United Kingdom until such time as the appeal be finalised and
‘the cloud surrounding
the allegations of molestation [be]
cleared.’ Mr van Schalkwyk also filed a supplementary report,
commenting on the draft
terms of T’s return compiled by
respondents’ legal representatives.
On 21
October 2011, following representations to the court that the
condonation application and the appeal record had been lodged
with
this court, Meyer J gave a judgment ordering that the proceedings
before him be suspended until final determination of the
appeal.
This notwithstanding, the appeal record and the condonation
application had
not
in fact been properly filed in this
court. In the result, the respondents requested Meyer J on 11
November 2011 to enrol the
matter to determine the terms for T’s
return to the United Kingdom.
Before
the matter was re-enrolled before Meyer J, the appellant served on
the respondents the application for condonation of the
late lodging
of the appeal record and for the reinstatement of the appeal. As far
as I can ascertain, these applications and
the appeal record were
only lodged with the Registrar of this court on 15 November 2011.
At the
commencement of the proceedings before this court, counsel for the
respondents indicated that the respondents did not oppose
the
appellant’s applications for reinstatement of the appeal and
for condonation of the late lodging of the record. Accordingly,
these applications were granted by this court. Counsel for the
appellant submitted that this court should not order the appellant
to pay the costs of these applications. She pointed out that the
legal representatives of the appellant were acting on a
pro bono
basis, having been appointed by Satchwell J to assist the appellant
as the latter had no funds to litigate. According to counsel,
the
lengthy delay in lodging the record could not be laid at the door of
the appellant, as her legal representatives had believed
in good
faith that the transcript of proceedings before the high court was
necessary to assist this court in its deliberations.
Counsel for the
respondents indicated that she did not seek the costs of the
condonation and reinstatement applications and that
she would leave
the matter of these costs in the hands of this court.
The
curator ad litem also appeared before this court. I express the
court’s gratitude to him, as well as to the appellant’s
attorneys and counsel who acted
pro bono
.
The applicability of the Convention
The
Convention was incorporated into South African law by the Hague
Convention on the Civil Aspects of International Child Abduction
Act
72 of 1996, which came into operation on 1 October 1997. With effect
from 1 April 2010, this Act was repealed by the Children’s
Act, Chapter 17 (ss 274 to 280) of which deals with child
abduction. Section 275 provides that the Convention, the whole
of
which forms Schedule 2 to the Act, ‘is in force in the
Republic and its provisions are law in the Republic, subject
to the
provisions of this Act’.
The
primary purpose of the Convention is to secure the prompt return
(usually to the country of their habitual residence) of children
wrongfully removed to or retained in any Contracting State, viz to
restore the status quo ante the wrongful removal or retention
as
expeditiously as possible, so that custody and similar issues in
respect of the child can be adjudicated upon by the courts
of the
state of the child’s habitual residence. The Convention is
predicated on the assumption that the abduction of a
child will
generally be prejudicial to his or her welfare and that, in the vast
majority of cases, it will be in the best interests
of the child to
return him or her to the state of habitual residence. The underlying
premise is that the authorities best placed
to resolve the merits of
a custody dispute are the courts of the child’s habitual
residence and not the courts of the state
to which the child has
been removed or in which the child is being retained.
10
Article
8 of the Convention provides that any person, institution or other
body who claims that a child has been removed ‘in
breach of
custody rights’ may apply either to the Central Authority of
the child’s habitual residence or to the Central
Authority of
any other Contracting State for assistance in securing the return of
the child. In terms of art 7(f), one of the
obligations imposed upon
Central Authorities is to ‘initiate or facilitate the
institution of judicial or administrative
proceedings with a view to
obtaining the return of the child’.
According to art 3 of the Convention –
‘
The removal or
the retention of a child is to be considered wrongful where –
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
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 subparagraph (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.’
‘
Rights
of custody’ are defined in art 5 of the Convention 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’.
It
is common cause that T was habitually resident in England at the
time of her removal to South Africa. The appellant contended,
however, that CB did not have ‘rights of custody’ in
respect of T within the meaning of the Convention and that the
respondents thus had no locus standi to bring the return
application.
In Re P (abduction: custody rights)
11
Ward LJ set out the Convention approach to ‘custody rights’
as follows –
12
‘
(1) [T]he
Convention requires the court to give the expression “rights of
custody” an autonomous interpretation;
(2) the reference in art 3 to
“rights of custody attributed to a person under the law”
of the child’s habitual
residence is not a choice of law rule
of that State in the sense that if the domestic law (still less the
conflict-of-laws rule)
does not characterise the right as a right of
custody, then it will not be such a right for Hague Convention
purposes;
(3) the task of the court is to
establish the rights of the parents under the law of that State and
then to consider whether those
rights are rights of custody for Hague
Convention purposes;
(4)
in considering whether those rights are rights of custody, the court
is entitled and bound to give a purposive and effective
interpretation to the Convention. . . .’
A similar approach was adopted by the
Constitutional Court in Sonderup v Tondelli,
13
where the court (per Goldstone J) stated that –
‘
The Convention
defines “rights of custody” to “include rights
relating to the care of the person of the child
and, in particular,
the right to determine the child’s place of residence”.
In applying the Convention “rights
of custody” must be
determined according to this definition [ie the definition in art 5]
independent of the meaning given
to the concept of “custody”
by the domestic law of the child’s habitual residence. As
L’Heureux-Dubé
correctly pointed out [in W(V) v S(D)
(1996) 134 DLR (4
th
)
481 at 496]:
“
[H]owever,
although the Convention adopts an original definition of ‘rights
of custody’, the question of who holds the
. . . ‘right
to determine the child’s place of residence’ within the
meaning of the Convention is in principle
determined in accordance
with the law of the State of the child’s habitual place of
residence . . . . ’ ” (Emphasis
added.)
