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[2006] ZAWCHC 59
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G.S v A.H (11592/05) [2006] ZAWCHC 59; 2007 (3) SA 330 (C) (22 December 2006)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No 11592/05
In
the matter between:
G
S
and
A
H
................................................................................................................
Respondent
JUDGMENT:
DELIVERED 22 DECEMBER 2006
Griesel
J:
This
is an application by an unmarried father for certain declaratory
orders as a precursor to the bringing of an application
in
Switzerland under the
Hague Convention on the Civil Aspects
of International Child Abduction 1980
(the Convention)
1
for the summary return of a young boy,
M.
, to South Africa.
This
case raises interesting and difficult issues surrounding the
interpretation of the Convention and its inter-relationship
with our
domestic law. Most of these issues are
res nova
in our law,
although a vast body of jurisprudence has developed internationally
involving various aspects of the Convention.
I find myself in a
similar position to Dame Elizabeth Butler-Sloss P, who remarked
as follows in
Re F (Abduction: Unmarried Father: Sole Carer):
2
‘
In
an ideal world, I would give myself time to consider with care the
careful and erudite submissions of [counsel for the parties].
However, there is no possibility in the last-but-one week of term for
a judgment to be ready and handed down before the end of
term. It
would be unjust to the parties and unjust to the child if I were to
adjourn this case for my judgment to be written until
the beginning
of next term …because this is a Hague Convention application.
…Consequently, there is no advantage
to waiting and I
therefore intend to give an ex tempore judgment in which I shall do
the best I can.’
In
the present case, the matter was argued before me over two days
during the last week of term and the first week of recess.
For the
same reasons as those mentioned in the above extract, I felt
constrained to finalise this judgment before Christmas,
doing the
best I can in the circumstances.
Factual
background
The
parties, who were never married, are the biological parents of M.,
who was born in Cape Town on [day][month] 2006. The father
is a
South African citizen by birth and is a self-employed economist/
researcher, residing in Newlands, Cape Town.
The
mother was born and grew up in Switzerland. She matriculated there
and went on to obtain a PhD in natural sciences at a university
in
Zürich. She has dual Swiss and South African nationality,
because her mother was born in the erstwhile South West Africa.
After visiting South Africa on a few occasions during the period
1996–2002 – sometimes for extended periods –
she
came to live in Cape Town in 2003, when she started working as a
senior research officer at the Science Faculty of the University
of
Cape Town. She currently resides in Basel, Switzerland, with M.
The
parties became involved in a relationship during 2004 and started
living together. In June 2004, they bought a house, which
was
registered in their joint names and where they continued to live as
a couple until the break up of their relationship during
April 2006.
It
was during this period that M. was conceived. According to the
mother, M. was not a planned baby. She claims that the parties
had
not spoken of marriage before his conception. Although the father
wanted to marry after she became pregnant, the mother’s
consistent attitude was that she was not in favour of marriage.
The
father was present at the birth and stayed in the hospital with the
mother and M. for four days until their discharge. He
also
contributed to the mother’s financial support. After the
birth, the parties continued living together and the father
played a
significant parental role in respect of their child until some time
during April, when the mother terminated the relationship
and moved
into a flat in Gardens, Cape Town, together with M. (The parties had
previously experienced difficulties in their relationship
at various
stages. In fact, the mother described it as ‘a very
conflictual relationship’.)
After
their separation, the father continued to exercise regular access to
M., although he complained that the mother had ‘systematically
set about placing as many obstructions in my path to forging a
relationship with M. as she could’.
During
June 2006, the mother launched an action in this court (
the main
action
)
3
for an order defining the father’s rights of access ‘while
the (mother) resides in Cape Town’.
4
The father opposed the action and, in turn, counterclaimed for
co-guardianship and joint custody of M., together with an
order that
the mother ‘shall not remove M. from the Republic of South
Africa on a permanent basis for a period of five
years and any
relocation proposed thereafter shall be subject to the (father’s)
consent being granted’. On 15 September
2006, the mother filed
a plea to the counterclaim. The pleadings in the main action are
closed. There have been discussions between
the respective attorneys
with a view to approaching the Judge President for an expedited
hearing of the main action some time
during February or March 2007.
To date, however, nothing has been finalised in this regard. In
preparation for the trial,
both parties have appointed child
psychologists to investigate and report to the court in due
course on what future arrangements
would be in the best interests of
M..
