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[2021] ZASCA 107
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L v Ad Hoc Central Authority for the Republic of South Africa and Others (1143/2020) [2021] ZASCA 107 (3 August 2021)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1143/2020
In the matter
between:
J E
L
APPLICANT
and
THE
AD HOC
CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH
AFRICA
(AS DELEGATED IN
TERMS OF SECTION 277
OF ACT 38 OF
2005)
FIRST RESPONDENT
T C
L
SECOND
RESPONDENT
Neutral
citation:
L
v The Ad Hoc Central Authority for the Republic of South Africa and
Others
(1143/21)
[2021] ZASCA 107
(3 August
2021)
Coram:
SALDULKER, MOCUMIE,
PLASKET, GORVEN AND CARELSE JJA
Heard:
26 July 2021
Delivered:
This judgment was
handed down electronically by circulation to the parties'
representatives by email, publication on the Supreme
Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be at 10h00 on 03 August 2021.
Summary:
International Child
Abduction – Hague Convention on Civil Aspects of International
Child Abduction (1980) – application
for leave to appeal
referred for oral argument in terms of
s 17(2)
(d)
of the
Superior
Courts Act 10 of 2013
– applicability of Article 13
(b)
defence of the Convention– burden of proof on person
resisting return to show that the return of the minor children
to
their habitual residence would expose them to grave risk of physical
or psychological harm or otherwise place them in an intolerable
situation – whether reasonable prospects of success –
application for leave to appeal dismissed.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town
(Desai
J, sitting as court of first instance):
1
The application for leave to appeal is dismissed.
2
The date in paragraph 4 of the order of the Western Cape Division of
the
High Court is substituted by the date 20 August 2021.
JUDGMENT
Saldulker JA
(Mocumie, Plasket, Gorven and Carelse JJA concurring):
Introduction
[1]
This is an application for leave to appeal
referred
for oral argument in terms of
s 17(2)
(d)
of
the
Superior Courts Act 10 of 2013
, and if successful the
determination of the appeal itself. It is against the judgment and
order of the Western Cape Division of
the High Court, (Desai J) (the
high court). The high court ordered the return of three minor
children presently living in South
Africa (SA) to the Kingdom of
Thailand (Thailand) in terms of
the
Hague Convention on the Civil Aspects of International Child
Abduction (1980) (Convention), incorporated into SA law by virtue
of
the provisions of chapter 17 of the Children’s Act 38 of
2005.
[1]
[2]
This application has its
genesis in an application instituted by the first respondent, the Ad
Hoc Central Authority for the Republic
of South Africa, as delegated
in terms of
s 277
of the Children’s Act (the Central
Authority), and the second respondent, Mr T C L, the father of the
minor children, against
the applicant, Mrs J E L, the mother of the
minor children, whom I shall refer to as A, K and M. During December
2019, the applicant
unilaterally, without the knowledge and consent
of the second respondent, removed the children from Thailand, and
brought A, K
and M to South Africa. On 20 October 2020, on
application by the second respondent, Desai J ordered the summary
return of the children
to Thailand, subject to detailed and
comprehensive conditions. The applicant sought leave to appeal
against this order, and on
24 November 2020, Desai J dismissed that
application. Aggrieved with the outcome, the applicant applied to
this Court. On 10 April
2021, this Court ordered that the application
for leave to appeal be referred for oral argument in terms of
s 17(2)
(d)
of the
Superior Courts Act, and
that the parties must be prepared, if
called upon to do so, to address the court on the merits of the
appeal. This Court heard
both the application for leave to appeal and
the merits on an expedited basis. The crisp issue is whether there
are reasonable
prospects of success on appeal on the basis that the
applicant has successfully raised a proper defence in terms of
Article 13
(b)
of the Convention.
Background
[3]
The applicant is a South African citizen, and the second respondent,
a British national.
The parties were married to each other in the
United States of America (USA) on 26 February 2007. The three minor
children, A (12)
and twins K and M (9), were born of the marriage.
From 2016, the family resided in Thailand. On 28 June 2018, the
parties were
divorced in accordance with Thai law, and a Compromise
Agreement, which regulated the divorce, custody, visitation rights of
the
second respondent and maintenance of the children, was made an
order of court by the Thai Court hearing the divorce proceedings.
In
terms of the Compromise Agreement, both parties agreed, inter alia,
to have joint custody of the children, that the children
were to
reside with the applicant, with the second respondent being entitled
to visitation rights and telephonic communication.