Despite
some initial uncertainty, there is now much authority from a number
of Contracting State jurisdictions which establishes
that, for the
purposes of the Convention, a parent’s (or other person’s)
right to prevent the removal of a child
from the relevant
jurisdiction, or at least to withhold consent to such removal, is a
right to determine where the child is to
live and hence falls within
the ambit of the concept of ‘rights of custody’ in arts
3 and 5 of the Convention. Thus,
a custodian parent who removes the
child from the state of the child’s habitual residence or
allows a third party to do
so without the consent of the other
parent (or the leave of the court) commits a breach of ‘rights
of custody’ of
the other parent within the meaning of the
Convention and hence a ‘wrongful removal’.
14
In terms of s 4(1)(a) of the United Kingdom
Children Act 1989, as amended by the Adoption and Children Act 2003
–
‘
(1) Where a
child’s father and mother were not married to each other at the
time of his birth the father shall acquire parental
responsibility
for the child if –
he becomes registered as the
child’s father under any of the enactments specified in
subsection (1A).’
Section
4(1A)(a) provides that the enactments referred to in subsec (1)(a)
include paragraphs (a), (b) and (c) of s 10(1) and of
s 10A(1) of the
Births and Deaths Registration Act 1953. In terms of s 4(2A), a
person who has acquired parental responsibility
under subsec 4(1)
ceases to have that responsibility only if the court so orders.
Section 10(1)(a) of the 1953 Act, as amended,
in turn provides that –
‘
Notwithstanding
anything in the foregoing provisions of this Act, in the case of a
child whose father and mother were not married
to each other at the
time of his birth, no person shall as father of the child be required
to give information concerning the birth
of the child, and the
registrar shall not enter in the register the name of any person as
father of the child except –
at the joint request of the
mother and the person stating himself to be the father of the child
(in which case that person shall
sign the register together with
the mother).’
15
Parental
responsibility is defined in s 3(1) of the Children Act as meaning
‘all the rights, duties, powers, responsibilities
and authority
which by law a parent of a child has in relation to the child and his
property’.
At the time of T’s removal from the
United Kingdom, there was an interim residence order in KG’s
favour. In this regard,
s 13(1) of the Children Act provides that –
‘
(1) Where a
residence order is in force with respect to a child, no person may –
. . . .
(b) remove him from the United
Kingdom
;
without either the written
consent of every person who has parental responsibility for the child
or the leave of the court.’
Furthermore, in terms of s 1 of the United
Kingdom Child Abduction Act 1984 –
‘
(1) Subject to
sections (5) and (8) below, a person connected with a child under the
age of sixteen commits an offence if he takes
or sends the child out
of the United Kingdom without the appropriate consent.
(2) A person is connected with a
child for the purposes of this section if –
. . . .
(b) in the case of a child whose
parents were not married to each other at the time of his birth,
there are reasonable grounds for
believing that he is the father of
the child
. . . .
(3) In this section, “the
appropriate consent”, in relation to a child, means –
(a) the consent of each of the
following –
. . . .
(ii) the child’s father, if
he had parental responsibility for him.’
T’s
birth was registered on 12 June 2006. Attached to CB’s
application to ICACU (which was in turn annexed to the
founding
affidavit) was a document purporting to be a certified copy of an
entry pursuant to the Births and Deaths Registration
Act 1953, ie a
certified copy of T’s original birth registration. The
document is a form with the contents typed on it.
At the bottom of
the form appear in typescript the words ‘certified to be a
true copy of an entry in a register in my custody’.
This is
followed by an original signature of the ‘Deputy
Superintendent Registrar’ and the date 17 March 2009 in
handwriting. The form reflects CB as T’s father and KG as T’s
mother. The ‘informant’ is reflected as
being the father
and mother of T, and both CB and KG certify under their signatures
that ‘the particulars entered above
are true to the best of my
knowledge and belief’. The form reflects that it was also
signed by ‘LR Gardner Deputy
Registrar’.
Before
us, counsel for the appellant sought to attack the authenticity of
this document, contending that it was not a ‘proper’
certified copy. There is, however, nothing in the appellant’s
affidavits which disputes that the information contained
in the
document is correct, viz that CB and KG did not jointly register T’s
birth in the manner reflected in the document.
Thus, like Satchwell
J, I am satisfied that the document is indeed a certified copy of
the original entry and that the information
contained therein is
true and correct. Even if, as submitted by counsel for the
appellant, the latter only received the ‘birth
certificate’
upon receipt of the replying affidavit deposed to by CB (to which
this document was again annexed), there
was no application by the
appellant to strike out this document and the paragraph of the
replying affidavit referring to it,
nor was there any application to
file a further affidavit dealing with this document.
In
light of the legal position set out above, CB has parental
responsibility for T and KG therefore required his written consent
to remove T from the United Kingdom. In addition, by removing T from
the United Kingdom without CB’s consent, KG committed
a
criminal offence. In view hereof, CB had ‘rights of custody’
within the meaning of arts 3 and 5 of the Convention.
KG’s
removal of T from the United Kingdom constituted a breach of such
rights of custody and was therefore wrongful under
the Convention.
16
As
indicated above, art 3 of the Convention requires that, at the time
of removal or retention, the ‘left-behind’
parent must
have actually been exercising his or her rights of custody or would
have exercised them but for the removal or retention.
17
In this case, it is clear that CB satisfied this provision. Not only
was he exercising defined rights of contact in respect of
T, but he
had also, in November 2007, applied to the Harlow County Court for
an order prohibiting KG from removing T from the
jurisdiction of the
court. In addition, before taking T to South Africa for a holiday in
the second half of 2008, KG had to obtain
the permission of the
court to do so. It cannot be doubted that, if CB had been given
advance warning of the removal of T from
the United Kingdom, he
would not have consented to such removal and would have exercised
his veto right to prevent KG from removing
the child. The same
applies to the Council.
Defences raised by the appellant under the
Convention
Settlement of the child in her new environment
Counsel
for the appellant purported to rely on art 12 of the Convention in
contending that T was ‘fully settled’ in
South Africa
and that the court was therefore not obliged to order T’s
return. This is a misreading of art 12. Article
12(1) provides that,
where the removal or retention of the child is indeed wrongful and
where less than one year has elapsed
from the date of such removal
or retention, then, subject to certain exceptions, the court
concerned is obliged to order the
return of the child forthwith. It
is only where the proceedings have been commenced after the
expiration of the period of one
year that, in terms of art 12(2),
the court has a discretion whether to order the child’s
return. In such a case, the court
‘shall also order the return
of the child, unless it is demonstrated that the child is now
settled in its new environment’.