In
the meantime, during August 2006, the mother entered into a contract
with the University of Basel in Switzerland to take up
an academic
post at the university with effect from 1 January 2007. The father
was first informed of her intentions in a letter
from her attorney,
dated 15 September 2006. The attorney added that she had taken up a
lease on an apartment in Basel with effect
from 1 December 2006. The
letter concludes as follows:
‘
We
will advise you once we are informed of the precise detail of our
client’s travel plans for the end of the year.’
The
father voiced his objection to the intended relocation, coming
as it did ahead of the currently pending determination
of his
claim for rights of co-guardianship and joint custody.
On
Sunday, 15 October 2006, the father arrived at the mother’s
address in order to exercise access to M., as arranged. He
found no
one at home. On checking his cellphone, he discovered an SMS
message, sent by the mother the previous evening, advising
as
follows:
‘
Sorry
but I have to cancel access tomorrow [ie Sunday 15 October] because
of urgent matter – will explain. M. and I are fine.
A.’
The
next morning he received an e-mail from her, informing him that she
and M. had to travel to Basel ‘at very short notice
due to
urgent family affairs’. She further stated that ‘at this
point it is not possible to determine how long we
will have to stay,
but I expect to have more clarity by mid-week and will let you know
immediately’.
Less
than two hours later, he received another e-mail from the mother,
informing him that, after consulting with her family, she
had
decided to stay in Switzerland with M. ‘on a permanent basis
and not to return to South Africa’.
It
thus appears from the facts that are common cause that the mother,
without any form of prior notification to the father, removed
the
child from his place of habitual residence and from the jurisdiction
of this court.
Relief
claimed
The
father thereupon launched the present application, claiming the
following relief:
5
‘
2.
That this Court –
(i)
having itself acquired rights of custody by virtue of its
jurisdiction having been invoked in the main action under case number
6304/06 wherein it is called upon by the parties to determine inter
alia custody rights within the meaning of the Hague Convention
on the
Civil Aspects of International Child Abduction (‘the Hague
Convention’); and/or
(ii)
acting in its capacity as Upper Guardian of M. by virtue of pending
proceedings instituted under this case number in the main
action;
and/or
(iii)
carrying out its constitutional duty to act in the best interests of
M.;
Hereby
declares:
2.1
that for the purposes of (i) to (iii) above, this Court shall be
deemed to be “an institution or any other body”
to which
rights of custody can be attributed within the meaning of Article
3(a) of the Hague Convention;
2.2
alternatively
, that for purposes of (i) above, this Court
confirms that it is currently seized with an action under case number
6304/06 which
has not been determined to finality in which, inter
alia, this Court is called upon to decide the issue of M.’
place of residence
and in respect of which action no decision
regarding rights of custody or guardianship in terms of South African
law has yet been
made;
2.3
that Applicant is recognised in South Africa as having an equal
parental right to that of the Respondent to determine M.’
country of residence at the date of his removal from South Africa,
which right is recognised as a right of custody in terms of
Article
5(a) of the Hague Convention.’
In
addition, orders are sought that the mother pay the costs of this
application and for ‘further and/or alternative relief’.
As
I have mentioned earlier, the relief claimed is novel and I have not
been referred to any precedent in our law for such relief.
Jurisdiction
of the court
The
provisions of the Convention have been discussed in a number of
recent cases in our courts.
6
It is accordingly not necessary to repeat that exercise for purposes
of this judgment. It is settled law that, for purposes of
an
application in terms of the Convention for the return of a child
wrongfully removed, it is for the court of the
requested
state, not the relevant authority of the
requesting
state,
7
to decide whether the removal was ‘wrongful’ within the
meaning of art 3.
8
However, the question of wrongfulness must be determined with
reference to the statutes and case law of the country in which
the
child was habitually resident.
9
It
is against this background that the mother contended that there is
‘no conceivable legal basis’ for the relief
that the
father seeks and, hence, that this application is ‘fundamentally
flawed’. In essence, according to the mother,
the father seeks
to have his ‘rights’ in terms of the Convention (if any)
predetermined in a South African court
which, in terms of the
Convention, has no jurisdiction to order the return of M.. She
referred in this regard to art 15 of the
Convention, which provides
as follows:
‘
The
judicial or administrative authorities of a Contracting State may,
prior to the making of an order for the return of the child,
request
that the applicant obtain from the authorities of the State of the
habitual residence of the child a decision or other
determination
that the removal or retention was wrongful within the meaning of
Article 3 of the Convention, where such a decision
or determination
may be obtained in that State. The Central Authorities of the
Contracting States shall so far as practicable assist
applicants to
obtain such a decision or determination.’
