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[2019] ZAGPPHC 85
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Central Authority (The Republic of South Africa) and Another v H (150/19) [2019] ZAGPPHC 85 (15 March 2019)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: Yes
(3)
REVISED: YES
CASE NO: 150/19
15/3/2019
In
the matter between:
THE
CENTRAL AUTHORITY
(THE
REPUBLIC OF SOUTH
AFRICA)
FIRST APPLICANT
L
D H
SECOND APPLICANT
And
P
H
RESPONDENT
JUDGMENT
COLLIS
J:
INTRODUCTION
1.
The
book of James 1:17 it is written that:
"Every
good gift and every perfect present comes from God, the Creator of
the heavenly lights who does not change or cause
darkness by
turning"
[1]
Children are a gift from God and
as such they have been the subject of many litigation.
2.
The
present application is brought in terms of the Hague Convention on
the Civil Aspects of International Child Abduction ("the
Hague
Convention")
[2]
3.
In
terms of this application the above Honourable Court is requested to
order the return of a minor child E D H to the jurisdiction
of the
Luxembourg Central Authority in terms of the Hague Convention.
THE
CONVENTION
4.
The
objectives of the Convention are to secure the prompt return of
children wrongfully removed to or retained in any contracting
state;
and to ensure that rights of custody and of access under the law of
one Contracting State are effectively respected in another
Contracting State.
[3]
5.
The
Convention provides for a mandatory return procedure whenever a child
has been removed or retained in breach of the rights of
custody of a
person "under the law of the State in which the child was
habitually resident immediately before the removal
or retention."
[4]
The mandatory return is tempered by a Court's discretion to refuse to
order return of a child if the court is of the opinion that
the
provisions of Articles 13 and 20 have been met. In this regard the
burden of prove rests on the respondent to prove elements
of the
defences which burden must be discharged on a balance of
probabilities.
[5]
6.
The
objectives of the Convention are predicated on the notion that the
abduction of a child will generally be prejudicial to his
or her
welfare and that in general custody issues of children are best to be
decided by the courts in the child's country of habitual
residence
which court is best placed to hear the merits of the case.
[6]
7.
In
the decision KG v CB and Others quoted
supra
the following was remarked:
"It must be remembered that a
return order granted 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 on 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/she returns to the
country of habitual residence."
[7]
THE
CONSTITUTION
8.
In
considering the present application this court remains mindful of the
provisions of our Constitution more specifically section
2 and
section 28(2) respectively.
Section
2 provides as follows:
"This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid and the obligations imposed
by it
must be fulfilled."
Section
28(2) further provides:
"A
child's best interest are of paramount importance in even matter
concerning the child".
BACKGROUND
9.
The
Respondent (mother of child) together with E arrived in South Africa
on 4 October 2018.
10.
Prior to her removal to South Africa, E
was habitually resident in Luxembourg together with the respondent
and her older brother
called S.
11.
Before her removal the Second Applicant
(father of child) together with the respondent had agreed that they
would share parental
authority in respect of E.
[8]
The shared parental authority was confirmed by the courts in
Luxembourg prior to her removal from the jurisdiction of
Luxembourg.
[9]
12.
As
mentioned on 4 October 2018 the respondent removed E from Luxembourg,
not only without the consent of the respondent but also
in
contravention of an order (confirmed on appeal) that refused her
permission to leave to relocate to South Africa.
[10]
13.
This
prompted the second applicant to approach the Luxembourg Central
Authority with a plea to take all necessary measures to secure
the
return of E to her place of habitual residence. On or about 17
October 2018 the Luxembourg Central Authority directed a request
to
the RSA Central Authority. The request was received by the RSA
Central Authority on or about 19 October 2018.
[11]
ISSUES
FOR DETERMINATION
14.
The
present application was first dealt by this court on the urgent court
roll on 7 February 2019.
15.
On
this day two issues were raised
in
limine
which the court was called
upon to decide. Firstly whether the application was to be dealt with
on the urgent roll and secondly
the court heard arguments on the
appointment of a curator ad litem in compliance with the provisions
of
section 279
of the
Children's Act 38 of 2005
. The court was
further to decide as to this whether a social enquiry should be
conducted as envisaged by
section 278
of the
Children's Act.
16.