18
In
this case, CB launched proceedings for the return of T on 13 August
2009, ie six months after T’s removal from the United
Kingdom.
Accordingly, art 12(2) does not apply. As will be discussed below,
the fact of T’s settlement in South Africa
may play a role in
the defence raised by KG to T’s return in terms of art
13(1)(b) of the Convention, which will be discussed
fully below.
Consent or acquiescence
The appellant also raised the defence of
consent or acquiescence under art 13(1)(a) of the Convention, in
terms of which the court
is not bound to order the return of the
child (in other words, it has a discretion in this regard) if the
person (or institution
or other body) who opposes the return
establishes that –
‘
(a)
the person . . . having the care of the person of the child . . . had
consented to or acquiesced in the removal or retention.’
The
burden of proof is on the abducting parent and he or she must prove
the elements of the defence on a preponderance of probabilities.
19
The consent or acquiescence referred to in art 13(1)(a) involves an
informed consent to or acquiescence in the breach of the
wronged
party’s rights. That does not mean that either consent or
acquiescence ‘requires full knowledge of the precise
nature of
those rights and every detail of the guilty party’s conduct .
. . What he or she should know is at least that
the removal or
retention of the child is unlawful under the Convention and that he
or she is afforded a remedy against such unlawful
conduct.’
20
As was pointed out by Hale J in Re K
(Abduction: Consent),
21
‘the issue of consent is a very important matter [that] . . .
“needs to be proved on the balance of probabilities,
but the
evidence in support of it needs to be clear and cogent [because] . .
. (i)f the court is left uncertain, then the ‘defence’
under art 13(a) fails” [and] it is [furthermore] obvious that
consent must be real . . . positive and . . . unequivocal”.’
22
In that case, Hale J expressly approved the following view expressed
by Holman J in Re C (Abduction: Consent) –
23
‘
If
it is clear, viewing a parent’s words and actions as a whole
and his state of knowledge of what is planned by the other
parent,
that he does consent to what is planned, then in my judgement that is
sufficient to satisfy the requirements of Art 13.
It is not necessary
that there is an express statement that “I consent”. In
my judgment it is possible to infer consent
from conduct.’
24
As regards acquiescence, this court, in Smith
v Smith,
25
agreed with the approach followed by the House of Lords in the case
of Re H and others (Minors) (Abduction: Acquiescence).
26
In that case, Lord Brown-Wilkinson held that –
‘
Acquiescence
is a question of the actual subjective intention of the wronged
parent, not of the outside world’s perception
of his intentions
. . . In the process of this fact-finding operation, the judge, as a
matter of ordinary judicial common sense,
is likely to attach more
weight to the express words or conduct of the wronged parent than to
his subsequent evidence as to his
state of mind. In reaching
conclusions of fact, judges always, and rightly, pay more attention
to outward conduct than to possibly
self-serving evidence of
undisclosed intentions. But in so doing the judge is finding the
actual facts. He can infer the actual
subjective intention from the
outward and visible acts of the wronged parent. That is quite a
different matter from imputing to
the wronged parent an intention
which he did not, in fact, possess.’
27
In
my view, KG has not succeeded in proving either consent or
acquiescence on the part of CB. As set out above, after the alleged
wrongful removal of T on 14 February 2009, CB wasted little time in
approaching the Central Authority for England and Wales for
its
assistance in securing T’s return to the United Kingdom. It
would seem that CB learnt of T’s removal to South
Africa on 16
March 2009. By 17 March 2009, he had completed his application to
such Central Authority (ICACU) for T’s return.
Although the
return proceedings were launched in South Africa only on 13 August
2009, there is no indication whatsoever that
CB was in any way
responsible for this delay. CB has persisted in opposing KG’s
appeal to this court against the judgment
of Satchwell J,
notwithstanding the appellant’s lengthy delay in lodging the
appeal record. This conduct is entirely inconsistent
with the notion
that CB had consented to or acquiesced in T’s permanent
removal to South Africa.
Grave risk of harm / intolerable position
In terms of art 13(1)(b) of the Convention,
the court is not bound to order the return of the abducted child if
the person opposing
the return establishes that –
‘
(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
appellant contended that there was indeed a grave risk that T’s
return to the United Kingdom would expose her to physical
or
psychological harm or otherwise place her in an intolerable
situation. In support of this contention, the appellant alleged
that
T is ‘fully settled’ in South Africa; that she ‘has
no recollection, independent or otherwise’ of
living in the
United Kingdom; that she is now a ‘fully-fledged’ South
African child, enrolled in school and able
to speak English and
Afrikaans; that she is surrounded by family and friends in South
Africa, is involved in activities such
as ballet, swimming and
‘monkeynastics’, as well as other activities at church
and at school; that ‘her entire
life is in the Republic of
South Africa and [she] has a quality of life that she could never
have in the United Kingdom’.
The
appellant pointed to the fact that she has secure accommodation and
a permanent job in South Africa, as opposed to the United
Kingdom
where she has no home and no employment and where she and T would be
dependent on state welfare. She contended that there
is a chance
that, should she return to the United Kingdom, she will be arrested
and prosecuted for child abduction. The appellant
also alleged that,
because of the allegations against CB of sexual abuse and interest
in child pornography, as well as the physical
violence to which she
had been subjected by DC, there was a real risk that she and/or T
would suffer sexual and/or physical abuse
should they return to the
United Kingdom. CB denied that that there was any risk of T or KG
suffering abuse of any kind upon
their return to the United Kingdom,
let alone ‘a grave risk’ of physical or psychological
harm. Moreover, CB contended
that T would not be placed in ‘an
intolerable situation’ upon such return. According to CB, KG
would not be arrested
for child abduction; the English court would
be very loath to separate T from her mother, and the Council would
only intervene
if KG decided to reunite with DC. He alleged that
there was no doubt that accommodation would be found for T and KG
and stated
that he would not seek to disrupt their relationship in
any way.