She
pointed out that the father in the present case cannot rely on art
15 in support of the declarator he seeks, as he has not
yet brought
a Hague application and the authorities and/or court in Switzerland
have not yet requested a determination from this
court in terms of
art 15. In the absence of any request by a relevant Swiss authority,
so it was argued, the application for
declaratory relief was
premature.
According
to the father, on the other hand, the present application is
intended as a ‘precursor’ to a proposed application
in
Switzerland under the Convention. He considers this to be
necessary because, without the declaratory orders sought herein,
he
will not ‘get out of the starting blocks’ in a Swiss
court, as it was put. This is so, because he has not had
his
parental rights pronounced upon by this court prior to the removal
of the child. Moreover, our domestic legislation
prima facie
does not confer such rights upon him without a pronouncement
from this court, or an agreement between the parties. He is
accordingly hampered in proceeding directly with a
Convention application in Switzerland without first obtaining the
declaratory orders presently sought. The father therefore contended
that it would be appropriate for this court to make such
declaratory
orders ahead of any Hague application to be instituted by him in
Switzerland for the return of the child.
I
am satisfied that the mother’s objections to the court’s
jurisdiction are unfounded. In my considered view,
a
prospective applicant in a Hague application where the country of
habitual residence is South Africa does not have to await
a request
in terms of art 15 by the courts or other relevant authority of the
requested state; he or she is at liberty to be
pro-active and to
approach a South African court for a declarator, as the father has
done in this instance. I come to this conclusion,
firstly, by reason
of the provisions of art 8 of the Convention, which set out the
requirements for a return application. After
listing the information
which the application ‘shall contain’ in paras (
a
)
– (
d
), the article provides further that the
application ‘may be accompanied or supplemented by –
‘
(e)
an authenticated copy of any relevant decision or agreement;
(f)
a certificate or an affidavit emanating from a Central Authority, or
other competent authority of the State of the child’s
habitual
residence, or from a qualified person, concerning the relevant
law of that State;
(g)
any other relevant document.’
It
is thus clear that an applicant may include a copy of any ‘relevant
decision’ in his or her application. He or
she may also
include a certificate or affidavit by the Central Authority
10
or any other ‘competent authority’ of the State of the
child’s habitual residence ‘concerning the
relevant
law of that State’. Had the father in this instance approached
the Central Authority for its certificate concerning
the legal
position in South Africa, there could have been no objection. Can it
conceivably make any difference to the position
of the mother that
the father saw fit to approach this court – surely a
‘competent authority’ within the meaning
of art 8(
f
)
– for its view concerning the relevant law of this country,
rather than the Central Authority? I think not. In any event,
the
application may also be accompanied by ‘any other relevant
documents’. Surely a judgment by this court, containing
declaratory relief, must be a relevant document for purposes of art
8(
g
).
To
my mind, the present case, which raises difficult questions upon
which our courts have not yet pronounced, is
par excellence
the type of matter in which it would be appropriate to approach the
court for a declarator regarding the legal position.
I
am fortified in the foregoing conclusion by the attitude adopted by
the English courts in similar matters. Thus, in
Re C (Child
Abduction) (Unmarried Father: Rights of Custody)
,
11
Munby J said the following:
‘
In
the normal case an applicant who succeeds in persuading this court
that a child has been wrongfully removed from this jurisdiction
in
breach of the Hague Convention, and who seeks declaratory relief, as
the father does here, to assist his prospects of obtaining
substantive relief from the courts of the requested State, will as it
seems to me be entitled as of right to such a declaration
and can
normally expect to have the court’s discretion exercised in his
favour.’
12
It
is true that the above dictum was obiter and was, to some extent,
based on the specific legislative provisions in the English
statute
incorporating the Convention.
13
Nonetheless, I respectfully associate myself with the above approach
followed by Munby J which, in my view, is in accordance
with
the spirit of the Convention.
In
the circumstances, I conclude that the court does, in principle,
have the requisite jurisdiction to grant declaratory relief
in
circumstances such as the present.
