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[2015] ZAKZDHC 1
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Central Authority for the Republic of South Africa v A.K.N (1876/2014) [2015] ZAKZDHC 1 (7 January 2015)
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IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 1876/2014
CENTRAL
AUTHORITY FOR THE REPUBLIC
OF
SOUTH AFRICA
….....................................................................................
APPLICANT
and
A[…]
K[…]
N[…]
............................................................................................
RESPONEDNT
REASONS
JUDGMENT
Delivered
on: 07 January 2015
MBATHA
J
These
are my reasons for judgment for an order delivered by this court on
the 8
th
of December 2014.
1.
INTRODUCTION
The
Applicant is the Central Authority for the Republic of South Africa
designated as such in the terms of the Hague Convention
on the Civil
Aspect of Child Abduction(the Convention) which authority is the
office of Chief Family Advocate of South Africa,
whose authority is
delegated to the Family Advocate Antonio Rodriques Correia.
2.
The
Respondent is A[…] K[…] N[…], an adult female
currently resident at C[…], 80 L[…] D[…],
U[…]
R[…], Durban, KwaZulu-Natal. The Respondent is the mother of a
minor child, S[…] S[…] R[…]
a girl born on the
[…] 1997 in Belfast, Northern Ireland. The father of the child
is the ex-husband of the Respondent, F[…]
R[…], an
Algerian /Irish citizen, who is resident in Belfast, Northern
Ireland.
3.
BACKGROUND
3.1
The Respondent and F[…] were married to each other in
accordance with the civil laws of Northern Ireland on the 21
st
of February 1997. The marriage produced three minor children, namely,
H[…]-E[…] a boy born on […] 1998, Y[…]
M[…], a girl born on […] 1999 and S[…] S[…],
a girl born on […] 2007, who is the subject matter
of this
application. They were divorced from each other on 30 July 2008.
3.2
The first Respondent was previously married prior to her marriage to
F[…], which marriage had produced a son, namely,
R[…]
M[…], who lives with his parental family.
3.3
After the parties divorced the three children remained in the
residence of the Respondent and F[…] exercised contact
with
them. On or about September 2010 H[…]-E[…] left to live
with his father F[…], He was subsequently followed
by Y[…]
on or about March 2012. S[…] remained with her mother and F[…]
continued to have regular contact with
the minor child. The parties
lived in the same area of Finaghy in Belfast, Northern Ireland.
3.4
The Respondent without notice or consent from F[…] removed the
minor child S[…] from her school on Finaghy and
moved her to
Brookeborough County. F[…] as a result of the move could not
exercise his rights of access to S[…].
Consequently, F[…]
applied for a Residency Order where he sought an order that the minor
child S[…] should live with
him and her siblings. On the 20
th
of September 2012, the Family Proceedings Court in Dungannon Northern
Ireland granted an interim Residence Order in favour of F[…],
commencing with effect from December 2012. In terms of the order the
three children born of the marriage were to live with F[…].
3.5
The Respondent immediately filed a notice of appeal which had the
effect of suspending the interim order. The Respondent abandoned
the
appeal and left for the Republic of South Africa with the minor child
S[…] and her new husband. On 31 December 2012
the removal of
the minor child took place without the knowledge and consent of F[…]
and the Family Proceedings Court. The
Respondent has failed to return
the child to the jurisdiction of the Central Authority of Northern
Ireland.
3.6
The Respondent is now married (married in May 2012) to G[…]
N[…] a South African and they are resident at Umhlanga,
Durban, in Kwazulu-Natal. S[…] was enrolled at school in 2013,
the H[…] Primary School, where she is doing grade
two. The
N[…]’s attend the G[…] F[…] Church, in
Umhlanga Durban together with S[…] on a regular
basis.
3.7
F[…] subsequently turned to courts of Northern Ireland whereby
on 26 February 2013the Family Court Centre at Fermanagh
and Tyrone
sitting at Dunganan Court, Belfast, struck off the respondents appeal
and granted a final residence order, in favour
of F[…] in
respect of S[…]. The order stipulated that S[…] had to
reside with her father until the age of
sixteen (16) years.
4.
Consideration
of the law and the application thereof to the facts:
The
application is brought in terms of Article 12
[1]
of the convention which reads as follows:
‘
where
a child has been wrongfully removed or retained in terms of Article 3
and at the time of the commencement of the proceedings
before the
judicial or administrative authority of the contracting state where
the child is for a period less than one year has
elapsed from the
date of the 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 one year referred to in the preceding
paragraph
shall also order the return of the child unless it is demonstrated
that the child has now settled in its environment.’
And
Article 3 of the Convention provides as follows:
‘
The
removal or retention of a child is to be considered wrongful where:
a)
It is in breach of the rights of custody
attributed to a person or 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 the removal or retention
those rights were actually exercised either jointly or alone, or
would have been exercised
but for the removal or retention’.