Relying
on s 28(2) of the Constitution
28
and s 9 of the Children’s Act,
29
counsel for the appellant submitted that it was in T’s best
interests not to be returned to the United Kingdom and that
T’s
best interests were of ‘paramount importance’.
In Sonderup v Tondelli,
30
the Constitutional Court stated
31
that –
‘
The Convention
itself envisages two different processes – the evaluation of
the best interests of children in determining
custody matters, which
primarily concerns long-term best interests, and the interplay of the
long-term and short-term best interests
of children in jurisdictional
matters. The Convention clearly recognises and safeguards the
paramountcy of the best interests of
children in resolving custody
matters. It is so recorded in the preamble which affirms that the
State parties who are signatories
to it, and by implication those who
subsequently ratify it, are “[f]irmly convinced that the
interests of children are of
paramount importance in matters relating
to their custody”. . . .
What, then, of the short-term
best interests of children in jurisdictional proceedings under the
Convention? One can envisage cases
where, notwithstanding that a
child’s long-term interests will be protected by the custody
procedures in the country of the
child’s habitual residence,
the child’s short-term best interests may not be met by
immediate return. In such cases,
the Convention might require those
short-term best interests to be overridden. I shall assume, without
deciding, that this argument
is valid. To that extent, therefore, the
Act might be inconsistent with the provisions of s 28(2) of the
Constitution which provide
an expansive guarantee that a child’s
best interests are paramount in every matter concerning the child. I
shall proceed
therefore to consider whether such an inconsistency is
justifiable under s 36 of the Constitution, which requires a
proportionality
analysis and weighing up of the relevant factors.
.
. . The purpose of the Convention is important. It is to ensure, save
in the exceptional cases provided for in art 13 (and possibly
in art
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.’
In concluding that the Act incorporating the
Convention is consistent with the South African Constitution,
Goldstone J pointed
out
32
that –
‘
(T)he
court ordering the return of a child under the Convention would be
able to impose substantial conditions designed to mitigate
the
interim prejudice to such child caused by a court ordered return. The
ameliorative effect of art 13, an appropriate application
of the
Convention by the court, and the ability to shape a protective order,
ensure a limitation that is narrowly tailored to achieve
the
important purposes of the Convention. It goes no further than is
necessary to achieve this objective, and the means employed
by the
Convention are proportional to the ends it seeks to attain.’
The Supreme Court of the United Kingdom
33
has, in a very recent case, followed an approach similar to that
adopted by the Constitutional Court in Sonderup v Tondelli.
In Re E
(Children) (Wrongful Removal: Exceptions to Return)
34
Lady Hale and Lord Wilson SCJJ (giving the judgment of the court)
held
35
that –
‘
There is no
provision expressly requiring the court hearing a Hague Convention
case to make the best interests of the child its
primary
consideration; still less can we accept the argument . . . that s
1(1) of the 1989 Act [the United Kingdom Children Act
1989] applies
so as to make them the paramount consideration. These are not
proceedings in which the upbringing of the child is
in issue. They
are proceedings about where the child should be when that issue is
decided, whether by agreement or in legal proceedings
between the
parents or in any other way.
On the other hand, the fact that
the best interests of the child are not expressly made a primary
consideration in Hague Convention
proceedings, does not mean that
they are not at the forefront of the whole exercise. The preamble to
the convention declares that
that the signatory states are “Firmly
convinced that the interests of children are of paramount importance
in matters relating
to their custody”, and “Desiring to
protect children internationally from the harmful effects of their
wrongful removal
or retention”. This objective is, of course,
also for the benefit of children generally: the aim of the convention
is as
much to deter people from wrongfully abducting children as it
is to serve the best interests of the children who have been
abducted.
But it also aims to serve the best interests of the
individual child. It does so by making certain rebuttable assumptions
about
what will best achieve this . . . .
Nowhere does the convention state
that its objective is to serve the best interests of the adult
person, institution or other body
whose custody rights have been
infringed by the abduction (although this is sometimes how it may
appear to the abducting parent).
The premise is that there is a left
behind person who also has a legitimate interest in the future
welfare of the child: without
the existence of such a person the
removal is not wrongful. The assumption then is that if there is a
dispute about any aspect
of the future upbringing of the child the
interests of the child should be of paramount importance in resolving
that dispute. Unilateral
action should not be permitted to pre-empt
or delay that resolution, Hence the next assumption is that the best
interests of the
child will be served by a prompt return to the
country where she is habitually resident . . . .
Those assumptions may be
rebutted, albeit in a limited range of circumstances, but all of them
inspired by the best interests of
the child. Thus the requested state
may decline to order the return of the child if proceedings were
begun more than a year after
her removal and she is now settled in
her new environment (art 12); or if the person left behind had
consented to or acquiesced
in the removal or retention or was not
exercising his rights at the time (art 13(a));
36
or if the child
objects to being returned and has exercised an age and maturity at
which it is appropriate to take account of her
views (art 13); or, of
course, if “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’ (art 13(b)).
37
These are all
situations in which the general underlying assumptions about what
will best serve the interests of the child may not
be valid . . .
We
conclude, therefore, that . . . the Hague Convention . . . [has] been
devised with the best interests of children generally,
and of the
individual children involved in such proceedings, as a primary
consideration.’
38
Returning to the question as to whether KG
proved the existence of ‘a grave risk that [T’s] return
would expose the
child to physical or psychological harm or
otherwise place the child in an intolerable situation,
39
it is necessary to consider how courts have approached this
so-called art 13(1)(b) defence. As was discussed in Pennello v
Pennello,
40
courts in other Contracting States have given a restrictive
interpretation to art 13(1)(b), by and large resisting ‘efforts
to convert art 13(1)(b) into a substitution for a best interests
determination’.
41
In the words of Ward LJ in Re C (Abduction: Grave Risk of
Psychological Harm) –
42
‘
There
is, therefore, an established line of authority that the court should
require clear and compelling evidence of the grave risk
of harm or
other intolerability which must be measured as substantial, not
trivial, and of a severity which is much more than is
inherent in the
inevitable disruption, uncertainty and anxiety which follows an
unwelcome return to the jurisdiction of the court
of habitual
residence.’
