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[2008] ZAWCHC 80
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Family Advocate, Cape Town and Another v E.M (15972/2008) [2008] ZAWCHC 80; 2009 (5) SA 420 (WCC) (28 November 2008)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No: 15972/2008
In
the matter between:
THE
FAMILY ADVOCATE, CAPE TOWN (In her representative capacity as the
delegated Central Authority for South Africa in terms
of
Section 4 of Act No.72 of 1996)
First
Applicant
K.M.
Second
Applicant
and
E.M.
Respondent
JUDGMENT
DELIVERED ON 28 NOVEMBER 2008
MADIMA
AJ
Introdu
ction
1 This
sad case concerns a little girl called M.H.M. (M.) who was born on
[date] 2004 in the district of T... in the United Kingdom
of Great
Britain. M. was brought to the Republic of South Africa by her
mother, the Respondent, whose marriage to her father, the
Second
Applicant, was in some sort of trouble. Both M. and her mother are
currently in the Western Cape, South Africa.
2. The
instant application is brought in terms of the Hague Convention on
the Civil Aspects of International Child Abduction (1980)
(the
Convention), as incorporated into South African law by the Hague
Convention on the Civil Aspects of International Child Abduction
Act,
No.72 of 1996 (the Act), for an order directing, inter alia, the
immediate return of M. to the United Kingdom.
3. The
First Applicant is the Family Advocate who brings this application in
her representative capacity as the designated and delegated
Central
Authority for the Republic of South Africa in terms of section 3 of
the Act. The Second Applicant is a United Kingdom
national and the
biological father of M.H.M., (M.) the subject of this application.
4. The
Respondent is the biological mother of M., a South African, currently
resident in Paarl, Western Cape, Republic of South
Africa (South
Africa). Second Applicant and Respondent were married to each other
on 25 November 2000 at Porteville, Western Cape,
South Africa.
5. As
already stated above, M. was born in the United Kingdom on [date]
2004. The family lived together in the United Kingdom until
September
2007 when Respondent and M. traveled to South Africa to spend the
holidays with Respondent's family. Return air tickets
were purchased
as Respondent and M. would be returning to the United Kingdom after
the holidays in South Africa. All these arrangements
were done with
the consent of Second Applicant.
6. Some
several weeks into her stay in South Africa, Respondent indicated to
Second Applicant that she intended to remain in South
Africa
permanently with M. and would therefore not be returning to the
United Kingdom. 1 need to emphasise that Respondent neither
sought
nor obtained Second Applicant's consent in this regard, that is, that
Mea would not be returning to the United Kingdom.
Second Applicant
was merely informed to that effect.
7. However
a month later on or about 27 November 2007, M. traveled to the United
Kingdom together with her grandmother (Mrs. H.)
to pay Second
Applicant a visit for two weeks. M. and grandmother returned to South
Africa on 6 December 2007. Prior to their return
to South Africa,
Mrs. H. informed Second Applicant that she had experienced
difficulties at various passport control points when
she was
traveling into the United Kingdom with M.. At her request, Second
Applicant wrote the following letter dated 4 December
2007 (the
letter of 4 December 2007) to facilitate easy travel for both Mrs. H.
and M.;
To
Whom it may concern
"[
K.M., father of M.H.M., has given permission for my mother-in-law,
R.H. to accompany my daughter to Cape Town on 6
th
December 2007.
Please
grant them safe passage.
Please
do not hesitate to contact me for any assistance.
Yours
Faithfully"
8. The
letter of 4 December 2007 was duly signed by Second Respondent. M.
has been in South Africa since then.
Applicants
and Respondent's respective cases
9. The
gist of Applicants' case on the one hand is that Mae's removal from
the United Kingdom and her retention in South Africa
by Respondent is
unlawful in terms of the Act. Second Applicant in particular seeks
that M. be returned to the United Kingdom where
she was habitually
resident before her unlawful removal and retention. The Respondent's,
on the other relies on the provisions
of Article 13(a) of the Act
relating, inter alia, to consent and/or acquiescence in the
said
removal and or retention of M..
Relevant
provisions of the Hague Convention
10. The
Act aims to protect children internationally from the harmful effects
of their wrongful removal or retention and to establish
procedures to
ensure their prompt return to the State of their habitual residence,
as well as to secure protection for rights
of access. (See preamble
to the Act.)
11. Further
to (a) secure the prompt return of the children wrongfully removed
to, 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. (See
Article 1 of the Act.)
