THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1078/2024

In the matter between:
N M APPELLANT
and
THE CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH AFRICA FIRST RESPONDENT
M B M SECOND RESPONDENT

Neutral Citation: N M v The Central Authority for the Republic of South Africa and
Another (1078/2024) [2024] ZASCA 178 (19 December 2024)
Coram: MOCUMIE, MEYER , KEIGHTLEY AND COPPIN JJA and MODIBA
AJA
Heard: 2 December 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal website,
and released to SAFLII. The date and time for hand -down is deemed to be 11h00 on
19 December 2024.
Summary: Hague Convention on the Civil Aspects of International Child Abduction
(the Hague Convention) – whether a defence to the application for the return of the
child to Australia was established as envisaged in Article 12 and Article 13(b) – Article
12 jurisdictional requirements established by the left -behind parent – court has no
option but to return the abducted child – Article 13(b) defence not established by the
abducting parent – whether the high court erred in separating the constitutional
challenge of s 275 of the Children’s Act 38 of 2005 raised in the counterapplication
from the main application – high court exercising inherent power in terms of s 173 of

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the Constitution in separating the issues in the interest of justice, the best interest of
the child and purpose of the Hague Convention.

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ORDER
On appeal from : Gauteng Division of the High Court, Johannesburg (Crutchfield J,
sitting as a court of first instance):
(a) The appeal is upheld in part.
(b) Save for paragraphs 1, 2 and 3 of the order of the high court, which remain
unaffected by this appeal, the order of the high court is amended to read as follows:

‘4 In the event of the respondent (NM) notifying the Office of the Central Authority,
Pretoria forthwith/upon the date of the issue of this order that she intends to
accompany the minor child (NEM) to Australia, the provisions of paragraph 5 shall
apply.
5 Pending and/or upon the return of NM and NEM to Australia:
5.1 The second applicant (MBM) shall pay all fees associated with NEM’s attendance
at day-care or kindergarten in Brisbane, Australia, including the cost of any excursions,
extra-curricular activities and educational materials.
5.2 For up to six months or until the finalisation of the custody proceedings, MBM will
pay NM monthly instalments, of $1550 AUD per month, to contribute to the cost of
accommodation of her choosing in Brisbane, Australia, utility bills and other
maintenance costs for NEM. MBM shall provide proof, to the satisfaction of the Central
Authority of South Africa, prior to the departure of NM and NEM from South Africa, of
the nature and location of such accommodation and that such accommodation is
available for N M and NEM immediately upon their arrival in Australia. The Central
Authority for Australia shall decide whether the accommodation thus arranged by MBM
is suitable for the needs of NM and NEM, should there be any dispute between the
parties in this regard, and the decision of the Central Authority for Australia shall be
final and binding on the parties.
5.3 MBM will purchase and deliver to NM in Australia, or any other person nominated
in writing by NM, a roadworthy motor vehicle, to be registered in NM’s name and for
her sole use.

her sole use.
5.4 For up to six months and or until the finalisation of the custody proceedings, MBM
will pay NM $200 AUD per month for her use in maintaining the motor vehicle.

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5.5 MBM will facilitate that NEM’s medical expenses will be covered by Medicare and
the Australian Defence Force Family Health Program, in which he is enrolled. Should
additional reasonable medical costs be incurred for NEM in Australia, MBM will cover
the cost gap.
5.6 MBM will facilitate that both NM and NEM are eligible for Medicare entitlements,
such as free public hospital treatment, free or subsidised treatment from general
practitioners and specialists, including mental health specialists and subsidised
pharmaceuticals.
5.7 MBM will ensure that NM has access to a range of financial and other support
services available to her in Australia in line with the information sheet procedure
produced by the Australian Central Authority relating to services and resources
available to returning parents.
5. 8 It is recorded that to the best of MBM’s knowledge, no relevant criminal charges
are pending in Australia for which NM could be prosecuted in relation to her conduct
in retaining NEM in South Africa. MBM undertakes not to pursue any criminal
proceedings or assist in procuring the prosecution proceedings against NM in relation
to her conduct in retaining NEM in South Africa.
5.9 MBM confirms that NEM will initially live with NM upon their return to Australia and
that MBM will spend reasonable time with him to rebuild their relationship until
parenting orders have been made by the Federal Court and Family Court of Australia
(FCFCOA) in relation to care arrangements for NEM.
5.10 MBM shall commence proceedings, within 20 (twenty) days of this order, in the
FCFCOA to seek parenting orders regarding NEM following his return to Australia. It
is recorded that MBM understands that the FCFCOA is obligated to make parenting
orders in NEM’s best interests.
5.11 MBM is directed to purchase and pay for economy class air tickets, and if
necessary, to pay the costs of additional necessary domestic travel to enable NM and

necessary, to pay the costs of additional necessary domestic travel to enable NM and
NEM to travel by the shortest direct route from Johannesburg, South Africa, to
Australia.
5.12 Pending the return of NM and NEM to Australia, MBM is to have reasonable
telephone contact with NEM, including Skype and or video calls.
5.13 Pending the return of NEM to Australia as provided for in this order, NM shall not
remove him on a permanent basis from the province of Gauteng and, until then, she

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will keep the RSA Central Authority informed of her physical address and contact
telephone numbers.
5.14 In the event of NM notifying the Office of the Central Authority, Republic of South
Africa forthwith/upon the date of the issue of this order that she intends to accompany,
NEM to Australia, the R epublic of South Africa Central Authority shall forthwith give
notice thereof to the Registrar of the Gauteng Division of the High court,
Johannesburg, the Central Authority for Australia, and MBM.
6 In the event of NM failing to notify the R epublic of South Africa Central Authority in
terms of paragraph 4 above of her willingness to accompany NEM on his return to
Australia, or electing not to return to Australia with NEM, the Republic of South Africa
Central Authority is authorised to make such arrangements as may be necessary to
ensure that NEM is safely returned to the custody of the Central Authority for Australia
and to take such reasonable steps as are necessary to ensure that such arrangements
are complied with, and in such event, NEM is returned to Australia in the care of MBM,
assisted by the Republic of South Africa Central Authority and the South African Police
Services and /or Department of International Relations (DIRCO), R epublic of South
Africa to the extent necessary to avoid any friction and endangerment to him upon
removing NM.
7 Either party may approach the family courts in Brisbane, Queensland, Australia,
inter alia:
7.1 To vary the terms of this order, and/or
7.2 Making this order a mirror order of court in Brisbane, Queensland, Australia.
8 In the event of the appropriate court in Australia failing or refusing to make the
order as set out in this order, the R epublic of South Africa Central Authority and/or
MBM is granted leave to approach this Court for a variation of this order.
9 A copy of this order shall forthwith be transmitted by the R epublic of South Africa
Central Authority to the Central Authority for Australia.