43
In both Sonderup v Tondelli
44
and Pennello v Pennello
45
the
question whether South African courts should follow the stringent
tests set by courts in other countries was left open. I
am of the
view that the correct approach is that adopted by the United Kingdom
Supreme Court is Re E (Children) (Wrongful Removal:
Exceptions to
Return).
46
In that case, the court held
47
that –
‘
. . . [T]here is
no need for the article [art 13(1)(b)] to be “narrowly
construed’. By its very terms, it is of restricted
application.
The words of art 13 are quite plain and need no further elaboration
or “gloss”.
First, it is clear that the
burden of proof lies with the “person, institution or other
body” which opposes the child’s
return. It is for them to
produce evidence to substantiate one of the exceptions. There is
nothing to indicate that the standard
of proof is other than the
ordinary balance of probabilities . . . .
Second, the risk to the child
must be “grave”. It is not enough, as it is in other
contexts such as asylum, that the
risk must be “real”. It
must have reached such a standard of seriousness as to be classified
as “grave”.
Although “grave” characterises
the risk rather than the harm, there is in ordinary language a link
between the two.
Thus a relatively low risk of death or really
serious injury might properly be qualified as “grave”
while a higher
level of risk might be required for other less serious
forms of harm.
Third,
the words “physical or psychological harm” are not
qualified. However, they do gain colour from the alternative
“or
otherwise” placed “in an intolerable situation”. As
was said in Re D
[2007] 1 All ER 783
at [52], “ ‘Intolerable’
” is a strong word, but when applied to a child must mean ‘a
situation which
this particular child in these particular
circumstances should not be expected to tolerate.’ ”
Those words were carefully
considered and can be applied just as
sensibly to physical or psychological harm as to any other situation.
Every child had to
put up with a certain amount of rough and tumble,
discomfort and distress. It is part of growing up. But there are some
things
which it is not reasonable to expect a child to tolerate . . .
.’
It
must be remembered that a return order under the convention is an
order for the return of the child to the Contracting State
from
which he or she was abducted, and not to the ‘left-behind’
parent. The child is not, by virtue of a return order,
removed from
the care of one parent, or remanded to the care of the other parent.
The situation which the child will face on
return depends crucially
on the protective measures which the court can put into place to
ensure that the child will not have
to face a harmful situation when
he or she returns to the country of habitual residence.
The curator ad litem stated that he had been
appointed on 11 October 2011 to report on T’s personal
circumstances; comment
on her level of maturity and her ability to
comprehend the proceedings; comment on the effect of relocation on
T, and on any
other factor that should be taken into account. In his
report, he mentioned that, because of time and logistical
restraints,
he had been unable to investigate and report on CB’s
circumstances. His report deals with his interview with T, the
circumstances
of KG and her immediate family based in Johannesburg,
and his conversation with one of T’s pre-school teachers. In
addition,
the report covers his ‘face value evaluation’
of the minor child’s views, her immediate circumstances and
her
day to day activities and interactions. From his conversation
with T, he concluded that she was not mentally, physically or
academically
advanced and that she was not yet of an age and
maturity that it is appropriate to take accounts of her views. It
appeared to
him that T was happy and at peace in her present
environment and that she was at an important stage in her personal
development
in that (inter alia) she would be starting school this
year. He noted that there was a very strong bond between T and her
mother
and that CB had for a number of years had too little personal
contact with T as to have developed a real relationship with T or
to
have insights into her needs. CB had also not contributed in any
meaningful way towards T’s maintenance. The curator
was of the
view that, while the ongoing litigation was not having a negative
impact on T’s well-being (as she was blissfully
unaware of
it), it needed to be brought to finality. Any steps to relocate T
would, in his view, ‘carry two automatic,
and most
undesirable, consequences’, namely –
‘
The minor child
will react negatively, possibly retreat and become traumatised and
influence her personal development and/or
[CB]
will be bound to be the subject of further litigation, when [KG]
refuses to abide by the order.’
The curator ad litem’s report concluded
as follows:
‘
Having
regard to the substantial lapse of time since [CB] has had a
meaningful relationship with the child, as well as the fact
that [CB]
has little or no insight into the child’s emotional and
physical needs, it is submitted that execution of the order
for
relocation would be contrary to the best interests of the child.’
The
allegations of sexual impropriety made by KG against CB were found
to have been unsubstantiated. In any event, the social
welfare
authorities and courts of the United Kingdom will certainly be able
to deal with such allegations effectively, as the
Harlow County
Court did before the removal of the child by ordering that CB’s
contact with T should be supervised. Moreover,
the fact finding
hearing ordered by the Chelmsford County Court is still pending and
will no doubt take place should T be returned
to the United Kingdom.
Moreover, as indicated above, on 7 April 2009, the Council assured
the Chelmsford County Court that it
would assess T’s welfare
forthwith upon being advised of T’s return to the
jurisdiction. T still has a guardian ad
litem in the United Kingdom
whose task it is to protect her interests. The Central Authority and
the curator ad litem can liaise
with T’s guardian ad litem and
with the former’s counterpart in the United Kingdom to ensure
that the court proceedings
pending there (ie CB’s application
for residence and contact and KG’s application for an order
permitting her to
remove T from the United Kingdom to reside
permanently in South Africa) are finalised as soon as possible. The
curator ad litem
acknowledged that, should this court order T’s
return to the United Kingdom, one of his principal obligations would
be
to play a role in determining what the appropriate conditions for
such return should be.
As
regards the alleged threat of physical violence posed by DC, KG
herself states that this violence was never directed against
T.
Moreover, KG can avoid any risk of harm from DC to herself or T by
not resuming a relationship of any kind with him. On KG’s
own
evidence, she has parted ways with DC and has no intention of
returning to him.
As
indicated above, KG stated that, should she and T have to return to
the United Kingdom, she would have no home and no employment
there,
as opposed to South Africa where she and T have secure accommodation
and she has a permanent job. In this regard, CB is
prepared to
undertake that he will procure accommodation for KG and T and to pay
for such accommodation ‘if necessary’.
