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[2016] ZAKZPHC 43
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A.K.N v Central Authority for the Republic of South Africa (AR 571/15) [2016] ZAKZPHC 43 (10 May 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
CASE NO: AR 571/15
DATE:
10 MAY 2016
In
the matter between:
[A…]
[K…..]
[N…….]
...............................................................................................................
Appellant
(Respondent
in the Court
a quo
)
And
The
Central Authority
for
.....................................................................................................
Respondent
the
Republic of South Africa(Applicant in the Court
a
quo
)
Judgment
LOPES
J:
[1]
This is an appeal against an order granted in this Court on the 8
th
December 2014 by Mbatha J, which provided for the return of the minor
child [S……] [S……] [R……],
a
girl born on the 30
th
March 2007, to the jurisdiction of
the Central Authority for Northern Ireland. Provision is made in the
order for [S…..’s]
mother to accompany her, should she
wish to do so. The order also provides for Sarah’s father to
have reasonable and defined
contact with her pending her return to
Northern Ireland. Mbatha J provided the reasons for her order on the
7
th
January 2015.
[2]
The original application was brought by the present respondent, the
Central
Authority for the Republic of South Africa, in terms of
the provisions of Article 12 of the Hague Convention on the Civil
Aspects of International Child Abduction 1980 (‘the
Convention’). Section 275 of the Children’s Act, 2005
provides
that the Convention is in force in the Republic of South
Africa and that its provisions are law in the Republic, subject to
the
provisions of the Children’s Act itself. The Chief Family
Advocate in South Africa performs the functions assigned in the
Convention to the respondent.
[3]
The application was opposed by [S…..’s] mother, A……
K…..
N……, the appellant in this appeal. She
sought leave to appeal against the order granted by Mbatha J, which
was dismissed
with costs. Pursuant to an application to the Supreme
Court of Appeal, leave to appeal to this Court was granted on the
14
th
July 2015.
[4]
Article 12 of the Convention provides:
‘
Where
a child has been wrongfully removed or retained in terms of Article 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 one year has
elapsed from the
date of wrongful removal or retention, the authority concerned shall
order the return of the child forthwith.
The
judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one
year
referred to in the preceding paragraph, shall also order the return
of the child, unless it is demonstrated that the child
is now settled
in its new environment
.’
[5]
Article 3 of the Convention provides:
‘
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 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.’
[6]
The history of the matter is as follows:
(a)
The appellant married Mr [R…….] in Northern Ireland on
the 21
st
February 1997.
(b)
Three minor children were born of their marriage:
(i)
[H…….] [E……], a boy, born on the 12
th
September 1998;
(ii)
[Y…….] [M…….], a girl, born on the 31
st
December 1999;
(iii)
[S……] [S…….], a girl, born on the 30
th
March 2007.
(c)
The appellant brought to the marriage
a son from a previous marriage, Ryan McVeigh.
(d)
The appellant and Mr [R……]
were divorced on the 30
th
July 2008, and, by agreement, the children all continued to reside
with the appellant. The appellant remained resident in the family
home with Mr [R……] and the minor children until January
2010, when the appellant moved out with the three children
of the
marriage. They resided near the former matrimonial home in [F……]
in Belfast. S…… thus
lived with Mr [R……]
and her siblings until she was almost three years old.
(e)
In September 2010, and by consent of his parents, [H……]
[E……] went
to live with Mr [R………].
(f)
In March 2012, Y….. also went to live with her father.
(g)
S…… continued to reside with the appellant, and Mr
[R…….] continued
to have regular contact with her.
(h)
Sometime prior to the 22
nd
April 2012, the appellant
removed Sarah from her school and moved their place of residence from
[F…….] to [B…….]
County (some one and a
half hours’ travel away) without informing Mr [R……],
and without his consent. It is
clear that from this point onwards,
the appellant did her best to frustrate all attempts at contact
between S….. and the
rest of her family.
(i)
On the 25
th
May 2012 Mr [R……] then brought an ex parte application
before the Family Proceedings Court at Dungannon for an interim
residency order directing that [S……] live with him, and
her two siblings.
