Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London v IRRJ (EL528/2019; 1730/2019) [2019] ZAECELLC 17 (16 August 2019)

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[2019] ZAECELLC 17
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Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London v IRRJ (EL528/2019; 1730/2019) [2019] ZAECELLC 17 (16 August 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE NO:
EL 528/2019
1730/2019
REPORTABLE ON INCADAT
(database
of the Child Abduction section of the HCCH)
In
the matter between
THE CHIEF FAMILY
ADVOCATE OF THE
REPUBLIC OF SOUTH
AFRICA AS
REPRESENTED BY MR
KEUBEN GOUNDEN,
SENIOR
FAMILY ADVOCATE, EAST LONDON

Applicant
and
IRRJ

Respondent
JUDGMENT
HARTLE
J
[1]
The
applicant, acting as representative on behalf of the father of the
two minor children hereinafter referred to, seeks an order
under the
aegis of the Hague Convention on the Civil Aspects of International
Child Abduction, 1980 (“the Convention”)
read together
with Chapter 17 of the Children’s Act, No. 38 of 2005, as
against their mother, the respondent, for their return
to the
jurisdiction of the central authority in New Zealand.  Both
South Africa and New Zealand are signatories to the Convention
and
“contracting states” within the meaning of the
Convention.
[1]
[2]
The children are a boy (“L”)
and a girl (“A”), aged 10 and 5 years respectively (“the
children”),
who it is alleged were or are being wrongfully
retained in South Africa in breach of the father’s rights of
custody under
the circumstances to which I will shortly allude and
must, so it is claimed, forthwith be returned to New Zealand, the
contracting
state in which they were habitually resident at the time
of their “retention” in South Africa.
[3]
Save for an
in
limine
objection raised by the
respondent that the father ought to have been personally joined in
these proceedings (which objection I
deal with below), the
applicability of the Convention and its peculiar strictures and
nuances are not in contention.
[4]
The
Convention was incorporated into South African law initially by the
Hague Convention on the Civil Aspects of International Child

Abduction Act, 72 of 1996, which came into operation on 1 October
1997.  The latter act was repealed by the Children’s
Act
with effect from 1 April 2010 but section 275 of the Children’s
Act provides in its place that the Convention, (the whole
of which
constitutes Schedule 2 to the Children’s Act), “is in
force in the Republic and its provisions are law in
the Republic,
subject to the provisions of this Act”.
[2]
[5]
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 thus that the
authorities best placed to resolve the merits of a custody dispute
are the courts of the State 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.
[3]
[6]
Article 1 of the Convention provides as
follows:
“
The
objects of the present Convention are-
(a)
to secure the prompt return of the children
wrongfully removed or retained in any contracting state; and
(b)
to ensure that rights of custody and of
access under the law of one contracting state are effectively
respected in the other contracting
states.”
[7]
Article 2 of the Convention provides that:
“
Contracting
states shall take all appropriate measures to secure within their
territories the implementation and objectives of the
Convention.
For this purpose they shall use the most expeditious procedures
available.”
[8]
The Convention will apply when the removal
or retention of the child is considered “wrongful” and in
this regard Articles
3, 4 and 5 are applicable.  These provide
as follows:
“
Article
3
The removal or the
retention of a child is to be considered wrongful where –
a)
it is in breach of rights of custody
attributed to a person, an institution or any other body, either
jointly or alone, under the
law of the State in which the child was
habitually resident immediately before the removal or retention; and
b)
at the time of removal or retention those
rights were actually exercised, either jointly or alone, or would
have been so exercised
but for the removal or retention.
The
rights of custody mentioned in sub-paragraph a) above, may arise in
particular by operation of law or by reason of a judicial
or
administrative decision, or by reason of an agreement having legal
effect under the law of that State.
Article
4
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 apply when the child attains
the age of 16 years.
Article
5
For the purposes of this
Convention –
a)
"rights of custody" shall 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;
b)
"rights of access" shall include
the right to take a child for a limited period of time to a place
other than the child's
habitual residence.”
[9]
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
Article 7 (f), one
of the obligations imposed upon the Central
Authorities is to “initiate or facilitate the institution of
judicial or administrative
proceedings with a view to obtaining the
return of the child”.  It is on this basis that this court
has become seized
of the matter through the agency of the applicant.
The application was initially issued out of the Grahamstown High
Court
but was transferred to this court on the basis of convenience
to the mother who presently resides in East London.
[10]
Article
8 further set out comprehensively what is to be contained in such an
application and what documents should accompany or
supplement the
affidavit.  One of these (stipulated in Article 8 (f)) is a
certificate or an affidavit emanating from a Central
Authority or
other competent authority of the state of the child’s habitual
residence, or from a qualified person, concerning
the relevant law of
that state.  In this instance an affidavit of Lisa Soljan, a
longstanding Barrister and Solicitor practicing
in Auckland with
particular experience in family law, has been put up to give a
context to the breach of the father’s custody
rights occasioned
by the alleged wrongful retention of the children in South Africa by
their mother.  In short, the father
- together with the
children’s mother, by virtue of their marriage, is a guardian
of the children pursuant to the provisions
of section 17 (1) of the
Care of Children Act 2004, which came into force in July 2005.
In the exercise of such guardianship,
the father has the right,
inter
alia
,
to determine the children’s place of residence and to veto any
proposed change in residence (as identified in section 16
(2) of the
Care of Children Act 2004), which right is independent and
disjunctive of his physical contact with them.
[4]
Ms. Soljan concludes in her affidavit that the rights enjoyed by the
father in this respect can be properly understood as
rights of
custody under the Convention which have been breached by the mother’s
act of retaining the children in South Africa.
She is further
satisfied that this right has not been extinguished or removed and
continues to exist.
[5]
[11]
Article 3 sets out the jurisdictional
prerequisites which an applicant is required to establish before a
court may consider whether
the removal or retention of a child is to
be considered wrongful.  These are that: (a) the child was
habitually resident in
the other State; (b) the removal or retention
constitutes a breach of custody rights; and (c) the applicant was
actually exercising
such rights (either jointly or alone) at the time
of removal or retention, or would have exercised such rights but for
the removal
or retention.
[12]
On the papers before me in this matter it
is common cause that the children were habitually resident in New
Zealand at least at
the time of their departure from New Zealand to
South Africa under the circumstances which I will shortly relate.
Although
somewhat ambivalently pleaded (a) because the respondent
does not clearly place this jurisdictional pre-requisite in dispute,
and
(b) because she appears to miss that the focus of the applicant’s
case is on an alleged wrongful retention of the children
as opposed
to their removal contemporaneous with their departure from New
Zealand, the implication (by the overall defence raised
in her
answering affidavit) is that the children were not habitually
resident in New Zealand once they permanently relocated to
South
Africa.  (The mother’s case in this respect is that the
father agreed to their permanent relocation to South Africa
or at
least was aware that it was not her intention to return with them
once she had departed from New Zealand and acquiesced in
this
permanent change of residence.)   Despite the manner in
which the respondent’s case has been pleaded, however,
counsel
seemed to be
ad idem
that the onus was on the mother resisting the return order to
establish the defence in Article 13 (a) principally relied upon.
[13]
As
to the second pre-requisite, the respondent raises no real challenge
to the applicant’s assertion that there was or is
a breach of
the father’s custody rights on the grounds relied upon by him
under the Care of Child Act aforesaid.  Indeed,
in KB v CB the
SCA found that “(d)espite some initial uncertainty, there is
now much authority from a number of Contracting
State jurisdictions
which establishes that … a parent’s rights to prevent
the removal of a child from the relevant
jurisdiction, or at least
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 articles 3 and 5 of the
Convention.  Thus, a custodian
parent who removes the child from
the state of the child’s habitual residence … without
the consent of the other parent
(or leave of the court) commits a
breach of ‘rights of custody’ of the other parent within
the meaning of …
a ‘wrongful removal’”.
[6]
[14]
This
dictum must be of equal application to a “wrongful retention”
envisaged in Articles 3 and 5, assuming that the
child is habitually
resident in the contracting state at the relevant time the act of
retention is perpetrated.  In my view,
retaining the children
here in South Africa against the father’s consent on the basis
alleged by him (he says he only lent
his consent for their departure
with their mother for a fixed term) self-evidently constitutes a
breach of such custody rights
which arise by operation of law, as he
is being denied the right to determine where the children are to
live, how and where they
are to be educated or to be consulted
concerning changes that will significantly impact on his relationship
with them and their
culture, language and religious denomination and
practice.
[7]
It is one
thing for parents to have a shared intention for their children to be
in the primary care of one of the parents
in a strange country, even
for an extended period, but quite another if that visiting parent
seeks by her actions to permanently
sever them from a state with
which they have connections factually, culturally, socially or in
other significant ways without respecting
the left behind parent’s
vital rights as a co-guardian.
[15]
As to the third pre-requisite the
respondent appears by the overall tenor of her opposing papers to
deny that the father was exercising
his custodial rights at the time
the children were brought to South Africa – by virtue of his
lack of involvement in their
lives, his failure to support them and
because they had moved apart from the family home by then already,
but it can hardly be
suggested in my view that the facts
demonstrating his supposed lack of interest as a father detract from
his right as a co-guardian
to determine where the children are to
live.  Rather, those complaints against him seem to go to the
issue of his lack of
suitability as a custodian parent or one having
the primary care of his children which are immaterial for present
purposes.
[16]
Be
that as it may, the latter aspect falls to be proven by the
respondent under the mantle of the Article 13 (a) defence to which
I
refer below.
[8]
[17]
Article 12 provides
that where the removal or retention of the child in question is found
to be wrongful within the meaning of article
3, and a period of
less than a year after the wrongful removal or retention has elapsed
– as is the case with the children
in this instance –
then the appropriate judicial or administrative authority of the
requested State is
obliged
in
terms of the Convention to order the immediate return of the child.
[18]
There are, however,
certain limited exceptions to the mandatory return of the children
contained in Article 13, which directs that:
“
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 that the child objects to
being
returned and has attained an age and degree of maturity at which it
is appropriate to take account of its views.
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.”
[19]
As an aside, Ms. Mitchell from the East
London Justice Centre was appointed by this court on 8 July 2019, in
compliance with the
provisions of section 279 of the Children’s
Act, to represent the interest of the children.  She conducted
an interview
with both of the children on 9 July 2019 and provided a
report at the hearing of the matter.  Whilst she considered that
A
was too young and immature to fully grasp what the legal request
for their return was all about, she was able to glean that neither