4.2
The Applicant submits that the Respondent is in breach of the court
orders dated 20 December 2012 and 26 February 2013 in that
the
Respondent has unlawfully and wrongfully removed the child S[…]
from the jurisdiction of Northern Ireland Courts. The
Applicant
therefore bears the onus to prove that the removal and retention of
the child in the Republic of South Africa without
the consent of F[…]
and the courts of Northern Ireland is in breach of Article 3 and 5 of
the Convention.
5.
5.1
The parties were divorced on 30 of July 2008, wherein the three
children continuously resided with the Respondent. F[…]
exercised his rights of reasonable access to the children. The two
older children out of their own volition left to live with F[…];
S[…] the youngest remained in residence with the Respondent
but F[…] exercised his rights of access to her. The problem
started when the Respondent removed the child to a different school
in a different town where F[…] could not exercise his
rights
of access to S[…]. The removal was done without the consent of
F[…].
5.2
None of the parties have provided the court with an order defining
the residency of the children born from the marriage in terms
of
their decree of divorce. It is clear from what is stated in both F[…]
and the Respondent’s affidavits that the
children resided with
the Respondent and that F[…] exercised contact with them. It
was also not an issue with the parties
when the two older children
changed residence and moved in with their father and their step
siblings. It is clear to me that the
parties were content with
whatever arrangement unfolded as long as each one of them could
exercise contact with the children.
5.3
However, when the Respondent moved S[…] to Brookeborough
County F[…] could not exercise contact with S[…]
as a
result that he applied for a residency permit in respect of all the
three children including S[…]. The Respondent also
applied for
a residence order in respect of S[…] and a contact order in
respect of H[…] and Y[…]. The court
sitting at
Dungannan on the 20
th
December 2012 issued an interim
residence court order, ordering that S[…] will reside with her
father as from the 28
th
of December 2012. The application
was adjourned until 22 January 2013. The interim order which appears
as annexure AR C3 to the
Applicants’ affidavit comes with the
following warning:
“
Where
a residence Order is in force; no person may cause the child[ren] to
be known by a new surname or remove the children from
the United
Kingdom without the written consent of every person with parental
responsibility for the child[ren] or without the leave
of the court.
It
may be a criminal offence under the Child Abduction (Northern
Ireland) order 1985 to remove the child[ren] from the United Kingdom
without the leave of the court”.
5.4
The notice of appeal filed by the Respondent appealing against the
interim order, which is also dated the 20
th
December 2012,
indicates that the Respondent was represented by her Solicitor a Mr
Reggie Ferguson of Ferguson Solicitor’s.
The court can infer
that she was aware of the terms of the interim residence order,
which, even if she had no legal representation
are couched in a
simple and straightforward language. Irrespective of the
warning on the court order she left the United
Kingdom without leave
of the court and without notifying F[…]. She left for South
Africa where she registered the child
in her new husband’s
name, which was also contrary to the warning stated in the court
order.
5.5
The warning on the court order further went on to state that that if
no court order is obtained, the offender may be committing
an
offence. Irrespective of the terms of the order the Respondent
abandoned the appeal, abducted the child S[…] and left
for
South Africa without informing anyone about her departure. This had
the effect of not only abandoning her two older children,
but
depriving S[…] of contact with her siblings and father.
5.6
I will not accept the submission made on her behalf that since the
interim order was suspended pending the appeal there was
no existing
order. It is my view that even if the interim order had not been in
existence, the parties shared rights of residence
and contact with
their children. There are natural rights emanating from the marriage
which existed between the parties prior to
the divorce and after the
divorce.
5.7
Furthermore, F[…] was awarded interim residence of S[…]
with effect from the 28 December 2012. The order was not
set aside,
but suspended pending the appeal. This meant that the status quo
remained. This did not give the Respondent the right
to remove S[…]
from the jurisdiction of the courts in Northern Ireland.
5.8
Article 3 categorically states that the removal of the child is
wrongful and in breach of the rights of custody attributable
to a
person in this case, under
the law of the state in which the
child was habitually resident immediately before the removal or
retention and at the time of the
removal or retention those rights
were exercised either jointly or alone or wanted have been so
exercised but for the removal or
retention
. The Respondent
cannot say she had sole custodial or residence rights over S[…],
as these rights were exercised jointly
by her and F[…]. Even
if that was not the case, Article 3 states that
“
or
would have been so exercised but for the removal or retention
”
(my underlining for emphasis) F[…] was to exercise his rights
of residence with S[…] as from the 28 of December
2012.
5.9
When it was clear to the Family Court in Dungannon Northern Ireland
that the appeal had been abandoned and the Respondent was
in default
the appeal was struck off the roll. The court also granted a final
residence order in favour of F[…] in respect
of S[…].