(j)
Affidavits were filed, and following an
oral evidence hearing at which both the appellant and Mr [R…..]
testified, an interim
residency order was granted on the 20
th
December 2012. The order provided that [S……] be
transferred to live with her father and her siblings by the 29
th
December 2012. The application was to be reviewed on the 22
nd
January 2013, to determine whether appropriate contact arrangements
had been put into place by Mr [R……]. The appellant
noted an appeal against the order of the 20
th
December 2012. This had the effect of suspending the immediate
transfer of [S……] to live with her father and
her
siblings.
(k) On
the 22
nd
January 2013 Mr [R……] made an
application to the Central Authority of Northern Ireland for the
return of [S…..].
A search was conducted pursuant to that
request, and the application of Mr [R……] was forwarded
to the respondent
in South Africa.
(l) On the
31
st
December, 2012, the appellant relocated to South
Africa, taking [S…..] with her. The appellant admits that she
did so without
the consent of Mr [R……], and without his
knowledge. In so doing, she effectively abandoned her appeal against
the
decision of the Dungannon Family Proceedings Court.
(m)
On the 26
th
February 2013, and in the default of the
appellant, Judge Devlin granted a residence order that [S…..]
was to reside with
her father until the age of sixteen years. In
addition, the appellant’s appeal was struck out.
(n)
The respondent eventually established the whereabouts of [S….]
and the appellant. In compliance
with Article 10 of the
Convention, the appellant was interviewed by a representative of the
respondent on the 10
th
October 2013 with a view to facilitating the voluntary return of
[S.…..] to Northern Ireland. The appellant declined to
do so,
without citing reasons.
(o)
The respondent then launched this application on the 25
th
March 2014.
[7]
The grounds upon which the appellant appeals against the order of
Mbatha J may be
summarised as follows:
(a)
That [S…..] is now ‘settled’ in the Republic of
South Africa as envisaged
in Article 12 of the Convention, and
accordingly there is no compulsion on this court to return her to the
Central Authority of
Northern Ireland.
(b)
In terms of Article 13(b) of the Convention, the appellant has
established that returning
S….. will expose her to the grave
risk of physical or psychological harm, or otherwise place her in an
intolerable situation.
(c)
That returning [S…..] will involve a change in her lifestyle
such that it cannot
be in her best interests to do so.
[8]
With regard to the question of onus, the appellant contends that a
period of more
than one year elapsed between the time when [S……]
was wrongfully removed from Northern Ireland, and the commencement
of
these proceedings. It was submitted that in those circumstances, a
court is not obliged to order the return of the minor.
[9]
The appellant relies on the second part of Article 12 which requires
the court hearing
the application to order the return of the child
where more than one year has elapsed, ‘unless it is
demonstrated that the
child is now settled in its new environment.’
[10]
The appellant submits that in leaving Northern Ireland with [S….]
as she did, she did
not behave ‘
wrongfully’
in
the sense in which that word is used in the Convention. This was
because, at the time she left Northern Ireland, there was no
order in
force, because she had lodged an appeal against the order of the
Dungannon Family Proceedings Court. As the order was
suspended, there
was no order with operative effect barring her from acting as she
did.
[11]
This approach overlooks the following factors:
(a)
Article
[SB1]
3
of the Convention provides that the removal or retention of a child
is to be considered wrongful where it is in breach of the
rights of
custody attributed to a person under the law of the state in which
the child habitually resided prior to removal.
[S…….]
clearly habitually resided in Northern Ireland prior to her removal
or retention. The appellant was not the
only person who had custodial
rights in respect of [S……] prior to the decision of the
Dungannon Family Proceedings
Court. Although the rights which vested
in Mr R…… were those described in Article 5 of the
Convention as ‘
rights
of access’
the ‘
wrongful’
removal
of a child as set out in Article 3 appears ultimately to relate
to the removal of a child in breach of any rights
of access vesting
in a person.
(b)
It is clear from the judgment of Meehan J that an order granting Mr
R…… access
to [S……] was still operative
when the matter was heard on the 20
th
December 2012. The
suspension of the operation of the interim residency order meant that
the previous court contact orders remained
operative.