child had strong views against returning to New Zealand.  To the
contrary both children expressed a preference, independently
of each
other, to be in New Zealand and to see their father.  Ostensibly
both children understand from their mother that they
cannot go back
to New Zealand because of money issues, but no other concerns were
flagged by Ms. Mitchell that would militate against
the proposed
return order.  Indeed she fully supports the granting of the
relief sought.
[20]
The
onus rests on the respondent to establish one or other of the
defences referred to in Article 13 (a) and (b),
[9]
or that circumstances are such that a refusal would be justified
having regard to the provisions of Article 20.
[10]
[21]
The latter article in turn provides that:
“
Article
20
The
return of the child under the provisions of Article 12 may be refused
if this would not be permitted by the fundamental principles
of the
requested State relating to the protection of human rights and
fundamental freedoms.”
[22]
Even
if the requirements of Article 13 (a) and (b) are met, however, the
court retains a discretion to order the return of the children
in any
event.
[11]
[23]
As indicated above, the bedrock of the
mother’s opposition to the return order is that the children’s
removal
was not wrongful in that their father consented to or acquiesced in
their departure from New Zealand to live in South Africa.
If I
find for the mother on her principal version, which is that her
agreement with the father was to permanently and indefinitely

relocate with the children to South Africa, that would not only
provide an Article 13 (a) defence but would negate the purported
act
of wrongful retention on which the father’s case is premised.
[24]
I say principal version because, as will
become apparent below, the mother equivocates between a conditional
and unconditional agreement
reached with the father for the supposed
return of the children to South Africa.
[25]
What in effect exists is a factual dispute
regarding the nature of the parents’ agreement or the
conditions under which they
agreed the children could depart to South
Africa from New Zealand.  The father says it was for a fixed
term and season only,
and the mother that it was “for good”
and that he would visit the children in South Africa in December this
year.
It is common cause that the father at least consented to
the children’s departure with their mother from New Zealand,
manifest
by his consent given for them to travel alone with her and
his presence at the airport to bid them all farewell.
[26]
Also raised as an Article 13 (b) defence is
the assertion that the children’s wellbeing will be compromised
by their return
to New Zealand assuming the issue of a return order
because since their departure from the family home their father has
not supported
them financially.  The mother is further concerned
that if the children are returned their father will neglect them.

The fear is also voiced that circumstances have changed since their
departure.  The home that the children think they will
be
returning to no longer exists.  The mother also complains that
the father has never been a stable father figure and that
she was
always the primary caregiver.  Despite this the mother concedes
that the father loves his children and that this love
is reciprocated
by them.  In reality the mother has not suggested in so many
words that there is a “grave risk that
(the children’s)
return would expose (them) to physical or psychological harm or
otherwise place (them) in an intolerable
situation” in the
sense contended for in this provision, but appears to rely on a
broader general assertion that the proposed
return order will not
conduce to their best interest.
[27]
The
issue of onus and approach to be adopted in resolving the disputes of
fact which ostensibly exists on the papers has been helpfully
set out
in NF v MC
[12]
as follows:
“
[9]
What must be borne in mind is that in evaluating whether the
applicant and the respondent have each discharged the onus resting