12. Article
3 of the Act provides instances where the removal or the retention of
a child is to be considered wrongful. It is for
example wrongful
where
(a) it
is in breach of right of rights of custody attributed to a person...,
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.
13. Article
12 provides for the remedy of return where there has been a wrongful
removal or retention. It is stated in the provision
that
"Where
a child has been wrongfully removed or retained in terms of art 3
and, at the date of the 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 the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith."
14.
Article
13 provides that
"Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requesting State
is not bound to
order the return of the child if the person ... |who] opposes its
return establishes that -
(a)
the
person ... having the care of the person of the child was not
actually exercising the custody rights at the time of the 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 hard or otherwise place the
child in an
intolerable situation."
(own
emphasis)
15. Article
14 provides that
"In
ascertaining whether there has been wrongful removal or retention
within the meaning of Article 3, the judicial or administrative
authorities of the requested State may take notice directly of the
law of... 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.
Onus
of Proof
16.
Our Courts have laid down the following requirements for an
applicant who wishes to secure the return of a child in terms
of the
Act:
(a)
That
the child was
habitually
residing
in the requesting state immediately before the removal or retention;
(b) That
the
removal
or retention was wrongful
in that it constituted a breach of custody
rights
by operation of law of the requesting State
;
(own emphasis)
(c) That
the
applicant
was actually exercising those rights at the time of the wrongful
removal or retention
and would
have
so exercised such rights but for the removal or retention
(art 3(b)). (own emphasis)
(See
Senior
Family Advocate. Cape Town an
d
Another
v Houtman
2004
(6)
SA
274
(CPD) at paragraph 7)
17. The
question of onus was settled in
Smith
v Smith
2001 (3) SA 845
(SCA) [2001 "I
3 All SA 146
at 850 J
where Scott JA held inter alia that
(A)
party seeking the return of a child under the Convention is obliged
to establish that the child was habitually resident in
the country
from which it was removed immediately before the removal or
retention and that the removal or retention was otherwise
wrongful
in terms of art 3. Once this has been established the onus is upon
the party resisting the order to establish one or
other of the
defences referred
to
in
arts 13(a) and 13(b)
or
that
the circumstances are such that the refusal would be justified
having regard to the provisions of art 20
18. The
learned Judge went further and stated that
If
the requirements of art 13(a) or (b) are satisfied the
judicial
or administrative authority in the country to which or in which the
child was removed or is being retained may still
in
the exercise of
i
ts
discretion order the return of the child
,
(at
p851 A-B) (own
emphasis)
Matters
of common cause
19. It
appears from the papers before me that the following issues are not
in dispute,
namely that
(a)
immediately prior to her removal, Mae's habitual place of
residence was the United Kingdom;
(b) both
Second Applicant and Respondent jointly have parental
responsibilities in respect of M. in terms of section 2(1) of the
Childrens Act of 1989;
(c) Second
Applicant, at the time of the removal and / or retention of M.,
Second Applicant exercised his parental responsibilities
over Mea
Issues
in dispute
20. The
following matters are however in dispute
a) whether
Mae's removal to or retention in South Africa was wrongful;
b) whether
Second Applicant consented or acquiesced to Mea's removal;
c) whether
due to the delay in the bringing of the instant application, the
application falls outside of the requirements of
the Act and falls
to be dismissed;
d) Whether
there has been compliance with Ruler 63 of the Uniform Rules with
regard to the Affidavits of Second Applicant; and
e) Whether
Respondent is entitled to costs de bonis propriis against First
Applicant.
21. I
believe that it is important at this stage to revisit the facts of
this case in order to deal effectively with the issues
in dispute
between the parties. I need to state that there were two
in
limine
points
that were raised by Respondent in its papers. 1 must say that after
submission by counsel for Applicants, both points were
wisely
abandoned by Respondent, and correctly so.
22. I
now deal with the issues that are in dispute between the parties.
Wrongful
removal and or retention
23. The
question is whether or not the removal from the United Kingdom or
retention in South Africa of M. by Respondent was unlawful.
The
answer to this question
can be found squarely within the
provisions of Article 3 of the Act. 1 repeat here what Article 3
provides for the sake of easy
reading. The removal or retention of
a
child is wrongful where
a) it
is in breach of right of rights of custody attributed to a
person..., cither 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.
24. The
question that begs to be answered is
"
was
Second Applicant exercising his custody rights over M. either
jointly or alone at the time of the removal or the
retention
or would have been exercising them but for the removal or retention,
and secondly, where those rights breached?