Central Authority to the Central Authority for Australia.
10 Each party is to pay their own costs.’
(c) Save for the aforementioned, the appeal is dismissed with each party to pay their
own costs.

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JUDGMENT
Mocumie and Kei ghtley J JA ( Meyer and Coppin JJA and Modiba AJA
concurring)
Introduction
[1] This is an appeal from the Gauteng Division of the High Court, Johannesburg,
per Crutchfield J (the high court) . The high court granted an order returning a two-
year-eight-month-old baby, N EM, to his country of habitual residence in Brisbane,
Australia from where he was removed to South Africa and wrongfully retained by his
mother, NM, a South African citizen. NM unsuccessfully sought leave to appeal from
the high court. The appeal is with leave of this Court.

[2] The second respondent, MBM, is NEM’s father. With the assistance of the first
respondent, the Central Authority of the Republic of South Africa (the Central
Authority), he instituted proceedings in the high court in terms of the Hague
Convention on the Civil Aspects of International Child Abduction (the Hague
Convention),1 for an order directing the appellant, NM, to return NEM to Australia. The
high court ordered the return of NEM to Australia, subject to various conditions.2 The
Central Authority is the first appellant.

1 The Convention was adopted at the 17 th session of the Hague Convention on Private International
Law on 24 October 1980. It entered into force between the signatories on 1 December 1983. It was
drafted to ensure the prompt return of children who have been wrongfully removed from their country
of habitual residence, or wrongfully retained in a country that is not their country of habitual residence.
South Africa acceded to the Convention with the promulgation of the Hague Convention on the Civil
Aspects of International Child Abduction Act 72 of 1996, to which South Africa became a signatory on
1 October 1997.
2 The order reads:
‘1. The respondent’s counter application is separated from the first and second applicant’s application
and postponed sine die.
2. The respondent is granted leave to pursue the counterapplication in terms of Rule 6 of the Uniform
Rules of Court.

Rules of Court.
3. The minor child, N M, is to be returned forthwith to the jurisdiction of Australia in accordance with the
provisions of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction.
4. The respondent is to surrender forthwith the passport of the minor child to the first applicant pending
the outcome of the proceedings, or until otherwise directed by this Court.
5. The Sheriff of this Court or his /her deputy is authorised to seize the passport of the minor child
wherever it is found and hand the passport over to the first applicant, in the event that the respondent
fails to comply with prayer 4 above.
6. The respondent is to indicate to the applicants within seven (7) days of this order whether she intends
to travel with the minor child to Australia.

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Factual background
[3] The material facts in this appeal are common cause and are briefly as follows.
At the end of 2019 NM, and MBM, met on holiday in Mauritius. MBM was and remains
a citizen and resident of Australia and NM was a citizen and resident of South Africa.
The two started a long -distance relationship. During their relationship, MBM visited
NM several times in South Africa. The couple subsequently married in South Africa on
1 December 2020. After NM fell pregnant, NM and MBM agreed that their child should
be born in Austrailia and should have Australian citizenship. Consequently, NM joined
MBM in Australia and gave birth there. The three stayed together as a family in a
modest family home. After NEM’s birth, they visited South Africa on holiday as a family
and returned to Australia. MBM works for the Australian Defence Force.

[4] When NEM was 13 months old, NM requested to visit her parents in South
Africa with NEM. MBM agreed and bought return tickets for both. The two departed
from Australia on 27 September 2022 to return on 29 October 2022. On 18 October
2022, approximately t wo weeks before their return, NM sent MBM a WhatsApp
message to inform him that she did not intend to return to Australia as, apparently, she
was unhappy in their marriage . On 22 October 2022 , she sent another WhatsApp
message telling him that she was no longer returning to Australia permanently. On the
return date of 29 October 2022, NM and NEM did not arrive back in Australia. MBM
instituted an application for the return of N EM in terms of the Hague Convention
through the Central Authority of Australia in December 2022 . The Central Authority
duly instituted proceedings in the high court for NEM’s return, with MBM as the second
applicant. NM opposed the application and raised a defence under Article 13(b) of the
Hague Convention, namely that there was a grave risk that NEM’s return to Australia
would expose him to physical or psychological harm or otherwise place him in an

would expose him to physical or psychological harm or otherwise place him in an
intolerable situation. The matter was set down for hearing on 27 November 2023.


7. In the event that the respondent elects not to return to Australia with the minor child, the second
applicant or a representative of the Australian Central Authority, being a registered social worker, or an
advocate of the High Court, duly appointed by the Family Advocate, shall be entitled to remove the
minor child from the borders of South Africa and travel with him to Australia.
8. Either party may approach the family courts in Brisbane, Queensland, Australia, inter alia:
8.1 To vary the terms of this order, and/or
8.2 Making the order a mirror order of court in Brisbane, Queensland, Australia.’

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[5] At the eleventh hour, on 14 November 2023, NM filed a counterapplication
(which we conveniently refer to as NM’s constitutional challenge) in which she sought
to have s 275 of the Children’s Act 38 of 2005 (the Children’s Act) 3 declared
inconsistent with the Constitution and ‘thus unconstitutional , to the extent that it
incorporates Articles 12 and 13 of the Hague Convention . . .’ into the Children’s Act.
She sought to file a supplementary affidavit to join the Minister of Justice and
Constitutional Development in the application in support of the constitutional
challenge. She alleged that the return of NEM does not prioritise his ‘best interests’ as
envisaged in s 28(2) of the Constitution of South Africa,1996 (the Constitution).