Rights
of custody – the father
What
is crucial for any application under the Convention is the question
whether or not the removal of the child in question was
‘wrongful’.
In this regard, article 3 provides that the removal 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 subparagraph (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.’
A
clear distinction is drawn between ‘rights of custody’
and ‘rights of access’. For purposes of the Convention,
‘“rights of custody” shall include rights relating
to the care of the person of the child and, in particular,
the right
to determine the child’s place of residence’.
14
The
concept of ‘rights of custody’ in the context of the
Convention is not an easy one. It is, however, fundamental
to the
operation of the Convention itself. What can be said, is that this
concept within the Convention is ‘broader than
an order of the
Court and parents have rights in respect of the children without the
need to have them declared by the Court
or defined by Court Order’.
15
In
this case, the father’s claim rests on a twofold basis. In the
first place, it was contended that, on a proper reading
of our
law, the father did in fact enjoy ‘rights of custody’,
as contemplated by the Convention. Alternatively,
it was
claimed that this court itself enjoyed ‘rights of custody’,
as being ‘an institution or any other body’
for purposes
of art 3(
a
) of the Convention.
With
regard to the father’s claim to rights of custody, he is faced
by the dilemma that, at common law, rights of custody
and
guardianship in respect of an extra-marital child, in the absence of
any court order to the contrary, vest exclusively in
the mother.
16
The
common law position has been ameliorated somewhat by legislation,
especially by the provisions of The Natural Fathers of Children
Born
out of Wedlock Act 86 of 1997 (
the Natural Fathers Act
), in
terms of which a father of an extra-marital child can acquire rights
of guardianship or custody after the court has determined
the
matter, on application by the father, with reference to the factors
set out in the Act. Until such time as the court has
pronounced upon
the matter, however, the father has no rights of custody in relation
to the child.
The
father’s counterclaim in the main action is aimed precisely at
establishing his parental rights in terms of the Natural
Fathers
Act. However, the further dilemma for the father in this case is
that the mother relocated with the child before his
counterclaim
could be adjudicated.
Prima facie
, therefore, the father
had no rights of custody at the date of the removal of the child.
In
an attempt to overcome these obstacles, the father referred to the
provisions of the Children’s Act 38 of 2005 (
the Children’s
Act
), which Act was assented to on 8 June 2006 and will take
effect on a date fixed by the President by proclamation in the
Gazette.
17
Not only is the Act not yet in force; it is still incomplete and
certain provisions will be inserted by a second Bill, the Children’s
Amendment Bill 19 of 2006, which will be dealt with in terms of the
procedure prescribed by s 76 of the Constitution.
18
It
is clear that an unmarried father will occupy a more advantageous
position once the new Act comes into operation. Thus,
s 21 of
the Children’s Act will confer ‘full parental
responsibilities’ on the biological father of an
extra-marital
child in certain circumstances,
inter alia
if at the time of
the child’s birth he is living with the mother in a permanent
life-partnership; or if he consents to
be identified or successfully
applies in terms of section 26 to be identified as the child’s
father ; contributes or has
attempted in good faith to contribute to
the child’s upbringing for a reasonable period; and
contributes or has attempted
in good faith to contribute towards
expenses in connection with the maintenance of the child for a
reasonable period. In the
event of a dispute between the parties
with regard to the fulfilment by the father of the conditions set
out above, ‘the
matter must be referred for mediation to a
family advocate, social worker, social service professional or other
suitably qualified
person’.
19
Any party to the mediation may have the outcome of the mediation
reviewed by a court.
20
Wishing
to avail himself of the more benevolent provisions of the Children’s
Act, the father invited the court to take cognisance
of the
intention of the Legislature as set forth in this Act,
notwithstanding the fact that it is not yet in operation. This
can
be done, according to the father, on the basis of the court’s
power to develop the common law to bring it into line
with the
Constitution.
I
do not agree. First, this was not the case made out by the father in
his founding papers. Secondly, and in any event, it is
not for this
court to ‘develop’ the common law where the Legislature
has already done so – quite elaborately
– nor is it for
this court to ‘implement’ certain provisions of the
new legislation where the Legislature
has decided that it will only
be implemented at some future date and where the legislative scheme
is still under construction.