upon them as outlined in Smith supra,
the well-established
Plascon-Evans
rule
(Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A)
at 634E-635C) nonetheless still applies. Accordingly, in motion
proceedings where a court is confronted by disputes of fact,
a final
order may only be granted if those facts averred in the applicant’s
affidavits that have been admitted by the respondent,
together with
the facts alleged by the respondent, justify such an order.
[10]
As to a respondent’s version in motion proceedings it can only
be rejected where the allegations made -
...fail
to raise a real, genuine or bona fide dispute of fact...[or] are so
far-fetched or clearly untenable that the Court is justified
in
rejecting them merely on the papers...
Practice
in this regard has become considerably more robust, and rightly so.
If it were otherwise, most of the busy motion courts
in the country
might cease functioning. But the limits remain, and however robust a
court may be inclined to be, a respondent’s
version can be
rejected in motion proceedings only if it is
“
fictitious
”
or so far-fetched
and clearly untenable
that it can confidently be said, on the papers alone, that it is
demonstrably and clearly unworthy of credence.
’
[emphasis supplied]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) paras 55-56.
[11]
In Pennello v Pennello (Chief Family Advocate as Amicus Curiae)
2004 (3) SA 117
(SCA)
at paras 40-41 Van Heerden AJA (as she then was) found as follows:
‘
[40]
I am in agreement with the argument of counsel for the appellant that
the Full Court erred in departing from the well-known
Plascon-Evans
rule as applied in the Ngqumba case with regard to disputes of fact
in proceedings on affidavit. As indicated above,
the Convention is
framed around proceedings brought as a matter of urgency, to be
decided on affidavit in the vast majority of
cases, with a very
restricted use of oral evidence in exceptional circumstances. Indeed,
there is direct support in the wording
of the Convention itself for
return applications to be decided on the basis of affidavit evidence
alone, and courts in other jurisdictions
have, in the main, been very
reluctant to admit oral testimony in proceedings under the
Convention. In incorporating the Convention
into South African law by
means of Act 72 of 1996, no provision
was made in the Act
or in the regulations promulgated in terms of section 5 thereof
indicating that South African courts should
not adopt the same
approach to proceedings under the Convention as that followed by
other Contracting States. In accordance with
this approach, the Hague
proceedings are peremptory and “must not be allowed to be
anything more than a precursor to a substantive
hearing in the State
of the child’s habitual residence, or if one of the exceptions
is satisfied, in the State of refuge
itself’.
[41]
As
counsel
for the appellant pointed out (correctly, in my view), there is no
reason in law or logic to depart, in Convention proceedings,
from the
usual approach to the meaning and discharge of an onus in civil law
and from the application of the Plascon-Evans rule
to disputes of
fact arising from the affidavits filed in such proceedings. ’
[footnotes omitted]”
[28]
Although the applicant in this instance
bears the onus to prove the jurisdictional facts required by Article
3 that will trigger
the provisions of Article 12, the existence or
not of those depend ultimately on the question whether the father
agreed to their
removal and by necessary implication retention in
this country, alternatively acquiesced therein.
[29]
The essential facts, the social background
of the children and the relevant circumstances appear below
[30]
The parents, citizens of South Africa, were
married at Johannesburg in 2008.  L was born in the country in
November 2008.
The family immigrated to New Zealand when he was
just a year old.  They spent two years there before leaving for
Australia
where the father was transferred for work purposes.  A
was born whilst the parties temporarily resided in Australia.
L
attended preschool and commenced school there.  At the end of
2013 the parties returned to live in New Zealand (after a
short visit
to South Africa in between) and have lived there permanently since
2014.  L was enrolled in a school in South
Auckland at first but
transferred to North Auckland when the family moved there at the end
of September 2016.
[31]
Although New Zealand has been home to the
family, both parents have on occasion travelled to South Africa
together with the children,
the mother both with and without the
children for significant periods
inter
alia
after
her father’s death in March 2017 specifically to sort out the
latter’s estate, and the father on his own for
a random visit
to surprise his mother in July 2018.  On the last trip when the
children accompanied the mother to attend to
her late father’s
estate, L took scheduled time off school in New Zealand because the
father’s work commitments did
not permit him to look after them
in the mother’s absence.
[32]
The family entered New Zealand initially on
a work visa issued to the father.  After a while they were
granted residency and
in mid-2018 were all granted permanent
residency status which entitles them to live, work and stay in the
country and to travel
freely to and from it.  The plan according
to the father was for all of them to apply for full citizenship in
New Zealand
once eligible, the mother herself having made concerted
efforts to obtain permanent residency status there.
[33]
In October 2018 the common realization set
in that the parents’ marriage was at risk of failing.  The
father claims that
initial discussions held to plot the way forward
focused around the mother’s return to South Africa for two
purposes, one
to finalize her father’s estate and, two, to give
her some time and space to work on what they needed to do to
reconcile
their relationship.  (The latter notion is utterly
rejected by the mother).
[34]
By the end of 2018 they recognized however
that a divorce was inevitable and would be pursued by one of them in
due course.
[35]
This gives a context to the parties’
agreement reached which he says was the basis upon which the children
departed New Zealand
for South Africa with their mother.
[36]
He claims that he lent his consent for the
children to depart from New Zealand and spend up to one year in South
Africa with her.
This would, in his view, afford her an
opportunity both to wind up her late father’s business and to
enable her to spend
time with family whilst coming to terms with the
breakdown of their marriage.  The period was specifically
limited to one
year only but could be extended to January 2020 if
return flights were too expensive in December.  There was
however no reason
to doubt that the mother would return with the
children at the conclusion of that period.  He himself was again
unavailable
because of work constraints to look after the children
while their mother travelled to South Africa, hence the concession
that
they accompany her and, by obvious implication, live and school
in South Africa during their stay here.
[37]
The children thus departed “in
accordance with (their) agreement” on 12 January 2019.
They travelled on one-way
tickets on the basis that they would book
flights back at the relevant time.  The mother and children
travelled with one suitcase
each.  (The mother contrariwise says
she took all their belongings which they needed.)  They used the
opportunity to
do a spring clean of the family home, the mother
taking two boxes of belongings to her aunt and uncle’s house in
Henderson,
Auckland, which he considered appropriate since they were
in the process of separating.  He claims that he still
maintained
a glimmer of hope that they would be able to reconcile.
[38]
Once the mother had departed from New
Zealand however their relationship worsened and she became reluctant
to engage with him about
their future, more especially concerning
what would happen upon the children’s return to New Zealand.
On Tuesday, 2
April 2019 he sent her an email making clear that from
his point of view their relationship was over.
[39]
On 23 March 2019 the mother sent an email
which significantly contained the following statement:
“
When
and if I come back to New Zealand is something I would like to leave
open for discussion with L …. I told him months
ago and I
still stand … if he is absolutely unhappy at the end of the
year we will go, and if he feels he is ok to stay
we will.  For
that reason I cannot say when for sure we will come back.  I
would also need to be financially stable when
and if we do come
back.  I would like for him to get used to it here before we set
everything or anything in stone.”
[40]
It was evidently on the basis of this
communication, coupled with the mother’s intimation that she
would issue out the divorce
action in South Africa in which she
inter
alia
intended to claim custody of the
children, that the father resolved that she had disavowed their
agreement about the basis upon
which he had lent his consent to the
children accompanying her to South Africa.  This prompted him to
seek their immediate
return to New Zealand under the Convention.
He asserted that he no longer agreed to the children’s
continued presence
in South Africa.  He attempted to get the
mother to state categorically that she had no intention of returning
to New Zealand
with the children, but she had by then limited her
communication and informed him that she was obtaining legal advice.
[41]
He disavows any risk to the children’s
welfare or safety should they return to New Zealand.  He
envisages that if the
mother returns with them that they would share
the children’s care in some way and has offered the undertaking
to attend
mediation to discuss such plans.  He has further
tendered child support.  Should the mother not return to New
Zealand
with the children he claims that he is presently able to take
care of them himself and that his work circumstances lend themselves

favourably to such a contingency.  He has also made an
undertaking to fund the costs of the travel of the children back to