(c)
In
KG v CB & others
2012 (4) SA 136
(SCA);
[2012]
ZASCA 17
(22 March 2012) paragraphs 25 - 26, Van Heerden JA
considered the meaning of Article 3, as follows:
‘
[25]
A similar approach was adopted by the Constitutional Court in
Sonderup v Tondelli
and another
[2001 (1) SA 1171
(CC) para11] where the court (per Goldstone J)
stated that:
“
The
Convention defines “rights of custody” to “include
rights relating to the care of the person of the child
and, in
particular, the right to determine the child’s place of
residence”. In applying the Convention “rights
of
custody” must be determined according to this definition [ie
the definition in art 5] independent of the meaning given
to the
concept of “custody” by the domestic law of the child’s
habitual residence. As L’Heureux-Dubé
correctly pointed
out [in
W(V) v S(D)
(1996) 134 DLR (4th) 481 at 496]:
“
[H]owever,
although the Convention adopts an original definition of “rights
of custody”, the question of who
holds
the . . . “right to determine the child’s place of
residence” within the meaning of the Convention is in principle
determined in accordance with the law of the State of the child’s
habitual place of residence . . . . ” (Emphasis added.)”
[26]
Despite some initial uncertainty, there is now much authority from a
number of contracting state jurisdictions which establishes
that, for
the purposes of the Convention, a parent’s (or other person’s)
right to prevent the removal of a child from
the relevant
jurisdiction, or at least to withhold consent to such removal, is a
right to determine where the child is to live
and hence falls within
the ambit of the concept of ‘rights of custody’ in arts 3
and 5 of the Convention. Thus, a custodian
parent who removes the
child from the state of the child’s habitual residence or
allows a third party to do so without the
consent of the other parent
(or the leave of the court). 17 commits a breach of ‘rights of
custody’ of the other parent
within the meaning of the
Convention and hence a ‘wrongful removal’
.’
(My
insertion of the citation)
(d)
The custodial rights vesting in the appellant were removed by the
interim residency order
of the 20
th
December 2012 and
given to Mr [R……]. What then is the effect of the
appellant having lodged an appeal against that
order, and then
failing to prosecute it, occasioning its striking out on the 26
th
February 2013? Can it be that by a simple expedient, the whole
process of the law is frustrated to the extent that the provisions
of
the Article become inoperative?
(e)
To suggest that the appellant was not in breach of the order in these
circumstances would
be to surrender to a legal fiction. She knew at
all times that, despite having lodged her appeal, she was at risk of
having the
order granted in favour of Mr [R…..], confirmed.
Indeed, having elected not to prosecute the appeal, and instead to
flee
the jurisdiction of Northern Ireland, and remain out of it for
more than one month, she would be in breach of the order. The interim
residency order was not set aside by the noting of an appeal, it was
merely suspended until set aside on appeal. To suggest that
she could
ignore the impact of the order until her appeal was struck out, and
at the same time permanently frustrate the rights
of Mr [R……]
by nullifying any possibility of the interim residency order being
confirmed, cannot be an acceptable
legal or moral application of the
suspension of the operation of an interim order.
(f)
The appellant was acutely aware of the legal implications of leaving
the jurisdiction
of Northern Ireland in the face of such an interim
residency order, albeit that order was suspended. This is clear from
her own
conduct in seeking to obtain an order to prevent Mr [R……]
doing exactly the same thing by taking [S……]
to Algeria
without her consent. Indeed, the interim residency order contains a
warning against her behaving in such a manner. I
do not believe that
she did or would have received legal advice that she could do so.
Such advice would be tantamount to sanctioning
what may be referred
to as an anticipatory contempt of the order.
(g)
The inescapable inference is that the appellant lodged an appeal in
order to suspend
the interim residency order so that she could flee
from Northern Ireland together with her new partner and [S…..].
She did
not form a genuine intention to appeal. It was a legal
stratagem employed by her to facilitate her ability to flee Northern
Ireland.
Any doubt in this regard is removed by the appellant’s
decision not to prosecute her appeal. She believed that there was no
need to do so because she and Sarah would be beyond the reach of the
authorities in Northern Ireland. In these circumstances I
do not
believe that there can be any basis upon which the interim residency
order was genuinely suspended. The appellant certainly
did not
believe that it was.