To do as the father wants the court to
do would be to usurp the powers of the Legislature and to act
contrary to the doctrine
of the separation of powers, on which the
whole constitutional scheme is based.
As
a fall-back position, the father attempted to persuade me that, at
the very least, he enjoyed what can be termed ‘inchoate
rights
of custody’. I was referred in this regard to copious
international authorities where the concept of ‘inchoate
rights’ of custody had been recognised.
21
However,
in the light of my conclusion with regard to the court’s
rights of custody (dealt with immediately below) and in
view of the
need to finalise this judgment as soon as possible, I find it
neither necessary nor feasible to express any firm
views on this
aspect.
Rights
of custody – the court
The
Convention makes it clear that rights of custody are not necessarily
those of a parent. Article 3 refers to rights of custody
attributed
to ‘… a person, an institution or any other body,
either jointly or alone’. These words have
been held to
envisage a wide range of holders of rights of custody. Thus, Lord
Donaldson MR, in
C v C (Abduction: Rights of Custody)
,
22
held:
‘
This
right [ie to determine the child’s place of residence] may be
in the Court, the mother, the father, some caretaking institution,
such as the local authority, or it may, as in this case, be a divided
right ….’
Although
some judges have expressed misgivings about attributing to the
court rights of custody,
23
the principle has become firmly entrenched in Hague Convention
jurisprudence in a number of international jurisdictions,
namely that where a court is seized with custody proceedings,
the pending proceedings could give rise to a right of custody
in the
court itself.
24
The
leading English authority on the question of a court’s rights
of custody arising from pending proceedings is the decision
of the
House of Lords in
Re H (supra).
This case involved the
removal of a child from the Republic of Ireland to England, whilst
her father’s application for his
appointment as her guardian
and for the determination of his access rights was pending before
the Irish Court. Previously the
court had made a custody order, by
agreement, in favour of the mother and the father had been granted
certain defined rights
of access. The matter had been adjourned
before the Irish Court and the father was accordingly only
exercising certain access
rights at the time that the mother,
without the father’s knowledge or consent, left Ireland with
the child. In the absence
of the mother, the Irish Court appointed
the father as guardian of his child and granted him defined access.
The father located
the child in England and instituted proceedings
for her return to the Republic of Ireland under the Convention.
In
the House of Lords, Lord Mackay dealt
inter alia
with the
question whether a court can ever be an ‘institution or other
body’ to which rights of custody may be attributed
within the
meaning of art 3 of the Convention and, if so, in what
circumstances. In considering this question, the learned
judge
pointed out that since the Convention was envisaged to apply under a
variety of systems of law ‘it is right that
it should be given
a purposive construction in order to make as effective as possible
the machinery set up under it’. Applying
that approach, he
concluded that a court may be the holder of rights of custody, as
defined by art 5, especially bearing in mind
that ‘the
phraseology chosen was deliberately wide’. Moreover, the
phrase ‘rights of custody’ includes
the right to
determine a child’s place of residence. In this context, the
above-quoted dictum of Lord Donaldson MR
25
was quoted with approval by Lord Mackay. He also referred to various
foreign jurisdictions where the principle of the court’s
rights of custody were accepted, pointing out the court had not been
referred to any contrary decision. He concluded that, for
the court
to be vested with rights of custody, the application to court must
raise matters of custody within the meaning of the
Convention, which
would require in every case a consideration of the terms of the
application. Thus, where an application raises
rights of access
only, the court will not acquire rights of custody.
I
am persuaded by the weight and cogency of foreign authority that I
should hold that a court in South Africa may be the holder
of rights
of custody for the purposes of the Convention.
As
for the stage when a court will become vested with rights of
custody, there is not yet complete unanimity. While it seems to
be
generally accepted that ‘the mere issue of proceedings …
is not sufficient to invest the court with the rights
in question’
26
(ie rights of custody), there are differing views as to the stage
that the process must have reached after the issue of proceedings.
In
Re W
,
27
Hale J (as she then was) said the following:
‘
I
am greatly attracted to the proposition that, where the court is
actively seized of proceedings to determine rights of custody,
removal of children from the jurisdiction without leave of the court
while those proceedings remain pending is a breach of the
rights of
custody attributable to the court.