[6] At the hearing, MBM and the Central Authority successfully applied from the
bar for an order in terms of which NM’s constitutional challenge was separated from
the rest of the issues in the application in terms of uniform rule 33(4). That order (the
separation order) was granted, and the high court proceeded to consider the main
application, namely whether an order under Article 12 should be made. This
necessarily involved a determination of whether NM had established the requirements
for a defence under Article 13(b).

[7] The high court relied on Ad Hoc Central Authority for the Republic of South
Authority for the Republic of South Africa v Koch N.O and Another (Koch),4 which had
recently been delivered by the Constitutional Court. On the merits of the main
application, the high court found that ‘[a]ll of the jurisdictional facts required in order to
invoke the obligatory provisions of Article 12 are present in this matter. . . less than a
year passed since the date of [NEM’s] unlawful retention in South Africa and the date
that the [Central Authority] commenced the return application proceedings under the
Convention in the High Court’. It also found that the appellant had failed to discharge

Convention in the High Court’. It also found that the appellant had failed to discharge
the onus that rested upon her in terms of Article 13(b), in that she failed to prove that
NEM would be exposed to a grave risk or be placed in an intolerable situation if the

3 Section 275 of the Children’s Act 38 of 2005 provides as follows:
‘Hague Convention on International Child Abduction to have force of law.—The Hague Convention on
International Child Abduction is in force in the Republic and its provisions are law in the Republic,
subject to the provisions of this Act.’
4 The high court cites the judgment as it was originally cited: Ad Hoc Central Authority for the Republic
of South Africa and PB v HK N.O and H.K [2023] ZACC 37, however, the matter is currently cited as
Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another [2023] ZACC
37; 2024 (2) BCLR 147 (CC); 2024 (3) SA 249 (CC) (Koch).

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court ordered his return to Australia. It held that a report by a social worker, Ms Keeve,
should be accorded limited weight as Ms Keeve had conducted no interviews with
MBM, nor had she sought to obtain his views or any contributions from him in compiling
her report. Neither did she note and take into account that the existence of support
services available in Australia, that could mitigate the disruption to NEM on his return
to Australia, is an important factor in an Article 13( b) determination. The high court
was of the opinion that the facts and evidence before it ‘ [did] not meet the threshold
[contemplated] in Article 13(b)’.

[8] On the issue of s 275 of the Children’s Act being declared unconstitutional, it
found as follows:
‘The counterapplication require s the joinder of various government department s to the
proceedings. All of the parties must be given an opportunity to answer once the respondent
has filed her supporting affidavits. . . There is little if any prospects that the counter application
can be made “court ready” within an expeditious period of time as required by the proceedings
under the Convention.
. . .
The decision of the court seized with the counterapplication will likely be taken on appeal
through the hierarchy of our courts and take a correspondingly le ngthy period of time to
resolve.
. . .
The duration necessary to determine the counterapplication finally will violate the essential
premise of the Convention, being the determination of the return application as expeditiously
as possible.’

[9] Consequently, the high court ordered the separation of the counterapplication
and directed that it be postponed for subsequent determination in terms of rule 6 of
the uniform rules of court.

Before this Court
[10] NM raises several grounds of appeal. In her submission s, counsel for NM,
correctly, distilled these grounds into four and, finally, whittled them down to the most

correctly, distilled these grounds into four and, finally, whittled them down to the most
critical two. First, the high court erred by separating the counterapplication from the
main application on the merits. And second, the high court erred in holding that the
appellant did not discharge the onus upon her in terms of Article 13(b).

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Submissions by both counsel
[11] The submissions on behalf of NM were essentially that:
(a) MBM physically abused her on one occasion when they were on holiday;
(b) he did not help her with NEM after his birth when she struggled with postpartum
depression;
(c) MBM could not care for NEM during the 13 months they stayed together as he was
sometimes away on duty for five to six weeks at a time, leaving her alone for the better
part of that time;
(d) MBM’s family lived far away from them and did not provide support as they were
not a close-knit family, they had a history of drug use, and they could not assist MBM
in taking care of NEM if he was returned without her to Australia; and
(e) she did not intend to return to Australia at all and had instituted divorce proceedings
against MBM.
All these factors, counsel submitted, would create an intolerable situation and cause
grave harm to NEM as contemplated in Article 13(b) as Ms Keeve, the social worker,
who is an expert, confirmed. Counsel submitted that Ms Keeve’s evidence was not
rebutted, nor was it rejected by the high court.

[12] Counsel for MBM and the Central Authority submitted that the Constitutional
Court in Koch has reaffirmed the law on what ‘grave harm’ to a child entails and what
the party who raises a defence in terms of Article 13(b) has to prove. 5 From the
evidence presented, NM failed to discharge the onus on a balance of probabilities. 6
Counsel submitted further that the high court adopted the approach as guided by the
Constitutional Court and that it cannot be faulted.

The Hague Convention
[13] Article 12(1) of the Hague Convention provides that:
‘Where a child has been wrongfully removed or retained in terms of Article 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

5 Op cit fn 5.

5 Op cit fn 5.
6 Penello v Penello and Another [2003] ZASCA 147; [2004] 1 All SA 32 (SCA); 2004 (3) BCLR 243
(SCA); 2004 (3) SA 117 (SCA) para 36-38 and 41, citing Smith v Smith [2001] ZASCA 19; [2001] 3 All
SA 146 (A); 2001 (3) SA 845 (SCA) states that the onus is one of civil ie on a balance of probabilities.

11

of the wrongful removal or retention, the authority concerned shall order the return of the child
forthwith.’

[14] Article 13 provides an exception to the obligation of the court to order the child’s
return. It states, in the relevant part:
‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority
of the requested State is not bound to order the return of the child if the person, institution or
other body which opposes its return establishes that-
(a) . . .; or
(b) There is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.’

[15] Most recently, t he Constitutional Court , in Koch,7 reaffirmed the well-
established law in applications under the Hague Convention as stated some two
decades ago in Sonderup v Tondelli (Sonderup)8. In the latter judgment the
Constitutional Court held as follows:
‘A South African court seized with an application under the Convention is obliged to place in
the balance the desirability, in the interests of the child, of the appropriate court retaining its
jurisdiction, on the one hand, and the likelihood of undermining the best interests of the child
by ordering her or his return to the jurisdiction of that court. As appears below, the court
ordering the return of a child under the Convention would be able to impose substantial
conditions designed to mitigate the interim prejudice to such child caused by a court-ordered
return. The ameliorative effect of Article 13, an appropriate application of the Convention by
the court, and the ability to shape a protective order, ensure a limitation that is narrowly tailored
to achieve the important purposes of the Convention . It goes no further than is necessary to
achieve this objective, and the means employed by the Convention are proportional to the
ends it seeks to attain.” ’ (Emphasis added and footnotes omitted.)

ends it seeks to attain.” ’ (Emphasis added and footnotes omitted.)