New Zealand in the event that a return order is made, and the mother
is unable or unwilling to pay these.
[42]
He agreed to receive divorce proceeding by
email issued out of South Africa which it appears were commenced by
the mother making
the necessary application for leave to sue by
edictal citation out of this court in May 2019. He protests the
jurisdiction of the
South African courts to address any matters
relating to the children which in his view ought to be dealt with in
the New Zealand
court system.
[43]
After the proceedings under the Hague
Convention were commenced, the Family Advocate attempted to mediate
the voluntary return of
the children to New Zealand by the mother,
but to no avail.
[44]
The contents of the information sessions
with the parents has some bearing on the central issue of consent
and/or acquiescence which
this court is required to decide and bears
repeating.
“
Mediation
was held on 16 and 17 May 2019.  Both (parents) participated.
1.
On 16 May 2019
:
(The father who is in NZ) had not responded to email correspondence
sent by Ms Loggenberg and mediation commenced with (mother)
only:
(a)
After an information session with (mother)
iro the Hague Convention and mediation to secure a voluntary return
(Mother) informed
that she and (father) separated soon after
Christmas 2018 whereafter (mother) and the children moved to family
members in NZ).
There was not a lot of communication between
the parties but according to (mother) she informed and (father) was
aware that she
is returning to South African with the children
permanently.  (Father) gave her consent to travel with the
children.
(b)
The version of (father) was shared with
(mother) – (mother) disputes (father’s) version but
agreed that subsequent to
the eldest child (L) being unhappy in SA
(around April 2019) and wanting to return to NZ, she sought
psychological assistance for
L.  She also informed L and
(father) that if L was still unhappy at the end of 2019, that they
would return to NZ.
(c)
(Mother) informed that she has had
discussions with her attorney, Mr Wayne Smith, about divorce
proceedings but that divorce action
has not been instituted.
(d)
…
(e)
…
On
17 May 2019:
the interview with
(mother) continued – (father) had still not responded to the
email correspondence.
(a)
(Mother) confirmed that she has no document
confirming the agreement between herself and (father) that he
conceded to her relocating
with the children to SA on a permanent
basis, except the Affidavit of Consent for Children Travelling
Abroad, as forwarded by her
attorney on 16 May 2019, in which the
return date of the children is underdetermined.
(b)
(Mother) indicated that she resigned her
job in NZ prior her departure and informed the school/s of the
children that they are not
returning to NZ.  She further
indicated that before she could tell the caregiver (Wilma Boskett) of
the youngest child (A)
that she and the children were not returning
to NZ, (father) had already informed the caregiver.  She further
informed that
the parties discussed the relocation with the children
and (father) told L that as soon as he (father) gets citizenship in
Australia,
L can come and live with him in Australia.
(c)
(Mother) indicated that she cannot return
to NZ as she is in a much better “place” in SA and
requested to discuss the
matter further with her attorney and will
return to the Office soonest.
(d)
(Mother) provide(d) the cell number of
(father) and confirmed that she has no contact concerns between
(father) and the children
in SA or NZ and that (father) has been in
regular telephonic contact with the children since they left NZ.
Undersigned phoned
(father) – (mobile number provided)
(a)
…
(b)
…
(c)
(Mother’s) version was shared with
(father): (Father) denied that the parties separated formally prior
to (mother’s)
departure but concedes that their relationship
was strained and that (mother) and the children stayed with family
members for a
few days prior their departure to SA.
(d)
He confirmed the version of events in his
affidavit and made it clear that he definitely did not agree to the
relocation of the
children.  He informed that the agreement
between the parties was in order to assist (Mother) to finalise her
late father’s
business and estate.  The only reasons he
agree(d) for the children to accompany (mother) at the time, for such
a possible
lengthy period, was because he had a very demanding job
and would not have been able to care for the children on his own –

as indicated in his affidavit, he has since changed jobs and is now
in a position to care for the children in NZ.  He reportedly

works more flexible hours and can also work from home or anywhere
else.
(e)
(Father) informed that he never foresaw, at
the time that (mother) would not return with the children.  He
informed that they
all have, sometime prior to her departure, applied
for citizenship in New Zealand and had discussed moving to Australia
as (mother),
amongst other things, has many relative in Australia.
(f)
(Father) proposed:
·
Should (mother) return to NZ he will cover
the return expenses of the children but is of the view that (mother)
is able to cover
her own travel expenses.
·
He will then also concede to the original
agreement to remain in place, (i.e. that (mother) returns with the
children at the latest
January 2020) as he would firstly not want the
children’s school year disrupted and secondly that the children
will miss
(their mother) if they should return without her as they
are missing him now, while they are in SA without him.
·
Should (mother) not be willing to return
with the children as mention(ed) above, he would seek the immediate
return of the children
to NZ.
·
Should the children return to NZ without
(mother), he has no contact concerns between (mother) and the
children in either SA or
NZ.
(g)
He is concerned that (mother) wants to base
the entire future of the family on the decision of a 10 year old
child (L) – he
does not believe that L should be the one to
make the decision whether the family remains in SA or returns to NZ.
(h)
(Father) informed that he is not
badmouthing SA or that the children will not prosper here but feels
NZ is the children’s
home.  They refer to NZ as “home”
and have both told him telephonically that they want to come “home”