In
addition to the points
in limine
this
court was also to determine the respondent's opposition which is
premised on the provisions of articles 13(b) and 20 of the
Convention.
FIRST
POINT IN LIMINE: LACK OF URGENCY
17.
The
issue of whether a matter should be enrolled and heard as an urgent
application is governed by the provisions of Rule 6(12)
of the
Uniform Rules.
18.
In
terms of the rules and practice directives of this court the
applicant in an urgent application should set forth explicitly the
circumstances which he avers renders the matter urgent and the
reasons why he claims that he could not be afforded substantial
redress at the hearing in due course.
[12]
19.
If
the facts and circumstances set out in the applicant's affidavit do
not constitute sufficient urgency for the application to
be heard as
an urgent application and do not justify the abrogation of time
periods set out in Rule 6(5) the court will not grant
an order for
the enrolment of the application as an urgent application.
20.
In
respect of urgency and on behalf of the respondent it was argued in
the absence of a social enquiry to be conducted as to the
social
circumstances of E and the respondent, together with a report of a
curator ad litem, that the application lacks urgency
and constitutes
an abuse of the process of court. In this regard this court was
referred to the decision Band others v G
2012 (2) SA 329
(GSJ).
21.
The
first applicant addresses urgency in paragraph 116 of its founding
affidavit. Therein the first applicant states that the matter
should
be dealt with on the urgent roll as the applicants will not obtain
sufficient redress at the hearing in due course and that
they would
suffer irreparable harm in the event that the application is not
enrolled and adjudicated upon on an urgent basis.
22.
Furthermore,
due to the wrongful conduct of the respondent which has breach the
rights of custody of the second applicant, it will
be in the minor's
interest and in the interest of that of the parents that the
application be adjudicated upon on an urgent basis.
23.
In
addition to this in terms of the provisions and directive of the
Hague Convention and the mandatory time periods set forth therein
applications of this nature should be considered urgently as it
provides for the prompt return of a child.
24.
Having
regard to the argument presented on behalf of the respondent it is
clear no convincing argument was mounted against the matter
being
considered by the urgent court.
25.
In
the Heads of Argument prepared by counsel for the respondent the
challenge was more directed at the absence of a social enquiry
having
been conducted prior to the hearing of the matter and the absence of
a legal representative having been appointed to represent
the
interest of the minor.
26.
This
court remaining cognisant of the provision and directives of the
Hague Convention deemed it prudent that the matter should
be
considered on the urgent roll.
27.
The
court having made the above ruling what followed next was a consent
court order being made an order of court providing for compliance
with the provisions of
section 279
of the
Children's Act wherein
Advocate Lia Van Der Westhuizen was appointed
Curator
ad Litem
on behalf of the minor.
28.
The
powers and scope of the curatrix ad litem were stipulated in
paragraphs 3 and 4 of the court order dated 7 February 2019. It
provided
inter alia
for:
"3.The curator ad litem shall
represent the interest of the minor child in the proceedings before
the above Honourable Court.
4.
The
curator ad litem is authorized to inter alia:
4.1
Investigate any matter related to
the application.
4.2
To interview the minor child
4.3
To interview any other relevant
person in the matter."
29.
On
this day the application was subsequently postponed to 18 February
2019 and the Curator ad Litem directed to file a report to
be placed
before the court for consideration.
30.
The
Curator ad Litem duly filed her report as directed by the court which
report was accepted into evidence by the court.
31.
Emanating
from her report filed 13 February 2019 the Curator ad Litem reported
that she consulted a number of individuals prior
to finalizing her
report. Noteworthy of those individuals are Ms. N B the
Guardian
ad Litem
with right of audience
before the court in Luxembourg appointed to assist and represent the
interest of E in the jurisdiction of
that court.
[13]
32.
During
the engagement which Adv. Van der Westhuizen had with Ms. B the
latter made it clear that it would be in the best interest
for E to
return to Luxembourg. Furthermore, that the second applicant and the
minor had formed a strong bond prior to the minors
departure to South
Africa also that she considered the respondent as selfish in that the
respondent had made deliberate attempts
to destroy the bond which was
created between the second applicant and the minor.
[14]
33.
This
court's appointed Curatrix ad Litem also had engagement with Prof
Spies which professional was suggested by the respondent's
attorney
of record to assist with the contact which was granted to the second
applicant as per the judgment of the court in Luxembourg
dated 19
December 2018.