(h)
The appellant was no stranger to the frustration of orders of court
because she had been
trenchantly criticised by Judge Meehan for
analogous conduct in frustrating the rights of Mr [R……]
to have access
to [S…..].
(i)
In any event, Articles 3 and 12 refer to a wrongful removal or
‘
retention’
. The retention of Sarah by the
appellant in contravention of the residency order began immediately
upon the striking out of her
appeal and the confirmation of the order
on the 26
th
February 2013. From that date the retention of
[S……] by the appellant in South Africa was in
contravention of the
order, and accordingly ‘
wrongful’
as defined in Articles 3 and 5 of the Convention.
[12]
In the circumstances the conclusion of the learned judge in the court
a quo
cannot be faulted insofar as it related to the
application of Articles 3 and 5 of the Convention.
[13]
The appellant submits that the learned judge in the court
a quo
made her findings on the basis that the proviso to the second part of
Article 12 was applicable. It is common cause that:
(a)
The appellant left Northern Ireland on the 31
st
December
2012.
(b)
Mr R…. reported her departure with S……. to the
Central Authority in
Northern Ireland on the 22
nd
January
2013.
(c)
The respondent received an application from the Northern Ireland
Central Authority
on the 19
th
June 2013.
(d)
An interview was conducted by the respondent with the appellant on
the 10
th
October 2013. That was done pursuant to the
provisions of Article 10, which reads:
‘
The
Central Authority of the State where the child is shall take or cause
to be taken all appropriate measures in order to obtain
the voluntary
return of the child’
.
[14]
It would seem that whatever facts are used for calculating the one
year period, the position
is that the legal proceedings were started
more than one year after S…. was wrongfully removed or
retained. The learned
judge in the court
a quo
gave careful
consideration to the matter of whether S…….. had
‘settled in [her] new environment’ in South
Africa. She
paid particular attention to the likely long term effects of S……
being alienated from her siblings, both
by the physical distance
which would endure between them, as well as by the religious
differences which would arise as a result
of the appellant’s
alienation of her from the faith of her birth and upbringing, despite
her previous assertions to the contrary
that she would not do so.
[15]
In my view it is important to keep in mind that:
(a)
This application is not a custody issue in the normal sense, but
rather this court is seeking
to determine which forum is best placed
to hear those issues. Considerations of ‘the best interests of
the child’ are
not viewed in the normal context of custody
battles. The question here is somewhat wider.
As
was stated by Goldstone J in
Sonderup v Tondelli and another
2001
(1) SA 1171
(CC);
[2000] ZACC 26
paragraphs 28 to 32:
‘
[28]
The
Convention itself envisages two different processes — the
evaluation of the best interests of children in determining
custody
matters, which primarily concerns long-term 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]firmly
convinced that the interests of children are of
paramount importance
in matters relating to their custody.” As was stated by
Donaldson MR in Re F (Minor: Abduction: Jurisdiction):
“
I
agree with Balcombe LJ’s view expressed in Giraudo v
Giraudo . . . that in enacting the 1985 Act [giving
effect
to the Convention], Parliament was not departing from the fundamental
principle that the welfare of the child is paramount.
Rather it was
giving effect to a belief-
“
that
in normal circumstances it is in the interests of children
that
parents
or others shall not abduct them from one jurisdiction to another, but
that any decision relating to the custody of the children
is best
decided in the jurisdiction in which they have hitherto been
habitually resident.” ”
[29]
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 that
child’s
habitual residence, the child’s short-term 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…
[30]
…
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. Indeed, art
19 provides that:
“
A
decision under this Convention concerning the return of the child
shall not be taken to be a determination on the merits of any
custody
issue.”
Rather,
the Convention seeks to ensure that custody issues are determined by
the court in the best position to do so by reason of
the relationship
between its jurisdiction and the child. That Court will have access
to the facts relevant to the determination
of custody.
[31]
Given
the appropriateness of a specific forum, the Convention also aims to
prevent the wrongful circumvention of that forum by the
unilateral
action of one parent. In addition, the Convention is intended to
encourage comity between States parties to facilitate
co-operation in
cases of child abduction across international borders. These purposes
are important, and are consistent with the
values endorsed by any
open and democratic society.