(NZ).”
[45]
The upshot of the mediation, and after the
mother seeking legal advice, is that she was not prepared to
voluntarily return the children
to New Zealand on the basis that “she
disputes the version of the (father) and will contest it in court”.
This
stance, to contest the matter litigiously, was repeated by her
even after the Family Advocate advised her of the burden of proof
she
would have to bear in the present application.
[46]
The mother in her answering affidavit
asserts that for several years she was subjected to emotional abuse
by the children’s
father as a result of which she lost all love
and affection for him and the parties had already by 2017 virtually
stopped communicating
with each other.  She vacated the family
home on 30 December 2018 with the two minor children.
[47]
During this period, she resided with her
uncle and aunt in New Zealand with the children remaining in her care
and on 12 January
2019 departed for South Africa.  A
confirmatory affidavit of her aunt and uncle attached to her
affidavit lends credence to
the fact that the culmination of her
relationship with the father was strained and emotional and that they
offered her emotional
succor at their home where she moved together
with the children to live for three weeks before her departure with
the children
to South Africa.  The father confirms the interim
arrangement but denies any formal separation at that point.
[48]
She states that whilst residing with her
uncle and aunt, the father delivered some of the children’s
bedroom furniture and
made further arrangements with a Mr. De Vries
to have the remainder of the children’s bedroom furniture
removed and sold.
An affidavit from the latter is attached
confirming at least that the father was amenable to selling the
children’s beds
to him after they had departed for South Africa
and that the latter was planning on getting rid of some of the
“excess items”
and downscaling.
[49]
The mother claims that the father further
communicated with A’s educator already in September 2018 to
advise her that A would
be going to South Africa in December “for
good”.  A copy of the educator’s affidavit was also
attached confirming
such disclosure and venturing the further opinion
that he was “fully aware that his wife and two kids are going
to live in
South Africa”.
[50]
The crux of the mother’s defence of
consent and/or acquiescence is stated thus:
“
I
submit that the minor children remained in my care at all times and
the respondent was well aware of the fact that the minor children

will continue to reside in my care upon our return to South Africa.
I confirm that I had no intention of returning to New
Zealand with
the minor children.  He indicated to the minor children prior to
our departure that he would visit in December
2019.  My
intentions were made known to the respondent.  I always believed
that that was the agreement between us.”
[51]
According to the mother a clear indication
of the father’s acceptance of her intention not to return to
New Zealand with the
children within a specified period or at all is
indicated by the Affidavits of Consent for Children Travelling Abroad
which the
father signed and which were attached to his affidavit.
In it the date of return is stated as “undetermined”.
[52]
It is common cause that the children are
presently residing at their maternal grandparents’ house with
their mother and that
both have been enrolled at and are attending
schools in East London.  According to the mother both children
have made good
progress in adjusting to their new surroundings and
have made new friends.  She has also ensured that L attends
therapy sessions
with a psychologist for his wellbeing and to assist
with his adaptation to South Africa.  It is evident from a
letter put
up by the latter (dated 13 June 2019) that L was referred
to her for counseling as early as 31 January 2019 already on the
basis
that his parents had “recently separated” and that
his mother had moved to East London from New Zealand with him and
his
sister.
[53]
Far from conceding that the father is
concerned to play a role in the care of the children she asserts that
he has not been interested
in spending any quality time with them;
that the nature of his work had required him to travel on a regular
basis leaving her alone
with the children; that during holiday
periods he chose to spend more time with his friends and in pursuit
of his hobbies than
with his children; that he changed jobs
frequently and that he has never been a stable father figure in the
children’s lives.
Despite this she does not deny that he
loves his children and that they love him.
[54]
Consent
or acquiescence which is the cornerstone of the mother’s
defence involves an informed consent to or acquiescence in
breach of
the wronged party’s rights.  The SCA in KG v CB
[13]
discussed this aspect and referred with approval to the sentiments
expressed by Hale J in re K (Abduction : consent) as follows:
“
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.”
[55]
In
regards to acquiescence KG v CB
[14]
approved of the approach in Re H and others (minors) (Abduction :
acquiescence).
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.”
[56]
In
Smith v Smith
[15]
the court
held that there can be little doubt that acquiescence in Article 13
(a) involves an informed acceptance of the infringement
of the
wronged party’s rights.  That is not to say that
acquiescence requires full knowledge of the precise nature of
those
rights and every detail of the guilty party’s conduct.
What is required is that he/she should at least know that
the removal
or retention of the child is wrongful under the Convention and that
he/he is afforded a remedy against such wrongful
conduct.
[57]
In my view the mother’s defence under
Article 13 (a) that the father had consented to or subsequently
acquiesced in the removal
or retention of the children is anything
but clear and unequivocal.  Her version is unsatisfactory in
several respects.
[58]
Firstly, there is no evidence establishing
consent as such.  She does not state explicitly that the father
consented to her
and the children relocating permanently to South
Africa.  To the contrary she limply asserts that she “always
believed
that that was the agreement” and waivers between there
being a lot of communication on the issue and yet, on the other hand,

a complete breakdown that meant they were not communicating on
essential aspects.  At best she could only put up the Affidavits

of Consent as the purported proof that he had so agreed (given his
“full consent”) to their permanent relocation to
South
Africa which on the face of it does not establish consent to a
permanent change of residence or for the children to give
up their
habitual residence.  In any event, a study of the consent
suggest that they were probably perfunctorily completed
as the given
departure date (24 December 2018) even precedes the date of which the
affidavits were commissioned.  Further
they were obviously
provided by the father for the express purpose of allowing the
children to exit New Zealand at customs, unaccompanied
by him.
[59]
Her reliance on the date of return on the
ticket as being “undetermined” and as providing a clear
indication of her
intention not to return with the children either
“within a specified period or at all” appears to have
been opportunistically
seized upon
ex
post facto
and  in any event does
not tally with what the parents’ supposed agreement ultimately
morphed into according to her
evidence.   In this regard,
despite her reliance on the so-called firm consent or acquiescence to
the relocation on her
terms at the outset, she yet relies on a
“factor” which was left open for consideration, being
whether L adapted to
living in South Africa, but it is unclear when
this factor was discussed between them.  (In her answering
affidavit she says
that she did so after consulting with Denise
Kriel, the psychologist, and informed him of her advices but this is
not borne out
in the psychologist’s correspondence at all.)
[60]
This is later contradicted by her assertion
that the father was aware thereof that she will not be returning to
New Zealand unless
it became apparent after a year that L and A
both
had not adapted to their circumstances
in South Africa, the conditional relocation now no longer being
limited to L’s circumstances,
but being inclusive of A’s
adaption as well.
[61]
The assertions in her answering affidavits
are further clearly at odds with her prior communication with the
father by email in
March 2019 in which she reserves the right,
apparently exclusively and unilaterally, to decide what will happen
going forward concerning
L.  She does not say emphatically that
she won’t be returning with the children (which supports the
father’s case
that she was equivocating) and the “if”
is dependent not only on L’s happiness, but also her financial
stability.
This email communication ring entirely contrary to
her case that by the time she departed from New Zealand with the
children there
was no doubt that it was on a non-return basis.
[62]
She randomly asserted that in February 2019
the father had a “change of mind” and kept asking when
the children would
return but takes it no further than that.
[63]
Her meandering and contradiction are
demonstrated in several other respects as well which renders her
version untenable and as not
raising a real, genuine or
bona
fide
dispute of fact.
[64]
It emerges from the consultation held with
the children by Ms. Mitchell that they are under the impression that
they have been displaced
from their New Zealand home because of
financial constraints, which is self-evidently not the primary reason
on the mother’s
version for being in South Africa.
Independently of each other both children advised Ms. Mitchell that
their mother informed
them that they cannot go back “because of
money”, or a lack of it, to go back and live in New Zealand.
Neither
seem to be obviously aware of a permanent decision to have
relocated to South Africa which is unlikely if everyone was on the
same
page regarding their status.  Rather they appear to be
resolved that this is their lot (a holding space) because their
mother
cannot afford to go back there.
[65]
The suggestion that the father would be
visiting the children during the holidays (on some undisclosed date
according to A) appears
also to have emanated from the mother herself
(rather than the father), offering this as a sop to A who wants to be
in New Zealand
where her father lives.  It is improbable in my
view that A, who enjoys a close relationship with both parents, would
not
have conveyed to Ms. Mitchell a definite plan by the father to
visit them in South Africa in December 2019 if he had suggested as