[16] The above quotation has permeated the South African jurisprudence on Hague
Convention matters since Sonderup and has been cited with approval by courts
outside the borders of South Africa, including courts in the United Kingdom.9 Nothing
as clear as this needs to be stated or restated. This Court, in its most recent judgment,

7 Koch para 214.
8 Sonderup v Tondelli [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC) para 35.
9 G v D (Article 13b: Absence of Protective Measures) [2020] EWHC 1476 (Fam) para 35.

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C A R v Central Authority of the Republic of South Africa and Another (C A R ),10
followed Koch and the precedents cited therein. It confirmed the use of the ‘Guide to
Good Practice under the Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction on Article 13(b)’, which was developed by the Hague
Conference on Private International Law (HCCH) in 2020 (Guide to Good Practice) as
a step -by-step tool to guide courts o n the practical application of the Hague
Convention.

[17] In Koch, the Constitutional Court reflected once more on ‘the best interests of
the child’, Article 13(b), and the interplay between the two. The following key aspects,
relevant to the present appeal, may be extracted from the Constitutional Court’s
interpretation of Article 13(b):
(a) The prompt return of the child: The judgment confirms that the Convention
proceeds on the basis that the best interests of a child who has been unlawfully
abducted from one jurisdiction are ordinarily served by requiring the return of the child
to that jurisdiction so that the law can take its course.11 As the Constitutional Court put
it: ‘The prompt return of the child lies at the heart of the Convention’s entire scheme.’12
(b) Grave risk threshold: The Court emphasised that the threshold for invoking Article
13(b) is high.13 It is not sufficient to demonstrate that the child would face some level
of harm or discomfort upon return; rather, the risk must be ‘grave,’ meaning serious or
severe.14
(c) Nature of harm: The Court considered the nature of the harm that the child might
face if returned to their country of habitual residence. This included an assessment of
the psychological impact on the child of being separated from her primary attachment
figure and the environment in which she had become settled in South Africa. 15 In
making reference to Sonderup, the Court reiterated that ‘[t]he harm must be grave’.16

making reference to Sonderup, the Court reiterated that ‘[t]he harm must be grave’.16

10 C A R v The Central Authority of the Republic of South Africa and Another [2024] ZASCA 103; [2024]
3 All SA 653 (SCA); 2024 (6) SA 351 (SCA).
11 Koch para 159, which made use of a direct quote from Sonderup para 43.
12 Ibid para 215.
13 Ibid para 161.
14 Ibid para 158, with reference to Re E (Children) (Wrongful Removal: Exceptions to Return) [2011]
UKSC 27.
15 Ibid para 164 with reference to Re C (A minor)Abduction [1989] 1FLR 403,CA.
16 Ibid para 162.

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(d) In considering an Article 13(b) defence, evidence of the child’s attachment to one
parent should not be overemphasised. To do so misapplies the test in Hague
Convention proceedings. The attachment factor does not belong in the Article 13 (b)
inquiry, it is a test utilised for custody and care proceedings.17
(e) There must be clear and compelling evidence of the grave risk of harm or other
intolerability which should be measured as substantial.18
(f) Source of harm: The Court noted that, under Article 13(b), the source of the risk of
harm is irrelevant. What matters is the existence of a grave risk to the child, regardless
of whether this risk arises from the circumstances in the country to which the child is
to be returned or from the process of removal itself.19
(g) Balancing act: The Court balanced the grave risk of harm against the objectives of
the Hague Convention. It recognised that while protecting children from harm is
paramount, this must be balanced against the Convention’s goals of deterring child
abduction and ensuring t he prompt return of abducted children to their habitual
residence for custody disputes to be resolved.20
(h) Context -specific analysis: The Court’s interpretation underscored that the
application of Article 13(b) must be tailored to the specific circumstances of each case.
It involves a careful, fact -specific inquiry into the potential harm to the child in the
context of the particular case.21
(i) Determination of factual disputes and the analysis of evidence: The application of
the Plascon-Evans rule is not conducive to a determination of factual disputes in
Convention proceedings for several reasons. Since, it is not open to an applicant in
Convention proceedings to choose the procedural form of the proceedings, he or she
will be imperilled by factual d isputes irresolvable on the papers. Convention
proceedings are summary in nature. The body of evidence placed before the court in

proceedings are summary in nature. The body of evidence placed before the court in
proceedings under the Convention may consist of a hotchpotch of different types of

17 Ibid para 214.
18 Ibid para 161 with reference to G v G [2020] EWCA Civ 1185 para 61.
19 Ibid para 119.
20 Ibid para 182,209 and 214.
21 Ibid para 165.

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material. A determination made in terms thereof must be based on an overall
assessment of all the evidential material placed before the court.22
(j) Expert evidence, even if uncontradicted, remains an opinion that must be
scrutinised by a court to determine its value.23
(k) Nature of the inquiry: A Hague Convention inquiry involves a two-stage process in
which the long - and short -term interests of the child must be balanced. The latter
interests, with which the inquiry is primarily concerned, centre around jurisdictional
issues. The long -term interests involve custody and care issues. These are best
determined by the court having jurisdiction over the child. The aim of the Convention
is to facilitate the child’s prompt return to that jurisdiction to enable it to make the
necessary determination regarding long -term custody and care. The two inquiries
should not be conflated.24
(l) Caution should be exercised when the abducting parent relies on the time that has
elapsed since the child has been in South Africa as a factor in establishing an
Article 13(b) defence. It may undermine the primary objective of the Convention and
could become a strategic tool to evade its objectives.25

[18] In conclusion, the Constitutional Court’s interpretation of Article 13(b) involved
a nuanced analysis of the grave risk threshold, the nature of the potential harm to the
child, and the balancing of these factors against the broader objectives of the Hague
Convention.