[4]
In July 2018, a month after the divorce, the applicant relocated to a
remote area
in Thailand. The second respondent attempted to have
contact with the children but this became problematic. The applicant
permitted
the second respondent to have contact with K only, claiming
on each occasion that A and M were either too sick or did not want to
see him. In November 2018, the second respondent engaged the services
of an attorney to secure access to not only K but also A
and M. In
January 2019, the applicant cancelled the second respondent’s
visit. Attempts to mediate the matter also failed.
The applicant
adopted an obdurate attitude and failed to answer telephone calls,
emails and short message service (sms) text messages
from the second
respondent. The second respondent filed a petition to compel the
applicant to comply with the terms of the Compromise
Agreement, and
at a hearing in April 2019, the applicant was ordered to do so.
However, the issue of the second respondent’s
visitation rights
remained problematic and in November 2019, a petition was filed in
the Central Juvenile and Family Court in Bangkok.
The applicant was
summonsed to appear with the minor children in order for the court to
determine the minor children’s wishes.
An interim date for the
hearing of the matter, on 19 February 2020, was scheduled for both
parties. However, in December 2019,
while the matter was pending, the
applicant left Thailand for South Africa, with the children, without
the knowledge and consent
of the second respondent. It is
common cause that at the time of the children’s removal, they
were habitually resident
in Thailand, and both parties were
exercising joint custody rights in respect of the children. Thus in
terms of Article 3 of the
Convention, the children’s removal
from Thailand was wrongful.
This
much was conceded in argument before us.
[5]
The second respondent approached the office of the Attorney-General
in Thailand to
secure the prompt return of the children under the
Convention. In opposing the second respondent’s application,
the applicant
relied on Article 13
(b)
of the Convention,
contending that the children should not be returned to Thailand
because there was a grave risk that if the children
were returned,
they would be exposed to physical or psychological harm or would be
placed in an intolerable situation. The applicant’s
opposition
was based on allegations that the second respondent had sexually
molested one of the children, A, and of domestic violence
and
economic abuse, perpetrated against her by the second respondent,
which the children had witnessed, resulting in them fearing
the
second respondent and not wanting to have contact with him. The
second basis no longer applies. The applicant is safe from
domestic
violence and economic abuse because she and the second respondent no
longer live together and the children will not be
exposed to such
conduct. For reasons that will become apparent, I do not intend to
deal with the allegations of sexual molestation
save to say that they
were raised in extremely vague terms by the applicant and were denied
in substantial detail by the second
respondent. This because the
appropriate forum in Thailand will be confronted with this issue and
it is inappropriate to make any
determination on the papers in the
manner they have been raised.
The judgment of
the high court
[6]
In the high court, Desai J summed up the difficulties experienced by
the second respondent
thus:
‘
Despite
his best efforts, the [second respondent] had limited access to his
children after the divorce and he eventually engaged
the assistance
of a lawyer in order to secure better access to them.’
[7]
Relying on the judgment of this Court in
Pennello
v
Pennello
(Chief Family
Advocate As Amicus Curiae)
2004 (3) SA 117
(SCA), Desai J
held that once the second respondent had established that the removal
of the children was wrongful within the meaning
of Article 3 of the
Convention, ‘[t]he onus is upon a party [in this case the
applicant] resisting the order to establish
one or the other of the
defences referred to in Article 13
(a)
or
(b)
.
The [applicant] is required to prove the various elements of the
Article 13
(b)
defence on a balance of probabilities. (See
Pennello
supra para 38). An effect of article 13 is to vest the judicial or
administrative authority with a discretion to refuse to order
the
return of a child if there is a grave risk as contemplated in the
said article’.
[8]
Having considered the matter, the high court concluded,
after dealing in detail with the allegations of the sexual
molestation of
A, that the suggestion of grave risk or serious
psychological harm had not been substantiated by the applicant and
was not borne
out by the evidence. In dealing with the children’s
objections to being returned to Thailand, Desai J stated that ‘[i]t
seems to me that their views are influenced by the [applicant] and
the objections to return are premised upon their wish to remain
with
the abducting parent, that is the [applicant]’.
[9]
Desai J subsequently
ordered
the
return of the three
children to the Kingdom of Thailand, in accordance with the
provisions of Article 12 of the Convention, imposing
substantial
conditions. The order reads as follows:
‘
1.