much to her.  Evidently both children are longing for their
father and would have taken comfort from knowing that a plan is
in
place for him to visit them in South Africa later this year.
[66]
Allied to these insights offered by the
curator is the letter attached to the respondent’s answering
affidavit penned by the
counseling psychologist, Ms. Denise Kriel.
It is notably significant that she refers to only a separation of the
parents
and not to any agreement by the parents for the children to
be permanently relocated to South Africa, or indeed to follow L’s

adaptation.  One would have expected that such a firm agreement
would have conduced to greater certainty regarding L’s
future
than musings about whether his parents may or may not be reconciled.
She opines that the child would be better able
to cope if there is “a
clear parenting plan”.  If the mother is to be believed on
her version that there was a
firm and final agreement in place that
the children were to permanently live in South Africa with the
father’s blessing and
support, why is the psychologist mum
about this aspect.  It is also significant in my view that these
counseling sessions
commenced in January 2019 already.  If the
therapist had been informed at the onset of this engagement with her
that had been
a permanent change to their children’s lives, it
is most unlikely that the projected therapy of the child at the time
would
be presented on such a tentative uncertain basis in her letter.
[67]
The mother’s sessions with the
mediator to secure the voluntary return of the children also belie a
clear consistent agreement
purportedly having been put in place with
the father for the children to have permanently relocated to South
Africa.  For
example, she did not advert to the terms of any
specific agreement, contenting herself instead with the assurance
given to the
Family Advocate conducting the mediation that the father
“was aware that she is returning to South Africa with the
children
permanently”.  The consent put up in support of
this supposed awareness the following day was confined to the Consent

to Travel, a document obviously provided for a very specific
purpose.  When the father’s version as represented by the

convention application was revealed to her, she offered the
alternative and purportedly varied plan B that subsequent to L being

unhappy in South Africa and wanting to return to New Zealand (around
April 2019) she had sought psychological assistance for him
and
thereupon informed his father that if he was still unhappy at the end
of 2019 that they would return to New Zealand.
It appears that
following this session with the mediator on 16 May 2019, her
attorneys forwarded the consent to travel as “proof”
in
lieu of a written document confirming her agreement with the father
that he intended thereby to show that the return date for
the
children is undetermined.
[68]
Ostensibly having consulted with her legal
representative, she also offered as “proof” the
disclosure made by the father
to the A’s caregiver in September
2018 already that the children would not be returning to school.
She also indicated
contrary to what appears from Ms. Kriel’s
letter and the children’s advices to Ms. Mitchell, that the
parties supposedly
discussed the relocation with the children and
that their father informed L that he could come and live in Australia
with him.
The sticking point, as far as she was concerned why
she was not prepared to return to New Zealand is that she is “in
a much
better place” in South Africa.  Her decision in
this respect obviously bears no reference to the children but was
focused
on her narrow interests.
[69]
Objectively the father’s version as
to the children’s departure from New Zealand and retention in
South Africa remains
steadfast throughout his affidavit and the
recordal of the mediation process concerning him does not ring
improbable.  Evidently,
he became convinced of a breach of his
custody rights at the latest on receipt of the respondent’s
legal representatives
letter of 17 April 2019, wherein he was advised
that the respondent would be instituting legal proceedings for
divorce in South
Africa.  It makes sense that it was only then
when he became aware of the mother’s intention not to return to
New Zealand
with the children.  Once he was apprised of such
intention, he took steps without delay which culminated in the
institution
of these proceedings.
[70]
The evidence presented by the mother fails
to establish the purported consent by any stretch of the imagination
neither do the random
vignettes relied upon by her (the hodge-podge
indicia
on
which it was submitted such an intention ought to be inferred)
suggest acquiescence on the part of the father to change the

children’s place of habitual residence.  Whereas the
contention was advanced that he only commenced the proceedings
under
the Convention out of malice and spite once it became clear to him
that the mother was intent on proceeding with a divorce
summons (not
a surprise according to him although he had hoped for a
reconciliation), the facts demonstrate to the contrary that
he acted
the moment it became apparent to him that the mother was equivocating
about the return of the children and showing herself
by her conduct
to be acting unilaterally and in defiance of his rights as a
co-guardian to have a say in where the children were
to live in the
future.
[71]
In my view the applicant has succeeded in
proving on a balance of probabilities (the mother conversely having
failed to establish
by the same standard of proof that the father had
consented to or acquiesced in the retention of the children under the
circumstances)
that the children were therefore at the time of both
their removal and retention in South Africa still habitually resident
in New
Zealand.  The retention was further self-evidently in
breach of the father’s rights as a co-guardian (not having
consented
to the wrongful act of their retention), such rights having
been conferred on him by virtue of his marriage to the mother under

the Care of Child Act and extant at the time.  It follows too
that but for the act of retention, the father would have continued
to
exercise his custody rights in this respect.
[72]
Whether one approaches this matter from the
point of view that the onus was on the applicant to establish the
jurisdictional facts
referred to in Article 3, or on the mother to
establish the Article 13 (a) defence, the tenor and quality of her
evidence (even
absent any affidavit by the father himself to gainsay
her allegations in the answering affidavit) avails the same outcome.

The mother’s principal defence of consent and/or acquiescence
cannot be sustained on the evidence.  Even if the father

conveyed to A’s educator in September 2018 already that the
child was going to South Africa for good, this does not establish

consent on the terms relied upon by her and/or the supposed
acquiescence in the retention.  Similarly, the fact that the
father hurried the family out and downscaled after their leaving is
consistent with the acceptance on his part (but hope for a different

outcome), that a fixed term separation was inevitable rather than a
permanent relocation of the children on the vague basis asserted
by
the mother.
[73]
One of the indicators relied upon by the
mother (in demonstrating consent/acquiescence) is that the father has
failed to maintain
the children.  This is most unfortunate (the
father has not dealt with these allegations in reply), but in the
context of
weighing the onus it is a factor that plays more naturally
into the father’s favour.  He realized early after the
family
had departed that the hoped-for prospect of reconciliation was
dimming, and I suspect withheld financial support as leverage.