25. I
have no hesitation in finding that Second Applicant's joint right(s)
of custody were breached under the laws of the country
where M. was
habitually resident before her removal or retention as well as that
Second Applicant, at the time of the removal
or retention was
actually exercising those rights jointly with Respondent, What is
paramount, in my view, is the intention of
the
removing
and or retention
spouse. What is equally of importance is the state of mind of the
Second Applicant.
26. The
Respondent's state of mind in this regard is not disputed. She
communicated same to Second Applicant in October of 2007
when she
said she would not be coining back to the United Kingdom. It is
Second Applicant's state of mind that is examined with
relation to
the removal and or retention of M.. It is the Second-
Applicant's
Article 3 rights that were breached when Respondent communicated to
him that she would not be coming back to the United
Kingdom, but
intends settling permanently in South Africa with M.. That was the
defining moment. Second Applicant had not given
his consent
27.
There is no doubt that the removal and retention is unlawful. The
fact that Respondent has allowed M. to travel to the United
Kingdom
to visit Second Applicant and in turn the fact that Second Applicant
has allowed M. to return to Respondent during the
period November
and December 2007 respectively should not distract us from the fact
that Respondent's intention is to permanently
remove M. from the
United Kingdom and or to permanently retain Mac in South Africa.
Consent
and or acquiescence
28.
Respondent bases her opposition to this application broadly on two
grounds, namely that Second Applicant
consented
to both the removal, alternatively that by his subsequent conduct,
acquiesced thereto and thereby causing Respondent to reasonably
believe that Second Applicant consented to Mae's retention.
Respondent relies inter alia, on the letter of 4 December 2007 in
his regard. In her heads of argument filed before this court, her
legal representative submitted that
"The
Second Applicant's letter dated 4 December 2007, the contents of
which he personally formulated and signed, not only
states his
express consent to Mae's return, but puts his blessing on her safe
return to the RSA. This express consent was given
before commencing
with this application".
29.
Respondent's legal representative went further and submitted that
there could be no better proof of Second Applicant's consent
to
Mae's retention in the RSA than from said letter of 4 December 2007.
It was further argued that had Second Applicant intended
otherwise,
he could have inserted wording in the letter that qualified his
consent or otherwise noted certain conditions to giving
his consent.
30. Counsel
for Applicants for her part, contended that the letter of 4 December
2007 says no more than it states, namely, the
facilitation of easy
passage for M. and grandmother.
31. I
have gone over the letter of 4 December 2007 several times. I can
find nothing which suggests that the letter was intended
to grant
consent for M. to be permanently removed from the United Kingdom or
for her permanent retention in South Africa by
Respondent. What I
have found is a letter that facilitates easy passage for an adult
traveling with a minor child who bears
a different surname to the
adult. I am neither surprised at the difficulties that Mae's
grandmother allegedly encountered when
going through customs nor at
the request by Mae's grandmother that Second Applicant provide them
with such letter of comfort
or of easy passage. This is because such
problems are common, what with child trafficking and indeed
abductions specifically
catered for by the Act. It is also telling
that the letter is addressed to no one in particular, but to anyone
who cared to
know the circumstances of the two travelers.
32. Respondent
further submitted through her legal representative that Second
Applicant's actions, or lack thereof, and more especially
Second
Applicant's general behaviour regarding this matter, also clearly
indicates his consent to or acquiescence in Mae's retention.
33. Second
Applicant, according to the submissions, instituted no action
immediately after being informed by Respondent that she
would not be
coming back to the United Kingdom, to secure the return of M.. He
did not object unequivocally or protest to Respondent.
He made
arrangements with Respondent for Mae's visit to the UK. He took no
action during Mae's visit to secure her continued
presence in UK
between November and December 2007. He did not object or protest to
his mother-in-law when she visited with M..
Heavy reliance was
placed on what was allegedly not done by Second Applicant between
the periods October 2007 to February 2008.
34. Second
Applicant submitted through his counsel that he had indeed consented
to M. travelling to South Africa with Respondent
in September of
2007 for a visit. Both M. and Respondent would be coming back to
the United Kingdom at the end of their holiday.
Both M. and
Respondent had purchased return tickets. Second Applicant was
shocked when a month later in October 2007, Respondent
informed him
that she would not be returning to the United Kingdom but would be
remaining permanently in South Africa with M..