[15]
34.
Prof
Spies was called upon to provide feedback on two aspects, namely the
preparation of E for contact with her father and also
to provide
feedback regarding her observations of a contact session between
father and daughter.
35.
Prof
Spies observed that the suggested contact as per the Judgment dated
19 December 2018 for the period 25 January 2019 - 10 February
2019
with sleepover would not be in E's best interest and the professor
suggested a phase-in process to accommodate E's needs and
pace.
36.
Prof
Spies further observed that E appears to have settled and adjusted in
South Africa quickly in her newly established family
unit consisting
of her older brother and her mother's husband Mr N C.
37.
She
was of the opinion that E would suffer extreme trauma if her return
would result in a separation between mother and child as
she feels
extremely loyal towards her primary caregiver. The expert was also of
the opinion that a proper investigation of the
newly established
family unit is called for.
38.
Lastly,
she supported the view expressed by the Curatrix ad Litem that E was
too young to be consulted on for her views and expressions
as
provided for by
section 6(5)
and
10
of the
Children's Act.
39.
Adv
.
Van Der Westhuizen also consulted Ms Candice Venter the teacher of E
to obtain her views on the child's adjustment in South Africa
since
her arrival in October 2018.
[16]
40.
In
this regard her teacher confirmed that E struggles slightly with her
confidence but socialises well with friends of which she
has made
many. Her teacher further described her overall mood as that of a
happy and lively girl.
41.
Adv
Van der Westhuizen also consulted the older brother of E, Mr S F.
From her engagement with the brother, she observed that he
has made a
lot of new friends at school and at aftercare. Furthermore, that the
older brother has intimated that he is aware that
he might have to
accompany his mother back to Luxembourg and stated that he would not
want to do so as he prefers living in South
Africa.
[17]
42.
The
Curatrix ad Litem thereafter also consulted Ms A T. The latter is the
partner of E's father. Ms T verbalized her love for E
and had
expressed the opinion that E is comfortable in her company and more
often than not they have fun in each other's company.
Ms T also
opines that it would not be a normal life for E to see her father
only a few times a year.
[18]
43.
Adv
Van Der Westhuizen also had engagement with Mr N C. She observed that
both E and S were comfortable with Mr C. During her discussion
with
him, he explained that in the event of the present application
succeeding it will result in a disintegration of his newly
established family unit. He also expressed the opinion that he
considers it extremely unfair that the second respondent would not
be
entitled to relocate to South Africa and move on with her life, in
the same way with the second applicant has been able to do.
He
further informed the curatrix, that he gets along well with the
father of S and that he would accompany S to Luxembourg in April
this
year for a visit with his father. He further indicated to the
curatrix, that his daughter from a previous marriage have also
been
integrated into their newly established family until she stays in the
same complex where they currently stay. He considers
that it would be
unfair to expect E to return to Luxembourg only for her father to
exercise visitation every alternative weekend.
Lastly, he expressed
an opinion to engage the second applicant directly and tendered for E
to spend every school holidays with
her father.
[19]
44.
The
Curatrix ad Litem also consulted the second applicant. Her first
observation she records, is that the second applicant feels
extremely
frustrated with the second respondents' lack of respect for the court
orders of the Luxembourg court. Mr. d H informed
the curatrix that he
was against an assessment to be conducted by Ms De Vos, an
educational psychologist as he holds the opinion
that the respondent
is negatively influencing E against him. He further tendered the cost
of rental of an apartment for the minor
upon her return as well as
other financial contributions if necessary. He lastly assured the
curatrix that he does not intend to
merely be a remote father and
that he is committed on playing an active role in the upbringing of
his only child.
[20]
45.
Lastly,
the Curatrix ad Litem had engagement with the respondent Ms H. During
her discussions with the respondent she intimated
to her that she
felt that she is being punished, against her will and right to free
movement by indirectly forcing her to return
to Luxembourg with E.
She admitted that she does not like the second applicant and prefers
not to speak to him at all. She reiterated
that she does not discuss
or speak about the second respondent with her daughter at all, and
that her newly established family
unit would be destroyed if ordered
to return to Luxembourg. She further confirmed to the curatrix that
she has settled well in
South Africa and was of the opinion that the
respondent wishes to punish her out of spite by insisting that she
should return to
Luxembourg. She also expressed the opinion, if
ordered by this court to return to Luxembourg that the second
applicant would feel
empowered and that he would destroy her in the
process.