5.10
It is in my view that in light of their aforementioned circumstances
the removal and retention of the minor child in South
Africa is
unlawfully wrongful in terms of Article 3 and 5 of the Convention.
6.
6.1
The Respondent submits that F[…] knew of the disappearance of
the Respondent’s departure with the child at least
by January
2013 but the proceedings were instituted in March 2014 more than 12
months later. In this regard the court was referred
to Article 12 of
the Convention which states that where proceedings had been commenced
after the expiration of the one year from
the date of the alleged
wrongful removal the judicial authority “
shall also order
the return of the child unless it is demonstrated that the child is
now settled in its new environment”.
6.2
Before I consider whether the child has settled in the environment I
have taken cognisance of the fact that the destination
of the
respondent was unknown to F[…], she had enrolled the child in
a different surename, tracing agents had to be used
to locate their
whereabouts, the respondent did not communicate her intention to
settle in South Africa and after settling in South
Africa she never
communicated even with her children. The Respondent did not want to
be found.
6.3
It is trite that the courts in South Africa consider what is in the
best interests of the child. I have kept the principle at
the back of
my mind when I considered all the evidence presented in this regard.
I have taken into account S[…]’s
tender age, the
environment in which she lives, the social workers report the, church
reports, the school reports and the environment
in which she
currently lives in.
6.4
The Respondent and her family whilst married to F[…] were
practicing Muslims and embraced the Muslim faith even after
their
divorce. Christianity was only introduced to the child S[…]
when the Respondent moved with her husband, Mr N[…]
to South
Africa. The other children of the Respondent and their father
practice the Muslim faith and I cannot see why this child
should
denounce her faith and be raised as a protestant. The Respondent has
not even reverted to her own faith, Catholicism, but
has chosen to
raise this child in a different faith. The long term effect of this
is to separate the siblings from each other.
It is also now that she
is in South Africa that she sees her family religion as fanatic,
compared to the European types of religions.
There is an emphasis
that the child has formed a close loving bond with her stepfather,
and she is doing very well at school both
socially and academically.
Nothing is said about encouraging S[…] to know her own father
and siblings. The impression gained
by this court is that the
Respondent does not want to have any contact with her other children.
The question I have is whether
it will be in S[…]’s
interests not to know her own family, I do not agree. S[…] is
placed in a school where
children normally thrive in the company of
other children. She will thrive in similar environment in Northern
Ireland taking into
account her age and that she will be with her
siblings in a familiar place too.
6.4
The court is also vested with discretionary powers in terms of
Article 12 of the Convention where the proceedings have been
commenced after the expiration of the period of one year referred in
the proceedings where it is demonstrated that the child has
now
settled in its new environment. I have objectively considered the
respondent’s case in determining whether the child
has settled
in its environment.
The minor child is
being forced to a new culture, new identity and a new parent. The
contact between her biological father and her
siblings has been cut
off without any consideration for her welfare.
In
all matters concerning the children the best interests of the child
are protected in Section 28(2) of the Constitution. The child
needs
both father and mother it cannot be at the discretion of the mother
to sever such contact.
7.
7.1
The Respondent has for the first time in this application raised the
issue that his son R[…] M[…] from the first
marriage
was sexually abused by her ex-husband F[…]. This should be
raised by the Respondent to the Family Court in Northern
Ireland
where the court granted the orders. It is my view that it can still
be brought to the attention of the courts in Ireland,
who will have
the capacity to investigate the allegations and decide on the effect
that it will have on all the children and not
only S[…].
7.2
I have also considered Article 13(b) which states that the State is
not bound to order the return of the child if existence
of grave risk
of physical or psychological harm or that child would otherwise be
placed in an intolerable situation. The minor
child is not returned
to the father but the child is returned to the Central Authority for
Northern Ireland. Provision is made
in the order that the child may
be accompanied by the mother to Northern Ireland and that should she
be unwilling to accompany
the child to Northern Ireland the Family
Advocate is authorised to make such arrangements as may be necessary
to ensure that the
minor child is safely returned to the care of the
Central Authority for Northern Ireland.
7.3
This takes care of any kind of exposure to physical harm or emotional
harm. Nothing has been suggested in the Respondent’s
affidavit
that suggests that the father exposed his children to any harm. F[…]
has denied the allegations of sexual assault
on his stepson. The only
courts which would be in a position to deal with these allegations
are the courts in Northern Ireland.
This has created a dispute of
facts. This dispute of facts and other disputed facts relating to the
suitability of the parties
as residence or custodial parents can only
be dealt with by the courts in Northern Ireland.
Sonderup
v Tondelli
and
Another
[2000] ZACC 26
2001(1) SA 1171(CC)
[2]
.