[32]
There
is also a close relationship between the purpose of the Convention
and the means sought to achieve that purpose. The Convention
is
carefully tailored, and the extent of the assumed limitation is
substantially mitigated by the exemptions provided by arts 13
and 20.
They cater for those cases where the specific circumstances might
dictate that a child should not be returned to the State
of the
child’s habitual residence. They are intended to provide
exceptions, in extreme circumstances, to protect the welfare
of
children. Any person or body with an interest may oppose the return
of the child on the specified grounds…’
(Footnotes
omitted)
(b)
The submissions made in the appellants affidavits, and the facts put
up to support those
submissions fail to deal in any way with the
continued intended contact between S…. and Mr R…., and
between S…
and her siblings. I agree with the conclusion of
the judge
a quo
that a clear impression is conveyed that the
appellant does not wish S…… to have any contact with
the remainder of
her family. This is reinforced by the continuing
vilification of Mr R……… and his religious
beliefs throughout
the appellant’s affidavits. After describing
him as ‘devout’ she then goes on to categorise him as
‘fanatical’.
She describes Mr R….. as having
‘indoctrinated’ the two eldest children – this
despite the appellant’s
previous statements under oath that she
was the parent who actively supported and encouraged the children in
their religious observance,
and that Mr R…… ‘did
not have any involvement in the children’s religion’.
(c)
The contradictions between the averments contained in the affidavits
deposed to in
opposition by the appellant in the court
a quo,
and
the averments in the affidavits and her evidence in the Dungannon
Family Proceedings Court, do the appellant no credit. They
inevitably
result in her being characterised as a mendacious person who will say
whatever she thinks will advance her belief that
she is entitled to
have sole control over the life of S……, without any
proper consideration of S…..’s
needs and her
relationship with the other members of her family. The
appellant’s entire approach seems to be at odds
with the
assurances which she apparently gave to Dr Helen Keen, the registered
social worker who compiled a psycho-social report
on S…….
Significantly, S……. told Dr Keen that she misses her
siblings in Ireland and would like to
see them. Her reluctance to
discuss Mr R…… and his new wife was, unfortunately, not
explored or explained by Dr Keen
(perhaps because she did not want to
upset S…….). Dr Keen nevertheless recorded at the end
of her report that S……
should have contact with her
father and siblings to maintain her bond with them.
Unfortunately, given the attitude of the
appellant, there is scant
chance of that happening if left up to her.
[16]
The next matter for consideration is the allegation of the sexual
assaults on Ryan McVeigh by Mr R……,
and the application
of Article 13 in this regard. The judge
a quo
was of the view
that is a matter to be decided by the Family Court in Northern
Ireland. She also sought to alleviate any possible
harm to S….
by providing in the order that the appellant be permitted to
accompany S….. when she is returned to Northern
Ireland.
[17]
Mr
Skinner
SC, who appeared for the appellant as
amicus
curiae
submitted that the learned judge
a quo
incorrectly
found that there was no dispute of fact regarding the allegations of
sexual assault, and failed correctly to apply
the rule in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A). He submitted that this was also applicable to the
question of whether Mr R…… would ‘foist’
his religious
beliefs upon S…… and cause a cessation of
the relationships between S….. and the appellant and S……
and the appellant’s family.
[18]
In dealing with the approach to be adopted by a court in assessing
the applicability of Article 13, Goldstone J stated in
Sonderup v
Tondelli
at para 43ff:
‘
[43]
A
matrimonial dispute almost always has an adverse effect on children
of the marriage. Where a dispute includes a contest over custody,
that harm is likely to be aggravated. The law seeks to provide a
means of resolving such disputes through decisions premised on
the
best interests of the child. Parents have a responsibility to their
children to allow the law to take its course and not to
attempt to
resolve the dispute by resorting to self-help. Any attempt to do that
inevitably increases the tension between the parents
and that
ordinarily adds to the suffering of the children. The Convention
recognises this. It proceeds on the basis that the best
interests of
a child who has been removed from the jurisdiction of a Court in the
circumstances contemplated by the Convention
are ordinarily served by
requiring the child to be returned to that jurisdiction so that the
law can take its course. It makes
provision, however, in art 13 for
exceptional cases where this will not be the case.
[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 one.
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.’
[19]
The allegations of sexual assault on Mr McVeigh are indeed of a very
serious and disturbing nature.