The Second Applicant’s and Respondent’s minor children A
L (born on 15 April 2009), K L (born on 23 October 2012)
and M L
(born on 23 October 2012) shall be returned to the Kingdom of
Thailand in accordance with the provisions of Article 12
of the Hague
Convention on the Civil Aspects of International Child Abduction
(‘the convention’) and incorporated into
the Children’s
Act 38 of 2005 by virtue of the provisions of Chapter 17, section 275
thereof.
2. The minor children of the
First Respondent, if she elects to accompany the said children, shall
return to Thailand on the first
date that the Second Applicant is
able to secure and pay for their flights from the RSA after Monday 30
November 2020, subject
to any travel bans applicable to travel from
South Africa to Thailand, and in accordance with such directives from
the relevant
authorities as may then be applicable.
3. In the event of the First
Respondent electing not to accompany the children to Thailand, the
Second Applicant is granted leave
and authorisation, insofar as it
may be necessary, to remove the children from the RSA after 30
November 2020 and accompany them
back to the kingdom of Thailand,
which is the State of habitual residence of the minor children.
4. Should the Respondent wish to
accompany the minor children to Thailand she is required to notify
the applicants on or before
the close of business on Friday 6
November 2020, whether or not she intends to accompany the said
children to Thailand.
5. The Second Applicant shall
arrange and pay for all visas, medical certificates and/or tests and
all other necessary requirements,
inclusive of any quarantine
required for the minor children and First Respondent, and financial
security required so to allow the
minor children and the First
respondent to travel from Cape Town to Thailand and to be able to
remain in Thailand indefinitely.
6. The provisions of the
Compromise Agreement of 28 June 2018 regarding, amongst other things,
the custody of the minor children,
visitation rights and the payment
of maintenance by the Second Applicant for the minor children shall
endure until an order is
made by a Court of competent jurisdiction in
the Kingdom of Thailand which has the effect of substituting the
provisions of the
Compromise Agreement.
7. In the event of the
Respondent’s return to Thailand with the minor children:
7.1 The second
applicant shall make a contribution to her in the amount of THB
10 000 per month, for a maximum
period of six months, as
financial support for the Respondent.
7.2 The Second
Applicant shall, prior to their arrival in Thailand, secure suitable
accommodation for occupation by
them in Bangkok, and ensure that such
accommodation is available for the immediate occupation of the minor
children and the respondent
upon their arrival in Thailand. The
Second Applicant shall be responsible for the costs of the minor
children’s accommodation.
8. As First Respondent intends to
home school the children, the parties shall endeavour to agree upon a
suitable home schooling
program for which the Second Applicant will
make payment of all costs inclusive of any registration fees.
9. The Second Applicant shall
secure, in consultation with the First Respondent and with the
involvement of ChildLine Thailand,
and pay for, such objective and
independent English speaking therapeutic support services as may be
required by the minor children
after their return to Thailand,
including, but not limited to, psychotherapy or such other
appropriate counselling services as
the minor children may require.
10. The First Applicant is
directed to request the assistance of the Thai Central Authority to
put in place such further measures
as may be necessary to ensure the
welfare of the minor children as soon as possible after their return
to Thailand.
11. A copy of this Order shall
forthwith be transmitted by the First Applicant to be Thai Central
Authority.
12. Pending the return of the
minor children to the Kingdom of Thailand, the orders made by this
Court on 12 June 2020, in paragraphs
1.1 to 1.8 (inclusive) of that
Order, shall apply and be in force.
13. No order as to costs.’
[10]
In
Pennello
,
this Court set out the proper approach to the Article 13
(b)
defence. The Court identified that the most important element in
Article 13
(b)
was that of ‘risk’ to the children. This Court asserted
that the various elements of the Article 13
(b)
defence were required to be proved on a balance of probabilities.
Before us, it was contended that there was indeed a grave risk
that
the children’s return to Thailand would expose them to physical
or psychological harm. The applicant repeated her concerns
that were
raised in the high court particularly that the children faced the
risk of harm of alleged sexual molestation. In my view,
and for the
reasons which follow, the
onus in terms of
Article 13
(b)
has not
been discharged by the applicant.
[11]
If one interrogates the high court’s order, it is clear that it
was designed to mitigate
interim prejudice which might be caused by
the children's return to Thailand. There are built-in
mechanisms and a wide range
of protective measures in the high
court’s order.
The
high court has prescribed conditions in its order aimed at the
protection of the children, which include the residence of the
children with the applicant; maintenance for the applicant;
psychologists and occupational therapists for the children; financial
commitments on the part of the second respondent; and the assistance
of the Thai Central Authority.