[19] In C A R, this Court cautioned as follows:26
‘In a trilogy of cases ( Sonderup v Tondelli and Another (Sonderup), Pennello v Pennello and
Another (Pennello) and Koch), the Constitutional Court laid to rest any uncertainty that may
have previously prevailed, but the interpretation of this section sometimes seems to elude the
lower courts.’
This, then, is the law as it prevails.


22 Ibid para 217.
23 Ibid para 194.
24 Ibid para 165 and 218.
25 Ibid paras 215 and 216.
26 Ibid para 17.

15

[20] It is common cause that the proceedings in this matter were commenced within
12 months of NEM’s unlawful retention by NM in South Africa. The refore, the sole
question for consideration on the merits is whether the high court was correct in
concluding that NM had failed to establish a defence under Article 13(b).

[21] NM relied on the social worker, Ms Keeve ’s report and recommendations for
her Article 13(b) defence. Ms Keeve did not consult with MBM, relying on information
provided by NM, and her observations at a home visit and in an interactional analysis
session in her play therapy room. Ms Keeve made several recommendations,
including the recommendation that, given the very strong and meaningful bond
between [NM] and [NEM], ‘ separation from his biological mother as his primary
caregiver and from his extended fa mily would expose NEM to psychological harm ’.
(Emphasis added.) In addition, she expressed the opinion that ‘it would cause extreme
trauma if [NEM] was returned to Brisbane Australia without his mother’. (Emphasis
added.) The report lacked the important characteristic of providing a balanced
assessment of MBM’s position, as highlighted in Koch. Consequently, the report took
no account of the extensive support services available to NEM in Australia through
MBM’s employment. The existence of support services to mitigate the disruption to a
child on her or his return to the requesting State are an important factor in an Article
13(b) determination.

[22] A fundamental flaw in the report and recommendations is that Ms Keeve’s
opinion that NEM’s return to Australia would cause him ‘extreme trauma’ is premised
on the assumption that his return would necessarily involve a separation from NM.
This is plainly ap parent from the emphasised portions of the extract from the report
cited above. The report does not consider at all the effects on NEM of a return with
NM. This may well be because NM stated in her founding affidavit that she never

NM. This may well be because NM stated in her founding affidavit that she never
intended to return to Australia. Her uncompromising and unexplained recalcitrance
can never constitute a justifiable basis for establishing an Article 13(b) defence. As the
Constitutional Court noted in Koch,27 in such situations, the refusal of a parent to
accompany the child is what gives rise to the risk, not the return itself. As the parent

27 Koch para 164, citing Re C (A Minor) Abduction [1989] 1 FLR 403 at 410.

16

who unlawfully retained NEM, NM should not be permitted to rely on the
consequences of that removal to create a risk of harm on NEM’s return.

[23] A final notable aspect of the report is that it relies on the strong attachment
between NEM and NM in support of the conclusion that returning NEM to Australia
would be severely traumatic for him. It is obvious that a causal factor in this attachment
is the almost two years that had elapsed between the time that NM unlawfully retained
NEM and the date of the report. During that period, because of NM’s unlawful conduct,
NEM was denied the opportunity to form any proper attachment to MBM, who
remained in Australia. To place weight on th e strong attachment between NM and
NEM in these circumstances would be to permit NM to gain an advantage from her
unlawful conduct, and would undermine the purposes of the Hague Convention. In any
event, as noted in Koch, attachment issues are primarily re levant at any subsequent
care and custody inquiry, and not at the Article 13(b) inquiry stage.

[24] There is nothing in the report of Ms Keeve that is persuasive and indicates that
NEM will be subjected to psychological harm or otherwise placed in an intolerable
situation. Her report and her recommendations do not constitute clear and compelling
evidence to establish that NEM’s return would place him at grave risk of exposure to
physical or psychological harm or otherwise place the child in an intolerable situation.
The fact that the high court did not reject the report , or that MBM did not lead
contradictory expert evidence , does not strengthen NM’s case at all. What NM
presented was not ‘harm which extends beyond the harm that flows naturally from a
court-ordered return’. Article 13( b) sets a high threshold. In this respect, the
Constitutional Court affirmed the judgment of this Court in LD v Central Authority RSA
and Another,28 where this Court held:

and Another,28 where this Court held:
‘[A] certain degree of harm is inherent in the court-ordered return of a child to their habitual
residence, but that is not the harm or intolerabil ity envisaged by art 13(b); . . . that harm or
intolerability extends beyond the inherent harm referred to above and is required to be both
substantial and severe’.


28 LD v Central Authority [2022] ZASCA 6; [2022] 1 All SA 658 (SCA); 2022 (3) SA 96 (SCA) para 29.

17

[25] With the above in mind, it is clear that t he approach adopted by the high court
on the applicability of Article 13( b) is beyond reproach. On the evidence presented,
NM comes nowhere close to meeting the very high threshold of Article 13(b). On this
basis alone, the appeal ought to be dismissed. What remains are the allegations of
domestic violence which the appellant raised , albeit in somewhat veiled fashion, as
part of her Article 13(b) defence.

[26] Across the world, domestic violence is recognised as an invidious epidemic that
eats at the moral fibre of every society with a devastating impact on those abused and
the children who grow up in that environment. It should not be allowed to fester in any
home where allegations are made by one party. It is therefore important to
acknowledge that , although the prime focus of proceedings under the Hague
Convention is the child, it is relevant to consider the effects of expos ure to domestic
violence which may place a child at grave risk of harm in applications under the Hague
Convention.

[27] When considering a return/retention order, it is important to consider the
situation of the accompanying parent and to take the necessary measures to protect
them.29 While this Court is minded that domestic violence, in general, has a harmful
impact on children, NM’s allegations do not come close to asserting that if returned,
NEM would be exposed to domestic violence between his parents and that the
exposure would affect him to such an extent that there is a grave risk that his return
would expose him to physical or psychological harm or otherwise place him in an
intolerable situation.30

[28] Without saying so expressly, the high court, acknowledged that the merits of
NM’s allegations were not determinative of the issues before it. The high court cannot
be faulted in this regard. The allegations of controlling behaviour and related conduct

be faulted in this regard. The allegations of controlling behaviour and related conduct

29 Opening address of the Chief Justice of South Africa , Chief Justice Maya at the inaugural Forum on
Domestic Violence, June 2023, Sandton South Africa reported by the Secretary General of the HCCH
to CGAP January 2024, HCCHC website, updated 2024.
30 Guide to Good Practice at note 272 ii which provides:
‘The court ought to consider the facts and circumstances of each individual case, and may take into
account the following considerations:
. . .
ii Exposure of child to domestic violence between the child’s parents upon return.’