[21]
46.
In
conclusion the curatrix ad litem opined that E should be returned to
her jurisdiction of her habitual residence which is situated
in
Luxembourg. Furthermore, given the tender age of E (4 years) the
curatrix was unable to consult the child to ascertain any possible
objections which might be raised by her and therefore she would not
fulfil the requirements of
section 6(5)
and
10
of the
Children's Act
neither
the provisions of Article 13 of the Hague Convention.
47.
As
a result she requested an extension of her powers to permit her to
appoint Ms M De Vos to conduct an emotional assessment on
E and to
provide a report to this court pursuant to such assessment having
been conducted.
[22]
48.
As
a consequence of the conclusion reached by the appointed curatrix ad
litem this court deemed it prudent after the hearing of
argument to
extend the powers of the curatrix to provide for the appointment of
Ms De Vos, an educational psychologist, to conduct
an emotional
assessment on E.
49.
The
purpose of the emotional assessment to be conducted was to determine
whether E objects to her return to Luxembourg and her reasons
for
that objections. This resulted in the matter being postponed to 1
March 2019 for adjudication upon receipt of the report by
the
educational psychologist.
EXCEPTIONS AS CONTEMPLATED IN
ARTICLE 13 OF THE HAGUE CONVENTION
50.
A
court faced with an application under the Convention is obliged to
place in balance the desirability in the interest of the child
of the
appropriate court retaining its jurisdiction on the one hand and the
likelihood of undermining the best interest of the
child by ordering
his or her return to the jurisdiction of that court. A 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 the court ordered
return.
51.
At
this juncture it would be appropriate to allude to same relevant
articles contained in the Hague Convention.
Article 3 of the Haque
Convention provides as follows:
"The
removal or retention of a child is to be considered wrongful where:-
a)
It
is in breach of rights of custody attributed to a person an
institution or any other body, either jointly or alone, under the
law
of the State in which the child was habitually resident immediately
before removal or retention ; and
b)
at
the time of removal or retention those rights were actually exercised
either jointly or alone or would have been so exercised
for the
removal or retention. The rights of custody mentioned in
sub-paragraph a above may arise in particular by operation of
law or
by reason of a judicial or administrative decision, or by reason of
an agreement having legal effect under the law of that
State."
Article
4 of the Hague Convention provides:
"The convention shall apply
to any child who was habitually resident in a Contracting State
immediately before any breach of
custody or access rights. The
Convention shall cease to exist when the child attaint the age of 16
years."
Article
12 of the Hague Convention provides as follows:
"Where a child has been
wrongfully removed or retained in terms of Articles 3 and at the date
of commencement of the proceedings
before the judicial or
administrative authority of the Contracting State where the child is
a period of less than the year has
elapsed from the date of the
wrongful removal or retention the authority concerned shall order the
return of the child forthwith......"
Article
13 of the Hague Convention provides as follows:
"Notwithstanding the
provisions of the preceding Article the judicial or administrative
authority of the requested state is
not bound to order the return of
the child if the person, institution or other body which opposes its
return establishes that -
a)
the
person, institution or other body having the care of the person of
the child was not actually exercising the custody rights
at the time
of removal or retention or had consented to or subsequently
acquiesced in the removal or retention; or
b)
there
is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child
in an
intolerable situation.
The judicial or administrative
authority may also refuse to order the return of the child if it
finds the child objects to being
returned and has attained an age and
degree of maturity at which it is appropriate to take account of its
views. In considering
the circumstances referred to in this article,
the judicial and administrative authorities shall take into account
the information
relating to the social background of the child
provided by the Central Authority or other competent authority of the
child's habitual
residence."
Article
19 of the Hague Convention provides:
"A decision under this
convention concerning the return of the child shall not be taken to
be determination on the merits of
any custody issue."
52.
In
the present matter as previously mentioned, the respondent placing
reliance on the provisions of Article 13, must prove the exception
on
a balance of probability.
[23]
In this regard the respondent places reliance on the exception
provided for in article 13(b) i.e. that there is a grave risk that
E's return will expose her to physical or psychological harm or
otherwise place her in an intolerable situation.
53.