But is a South African court best
placed to deal with those allegations?
[20]
The custody dispute in the Dungannon Family Proceedings Court was
hotly contested, yet at no stage
was any reference made to this
issue. The only possible reference (viewed with the benefit of later
revelations by the respondent)
is in the email by the appellant to
her daughter Y…….. Where she states ‘first ask
your dad the truth about
R…..’ In addition:
(a)
This
assault allegedly occurred when Mr McVeigh was eight years old.
(b)
The
account of the alleged assault given by Mr McVeigh differs from that
given by the appellant under oath. Either version is horrific,
but
the differences are significant.
(c)
It
is inexplicable that the appellant would have continued to reside
with Mr R….., allow him to live with her other children,
and
bear more children by him, if she believed the allegations to be
true.
(d)
As
the matter was dealt with by both the police in Northern Ireland and
the UK Social Services, resulting in R…. being removed
from
the R……. home (including the appellant), to reside with
his grand-parents, all the records of any proceedings
which were held
will be available in Northern Ireland, as would the witness
statements, etc.
(e)
These
events took place sometime around 1998 (i.e. 18 years ago). How they
would be received by a court in Northern Ireland now,
particularly
given the proceedings in the Dungannon Family Proceedings Court, the
lodging of an appeal, abandoning the appeal and
the appellant
subsequently fleeing to South Africa with S……, is not
something about which this court could, or should,
speculate.
(f)
Mr
Skinner
submits that the appellant only became aware of the
true nature and extent of the conduct of Mr R….. in 2013. I do
not believe
that this can be true. The appellant was clearly a party
to the initial complaints by Mr McVeigh to the police and social
welfare
investigations, etc. She obviously simply did not believe the
allegations, and holds no honest belief now that they are true.
[21]
None of the above should be understood to reflect a belief by this
court that the events alleged, or
some part of them, did not take
place. What is placed squarely in doubt is the appellant’s
expressed belief that there is
a grave risk that S……
would be exposed to physical or psychological harm or that S……
would otherwise
be placed in an intolerable situation, if she is
returned to Northern Ireland. The appellant bears the onus in this
regard, and
she has not begun to discharge it.
[22]
With regard to the approach of Mr R….. to the continuation of
S….’s Christian beliefs,
as opposed to persuading her to
follow the tenets of Islam, I agree with the approach of Meehan J
where he stated:
‘
It
is not for a judge to weigh one religion against another. The court
recognises no religious distinctions and generally speaking
passes no
judgment on religious beliefs or tenets, doctrines or rules of any
particular section of society. All are entitled to
equal respect, so
long as they are “legally and socially acceptable”.’
One
should perhaps add, in a South African context, provided they accord
with the provisions of The Constitution. Whatever dispute
may emerge
from the competing religious beliefs of the appellant and Mr R…….,
they should inevitably be decided by
the decision of the Family Court
in Northern Ireland. In this regard I agree with the learned
judge in the court
a quo
that this issue should be decided by
the courts in Northern Ireland.
[23]
The conclusion that S…… has ‘settled’, at
least in the short-term,
is difficult to resist. There is no doubt
that she appears to be doing very well in her school environment, and
appears to have
made friends both at school and in the church which
she attends.
[24]
Is this, however, the whole picture of her well-being, and is it
conclusive in determining her
best interests? In arriving at the
final conclusion, the following appear from the record:
(a)
We know from the report of Dr Keen that S….. misses her
siblings, and wishes that
she could see them.
(b)
We also know that S…… did not wish to discuss her
father and step-mother with
Dr Keen. This was not explored by Dr
Keen, and one should not have to speculate as to why that would be.
There is no indication
in the record of any animosity to her father,
and no allegations are made against him by the appellant regarding
his mis-treatment
of [S……], or of any fears harboured
against Mr [R……] by Sarah. Whatever reasons Dr Keen may
have had
for not exploring these problems (and we are not told of
any), it leaves the court in the dark.
(c)
Given the past conduct of the appellant, the court can have no doubt
whatsoever that
she will do everything in her power to prevent S…
from having contact with her father and her siblings. That is the
inevitable
conclusion drawn from the appellant’s past conduct.