One can only speculate as to why he would do something so prejudicial
to the children, but if he had agreed to their permanent
relocation,
it is more probable than not that he would have paid their support
and not withheld it. And that the mother would have
enforced their
supposed parenting plan if it existed.
[74]
The alleged lack of support does of course
go to the question whether the mother has established an Article 13
(b) “defence”,
but the clear indication is that the
father does have funds at his disposal to pay for the travelling
costs and expenses of the
children’s return trip and has not
balked in tendering these.  Further he is working and has means
at his disposal (despite
what he might have said to the mother) to
meet the children’s costs of living.
[75]
I have already indicated above that the
facts do not demonstrate any grave risk that the children’s
return would place them
in harm’s way or in an intolerable
situation.  There are bound to have been changes in the father’s
lifestyle
since the parents’ separation, but no glaring factors
stand out as providing a basis not to return the children as
envisaged
by Article 13 (b).
[76]
As for the general assertion that a
consideration of the best interests of the children militates against
a return order and that
I should exercise my discretion against
making such an order, the concerns raised by the mother that the
father is not a suitable
custodian really go to the heart of the
custody dispute between the parents which I am not required to
determine.
[77]
The
Constitutional Court in Sonderup v Tondelli
[16]
has eloquently set out the approach that this court must adopt in a
Hague Convention matter when considering the children’s
best
interests:
“
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.”
[78]
In concluding that the Children’s Act
incorporating the Convention is consistent with the South African
Constitution, Goldstone
J pointed out 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 Article 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.”
[79]
In KG v CB the SCA referred with approval
to the United Kingdom case of Re E (children) (wrongful removal :
exceptions to return)
which followed an approach similar to Sonderup
v Tondelli, in which case the court held 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
));  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
)).  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.”
[80]
There is as I have already stated no
glaringly obvious reason why this court should be hesitant to feel
itself bound by the Convention
to return to the children to New
Zealand.
[81]
The conditions which I impose by my order
below will of necessity ameliorate or seek to address any potential
hardships.
[82]
I
indicated above that I would deal with the issue of the mother’s
objection that the father was not joined in these proceedings.

The principal basis for this objection and counter-application for
the father to be joined is premised on the remarks of Van Heerden
JA
in CB v Houwert
[17]
who noted
that the father in that instance had not been joined as co-applicant
“as is usually the case”.
[18]
She had observed further that such omission entailed that any
conditions imposed on such a parent to govern the child’s

return, insofar as the court imposed obligations on him, would not be
binding on him unless he consented in some way to be bound
by the
judgment notwithstanding that he had not been cited as a party.
The applicant’s retort to this submission is
that it is
unnecessary to join the father as co-applicant.  It appears to
be standard that the requesting individual seeks
the assistance of
the central authority of any contracting state to secure the return
of a child under the Convention where the
necessary jurisdictional
basis exists, and that the proceedings are instituted
nomine
officio
on behalf of the requesting individual.  It is the central
authority receiving a return application who is tasked with collating

the necessary documents stipulated by Article 8 and ensuring that the
completed application together with supporting documents
is directly
and without delay transmitted to the central authority of the
corresponding contracting state for actioning.
It appears from
Article 9 that it is the function of the central authority of the
requesting individual to act as the gateway to
assistance being
extended under the Convention and who verifies that a basis exists
for such an application to be transmitted to
the corresponding
contracting state for actioning.
[83]
Article
7 imposes numerous powers and responsibilities on central authorities
who are all bound to promote co-operation amongst
themselves in order
to secure the prompt return of children and achieve the other objects
of the Convention, all of which reinforces
the significance of the
duly represented official bringing the application in that capacity
to unlock the machinery that flows
from the statutory framework, and
representing the interests of the contracting state concerned in
making certain that the integrity
and efficacy of the Convention is
maintained.  Even the costs and expenses of the proceedings are
spared against a requesting
individual genuinely seeking to pursue
proceedings falling within the scope of the Convention.
[19]
[84]
Article 28 requires that an application
initiated on behalf of a requesting individual be accompanied by a
written authorization
empowering it “to act on behalf of the
applicant, or to designate a representative so to act”.
In all of this
it therefore appears unnecessary for a requesting
individual to be joined to the proceedings.
[85]
I take the respondent’s point,
however, that the difficulty arises, in enforcing return orders where
there is no compunction
on the party concerning whom the directions
in the order are made, to meet the implementing terms.  In CA v
Houwert the court
got around this by extracting an undertaking from
the parent that he would be bound by the court’s order and I
intend to
do the same to encompass the aspects not covered by him in
his undertaking.
[86]
Whilst it certainly appears sufficient for
the applicant to assist a parent
nomine
officio
, it may be desirable to join
him or her, but I would not go so far as to say that the non-joinder
of the requesting individual
would be fatal to the application.
[87]
One word of caution though.  In
applying the Plascon-Evans principle to the resolution of disputes in
applications of this
nature (where the opportunity for the referral
to oral evidence does not naturally present itself), the applicant
should be astute
to canvas the parent’s responses to damning
allegations by a proper reply and/or confirmatory affidavit being put
up to deal
with contentious aspects.  The applicant does the
parent a disservice where such issues are left unanswered.  I
would
have been particularly interested in understanding in this
instance for example why the father has not maintained his children.
[88]
There were other objections raised by the
respondent, most of which have become academic or are unnecessary to
deal with.
[89]
Concerning the proposed order, the father
has not said where he presently lives, or what day to day care
arrangements can or will
be made for the children to live back at
home especially since he was hopeful that the respondent would
accompany the children
on their return trip.  It has also never
been his stance that he should exclusively be responsible for the
primary care of
the children.  The mother has unequivocally said
that she will not accompany the children but may be well placed to
reconsider
her decision given the order which I intend to make.
The father has also not indicated how and when he intends to get on
with the business of litigating in the New Zealand courts to finally
assert his rights of custody and indeed what should apply in
the
interim pending the divorce and determination of these important
aspects.  For this reason, I intend to invite the applicant
and
the mother’s legal representatives to furnish the court with a
consensual draft order regarding the implementing terms
ancillary to
the return order itself.  Supplementation of the principal
order, or a variation thereof, may be necessary given
the multitude
of factors that have probably not been thought through by the parties
beyond the question of whether the immediate
return of the children
was warranted in all the circumstances.
[90]
I am constrained to order the return of the
children forthwith (as I must), but given the applicant’s
concession that some
administrative arrangements need to be put in
place for the order to be implemented and that some latitude should
be allowed to
facilitate the process with as little trauma as
possible, I am further inclined to direct that the order not take
effect until
the children have completed the present term at school
(20 September 2019) which appears more or less to coincide with the
New
Zealand’s school terms.
[91]
As
for the issue of costs, the parties are
ad
idem
that there should be no order as to costs, as is the norm in these
matter given each parent’s concern and desire to act in
the
manner that they believe to be in the best interests of their
children.
[20]
As for the
costs of the transfer application, these were reserved.  I
understood that the applicant moved this application
in the
Grahamstown High court for the transfer of the matter to the East
London circuit court, which would have been in accordance
with my
directive and at the behest of the respondent.  It would
therefore have been unnecessary for her to have opposed the