In
the decision Soderup v Tondelli & Another 2001(1) SA 1171 (CC)
[44] the Constitutional Court states the following in respect
of the
nature of an Article 13 enquiry:
"[44] An art 13 enquiry is
directed to the risk that the child may be harmed by a court- ordered
return. The risk must be a
grave risk. It must expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.
The words 'otherwise place the child in an
intolerable situation' indicate that the harm that is contemplated by
the section is
harm of a serious nature."
54.
The
harm which is a natural consequence of a child's removal from his or
her habitual place of residence, a court-ordered return
and a
contested custody dispute is not of a serious nature as contemplated
by the Hague Convention. The Hague Convention contemplates
this type
of harm and takes it into account in the remedy that it provides.
[24]
55
In
replying on the provisions of Article 13 of the Hague Convention and
emanating from the respondent's answering affidavit, it
is evident
that the mother is submitting that E would be at grave risk of
psychological harm and that she would be placed in an
intolerable
situation should she be returned.
56.
Emanating
from her answering affidavit the following allegations are made by
the Respondent:
[25]
56.1
That there exist a lack of bond between
E and her father as they were never married and separated as a couple
when E was a mere
11 months old.
56.2
That she has always been E's primary
caregiver and that E is closely bonded with her newly formed
family.
[26]
56.3
As a result of a lack of proper bond
between E and her father if ordered to return she will suffer
tremendous psychological harm
and trauma if placed in the primary
care of the father.
[27]
56.4
The respondent further contends that
from a financial point of view, she would be unable to afford to
return to Luxembourg as she
has no job to return to nor does she own
property in Luxembourg.
[28]
56.5
Her precarious financial position would
make it impossible to maintain two minor children as she considers it
inconceivable to merely
return on her own with E and for Sebastien to
remain in South Africa.
[29]
56.6
Furthermore
she contends that the respondent has failed to financially maintain E
and if she is ordered to return to Luxembourg
by this court it will
result in an intolerable situation for E as she would find herself
unable to support herself and E financially.
[30]
56.7
She
also alleges that the second applicant habitually resides in Belgium
and not Luxembourg and therefore she denies that Luxembourg
is the
habitual residence of the second applicant.
[31]
57.
Counsel on behalf of the mother repeated
the allegations and had argued that this court as upper custodian of
all minor children
should place particular emphasis on the best
interest of the child.
58.
As previously mentioned in paragraph 48
this court extended the powers of the curatrix ad litem to appoint an
educational psychologist
Ms M De Vos and to permit the parties upon
receipt of such report to file supplementary affidavits where
necessary.
59.
On 27 February 2019 the report of Ms De
Vos was filed. The instruction for the evaluation was premised on the
expert to conduct
a comprehensive assessment to establish the best
interest of the minor child specifically related to the provisions of
article
13(b) of the Hague Convention.
60.
Ms
De Vos conducted various assessments on E and in the end recorded the
following findings in respect of E.
[32]
60.1
The
psychologist observed that E is young girl that regards her mother,
grandmother, N C and her brother Sebastian as her support
structure.
60.2
She
feels emotionally safe and secure.
60.3
She
avoids discussing her biological father because she feels angry at
him.
60.4
She
has largely been sheltered from any adult conflict conversation.
61.
The
educational psychologist recommended that given E's young age she
does not have the capacity to fully comprehend the implications
of
raising an objection.
62.
She
further remarked that if E is ordered to be returned it could
potentially lead to an intolerable situation. This potential
intolerable situation could be caused by having to uproot E now that
she has settled in school and socially.
63.
The
psychologist also opined that E could also experience an intolerable
situation if she is ordered to return and her older brother
remains
behind.
64.
Pursuant
to the report compiled by Ms De Vos and upon having considered her
report the appointed curatrix had filed a supplementary
report. In
her supplementary report Adv. Van Der Westhuisen recommended that if
this court orders the return of E to Luxembourg
same would result in
an intolerable situation and trauma which E would experience if such
order will result in her being separated
from her brother Sebastien
and her mother.
65.
The
respondent upon receipt of both the supplementary report of the
curatrix and the report of Ms. De Vos, elected to file a further
supplementary affidavit.
[33]
66.