This court can
ensure that this ‘undertaking’ forms part of any return
order made by it and that the obligation to
pay for accommodation is
not conditional. CB is also prepared to pay maintenance for T upon
her return to the United Kingdom.
While there is quite a significant
difference between the amount of maintenance which CB is prepared to
pay and that which KG
regards as appropriate, any return order can
be formulated so as to ensure the best possible protection of T’s
needs, whilst
not subjecting CB to excessive financial demands.
Furthermore, as T would be going to school, KG should be able to
secure part-time
employment which would enable her to contribute
towards her own and T’s financial needs. There is also State
support for
T which KG was receiving prior to her departure for
South Africa.
What
makes this case so difficult is the lapse of time since T’s
removal to South Africa. There is nothing before us to
explain the
delay of five months between the completion by CB of the application
to ICACU (the Central Authority for the United
Kingdom and Wales) in
March 2009 and the institution of the return application in August
2009. There is also nothing to explain
why it took seven months
before the matter was heard in the South Gauteng High Court (in
March 2010, thereafter in June 2010),
nor why there was a further
delay of three months between the delivery of the judgment of the
high court (July 2010) and the
granting of leave to appeal to this
court (October 2010). As pointed out above, although the Notice of
Appeal to this court was
lodged on 11 November 2010, the appeal
record was not lodged until 15 November 2011 – more than eight
months after the
appeal had lapsed and more than a year after the
lodging of the Notice of Appeal. This last-mentioned delay is
attributable to
the inability of the appellant’s attorneys to
obtain a transcript of the proceedings before Satchwell J. As these
were
motion proceedings, it is difficult to see why this transcript
was required. As pointed out by Meyer J, ‘[i]nsofar as parts
of the recorded proceedings
48
ought to be included in the record of the proceedings to be lodged
with the Registrar of the Supreme Court of Appeal, no attempts
have
been made to reconstruct the record and to reach agreement thereon.
The rest of the record is in the form of an application
and the
judgment of Satchwell J is a written one that she handed down.’
These delays are totally unacceptable,
especially in the context of proceedings under the Convention. The
primary object of the
Convention is to secure the speedy return of
children removed to or retained in any Contracting State, to restore
the status
quo ante the wrongful removal or retention as
expeditiously as possible so that custody and similar issues in
respect of the
child can be adjudicated on by the courts of the
country from which the child was removed. Not only is this
explicitly stated
in art 1 of the Convention, but art 11 expressly
enjoins the relevant authorities to ‘act expeditiously in
proceedings
for the return of children’ and provides that –
‘
If
the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement
of the
proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Central
Authority of
the requesting State, shall have the right to request a statement of
the reasons for the delay.’
So
too, in the Regulations relating to children’s courts and
international child abduction, 2010, published under s 280
of the
Children’s Act,
49
reg 23 stipulates that ‘[p]roceedings for the return of a
child under the Hague Convention must be completed within six
weeks
from the date on which judicial proceedings were instituted in a
High Court, except where exceptional circumstances make
this
impossible’. Several of the high courts have issued practice
directions to the same effect.
As
a result of these highly regrettable delays, T is now five years and
ten months old and has spent more than half of her young
life in
South Africa. As indicated above, according to the report of the
curator ad litem, T has not attained an age and maturity
at which it
is appropriate for the court to take account of her views. She is
totally unaware of this litigation, for which credit
must be given
to KG. As is borne out by the report of the curator ad litem, T has
become settled in this country. She has little
recollection of her
father and of living in the United Kingdom. She is in Grade 0 at
school, involved in extra-curricular activities
and surrounded by
family and friends. It will be difficult for her to have to return
to the United Kingdom. That said, I do not
think that KG has
succeeded in showing that such return will expose T to a grave risk
of physical or psychological harm or otherwise
place her in an
intolerable situation. It is clear from the report of the curator ad
litem that KG is a loving and competent
mother and that T is more
attached to her than she is to any place or other person. There is
no doubt that KG will return to
the United Kingdom with T should the
court order T’s return. This, coupled with the protective
measures which we will put
in place to govern T’s return,
should serve to insulate T against harm. To refuse the return
application in these circumstances
will, in my view, undermine the
objects of the Convention and create an unfortunate precedent. It
follows that the appeal must
fail.
Costs
In the
words of King J in
McCall v McCall
,
50
in this case ‘both parties have, contesting this case, acted
in what they believe to be the best interests of their child.
There
is no winner and loser. There are two concerned parents.’ In
my view, the fairest course would be to make no order
as to costs,
including the costs of the applications for condonation and
reinstatement of the appeal.
Order
The
following order is made:
A The appeal is dismissed, with no order as to costs.
B The order of Satchwell J in the South Gauteng High Court dated 14
July 2010 is replaced by the following order:
‘
1. It is ordered and directed that the
minor child, T, be returned forthwith, but subject to the terms of
this order, to the jurisdiction
of the Central Authority for England
and Wales.
2. In the event of KG (the mother) notifying the Office of the Family
Advocate, Johannesburg (the family advocate) within one week
of the
date of issue of this order that she intends to accompany T on her
return to the United Kingdom, the provisions of para
3 shall apply.
3. CB (the father) shall within one month of the date of issue of
this order, institute proceedings and pursue them with due diligence
to obtain an order of the appropriate judicial authority in the
United Kingdom in the following terms:
3.1 Any warrant for the arrest of the mother will be withdrawn and
will not be reinstated and the mother will not be subject to
arrest
or prosecution by reason of her removal of T from the United Kingdom
on 14 February 2009 or for any past conduct relating
to T. The father
will not institute or cause to be instituted or support any legal
proceedings or proceedings of any other nature
in the United Kingdom
for the arrest, prosecution or punishment of the mother or any member
of her family, for any past conduct
by the mother relating to T.