18

made by NM will be for the relevant authorities in Australia to consider when it
determines an appropriate long -term care and custody regime for NEM. These are ,
correctly, factors that in the normal course are not relevant to the Article 13(b) inquiry.
There was nothing extraordinary about NM’s allegations (which MBM denied)
warranting a departure from this principle.

[29] The high court correctly rejected the defence of Article 13(b). However, that is
not the end of the matter. The reality of the situation (which the high court glossed
over) is that the law requires that NEM must be returned to Australia. He has been
raised by one parent ( whether wrongfully or not) since September 2022. He would
certainly need the stability of the parent he is used to seeing every day in the transition
that he w ill go through upon his return to his country of habitual residence. Counsel
for NM advised this Court, from the bar at the hearing of the appeal, that NM had had
a change of heart, and that she was willing to accompany NEM to Australia should her
appeal fail. Further, t hat she has retained her visa which is still valid for travelling
between the two countries and which will permit her to remain in Australia without fear
of transgressing any immigration laws.

[30] This Court was also advised that , at the time of the high court hearing, i n line
with the co -operation between Central Authorities and judicial authorities of
Contracting States under the Hague Convention, MBM and the Central Authorities of
South Africa and Australia, offered a proposed list of undertakings to ameliorate the
perceived harsh consequences of a return order by the high court. They covered both
the situation, in the event of NM refusing, or in her agreeing to return to Australia with
NEM.

[31] Unfortunately, the high court refused to consider th ose negotiated/mediated
undertakings under the wrong impression that it could not get involved in negotiations

undertakings under the wrong impression that it could not get involved in negotiations
between the parties. Yet, such undertakings are pivotal to expedite these proceedings
and to ameliorate any harm that NEM may suffer as a result of the court ordering his
return to his country of habitual residence. The high court did not include the
undertakings by MBM in its final order. For that reason, this Court is bound to consider
the undertakings. Hence, it is minded to amend the order of the high court to the extent
necessary.

19


[32] A court that considers a return/retention order must take into account protective
measures that can ameliorate the perceived harshness of th at order in certain
circumstances, including where there are allegations of domestic violence. Protective
measures to accompany the return order are undertakings which can be understood
as official promises, concessions or agreements given by the left -behind parent
seeking an order for the return of the child.

[33] NM was provided with a list of services available in Australia upon her and
NEM’s return to Australia. These include calling 000 if she is in immediate danger of
domestic violence, as well as the National Sexual Assault and Domestic Violence
Hotline 1800 RESPECT (1800 737 732), which is a 24-hour service. This is apart from
the counselling services which MBM’s employer offers families if they encounter
marital problems. NM turned down this offer when it was made, but it remains open
for her to access.

[34] MBM made several undertakings which the high court ought to have included
as part of its order. In this Court MBM filed a supplementary affidavit confirming that
his undertakings stand. He also attached a document outlining the extensive
resources that the Australian government makes available to a parent returning to
Australia under a court order issued pursuant to a Hague Convention application.
These undertakings, which include the offer of separate accommodation for NM and
the provision of maintenance for her and NEM pending the resolution of custody
matters between the parents, will go a long way to ameliorate any perceived
harshness of the return order. The same may be said of the resources that will be
available to NM and NEM on their return. Accordingly, our Order amends the high
court order by expressly including mitigatory measures based on the undertakings
made by MBM.

Separation of issues: NM’s constitutional challenge

made by MBM.

Separation of issues: NM’s constitutional challenge
[35] What remains is the question of whether the high court erred in separating NM’s
constitutional challenge from the main application . Section 173 of the Constitution
empowers high courts to regulate their own process . This must include the power to
separate issues, when necessary, convenient and in the interest of justice. The high

20

court found that to consider as broad an application as declaring s 275 of the Children’s
Act unconstitutional without any proper basis, and where the relevant Ministers and/or
departments were not cited, would lead to undue delay in the Hague Convention
proceedings. This would undermine what the Convention seeks to achieve, namely,
the expeditious and prompt return of abducted children. We cannot agree more.

[36] As cited above, Article 12 of the Hague Convention uses peremptory language,
as indicated by the use of the injunction ‘shall’, to underline that a court seized with an
application in which an Article 12 challenge is raised , has no option but to return the
abducted or unlawfully retained child. Article 12 is premised on Article 1, which
provides for the prompt return of the child. The high court cannot be faulted for having
adopted this approach. To do otherwise would be to undermine, the essence of the
Hague Convention. Article 16 makes it clearer. It stipulates that a court which is
approached for the return or retention of an abducted child must return the child
forthwith without conducting an enquiry into the merits of the custody of the child.

[37] The high court considered all that was placed before it in the counterapplication
ad, faced with an application as urgent as this, it exercised its inherent power to
separate the issues. Counsel for NM submitted that the constitutional challenge was
inseparable from the merits. She referred this Court to two cases on the
impermissibility of the separation of issues under rule 33(4) in motion proceedings
namely, Braaf v Fedgen Insurance Ltd31 and Ascendis Animal Health (Pty) Ltd v Merck
Sharpe Dohme Corporation and Others.32 These cases do not assist her case in these
circumstances. These are urgent proceedings (under the Hague Convention) with
serious ramifications for the life of a minor child who was wrongfully removed from his
country of habitual residence . In any event, as noted earlier, even in the absence of

country of habitual residence . In any event, as noted earlier, even in the absence of
rule 33(4), the high court retains a constitutional discretion to regulate its own
proceedings. That discretion must cover a situation like the present.