Evident
from her further supplementary affidavit, the respondent undertakes
to return with E, if this court orders her return. Furthermore,
she
alleges that she at best will only be able to return to Luxembourg
for a maximum period of three months, and thereafter she
would
relocate to France where her mother stays. If she then was to take E
along, the second applicant would then again invoke
the provisions of
the Hague Convention which will result in further psychological harm
to E and would place her in an intolerable
situation.
[34]
67.
Furthermore
, she alleges that she will face arrest upon her entry into
Luxembourg and that if so arrested it will gravely affect
not only E
but also her older child.
[35]
68.
In
addition to the above, she alleges that any court order which our
courts will give, the Luxembourgish courts will pay very little
attention to.
69.
As
to her older child upon discussion between this child's father and
with that of her husband the decision was taken that he will
remain
behind in South Africa if E is ordered to return to Luxembourg and
that this will no doubt result in terrible punishment
not only for
Sebastien but also for E and the rest of her family.
[36]
70.
Important
from this affidavit is the concession made by the respondent that she
relocated to South Africa despite her application
for relocation
being refused by the
court
a quo
and on
appeal.
[37]
APPLICATION
OF THE LAW TO THE FACTS
71.
Now
at the onset, it should be mentioned that the provisions of Article
12 only finds applicability in as far as it mandates a Contracting
State to return a child forthwith, where a child in is such
Contracting State for less than twelve months from date of wrongful
removal to date of commencement of proceedings.
72.
In
the present instance it is common cause that E was removed from the
jurisdiction from Luxembourg to South Africa on 4 October
2018 and
proceedings were launched in this Court on 7 January 2019.
73.
The
next question for determination is whether E was habitually resident
in Luxembourg prior to her wrongful removal to South Africa.
By
habitual residence is meant, when a child is being removed from the
family and social environment in which her or his life has
developed.
[38]
74.
Having
regard to the founding affidavit as well as the answering affidavit,
it is not the habitual residence of the father which
is
determinative, but indeed that of the child prior to her wrongful
removal. On the evidence presented E was staying in Luxembourg,
together with her mother and older brother prior to her removal. She
even attended a school in Luxembourg prior to her removal.
75.
Therefore,
the assertion made by the respondent that the father was in fact
habitually resident in Belgium and merely owns property
in Luxembourg
is entirely misplaced for the purposes of this hearing.
76.
This
court in assessing whether the respondent has alleged the elements
for exemption under Article 13 has to conclude that the
facts as
alleged by her are sufficient to support a finding that E should not
be returned.
77.
In
this regard as mentioned the respondent alleges that E will suffer
psychological harm if she is ordered to be returned and in
so doing
would be separated from her primary caregiver and or brother.
78.
In
this regard the respondent has allege, that a decision was taken by
all concerned, that if ordered to return E, that the respondent
will
accompany her, but that her brother will remain in South Africa.
79.
Now
this court is mindful that it cannot order the return of either the
respondent or S. Neither of them are the subject-matter
of this
dispute and as such it cannot be dictated to by this court what would
be in the best interest of her child, in the event
that the latter is
ordered to be returned to Luxembough.
80.
If
however the respondent is to pay due regard to the recommendations
made in this regard by Ms. De Vos, together with that made
by the
Curatrix ad Litem, it begs the question as to why the respondent
would make an election to deliberately expose E to psychological
harm
by electing not to return with her brother.
81.
The
respondent in attempting to address the elements as contained in
Article 13, further asserts that when she accompanies E to
Luxembourg, she potentially will face arrest upon port of entry and
this too will expose E to grave risk.
82.
In
this regard the first applicant in reply had filed a supplementary
affidavit deposed to by the General State Prosecutor of Luxembourg
indicating that no arrest warrant(national or international) exists
against her and as such she will not face arrest upon her port
of
entry.
[39]
Albeit that a criminal case is pending same is still under
investigation and no decision has been taken on any charges if any to
be instituted against her.
83.
The
respondent resorted to self-help against two court orders ordering
her not to remove E from the jurisdiction of Luxembourg.
In addition
to this, our courts certainly has no authority to prescribe to
another independent state not to take any criminal sanction
against
any individual who have violated its laws.
84.
Therefore,
any arrest which she might face was entirely that of her own doing
and it cannot be said that such potential arrest would
be an element
established in terms of Article 13.
85.