Had she harboured any honest intention to foster those relationships
we would, no doubt, have been timeously furnished with an affidavit
of the appellant, setting out the steps she has taken since
the
decision of the court
a quo
, (some sixteen months’ ago),
to comply with the requirements of Mbatha J in ensuring that Mr R…..
and his children
were given access to S…… by way of
Skype,etc.
(d)
Mr
Skinner
submits that this court must accept that S……’s
state of well-being in her present environment has remained unchanged
since the decision of the court
a quo.
As we have no
information to gainsay that submission, I accept it. However, for the
reasons set out above, we must also accept
that the appellant has
failed to take any steps to promote the relationship between S….
and the rest of her family. That
conclusion, as unfortunate as it is,
is inescapable.
(e)
Mr
Skinner
also submits that, if an order to return S……
to Northern Ireland is refused, the matter can referred back to the
court
a quo
for contact arrangements to be finalised, and for
a mechanism to be put in place to ensure compliance by the appellant.
He submits
that the Family Advocate could be directed to adopt a
supervisory role, reporting to the court where there is
non-compliance. I
am by no means confident that this could be
achieved. If the appellant appeared genuinely of the belief that
continued contact
between S….. and her family is a good idea,
it might. But that is not what we are faced with here.
(f)
I am extremely concerned about the impact upon S…... which may
only emerge
later in her life, of having no contact with her family.
This should have been dealt with in some detail by Dr Keen, but was
inexplicably
ignored. This is an intricate part of the equation in
determining whether she has indeed ‘settled’, and in this
regard
I refer to the judgment of Goldstone J in
Sonderup v
Tondelli
.
[25]
This matter is a prime example of a court being held to ransom by the
delaying tactics of the
appellant and the incompetence of the
respondent in not ensuring that the matter was expeditiously dealt
with in accordance with
the Child Abduction Regulations. Had the
legal process begun timeously, and there seems no acceptable reason
why it should not
have done so, the matter would have been resolved
and S…… returned to the jurisdiction of the Northern
Ireland Central
Authority.
[26]
Now we are faced with a situation where S….. has resided in
South Africa for three years
and four months. I do not believe that
this court can simply ignore the extra one year and four months’
since the decision
of the court
a quo
. Sarah has adapted
tolerably well to living here, and appears, on the face of it at
least, to be happy. Returning to Northern Ireland
will, no doubt, be
an enormous shock to her system. She will have to leave behind her
way of life and friends of the last few years,
adapt to a new mother,
a new language, a new religion, and entirely new rules of
living. Will the joy of reuniting
with her siblings and father
overcome the undoubted shock of relocating? What makes the decision
so much more difficult is her
age. S…… is now nine
years of age. She was five years old when she arrived in South
Africa. These years are part
of a critical development period in a
child’s life. S….. has not seen, nor yet as I understand
the positon, had any
contact with her father and siblings during that
period. There is, in any event, a significant age gap between herself
and her
siblings – eight years and seven years respectively.
One would not expect their bond to be an extremely close one in those
circumstances, even were they to be residing together.
[27]
In all the circumstances, and very reluctantly for my part, I am of
the view that it would be
in S……’s best interests
(even as viewed by Goldstone J) for her to remain in South Africa.
This conclusion
is no criticism of the reasoning or decision of the
court
a quo
. The present circumstances simply compel that
decision. I agree that the Family Advocate should be directed to
conduct an enquiry
into the most appropriate methods of ensuring that
S…… maintains contact with her father and siblings, and
that the
contact arrangements are monitored at regular intervals to
ensure compliance by the appellant. The enquiry should include
consulting
with Mr Riache by Skype, email, etc as to the times
when such contact should be exercised.
[28]
It would be remiss were I to fail to mention this Court’s
gratitude to both Mr
Skinner
,
and his attorney Ms
De Wet
,
in agreeing, at a fairly late stage, to act as
amicus
curiae
on behalf of the appellant,
after her attorneys had withdrawn.
[29]
It is also necessary to comment upon the dilatory manner in which
this litigation was pursued by the
respondent:
(a)
S……. was brought to South Africa on the 1
st
January 2013.