application, even notionally.  I am uncertain why the costs were
reserved, but it appears to me to be sensible that each party
should
simply bear their own costs in that respect as well.
[92]
In
the premises I issue the following order:
1.
The retention of the children, namely L and
A, is declared wrongful within the meaning of Article 3 (a) of the
Convention.
2.
The children are to be returned forthwith,
but subject to the terms of this order, to the jurisdiction of the
Central Authority
in New Zealand.
3.
The order in paragraph 2 for the return of
the children shall however be stayed until the end of the present
South African school
term on 20 September 2019.
4.
The respondent is to notify Mr. Keuben
Gounden, acting in his capacity as Family Advocate on the authority
of the Chief Family Advocate
of South Africa (the “the Family
Advocate) by 22 August 2019 whether she intends to accompany the
children on their return
to New Zealand, and , if so, the Family
Advocate shall forthwith give notice thereof to the registrar of this
court, to the Central
Authority in New Zealand and to the children’s
father.
5.
In the event of the respondent failing to
notify the Family Advocate of her willingness to accompany the
children on her return
to New Zealand, alternatively, if the
respondent notifies the Family Advocate of her unwillingness to
accompany the children to
New Zealand, then the Family Advocate will
be authorized to make such arrangements as may be necessary to ensure
that the children
are safely returned to the custody of the Central
Authority for New Zealand, and to take such steps as may be necessary
to ensure
that such arrangements are complied with.
6.
The parties and the curator, Ms. Mitchell,
are required to consult and advise this court by 10h00 on Friday 23
August 2019 on the
form of a practical order to give effect to the
children’s safe return  and to deal with the implications
going forward
of the day-to-day care of them in New Zealand, the
obligations of the parents to maintain them, access to them, and any
other arrangements
that flow from the return order, especially if
they are not to be accompanied by their mother and primary caregiver.
Counsel are
requested to report to this court next week with a draft
order and in the event of a consent order not being provided should
ready
themselves to promptly make oral submissions in court on the
ancillary aspects with a view to the court redressing any hardship

that might be occasioned by the return order.
7.
The children’s father shall within
one month of this court order institute proceedings and pursue them
with due diligence
to obtain an order of the appropriate jurisdiction
in New Zealand for custody and care of the children and/or access to
them and
if needs be, seek interim relief pending the final
determination of those aspects.
8.
The children’s father is ordered to
purchase and pay for economy class air tickets, and if necessary,
rail and other travel
costs to be occasioned by the children’s
return from East London, South Africa, by the most direct route to
New Zealand,
alternatively to reimburse the State on demand for such
expenses or costs incurred in pursuit of this order.
9.
This order is further subject to the
children’s father furnishing an affidavit in which he concedes
that he is aware of its
terms and of the contingency that a variation
or supplementation thereof may issue as a result of which he will be
subject to certain
obligations imposed thereby and that he freely,
voluntarily and unequivocally consents to and submits himself to the
jurisdiction
of this court in respect of such orders with full and
complete acceptance and adherence to the terms thereof.
10.
There is no order as to costs either in
respect of this application or the interlocutory application for the
removal of the matter
to the circuit court in East London.
11.
A copy of this order (and the
supplementation of it envisaged in paragraph 6 above) shall forthwith
be transmitted by the Family
Advocate to the Central Authority in New
Zealand.
_________________
B HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
:         23
July 2019
DATE
OF JUDGMENT       :          16
August 2019
Appearances:
For
the applicant : Ms. T Rossi instructed by the State Attorney, East
London (ref. Ms. Tyani)
For
the respondent : Ms. D Mostert instructed by Wesley Pretorius &
Associates, East London (ref. Mr Smith)
Curator
ad litem : Ms. N Mitchell of Legal Aid Board, East London
[1]
Mr. Gounden is a locally appointed senior Family Advocate to whom
the Chief Family Advocate and designated Central Authority
for the
Republic of South Africa, Ms. Petunia Seabi-Mathope, delegated and
assigned the powers and duties conferred on her under
section 276 of
the Children’s Act, No. 38 of 2005, to him - in writing as is
required, under section 277 of the Children’s
Act.
[2]
Chapter
17 (sections 274 – 280) deals with child abduction.  The
stated purpose of the chapter itself is to give effect
to the
Convention and to combat parental child abduction, this in
consonance with the philosophy underpinning the Convention
which is
to protect children as the primary victims and to prevent the
proliferation of abductions.
[3]
KG v CB and others
[2012] 2 All SA 366
(SCA) at para 19.
[4]
Section 16 (1)(e) of the Care of Children Act provides that the
duties, powers, rights and responsibilities of a guardian of
a child
include (without limitation) the guardian’s “determining
for or with the child, or helping the child to determine
question
about important matters affecting the child” (section 16 (1)
(c)) and, apart from having the role of providing
day-to-day care
for the child (section 16 (1)(a)), also “contributing to the
child’s intellectual, emotional, physical,
social, cultural,
and other personal developments”  (Section 16 (1)(b)).
Section 16 (2), in turn, stipulates
what the matters referred to in
section 16 (1)(c) might be, including, in sub-paragraph 2 (c)
“changes to the child’s
place of residence (including
without limitation changes of that kind arising from travel by the
child) that may affect the child’s
relationship with his or
her parents and guardians”, 2 (d) “where, and how, the
child is to be educated” and
2 (e) “the child’s
culture, language, and religious denomination and practice”.
[5]
In terms of Article 14 of the Convention the judicial or
administrative authorities of the requested State, in ascertaining
whether there has  been a wrongful removal or retention within
the meaning of Article 3, “may take notice directly
of the law
of, and of judicial or administrative decisions, formally recognised
or not in the State of the habitual residence
of the child, without
recourse to the specific procedures for the proof of that law or for
the recognition of foreign decisions
which would otherwise be
applicable.”
[6]
Supra
at para 26.
[7]
Article 5 (a) of the Convention.
[8]
Spilg AJ (as he then was) observed in Chief Family Advocate &
Another v G
2003 (2) SA 599
(W) at 610 A – E that it is
unlikely that a central authority which is entrusted with the
initiation of legal proceedings
can be expected to discharge an onus
to prove that at the time of the removal (the mother in that
instance) actually exercised
rights of custody.  Article 13
unequivocally provides that the parent who abducted the child bears
the onus of proving that
the other parent was not actually
exercising the custody rights at the time of removal or retention.
This is an express
provision dealing with onus and must, negate any
contrary interpretation that might appear from Article 13. The trend
of the
authorities however is that the applicant must establish the
jurisdictional facts on a balance of probabilities and the onus is

on the abducting parent to establish, by the same standard of proof,
any article 13 defence relied upon.
[9]
Smith
v Smith
[2001] 3 All SA 146
(A) at para 11; KG v CB
supra
and
Family
Advocate Port Elizabeth v Hide [2007] 3 All A 248 (SE) at para 7.
[10]
Smith
supra
at para 9 and 11.
[11]
Smith
supra
at para 11.
[12]
[2012] ZAWCHC 198
(27 November 2012).
[13]
Supra
at para 37.
[14]
Supra
at para 40.
[15]
Supra
at para 16.
[16]
2001
(1) SA 1171 (CC).
[17]
[2007] SCA 88 RSA.
[18]
at para [12].
[19]
Articles 22, 25 and 26.
[20]
See the remarks of King J in McCall v McCall
1994 (3) SA 201
(C) at
209 C.