The
respondent has alleged that as a European citizen she will only be
permitted to enter and remain in Luxembough for a period
not
exceeding three months, unless she can prove that:
85.1
that she is employed or self-employed;
85.2 that
she has resources to ensure that E are not dependent on social
welfare and medical
insurance;
85.3
they are registered with and approved public or private education
institution
86.
In
as much as the respondent asserts that E will be subjected to grave
risk, if returned same will be assuaged if she returns with
E.
87.
The
second applicant in order to ameliorate any financial burden which
the respondent might suffer has undertaken to contribute
an amount of
1000 Euros per month for a period of three months towards
accommodation for E and a further 200 Euros towards her
maintenance.
[40]
These undertakings this court considers reasonable under the
circumstances.
88.
Apparent
from this undertaking is clearly an appreciation by the second
applicant for the challenges which the respondent will face
upon the
court ordering the return of E and upon her making an election to
accompany E.
89.
The
respondent as mentioned is a married woman and as such Mr. C owes her
a spousal duty to support. Her affordability to maintain
herself can
therefore not be borne by the second applicant, and must be borne by
her husband.
90.
Having
regard to the above and her concession made of having violated two
court orders with her wrongful removal of E, I have come
to the
conclusion that she has failed to allege facts sufficient to either
point to potential harm or grave risk referred to in
Article 13.
91.
This
court can only implore the parties to finalise their pending custody
dispute speedily in order to bring stability to their
child E.
ORDER
92.
In the result the following order is
made:
92.1
The
minor child, E D H
("E")
shall be returned forthwith, but
subject to the terms of this order, to the jurisdiction of the courts
of Luxembourg.
92.2
Respondent is ordered to indicate in
writing to First Applicant, within 5 days from date of this order,
whether she intends accompanying
E to Luxembourg, in which event,
Respondent is ordered and directed to return with E to Luxembourg
within 10 days of this order,
subject to the terms of paragraph 3
hereunder.
92.3
Unless otherwise ordered by a court of
competent jurisdiction in Luxembourg:
92.3.1
E's residence shall vest with
Respondent, subject to Second Applicant's rights contact and
visitation, in accordance with the existing
orders of the courts in
Luxembourg.
92.3.2
Second Applicant is ordered to arrange
separate accommodation for Respondent and E in Mondorf-les-Bains,
Luxembourg, chosen by Respondent,
and Second Applicant is ordered to
contribute the sum of no more than € 1 000 per month, for a
period of 3 months, towards
the cost of such accommodation.
92.3.3
Second Applicant is ordered to pay
maintenance for E, from the date of her arrival in Luxemburg at the
rate of € 200 per month.
92.3.4
Second Applicant and Respondent are
ordered to co-operate fully with relevant authorities and courts in
Luxembourg and with any
professionals who conduct an assessment in
order to determine what future custody, care, contact and visitation
arrangements will
be in the best interests of E.
92.4
In the event of Respondent falling to
indicate in writing to First Applicant within 5 days of this order,
her intention to return
to Luxembourg with E
alternatively
indicating that she does not intend
to return to Luxembourg with E, then in such event:
92.4.1
Respondent is ordered and directed to
hand E over to First Applicant within 10 days of this order; and
92.4.2
First Applicant is ordered to facilitate
E's return to the Jurisdiction of Luxembourg, such facilitation to
include the return of
E to be accompanied by E's father, Second
Applicant
alternatively
by a social worker and/or any other
suitably qualified person appointed by First Applicant.
92.5
In
the event of Respondent failing and/or refusing to comply with the
order in paragraph 92.4 above, the sheriff of the court
("the
sheriff')
is authorized. Empowered
and ordered to remove E from the care of Respondent forthwith,
wherever she may be found and to handover
E to the Family Advocate,
Advocate Ingrid Eberlanz
("the
Family Advocate")
or any other
person designated by First Applicant, so as to facilitate E's return
to the jurisdiction of Luxembourg, and First Applicant
is directed to
take steps to ensure that such removal is the least disruptive to E,
including utilizing the services of a social
worker and/or any other
suitably qualified person to assist with such removal.
92.6
Respondent
is ordered to hand over to the family advocate forthwith the travel
documents of E.
92.7
In
the event of Respondent's failure to comply with the order in
paragraph 92.6 above, the sheriff is authorized, empowered and
ordered to search for and seize the travel documents of E and to hand
same to the Family Advocate.