…(P)roceedings will
obviously be pending for this purpose if interim orders have been
made and directions given for a final
hearing. In the light of Re B,
however, it is doubtful whether the mere issue of proceedings is
sufficient. They should probably
have been served and it is possible
that some action by the court is necessary to vest it with rights of
custody. This could be
making interim orders or it could be giving
directions for the future conduct of the case.’
In
Re H (supra)
, Lord Mackay held:
‘…
I
consider that generally speaking there is much force in using the
service of the application as the time which the court’s
jurisdiction is first invoked. It is true that interim orders may be
made before service and special cases may arise but generally
speaking I would think it a reasonable rule that at the latest when
the proceedings have been served the jurisdiction has been
invoked
and unless the proceedings are stayed or some equivalent action has
been taken I would treat the court’s jurisdiction
as being
continuously invoked thereafter until the application is disposed
of.’
To
my mind, the test proposed by Lord Mackay is reasonable. It gives
effect to the spirit of the Convention and I respectfully
adopt
these remarks.
Applying
that test to the facts of the instant matter, the mother first
invoked the jurisdiction of this court when she launched
her action
on 22 June 2006. Her claim, however, was only one to determine the
father’s rights of access and did not raise
questions relating
to custody. That came later, when the father served his counterclaim
on 21 August 2006. It is common cause
that the counterclaim squarely
raises issues of co-guardianship, joint custody as well as an order
prohibiting the removal of
M. from the Republic without the father’s
consent. What is more, the mother filed a plea to the counterclaim
and the pleadings
are now closed; in other words, the stage of
litis
contestatio
has been reached. In these circumstances, it is
clear to my mind that the court is actively seized of the matter and
is vested
with rights of custody. Moreover, those rights would have
been exercised but for the removal of M. during October 2006. In the
circumstances, the father is, in my view, entitled to a declaratory
order to this effect.
Costs
Both
parties claimed an order for costs in their favour. Although the
father is substantially successful in obtaining the relief
which I
intend to grant, he has succeeded on the basis of arguments that
have not previously been accepted by our courts. The
mother’s
opposition to the relief claimed cannot, in the circumstances, be
described as unreasonable. Furthermore,
it cannot be disputed
that the relief initially claimed differed quite substantially from
the relief as eventually articulated
in the notice of motion as
amended. In the process, the father created a considerable amount of
unnecessary work for the mother’s
legal representatives. In
the circumstances, and also because the case involves rights of
custody of a child, this is a matter
where I regard it as fair to
make no order as to costs.
Order
For
the reasons set out above, the following order is issued:
1.
It
is declared –
1.1
that this Court is currently seized with an action under case number
6304/06 which has not been determined to finality in which
, inter
alia
, this Court is called upon to decide the issue of M.’
place of residence and in respect of which action no decision
regarding
rights of custody or guardianship in terms of South African
law has yet been made;
1.2
that this Court is deemed to be ‘an institution or any other
body’ to which rights of custody can be attributed
within the
meaning of Article 3 of the Hague Convention on the Civil Aspects of
International Child Abduction (‘the Hague
Convention’);
1.3
that by virtue of the aforegoing, this court has itself, prior to the
removal of M. to Switzerland, acquired ‘rights of
custody’
within the meaning of art 3, read with art 5(
a
), of the Hague
Convention.
2.
No order is made as to the costs of the application.
B
M Griesel
Judge of the High Court
1
Incorporated
into South African domestic law by the Hague Convention on the Civil
Aspects of International Child Abduction Act
72 of 1996 (
the 1996
Act
), to which the Convention is attached in a schedule.
2
[2003]
1 FLR 839.
3
Under
case number 6304/06.
4
This
qualification is explained if regard is had to prayer B, which
provides: ‘
The aforesaid access provisions shall be
suspended when the plaintiff leaves Cape Town for any reasonable
period of vacation and/or
purposes of attending work-related
conferences and/or meetings.’
5
In
terms of the notice of motion as amended.
6
See
eg
K v K
1999 (4) SA 691
(C) at 700I–702G;
Sonderup
v Tondelli & Another
2001 (1) SA 1171
(CC) paras 10–15;
Smith v Smith
2001 (3) SA 845
(SCA) paras 6–11;
Pennello v Pennello
2004 (3) SA 117
(SCA) paras 25–35;
Senior Family Advocate, Cape Town & Another v Houtman
2004 (6) SA 274
(C) paras 4–17;
B v S
2006 (5) SA 540
(SCA) paras 16 & 17. See also 2(2) Lawsa (2ed 2003
sv
Children
) paras 142–147.