[39] This matter required the high court’s urgent attention. NM counterclaimed at the
eleventh hour before the hearing . It is difficult to escape the inference that this was

31 Braaf v Fedgen Insurance Ltd 1995 (3) 938 (C); [1995] 2 All SA 478 (C).
32 Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019] ZACC 41;
2020 (1) SA 327 (CC); 2020 (1) SA BCLR 1 (CC); 2019 BIP 34 (CC).

21

done in an effort to stymie the proceedings and , ultimately, to further alienate NEM
from MBM, given that her decision at that stage was never to return to Australia. She
did not cite or serve the counterapplication on any of the relevant Ministers. The
required notice in terms of uniform rule 16A(1) was not given, and NM furnished no
substantial and acceptable reason for the non-compliance with this rule. Moreover,
she gave no reason for not filing the counterapplication as prescribed by the practice
rules. On this second leg, as well, the appeal stands to be dismissed.

[40] It would be remiss not to address the issue of the delay in finalising this matter.
MBM applied for the return of N EM on 6 December 2022. The matter reached the
office of the Central Authority of South Africa on 17 March 2023. The Central Authority
instituted the return application later in March 2023. The counterapplication was filed
on 14 November 2023 , eight months later . The high court heard the application in
November 2023 and reserved judgment. However, the judgment and order of the high
court was only handed down on 6 May 202 4, some six months after the application
was heard. There was no reason advanced why it took six months for the high court
to deliver the judgment in a matter as urgent as this.

[41] The Gauteng Division, Johannesburg Practice Directive,33 does not provide a
time frame within which Hague Convention applications must be finalised.34 However,
regulation 23 of the regulations promulgated under the Children’s Act provides that
‘[p]roceedings for the return of a child under the Hague Convention must be completed
within six weeks from the date on which judicial proceedings were instituted in a High
Court, except where exceptional circumstances make this impossible.’ This regulation
is a replication of Article 11 of the Hague Convention.35

33 Paragraph 29.3.14 of the 2024 Consolidated Practice Manual, read with paragraph 10.15 of the
2018 Practice Manual.

2018 Practice Manual.
34 Compare with the Practice Manual for the Gauteng Division, Pretoria for detailed content including
time frames.
35 Article 11 provides:
‘The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings
for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from
the date of commencement of the proceedings, the applicant or the Central Authority of the requested
State, on its own initiative or if asked by the Cent ral Authority of the requesting State, shall have the
right to request a statement of the reasons for the delay.
If a reply is received by the Central Authority of the requested State, that Authority shall transmit the
reply to the Central Authority of the requesting State, or to the applicant, as the case may be.’

22


[42] A period of almost six months elapsed between the hearing before the high
court and the delivery of its judgment. The high court provided no ‘exceptional
circumstances’ for this delay of six months or any other reasons, for that matter. This
is regrettable. Courts should play a more active role in ensuring that they expedite
these applications . This would serve to prevent any of the parties from using the
excuse that the abducted or retained child has already settled in their new
environment, thus permitting the abducting parent potentially to be advantaged by their
unlawful conduct. Most critically, it would serve to avert a situation where the
underlying objectives of the Hague Convention are undermined, in breach of South
Africa’s international obligations. Regulation 24 of the Children’s Act provides courts
with extra resources to enable them to give interim orders, and thus avoid further
delays, which can have a devastating impact on the abducted or retained child.36

[43] One of the features of appeals under the Hague Convention, which is of
concern to this Court , is the non -participation of the Central Authority in the
proceedings before this Court. The same concern was raised in C A R in which this
Court stated:
‘The Central Authority is, in terms of Articles 6 and 7 of the Hague Convention, key to the
initiation of the proceedings under the Hague Convention. It is the centre that holds these
proceedings together. Without the Central Authority as a party before this Court, this Court
was at a loss as to whether the Central Authority of Canada would be willing to enforce, or, at
least, assist CAR to apply for a mirror order complementing the ord er which this Court is
inclined to grant. This attests to the importance of the involvement of the Central Authority until
the exhaustion of the available appeal processes. It is thus important that this judgment and
this Court’s misgivings about the non -participation of the Central Authority in the appeal be

this Court’s misgivings about the non -participation of the Central Authority in the appeal be
brought to its attention. In the event of the designated Central Authority not being able to attend
court, then the Family Advocates in the various divisions of the high court or the State Attorney
could step in. This will also ensure that the matters are finalised expeditiously as envisaged in
article 11 of the Hague Convention.’

36 Regulation 24 provides:
‘Where an application has been made to a High Court by the Central Authority of the Republic under
the Hague Convention, that Court may, at any time before the application is determined, give any interim
direction that it deems fit in order to regulate any aspect of the progress of an application under the
Hague Convention and to ensure the welfare of the child in question and to prevent any changes in the
circumstances relevant to the determination of the application.’

23


[44] The matter was set down on the earliest possible date, during recess, in terms
of the Supreme Court of Appeal Practice Directive of 1/2024, to ensure that there was
no further delay in the determination of this matter. N either the Central Authority nor
the Ad Hoc Central Authority, Johannesburg were in attendance when this Court heard
oral arguments in this appeal. This is against the background that the President of this
Court had constituted a special court sitting in the Labour Court precinct in
Johannesburg, Gauteng Division , to facilitate easy access by all the parties and to
dispose of the appeal within the six weeks provided for under Article 11 of the Hague
Convention and regulation 23 of the Children’s Act.

[45] However, when the appeal was heard, the undertakings provided by MBM via
the Central Authority could not be found, nor could the draft order that was referred to
by both counsel. This had been uploaded onto Caselines for purposes of the high court
proceedings, but was not available to th is Court. Because the Central Authority was
not in attendance, the Court was not privy to the undertakings and the draft order the
parties had proposed. The Court had to request that they be provided by the Friday
before the hearing on Monday. However, as the Central Authority was not in
attendance on the day of the hearing , the Court struggled to obtain clarity on these
missing documents. It is not clear whether this was as a result of a misunderstanding
on the part of the Central Authority about whether she is required to attend court
proceedings in Hague Convention cases, particularly in this Court. It is suggested that
this requires clarification by the relevant authorities, including the Director-General and
Minister of Justice and Constitutional Development.

[47] Finally, we address the issue of costs. The second respondent was assisted by
the Central Authorities of both Australia and South Africa throughout the proceedings

the Central Authorities of both Australia and South Africa throughout the proceedings
and thus did not incur costs out of his own pocket. It is only fair that each party should
pay their own costs.