3.2 Unless otherwise ordered by the appropriate court in the United
Kingdom:
3.2.1 The father is ordered to arrange, and pay for, suitable
accommodation for the mother and T in the United Kingdom. The father
shall provide proof to the satisfaction of the family advocate, prior
to the departure of the mother and T from South Africa, of
the nature
and location of such accommodation and that such accommodation is
available for the mother and T immediately upon their
arrival in the
United Kingdom. The Central Authority for England and Wales shall
decide whether the accommodation thus arranged
by the father is
suitable for the needs of the mother and T, should there be any
dispute between the parties in this regard, and
the decision of the
Central Authority for England and Wales shall be binding on the
parties.
3.2.2 The father is ordered to pay the mother maintenance for herself
and T from the date of T’s arrival in the United Kingdom
at the
rate of £350 per month. The first pro rata payment shall be
made to the mother on the day upon which she and T arrive
in the
United Kingdom and thereafter monthly in advance on the first day of
every month. Should the mother receive state support,
then the
monthly amount thereof shall be deducted from the £350 per
month payable by the father.
3.2.3 The father is ordered to pay any medical and dental expenses
reasonably incurred by the mother in respect of T, such as are
not
covered by the National Health Service in the United Kingdom.
3.2.4 The father is ordered to pay for the reasonable costs of T’s
schooling and also the costs of her other reasonable educational
and
extra-mural requirements in the United Kingdom, such as are not
provided by the State.
3.2.5 The father is ordered to purchase and pay for economy class air
tickets, and if necessary, pay for rail and other travel,
for the
mother and T to travel by the most direct route from Johannesburg,
South Africa, to Harlow, United Kingdom.
3.2.6 The father and the mother are ordered to co-operate fully with
the family advocate, the Central Authority for England and
Wales, the
relevant court or courts in the United Kingdom, and any professionals
who are approved by the Central Authority for
England and Wales to
conduct any assessment to determine what future residence and contact
arrangements will be in the best interest
of T.
3.2.7 The father is granted reasonable supervised contact with T,
which contact shall be arranged without the necessity of direct
contact between the father and the mother.
4. In the event of the mother giving the notice to the family
advocate referred to in para 2 above, the order for the return of
T
shall be stayed until the appropriate court in the United Kingdom has
made the order referred to in para 3 and, upon the family
advocate
being satisfied that such an order has been made, he or she shall
notify the mother accordingly and ensure that the terms
of para 1 are
complied with.
5. In the event of the mother failing to notify the family advocate
in terms of para 2 above of her willingness to accompany T
on her
return to the United Kingdom, it is to be accepted that the mother is
not prepared to accompany T, in which event the family
advocate is
authorised to make such arrangements as may be necessary to ensure
that T is safely returned to the custody of the
Central Authority for
England and Wales and to take such steps as are necessary to ensure
that such arrangements are complied with.
6. Pending the return of T to the United Kingdom as provided for in
this order, the mother shall not remove T on a permanent basis
from
the Province of Gauteng and, until then, she shall keep the family
advocate informed of her physical address and contact telephone
numbers.
7. Pending the return of T to the United Kingdom, the father is to
have reasonable telephone access to T.
8. There is no order as to costs.’
C The family advocate is directed to seek the assistance of the
Central Authority for England and Wales in order to ensure that
the
terms of this order are complied with as soon as possible.
D In the event of the mother notifying the family advocate, in terms
of para B.2 above, that she is willing to accompany T to the
United
Kingdom, the family advocate shall forthwith give notice thereof to
the registrar of the South Gauteng High Court, to the
Central
Authority for England and Wales, and to the father.
E In the event of the appropriate court in the United Kingdom failing
or refusing to make the order referred to in para B.3 above,
the
family advocate and/or the father is given leave to approach this
court for a variation of this order.
F No order as to costs is made in respect of either the mother’s
application to this court for condonation of the late lodging
of the
record, or the mother’s application to this court for
reinstatement of the appeal.
G A copy of
this order shall forthwith be transmitted by the family advocate to
the Central Authority for England and Wales.
______________________
B j van heerden
JUDGE OF APPEAL
appearances:
appellant: A willcock
Instructed by Schumann Van den Heever & Slabbert Inc, Kempton
Park
AP Pretorius & Partners, Bloemfontein
respondeNTS: m s baloyi
Instructed by The State Attorney, Johannesburg
CURATOR AD LITEM: J VAN SCHALKWYK
Instructed by Johannesburg Justice Centre
Bloemfontein Justice Centre
1
The
local authority of the area in which KG, T and CB were living at
that stage
2
Under
the United Kingdom Children Act 1989, a ‘residence order’
means an order settling the arrangements to be made
as to the person
which whom the child is to live (see s 8(1)).
3
A
‘contact order’ means ‘an order requiring the
person with whom a child lives, or is to live, to allow the
child to
visit or stay with the person named in the order, or for that person
and the child otherwise to have contact with each
other’ (see
s 8(1) of the United Kingdom Children Act). A ‘defined contact
order’ contains directions and/or
conditions about how it is
to be carried into effect (eg, that the contact between the parent
and the child must be supervised)
(see s 11(7)).
4
CAFCASS
stands for Children and Family Court Advisory and Support Service.
5
In
terms of s 33(1) of the United Kingdom Children Act 1989, ‘[w]here
a care order is made with respect to a child it shall
be the duty of
the local authority designated by the order to receive the child
into their care and to keep him in their care
while the order
remains in force.’ A court may only make a care order in terms
of s 31(2) if it is satisfied – ‘
(a)
that the
child concerned is suffering, or is likely to suffer, significant
harm; and
(b)
that the harm, or likelihood of harm, is
attributable to – (i) the care given to the child, or likely
to be given to him
if the order were not made, not being what it
would be reasonable to expect a parent to give to him; or (ii) the
child’s
being beyond parental control.’
6
In
the preamble to the order made on that date.
7
On
7 April 2009, the Chelmsford County Court noted that the Council had
been discharged from its undertaking, given on 16 March
2009, to
issue an application for an interim care order in respect of T by 3
April 2009; that the South African social worker
had been requested
by the Council to continue to monitor T’s welfare and T and
KG’s whereabouts and to advise the
Council forthwith of any
change in T’s whereabouts; and that the Council had assured
the court that it would assess T’s
welfare forthwith upon
being advised of T’s return to the jurisdiction.