8.
8.1
I could not find a dispute of facts in this matter which necessitated
the referral of this matter to oral evidence; the sole
issue is
whether the Respondent acted unlawfully in terms of Article 12 read
with Article 13 of the Convention. I am satisfied
that the applicant
has proved the unlawful removal of the child from Northern Ireland to
South Africa.
Smith
v Smith
2001(3) SA 845
[3]
8.2
The Respondents remedy lay in the United Kingdom courts and not in
the abduction of the minor child. She has also failed to
discharge
the onus that it is in the best interest of the child to remain in
the Republic of South Africa. Her submission that
there was no order,
does not hold water, as she cannot explain what she was appealing
against, if there was no order.
8.3
Firstly, my duty is to decide whether the removal was wrongful or not
and not to hear evidence as to who is it be vested with
custody/residence of the minor child. Secondly, by their nature such
applications under the Convention are intended to be heard
expeditiously to enforce the terms of the Convention. Even in terms
our laws such matters require expeditious attendance. Oral
evidence
is restricted to exceptional cases. Due to the urgency of these
matters they are often decided on affidavits. In
Pennello
v Pennello and Another
(283/2003) [2003] ZASCA 147; [2004] 1 All SA 32 (SCA)
[4]
I December 2003 the court held that 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.
9.
9.1
I therefore find in favour of the Applicant and find that the
Respondent has failed to discharge the onus in terms of Article
13(b)
and Article 12 of the Convention. I therefore confirm the order given
on 8 December 2012.
9.2
1) That the minor children , namely S[…] S[…] R[…],
a girl born on the […] 2007 be returned to the
jurisdiction of
the Central Authority for Northern Ireland after the delivery of the
reasons for judgment and the respondent is
given 5 days to consider
the reasons, thereafter the order comes into effect.
2)
In the event that the respondent (the mother) intended to accompany
the minor child S[…] S[…] R[…], a girl
born on
her return to Northern Ireland, she must notify Antonio Rodriques
Correia of the Office of the Family Advocate, Durban
(Family
Advocate) within five days of the granting of this order, that she so
intends to accompany the minor child S[…]
S[…] R[…]
on her return to Northern Ireland.
3)
In the event of the Respondent failing to notify the Family Advocate
of her willingness to accompany the minor child S[…]
S[…]
R[…] on her return to Northern Ireland, it is to be accepted
that the Respondent is not prepared to accompany
the minor child S[…]
S[…] R[…] to Northern Ireland, in which event the
Family Advocate is authorised to:
3.1)
remove the minor child S[…] S[…] R[…] from the
care of the respondent;
3.2)
make such arrangements as may be necessary to ensure that the minor
child S[…] S[…] R[…] is safely returned
to the
care of the Central Authority for Northern Ireland and to take such
steps as are necessary to ensure that such arrangements
are complied
with.
4)
In the event that the Respondent fails and
or refuses to hand over the minor child S[…] S[…] R[…]
to the Family
Advocate as envisaged in paragraph 3.1 above, then the
Sheriff of this Honourable Court is directed to remove the minor
child S[…]
S[…] R[…] from the care of the
Respondent or wherever and from whomever she may be found to be with
and hand her
over to the Family Advocate.
5)
Pending the return of the minor child to
Northern Ireland as provided for in paragraph 3.1 above, the
Respondent shall not remove
the minor child S[…] S[…]
R[…] from the province of Kwazulu-Natal and until then she
shall keep the Family
Advocate informed of her (the Respondent) and
the minor child’s physical address and contact telephone
numbers.
6)
Pending the return of the minor child S[…]
S[…] R[…] to Northern Ireland, F[…] R[…]
(the father)
is to have reasonable contact (access) with the minor
child S[…] S[…] R[…], which shall among other
include
the following:
6.1
Daily telephonic contact during reasonable times;
6.2
Skype contact at least once a week;
6.3
Physical contact with the child at all reasonable times that the
child is not attending classes or extra-mural activities at
school,
in the event that the father should visit the minor child in South
Africa, pending the finalisation of the Respondents’
approval
or legal process that may be undertaken by the Respondent;
6.4
Any further contact which the parties may agree upon.
No
order as to costs.
––––––––––––
Mbatha
J
[1]
Hague
Convention on the Civil Aspects of International Child Abduction
1980(“the Convention”) as incorporated into
South
African Law by section 275 of the Children’s Act (Act No: 38
of 2005
[2]
Sonderup
v Tondelli and Another
[2000]
ZACC 26
2001(1) SA 1171(CC)
[3]
Smith
v Smith
2001(3)
SA 845
[4]
Pennello
v Pennello and Another
(283/2003)
[2003] ZAZCA 147;
[2004] 1 All SA 32
(SCA)