(b)
On the 22 January 2013 Mr R……. made a request to The
Central Authority for
Northern Ireland for assistance. They, in turn,
requested the respondent to assist, and after a search which located
S…..
and the appellant, a request was made by the Central
Authority of Northern Ireland on the 19
th
June 2013.
(c)
An interview was conducted by the respondent with the appellant on
the 10
th
October 2013.
(d)
Despite the appellant then refusing voluntarily to return S…..
to Northern Ireland,
an application in the KwaZulu-Natal Division in
Durban was only served on the 26
th
April 2014. The
application was then heard before Mbatha J on the 8
th
December 2014, when the order appealed against was made. Reasons were
given on the 7
th
January 2015. Leave to appeal was
first adjourned to the 28
th
April 2015 to enable the
appellant to obtain legal representation.
(e)
Leave to appeal was refused by the court
a quo
on the 28
th
April 2015. An application to the Supreme Court of Appeal was then
made on the 28
th
May 2015, which was granted on the 14
th
July 2015 to this court. Somewhat inexplicably, this matter only came
before us on the 22
nd
April 2016.
(f)
It was suggested by Ms
Bhagwandeen
for the respondent that
after the interview with the appellant on the 10
th
October
2013, she again moved residential premises without advising anyone.
This required the respondent to again establish
her whereabouts.
Regrettably none of this was dealt with in the court
a quo
as
it should have been, and this court can make no findings or draw any
conclusions in this regard.
[30]
It is well documented in the many cases dealing with the provisions
of the Convention, that the process
should be completed as
expeditiously as possible. Not to do so inevitably causes
psychological prejudice to the families involved.
It may also
contribute to a situation where courts feel held to ransom when the
parent responsible for the wrongful behaviour drags
matters out in
order to secure the perceived advantages of an entrenched status quo.
That is not the way the process should work.
It is to be hoped that
in the future the respondent will pay swifter attention to the
finalisation of these matters. Had the Judge
President of this
division been approached at an early stage of the proceedings, he
would have encouraged and set out a programme
of earlier hearing
dates to ensure the expeditious finalisation of this matter.
[31]
It remains to decide the issue of costs. This is a difficult question
because it would seem that neither
the appellant nor Mr R…..
is financially well-off. The respondent is a State-funded
institution, but the conduct of the
appellant disinclines me from
being sympathetic towards her on this issue. In my view she should be
ordered to pay the respondent’s
costs of the appeal. She has
displayed a contemptuous attitude to the decisions of the Dungannon
Family Court, refused a reasonable
approach in terms of the
Convention to return Sarah to Northern Ireland, and persisted in
extending the legal proceedings. That,
of course, is her right, but
when her cause is found to be so palpably wanting, she cannot
complain at being mulcted in costs.
That S…… is not to
be returned to the Central Authority of Northern Ireland is in no
part due to any action of the
appellant, save her unconscionable
behaviour in failing to take into account the best interests of
Sarah, and pursuing instead
her own selfish and misguided beliefs.
She has put the respondent, and the High Court to considerable effort
and expense in doing
so.
[32] I
accordingly make the following order:
(a) The
appeal succeeds, and the order of the court
a quo
is set
aside.
(b)
The Family Advocate is directed to conduct an enquiry into, and
report to the High Court in Durban, within one month of
the date of
this order, on the most suitable arrangements for S……
to have ongoing contact with her family in Northern
Ireland, such
contact arrangements to be made in consultation with Mr R…...
(c)
The report of the Family Advocate is to suggest a system of regular
supervision by the Family Advocate, and the Family
Advocate is to
apply to have the arrangements made an order of court.
(a)
The
appellant is to pay the respondent’s costs of appeal.
Lopes
J
I
agree,
P
Bezuidenhout
I
agree, and it is so ordered
Gyanda
J
Date
of hearing: 22
nd
April 2016
Date
of judgment: 10
th
May 2016
Counsel
for the Applicant: B Skinner SC (instructed by Ms de Wet of Shepstone
and Wylie (both
amicus curiae))
Counsel
for the Respondent: N Bhagwandeen (instructed by the State Attorney)
[SB1]
Try
a different numbering system here, as the first factor intended to
be dealt with in ‘a)’ is actually spread out
over three
paragraphs, the second and third of which are unnumbered.