92.8
Pending
E's return to Luxembourg, as provided for in this order, Respondent
shall not remove E from the area of jurisdiction of
this Court and
shall keep Second Applicant and the Family Advocate informed of her
physical address and telephone numbers in South
Africa.
92.9
The respondent is ordered to pay First
and Second Applicants' costs of this application.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances:
Counsel
the First Applicant
: Adv. Chris Woodrow
Attorney
for the First Applicant :
The State Attorney PRETORIA
Counsel
for the Second Applicant : Adv. Sarita
Liebenberg
Attorney for the Second
Applicant : Du Randt Du Toit Pelser Attorneys
Counsel for the
Respondent
: Adv. C. Van Schalkwyk
Attorney
for the Respondent
: Couzyn Hertzog & Horak
Inc.
Curatrix Ad
Litem
: Adv. L. Van Der Westhuizen
Dates of Hearing
: 7 February 2019, 18 February 2019, I March 2019
Date of
Judgment
: 15 March 2019
[1]
Good
News
Bible: Today's English Version
[2]
In terms of
section 275
of the Child ren' s Act 38 of 2005 the Hague
Convention is in force in the RSA subject 2005 to the provisions of
the
Children's Act 38 of 2005
[3]
Article 1 of the Convention.
[4]
Article 3 of the Convention; KG v CB and Others 201
2 (4) SA 136
(SCA) para[19) at 145H - 146A
[5]
Pennello v Pennello (Chief Family Advocate as Amicus Curiae)
2004
(3) SA 11
7 (SCA) para 38
[6]
Boezaart Child Law in South Africa 2009 pg. 354
[7]
KG v CB para (51) at pg. 157E - F
[8]
Founding Affidavit pg. 18 para 30; Answering Affidavit pg 216 para
27
[9]
Founding Affidavit pg. 18-19 para 31-32; Answering Affidavit pg 217
para 28
[10]
Founding Affidavit pg. 24 para 45.4; pg. 25 para 46.2 pg. 26 para 49
[11]
Founding Affidavit pg. 33 para 75
[12]
Luna Meubels Vervaardigers (Edms ) Bpk v Makin t/a Makin Furniture
Manufacturers
1977 (4) SA 13
5 (W) @137F
[13]
Report by the Curatrix ad Litem fi led 13 February 2019 pg. 1 - 41
[14]
Report by the Curator ad Litem para 2 pg. 6 - 9
[15]
Report by the Curator ad Litem para 3 pg. 11 - 20
[16]
Report: Curator ad litem para 5 pg. 20 - 21
[17]
Report: Curator ad litem para 5 pg. 21 - 22
[18]
Report: Curator ad litem para 5 pg. 22 - 24
[19]
Report: Curator ad Litem para 7 pg. 24 - 28
[20]
Report: Curator ad Litem para 8 pg. 28 - 32
[21]
Report: Curator ad Litem para 9 pg. 32 - 37
[22]
Report: Curator ad Litem para 10 pg. 37 - 41
[23]
WS v LS 2000 (4) SA (C) 11 21-J
[24]
Sonderup v Tondelli & Another
2001 (1) SA 1171
(CC) [46]
[25]
Answering Affidavit pg. 197 para 4.4
[26]
Answering Affidavit pg. 197 para 4.5
[27]
Respondent's Answering Affidavit pg. 198 para 4.9
[28]
Respondent's Answering Affidavit pg. 199 para 4.10
[29]
Respondent's Answering Affidavit pg. 199 par a 4.11
[30]
Respondent's Answering Affidavit pg. 200 para 4.14
[31]
Respondent' s Answering Affidavit pg. 201 para 4.1 6 - 4.21
[32]
Confidential report by Ms Mariaan De Vos filed 27 February 2017
[33]
Index pg 457
[34]
Index para2.5 pg 461 and para 3.4-3.5 pg 462
[35]
Index para 3.15 pg 464
[36]
Index para 3.16 pg 464 and para 4.1; 4.2 and 4.12
[37]
Index para 7.1 pg 473
[38]
Senior Family Advocate Cape Town v Houtman
2004 (6) SA 274
(C) [15]
[39]
First Applicant Supplementary Affidavit pg 441
[40]
Second Applicant's Supplementary Affidavit pg 383