35. Counsel
for Applicants submitted that the marriage between Second Applicant
and Respondent was undergoing challenges and that
they had been to a
marriage counsellor. Second Applicant always was hopeful that their
marriage could be salvaged somehow. That
is the reason Second
Applicant allowed M. to go to South Africa I September 2007 and
again in December 2007 accompanied by her
grandmother. It was also
submitted that Respondent had also made an undertaking that she
would never take M. away from him.
36. It
is this conduct between the parties that Respondent now relies on as
acquiescence that led her to believe that Second Applicant
had now
consented to the removal and or retention of M.. The courts have
held that for a parent t
o
acquiesce
in the unlawful removal or retention of a child, within Article 13,
the evidence of the acquiescence
"must
be clear and unqualified"
(See
Police
Commissioner of South Australia v Temple (No.l) (1993) PLC 92-365,
quoted from Jeremy D Morley. Acquiescence or Consent,
Hague
Convention on International Child Abduction. Acquiescence and
Consent)
.
37. Referring
further to the concept of acquiescence, other courts in foreign
jurisdictions held that
"Acquiescence
under the Convention requires either an act or statement with the
requisite formalities such as testimony iu
a judicial proceeding, a
convincing written renunciation of rights or a consistent attitude
of acquiescence over a significant
period of time" (See
Friedrich v Friedrich,
78 F.3d 1060
(6th Cir 1996),
quoted
from Jeremy D
Morl
ey,
Acquiescence or Consent, Hague Convention
on
International
Child A
bduction
,
Acquiescence
and Consent).
38.
In the United Kingdom, the House of Lords held that the burden is
strongly on the parent who has removed a child to establish
consent
by the other parent. The Law Lords held that
"Where
the words or actions of the wronged parent clearly and unequivocally
show and have led the other parent to believe
That the wronged
parent is not asserting or going to assert his right to the summary
return of the child and are inconsistent
with such return, justice
requires that the wronged parent be held to have acquiesced"
(
quoted
from Jeremy D Morley, Acquiescence or Consent, Hague Convention on
International Child Abduction, Acquiescence and Consent)
1.
In re H and Others (Minors) (Abduction: Acquiescence)
[1997] 2 All
ER 225
(HL), Lord Browne-Wilkinson considered that article 13 looked
to the
subjective
state of mind of the wronged parent
,
and that accordingly the true inquiry was simply whether he had in
fact consented to the continued presence of the child in
the
jurisdiction to which the child had been removed or had been
retained. The Law Lord went on and said:
"In
my judgment, therefore, in the ordinary case the court has to
determine whether in all the circumstances of the case
the wronged
parent has, in fact, gone along with the wrongful abduction.
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 wrong pareut. That is quite a different matter
from imputing to the wronged
parent an intention which he did not,
in fact, possess."
"Although
each case will depend on its own circumstances, I would suggest
judges should be slow to infer an intention to
acquiesce from
attempts by the wronged party to effect reconciliation or to reach
an agreed voluntary return of the abducted
child... Attempts to
produce a resolution of problems by negotiation or through religious
or other advisers do not, to my mind
normally connote an intention
to accept the status quo if those attempts fail."
39. The
Law Lord concluded that
'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"
land] it is furthermore obvious that consent must be
real[,]...positive and ...unequivocal.
Delay
in instituting proceedings and acquiescence
40. I
now examine Second Applicant's conduct between the period October
2007 and February 2008. Respondent seems to suggest that
Second
Applicant did not do much or anything after she had told him that
she was not coming back to the United Kingdom an intended
to settle
permanently in South Africa with M.. Submissions were made that
Second Applicant was shocked at the realisation thathis
wife was
indeed leaving him and that his daughter was also to resettle in
South Africa.
41.
Second Applicant submitted through his counsel that he consulted a
solicitor and barrister between October 2007 and February
2008, and
once he had been given legal advice on the matter, the instant
process and proceedings were launched. I must say that
I find
nothing that suggests any slackness on Second Applicant's part in
this regard that can be interpreted as acquiescence
to the removal
and retention of M.. 1 do not find the delay inordinate. On the
contrary I am impressed that Second Applicant
was able to bring
these proceedings inside a period of four months since he was
informed that by Respondent of her intention
to permanently remove
M. from the United Kingdom and to retain her in South Africa.
42. I
have also come to appreciate the time that it takes to get urgent
matters such as the instant proceedings on the roll of
our court
system. I find it is reasonable in the circumstance for a person in
Second Applicant's position to seek and obtain
legal advice in the
manner he did with its concomitant challenges. I therefore find that
the slackness attributed to Second
Applicant by Respondent lacks
merit, and consequently Second Applicant did not unequivocally
consent or acquiescence to Mae's
removal and or retention by his
conduct.