[48] In the result, the following order issues.
(a) The appeal is upheld in part.
(b) Save for paragraphs 1, 2 and 3 of the order of the high court, which remain
unaffected by this appeal, the order of the high court is amended to read as follows:

24


‘4 In the event of the respondent (NM) notifying the Office of the Central Authority,
Pretoria forthwith/upon the date of the issue of this order that she intends to
accompany the minor child (NEM) to Australia, the provisions of paragraph 5 shall
apply.
5 Pending and/or upon the return of NM and NEM to Australia:
5.1 The second applicant (MBM) shall pay all fees associated with NEM’s attendance
at day-care or kindergarten in Brisbane, Australia, including the cost of any excursions,
extra-curricular activities and educational materials.
5.2 For up to six months or until the finalisation of the custody proceedings, MBM will
pay NM monthly instalments, of $1550 AUD per month, to contribute to the cost of
accommodation of her choosing in Brisbane, Australia, utility bills and other
maintenance costs for NEM. MBM shall provide proof, to the satisfaction of the Central
Authority of South Africa, prior to the departure of NM and NEM from South Africa, of
the nature and location of such accommodation and that such accommodation is
available for N M and NEM immediately upon their arrival in Australia. The Central
Authority for Australia shall decide whether the accommodation thus arranged by MBM
is suitable for the needs of NM and NEM, should there be any dispute between the
parties in this regard, and the decision of the Central Authority for Australia shall be
final and binding on the parties.
5.3 MBM will purchase and deliver to NM in Australia, or any other person nominated
in writing by NM, a roadworthy motor vehicle, to be registered in NM’s name and for
her sole use.
5.4 For up to six months and or until the finalisation of the custody proceedings, MBM
will pay NM $200 AUD per month for her use in maintaining the motor vehicle.
5.5 MBM will facilitate that NEM’s medical expenses will be covered by Medicare and
the Australian Defence Force Family Health Program, in which he is enrolled. Should
additional reasonable medical costs be incurred for NEM in Australia, MBM will cover

additional reasonable medical costs be incurred for NEM in Australia, MBM will cover
the cost gap.
5.6 MBM will facilitate that both NM and NEM are eligible for Medicare entitlements,
such as free public hospital treatment, free or subsidised treatment from general
practitioners and specialists, including mental health specialists and subsidised
pharmaceuticals.

25

5.7 MBM will ensure that NM has access to a range of financial and other support
services available to her in Australia in line with the information sheet procedure
produced by the Australian Central Authority relating to services and resources
available to returning parents.
5. 8 It is recorded that to the best of MBM’s knowledge, no relevant criminal charges
are pending in Australia for which NM could be prosecuted in relation to her conduct
in retaining NEM in South Africa. MBM undertakes not to pursue any criminal
proceedings or assist in procuring the prosecution proceedings against NM in relation
to her conduct in retaining NEM in South Africa.
5.9 MBM confirms that NEM will initially live with NM upon their return to Australia and
that MBM will spend reasonable time with him to rebuild their relationship until
parenting orders have been made by the Federal Court and Family Court of Australia
(FCFCOA) in relation to care arrangements for NEM.
5.10 MBM shall commence proceedings, within 20 (twenty) days of this order, in the
FCFCOA to seek parenting orders regarding NEM following his return to Australia. It
is recorded that MBM understands that the FCFCOA is obligated to make parenting
orders in NEM’s best interests.
5.11 MBM is directed to purchase and pay for economy class air tickets, and if
necessary, to pay the costs of additional necessary domestic travel to enable NM and
NEM to travel by the shortest direct route from Johannesburg, South Africa, to
Australia.
5.12 Pending the return of NM and NEM to Australia, MBM is to have reasonable
telephone contact with NEM, including Skype and or video calls.
5.13 Pending the return of NEM to Australia as provided for in this order, NM shall not
remove him on a permanent basis from the province of Gauteng and, until then, she
will keep the RSA Central Authority informed of her physical address and contact
telephone numbers.
5.14 In the event of NM notifying the Office of the Central Authority, Republic of South

5.14 In the event of NM notifying the Office of the Central Authority, Republic of South
Africa forthwith/upon the date of the issue of this order that she intends to accompany,
NEM to Australia, the R epublic of South Africa Central Authority shall forthwith give
notice thereof to the Registrar of the Gauteng Division of the High court,
Johannesburg, the Central Authority for Australia, and MBM.
6 In the event of NM failing to notify the R epublic of South Africa Central Authority in
terms of paragraph 4 above of her willingness to accompany NEM on his return to

26

Australia, or electing not to return to Australia with NEM, the Republic of South Africa
Central Authority is authorised to make such arrangements as may be necessary to
ensure that NEM is safely returned to the custody of the Central Authority for Australia
and to take such reasonable steps as are necessary to ensure that such arrangements
are complied with, and in such event, NEM is returned to Australia in the care of MBM,
assisted by the Republic of South Africa Central Authority and the South African Police
Services and /or Department of International Relations (DIRCO), R epublic of South
Africa to the extent necessary to avoid any friction and endangerment to him upon
removing NM.
7 Either party may approach the family courts in Brisbane, Queensland, Australia,
inter alia:
7.1 To vary the terms of this order, and/or
7.2 Making this order a mirror order of court in Brisbane, Queensland, Australia.
8 In the event of the appropriate court in Australia failing or refusing to make the
order as set out in this order, the R epublic of South Africa Central Authority and/or
MBM is granted leave to approach this Court for a variation of this order.
9 A copy of this order shall forthwith be transmitted by the R epublic of South Africa
Central Authority to the Central Authority for Australia.
10 Each party is to pay their own costs.’
(c) Save for the aforementioned, the appeal is dismissed with each party to pay their
own costs.


_______________________
B C MOCUMIE
JUDGE OF APPEAL


________________________
R KEIGHTLEY
JUDGE OF APPEAL

27

Appearances

For the appellant: L Grobler
Instructed by: Alice Swanepoel Attorneys, Boksburg
Symington De Kok, Bloemfontein

For the first and second respondent: M Simelane
Instructed by: The State Attorney, Johannesburg
The State Attorney, Bloemfontein.