7
In
Convention parlance, the
requested
State in a case of alleged
wrongful removal is the State to which the child has been removed,
whereas the
requesting
State is the State from which the
child has been removed.
8
B
v S supra
para 20
; In re D (a child)
[2006] ukhl 51 para
7.
9
Andrew
Bainham
Children – The Modern Law
(2 ed 1998, Jordan
Publishing Ltd) at 586.
10
For
South African purposes, the Chief Family Advocate appointed by the
Minister in terms of the Mediation in Certain Divorce Matters
Act 24
of 1987 is designated as the Central Authority in terms of s 3
of the 1996 Act.
11
[2002]
EWHC 2219
(Fam);
[2003] 1 FLR 252.
12
Para
73. See also para 70 of the judgment and other cases referred to
therein.
13
Child
Abduction and Custody Act 1985, s 8.
14
Art
5(
a
).
15
See
Nigel Lowe
et al
International Movement of Children: Law
Practice and Procedure
(Jordan Publishing Limited 2004) at 256.
16
B
v S
1995 (3) SA 571
(A) at 575G–H; Brigitte Clark (ed),
Family Law Service
E24 (Issue 42); B J van Heerden
et
al
Boberg's Law of Persons and the Family
(2ed 1999) at
391–418.
17
Section
315.
18
See
General Explanatory Note
to the Act.
19
Section
21(3)(a).
20
Section
21(3)(b).
21
See
eg
Re B (a Minor) (Abduction)
[1994] 2 FLR 249
(CA);
Re O
(Child Abduction: Custody Rights)
[1997] 2 FLR 702
;
Re J (a
Minor) (Abduction: Custody Rights)
[1990] 2 AC 562
sub nom C
v S (a Minor) (Abduction)
[1990] 2 FLR 442
; Re W: Re B
(Minors) (Abduction: Father’s Rights)
[1999] Fam 1
at 11
sub nom Re W; Re B (Child Abduction: Unmarried Fathers)
[1998] 2 FLR 146
at 155. Also see
Re G (Abduction: Rights of
Custody)
[2002] 2 FLR 702
;
Re C (Child Abduction) (Unmarried
Father: Rights of Custody)
[2003] 1 FLR 252
;
Re F (Abduction:
Unmarried Father: Sole Carer)
[2003] 1 FLR 839
; Lowe
op cit
at 265–272. See also Van Heerden
et al op cit
at
579 n 263.
22
[1989]
1 FLR 403
at 413.
23
See
eg Lord Prosser in
Seroka v Bellah
1995 SLT 204
at 210 and
Chadwick and Morritt LJJ in
Re H (Abduction: Rights of Custody)
[2000] 1 FLR 201
(CA) at 219 and 222. See also the remarks of Lord
Mackay in the last-mentioned case, on appeal to the House of Lords,
reported
as
Re H (a Minor) (Abduction: Rights of Custody)
[2000] UKHL 6
;
[2000] 2 AC 291
,
[2000] 1 FLR 374
(HL).
24
In
England:
Re H (a Minor) (Abduction: Rights of Custody), supra
;
In Ireland:
HI v MG (Child Abduction: Wrongful Removal)
[2000] IR 110
; In Scotland:
Seroka v Bellah
1995 SLT 204
; In
Australia:
Secretary, A-G Department v T S
[2000] FAM CA 1692
at para 54
et seq
;
Brooke and Director-General, Community
Services
[2002] FAM CA 258
; In New Zealand:
Re Olson v Olson
Family Court of New Zealand 1994 FP 37/94; In Canada see:
Thomson
v Thomson
[1994] 3 SCR 551
(1995) 119 DLR (4th) 253.
25
Para
The Convention makes it clear that rights of custody are not
necessarily those of a parent. Article 3 refers to rights of
custody
attributed to ‘… a person, an institution or any other
body, either jointly or alone’. These words
have been held to
envisage a wide range of holders of rights of custody. Thus, Lord
Donaldson MR, in C v C (Abduction: Rights
of Custody),22 held:
above.
26
Re
J (Abduction: Declaration of Wrongful Removal)
[1999] 2 FLR 653.
27
Re
W; Re B (Child Abduction: Unmarried Fathers)
[1998] 2 FLR 146
at
160D.