[12]
In terms of the high court’s order, A, K, M and the applicant
will return to Thailand on
flights secured and paid for by the second
respondent, including the costs of visas and any quarantine required.
On reaching
Thailand, the applicant has been directed to
request the Thai Central Authority to put in place such measures as
may be necessary
to ensure the welfare of the children. Both the
applicant and the second respondent, together with the involvement of
Childline,
Thailand, must secure objective and independent
therapeutic support and appropriate counselling services as may be
required by
the children. This is to be paid for by the second
respondent. He has also been ordered to make a contribution towards
the applicant’s
financial support for a period of six months,
including securing suitable accommodation for the applicant and the
children. Importantly,
Desai J ordered that the provisions of the
Compromise Agreement (including the clauses relating to custody,
maintenance and visitation
rights) shall endure, until an order is
made by the Thai courts which has the effect of varying the
provisions. In this way the
high court has ameliorated the potential
hardships that the applicant and the minor children might be exposed
to on their return.
There
is nothing to prevent the applicant, upon her return to Thailand,
from contacting the appropriate Thai authorities and requesting
them
to once again investigate the allegations of sexual molestation of A
by the second respondent. Thailand, the State of habitual
residence,
is best placed to investigate such serious allegations.
The
Thai authorities, including child and social services, are competent
and capable of investigating any allegations of sexual
abuse.
Furthermore, as the applicant is accompanying the minor children,
there is thus no immediate risk that they would face harm
and abuse
(should this allegation materialise) at the hands of the second
respondent.
In the past
the applicant has successfully thwarted the second respondent's
attempts to have contact with the minor children.
The
applicant may also on her arrival in Thailand,
approach
a Thai court to vary the terms of the Compromise Agreement in
relation to the second respondent’s contact with the
children,
in the interim, pending an investigation into the serious
allegations. Despite repeated invitations, counsel for the
applicant
was unable to point to any potential harm to the children if the
order of the high court is put into effect.
[13]
The best interests of a child who has been removed from the
jurisdiction of a court in the circumstances
contemplated by the
Convention are ordinarily served by requiring the child to be
returned to that jurisdiction so that the law
can take its course.
Parents have a responsibility to their children to allow the law to
take its course and not to attempt to
resolve their disputes by
resorting to self-help. Any attempt to do so inevitably increases the
tension between the parents and
that regrettably adds to the
suffering of the children. The scope of the court’s powers
under the Convention and in terms
of the Children’s Act, with
the ultimate emphasis being on the protection of children and having
regard to the child’s
best interests, and to allay the
fears (if any) of the returning mother with the abducted children,
allows this Court to
consider recording the undertaking given by the
second respondent that he will not institute or cause to be
instituted or support
any legal proceedings for the arrest,
prosecution or punishment of the applicant relating to the removal of
the minor children
from Thailand.
[14]
The second respondent has and continues to go to great lengths to be
given the chance for meaningful
contact with his children. In
particular, the facts of this case do not justify a refusal to the
return of the children, as there
is no evidence of grave risk to the
children should they return to Thailand. Moreover, the substantial
conditions imposed on the
second respondent allows for the necessary
protection of the children in returning to Thailand.
Conclusion
[15]
The high court’s order is tailored to meet every need of the
minor children so as to achieve
the objectives of the Convention. The
high court shaped the order to effectively encompass protective
mechanisms thereby ensuring
that the best interests of the children
are protected.
In the
circumstances the high court’s order is the most appropriate.
There is no reasonable prospect of another court coming
to a
different finding. Due to the effluxion of time, the date in
paragraph 4 of the high court order needs to be amended.
An
appropriate substituted date would be 20 August 2021. As regards the
costs, in
matters such
as these there are no winners or losers. Both are concerned parents.
In my view the most equitable outcome is that
each party should pay
their own costs.
[16]
In the result, the following order is made:
1
The
application for
leave to appeal is dismissed.
2
The date in paragraph 4 of the order of the Western Cape Division of
the
High Court is substituted by the date 20 August 2021.
H
SALDULKER
JUDGE
OF APPEAL
Appearances
For
appellant:
J M Boltman
Instructed
by:
C M B Attorneys, Bellville
Symington
& De Kok Attorneys, Bloemfontein
For first and second
respondents:
N Mayosi
Instructed
by:
State Attorney, Cape Town
State
Attorney, Bloemfontein
[1]
Section
275
of the Children’s Act.