8
See
para 11 above.
9
Section
279 of the Children’s Act, which came into operation on 1
April 2010, provides that ‘[a] legal representative
must
represent the child, subject to s 55, in all applications in terms
of the Hague Convention on International Child Abduction.’
In
addition, s 278(3) of the Children’s Act provides as follows:
‘The court must, in considering an application in
terms of
this Chapter [Chapter 17, headed ‘Child Abduction’] 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.’
10
See
Penello v Penello (Chief Family Advocate as amicus curiae)
2004
(3) SA 117
(SCA) para 25 and the authorities there cited.
11
[2004]
2 FCR 698
(CA).
12
Para
60.
13
2001
(1) SA 1171
(CC) para 11.
14
See
Van Heerden et al (eds)
Boberg’s Law of Persons and the
Family
2ed (1999) 580-581 and the other authorities there cited.
See also Carina du Toit ‘The Hague Convention on the Civil
Aspects
of International Child Abduction’ in Trynie Boezaart
(ed)
Child Law in South Africa
(2009) 351 at 358-359.
15
See
A v H (Registrar General for England and Wales & another
intervening)
[2009] 4 All ER 641
(FD) para 26: ‘Thus, for
a valid registration, what was required in this instance under s
10(1)
(a)
[of the 1953 Act], was for the father and mother to
attend together at the registry, and for both to ask for the father
to be
named as the father of the child. In addition the father had
to state that he was the father of the child. Finally both of them
had to sign the register. These details show that the registrar’s
task is to record details of the father on the birth
certificate
based just on the information that is given.’
16
In
addition, KG’s removal of T from the United Kingdom was in
breach of the interim care order granted to the Council on
10
February 2009. This order contains, in bold typescript, two
‘warnings’, the first being that ‘[w]while a
Care
Order is in force, no person may . . . remove the child from the
United Kingdom without the written consent of every person
with
parental responsibility for the children or the leave of the court’
(see, in this regard, s 33(7)
(b)
of the United Kingdom
Children Act). The second warning was to the effect that ‘[i]t
may be a criminal offence under the
Child Abduction Act to remove
the child(ren) from the United Kingdom without the leave of the
court’. Section 33(3) of
the United Kingdom Children Act
provides that – ‘(3) While a care order is in force with
respect to a child, the
local authority designated by the order
shall –
(a)
have parental responsibility for the
child’. Thus, in accordance with the law as set out above, the
Council also had ‘the
right to determine the child’s
place of residence’ in terms of art 5 of the Convention and ,
accordingly, had rights
of custody for the purposes of art 3 of the
Convention. KG’s removal of T from the United Kingdom was
therefore not only
wrongful in respect of CB, but also wrongful in
relation to the Council.
17
So
too, art 13(1)(a) of the Convention stipulates that the judicial or
administrative authority of the requested state is not
bound to
order the return of the child if the person opposing the child’s
return establishes that the person having the
care of the person of
the child was not actually exercising his or her custody rights at
the time of removal or retention.
18
See
Van Heerden et al
op cit
582-583 and the authorities there
cited. See also Carina du Toit
op cit
361-362.
19
Penello
v Penello (Chief Family Advocate as amicus curiae)
2004 (2) SA
117
(SCA) para 38.
20
Smith
v Smith
2001 (3) SA 845
(SCA) paras 16-17.
21
[1997]
2 FLR 212
(FD) at 217.
22
See
further
Re P (Abduction: Consent)
[2004] 2 FLR 1057
(CA) para
33.
23
[1996]
1 FLR 414
(FD) at 419.
24
See
Central Authority v H
2008 (1) SA 49
(SCA) paras 16-20, in
which case this court found that the abducting mother had not proved
the defence of consent on which she
relied. See also
Re A
(Abduction: Habitual Residence: Consent)
[2006] 2 FLR 1
(FD)
paras 70-88.
25
2001
(3) SA 845
(SCA) paras 18-19. In this case, the court found that the
abducting mother had indeed discharged the burden of proving that
the
‘left-behind’ father had acquiesced to the wrongful
retention of his children in South Africa. This was also the case
in
Senior Family Advocate, Cape Town v Houtman
2004 (6) SA 274
(C).
26
[1997]
2 All ER 225
(HL) at 235e-g.
27
See
also
Senior Family Advocate, Cape Town v Houtman
2004 (6) SA
274
(C) paras 15-17;
Family Advocate, Cape Town v EM
2009 (5)
SA 420
(C) paras 36-39.
28
Section
28(2) of the Constitution provides that ‘[a] child’s
best interests are of paramount importance in every matter
concerning the child’.
29
See
fn 38 below.
30
2001
(1) SA 1171
(CC).
31
Paras
28-30.
32
Paras
35-36.
33
Formerly
the House of Lords.
34
[2011]
4 All ER 517
(SC).
35
Paras
13-18.
36
I
call this art 13(1)
(a).
Both versions are correct.
37
I
refer to this as art 13(1)
(b).
Again, both versions are
correct.
38
The
same approach must be followed in regard to section 9 of the
Children’s Act, in terms of which
‘[i]n
all matters concerning the care, protection and well-being of a
child the standard that the child’s best interest
is of
paramount importance, must be applied’.
Unlike
most of the provisions of the Act (which took effect from 1 April
2010), this section came into operation on 1 July 2007.
39
See
para 44 above.
40
2004
(3) SA 117
(SCA) paras 32-34.
41
Linda
Silberman ‘Hague Convention on International Child Abduction:
A Brief Overview and Case Law Analysis’ (1994)
28
Fam LO
9 at 27.
42
[1999]
1 FLR 1145
(CA) at 1154A-B.
43
See
further in this regard Van Heerden et al
op cit
586-589.
44
2001
(1) SA 1171
(CC) para 44.
45
2004
(3) SA 117
(SCA) para 35.
46
[2011]
4 All ER 517
(SC).
47
Paras
31-34.
48
If
any.
49
GN
R250 in
GG
33067 of 31 March 2010, with effect from 1 April
2010.
50
1994
(3) SA 201
(C) at 209C.