43. I
now deal with the disputed issue of delay in launching the
proceedings. Article 12 of the Act makes provision that
"Where
a child has been wrongfully removed or retained in terms of art 3
and, at the date of the 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 the wrongful removal or retention,
the
authority c
once
rned
shall o
rder
the
return of the child forthwith
."
44. The
Article goes on and condones such non-compliance and states that
judicial or administrative authorities shall still order
the return
of the child, unless it is determined that the child is now settled
in its new environment.
45. In
the recent case of
Central
Authority v H
2008 (1) SA 49
SCA
,
the SCA ordered the return of a five year old boy who had been
wrongfully retained by his mother in the RSA since he was two
years
old. Some three and a half years had elapsed since the wrongful
retention of the child in the RSA. The child was now 5
years old,
and had spent most of his young life in the RSA. The court found
that in the circumstances, the retention of the
child in the RSA was
wrongful, there was no evidence that the delay had been such that
the return of the child to the Netherlands
would place him in an
intolerable position. The court stated further that it was also
significant that the present circumstances
were caused by the
mother's unlawful conduct in retaining the child in the RSA and
systemic delays which cannot be attributed
to the father.
46. There
is no doubt that the delay envisaged by Article 12 is not applicable
in this case before me. Respondent removed and
retained M. on 26
October 2007. This application was launched on 2 October 2008. The
matter therefore falls within the mandatory
provisions of article
12, which provides that where a period of less than one year has
elapsed from the date of the wrongful
retention to dale of the
commencement of the proceedings before the judicial or
administrative authority of the Contracting
State, the authority
concerned shall order the return of the child forthwith.
47. In
the circumstances I find that Applicant was not late with his
application and that M. was wrongfully removed and retained
by
Respondent. It is for the above reasons that the application must
succeed.
Costs
48. I
am faced with a situation where the marriage between Second
Applicant and Respondent still subsists and I am loath to make
a
cost order as its effect would be akin to a cost order against
oneself. The fact that divorce proceedings arc pending between
the
parties is important and I have taken cognisance of the fact that
they are still husband and wife. In these circumstances,
I think it
is fair that I make no order as to cost.
49. In
the result I make the following order:
50. That
M. be returned forthwith, subject to the terms of this order, to the
jurisdiction of the United Kingdom ("the UK")
in
accordance with the provisions of Article 12 of the schedule to the
Hague Convention on the Civil Aspects of International
Child
Abduction Act, No. 72 of 1996 ("the Hague Convention Act").
51. Second
Applicant, or his appointee, be granted leave and authorisation
insofar as same may be necessary, to remove the child
from the
Republic of South Africa ("the RSA") and to accompany her
back to the UK, being the minor child's country
of habitual
residence, together with the Respondent in the event of her electing
to return to t he UK.
52. Second
Applicant shall, within 14 days of the date of this order, launch
proceedings and pursue them with diligence to obtain,
of the
appropriate judicial authority in the UK, an order that, until
otherwise ordered by the appropriate court in the UK:
a.
The Second Applicant is ordered to arrange and to pay for suitable
accommodation for the minor child and the Respondent, should
she
elect to return to the UK with the minor child. The Second Applicant
shall
provide
proof to the satisfaction of Respondent prior to the departure of
the minor child and the Respondent, should she elect
to return to
the UK with the minor child, of the nature and location of such
accommodation and that such accommodation is available
to the minor
child and the Respondent immediately upon their arrival in the UK.
b. The
Second Applicant is ordered to pay, for the minor child and the
Respondent should she elect to return to the UK with the
child,
maintenance in such amount as may reasonably be required for their
maintenance and upkeep, and failing agreement between
them in this
regard, such amount as may be ordered by the appropriate authority
responsible for such matters in the UK.
c. The
Second Applicant is ordered to pay any medical expenses
reasonably
incurred by the Respondent in respect of the minor
child.
d. The
Second Applicant is granted reasonable access to the minor child.
53. First
Applicant is directed to seek the assistance of the UK Central
Authority in order to ensure that the terms of this order
are
complied with as soon as possible.
54. A
copy of this order shall forthwith be transmitted by the First
Applicant to the UK Central Authority.
55. There
shall be no order as to cost.
MADIMA,
AJ