REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-077002
DATE : 10 FEBRUARY 2025
In the matter between:
THE CENTRAL AUTHORITY OF THE
REPUBLIC OF SOUTH AFRICA First A pplicant
A K Second Applicant
and
C M Respondent
Neutral Citation : The Central Authority of the RSA v C M (2023 -077002 ) [2025]
ZAGPJHC --- (10 February 2025)
Coram: Adams J
Heard : 27 September 2024 – ‘virtually’ as a videoconference on Microsoft
Teams.
Delivered: 10 February 2025 – This judgment was handed down electronically
by circulation to the par ties' representatives by email , by being
uploaded to CaseLines and by release to SAFLII. The date and time
for hand -down is deemed to be 15:00 on 10 February 2025.
(1) NOT REPORTABLE
(2) NOT OF INTEREST TO OTHER JUDGES
I I L_ ___ _
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Summary: The Hague Convention on the Civil Aspects of International Child
Abduction (the Hague Convention) – Article 12 jurisdictional requirements not
established by the left -behind parent – there was no wrongful removal of the child
from her ‘habitual residence’ – whether a defence to the application for the return
of the child to Israel was established as envisaged in Article 12 and Article 13(b)
– Article 13(b) defence established by the abducting parent – the minor child
would be exposed to a grave risk of physical and psychological harm or be placed
in an intolerable situation –
Application dismiss ed.
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ORDER
(1) The applicants ’ application is dismissed .
(2) Each party shall bear her / his own costs.
JUDGMENT
Adams J :
[1]. The second applicant is the father of a minor girl child (‘the minor child’)
born on 29 April 2019. She is five years and nine months old at present . With the
assistance of the first applicant , the Central Authority of the Republic of South
Africa (the Central Authority), the second applicant applies in these opposed
proceedings in terms of the Hague Convention on the Civil Aspects of
International Child Abduction (the Hague Convention), for an order directing the
respondent , the mother of the child , to ret urn her to Israel .
[2]. It is the case of the second applicant that the minor child should be
return ed to her country of ‘habitual residence ’ in Eilat, Israel, from where she was
on 31 March 2021 unlawfully removed to South Africa and wrongfully retained by
her mother, the respondent. The respondent opposes the application on the basis
that the removal of the minor child from Israel was not wrongful as the second
applicant had consented in writing to such removal. Moreover, so the respondent
contends, the minor child would be exposed to a grave risk of physical and
psychological harm or be placed in an intolerable situation , as envisaged by
article 13(b) of the H ague Convention, if this court were to order her return to
Israel . In that regard, the respondent relied heavily on the report of the duly
appointed curator as litem for and on behalf of the minor chid, Ms Young.
[3]. At issue in this opposed application is whether factually the second
applicant had consented to the relocation to South Africa of the respondent with
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the minor child. Furthermore, the question to be considered by this court is
whether the respondent has discharged the onus that rest s upon her in terms of
Article 13(b) to prove that the minor child would be exposed to a grave risk or be
placed in an intolerable situation if the court ordered her return to Israel .
[4]. The aforegoing issues are to be decided against the factual backdrop of
the matter. In that regard, the important, salient facts are by and large common
cause and I set those out in the paragraphs which follow. I also deal with all of
the factual disputes between the parties.
[5]. However, before dealing with the facts in the matter it may be apposite at
this point to have a brief overview of the applicable legal framework t o place in
context the issues which require adjudication.
[6]. Article 12(1) of the Hague Convention provides as follows :
‘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 of the wrongful removal or retention, the authority concerned shall
order the return of the child forthwith.’
[7]. Article 13 provides an exception to the obligation of the court to order the
child’s return. It states, in the relevant part , as follows :
‘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) The person, institution or other body having the care of the person of the child
was not actually exercising the custody rights at the time of removal or retention,
or had consented to or subsequently acquiesced in the removal or retention; or
(b) There is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.’
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[8]. In a very recent judgment in N M v Central Authority for the Republic of
South Africa and Another1, the Supreme Court of Appeal, relying on Ad Hoc
Central Authority, South Africa and Another v Koch N O and Another2, reaffirmed
the well -established law in applications under the Hague Convention as stated
some two decades ago in Sonderup v Tondelli and Another3. 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 ord ering 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 emplo yed by the Convention are proportional to the ends it seeks to
attain. ’
[9]. According to N M v The Central Authority of the Republic of South Africa
and Another (supra), t he following key aspects may be extracted from the
Constitutional Court’s interpretation in Koch 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 juri sdiction so that the law can take its course. As the Constitutional
Court put it: “The prompt return of the child lies at the heart of the Convention’s
entire scheme ”.
(b) Grave risk threshold: The Court emphasised that the threshold for invoking Article
13(b) is high. It is not sufficient to demonstrate that the child would face some level
1 N M v Central Authority for the Republic of South Africa and Another 2024 JDR 5313 (SCA) .
2 Ad Hoc Central Authority, South Africa and Another v Koch No and Another 2024 (3) SA 249 (C C).
3 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) .
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of harm or discomfort upon return; rather, the risk must be ‘grave,’ meaning serious
or severe.
(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 fi gure and the environment in which she had become settled in South
Africa. In making reference to Sonderup , the Court reiterated that “[t]he harm must
be grave ”.
(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.
(e) There must be clear and compelling evidence of the grave risk of harm or other
intolerability which should be measured as substantial.
(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.
(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 the prompt return of abducted children to their habitual
residence for custody disputes to be resolved.
(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 co ntext of the particular case.
(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 disputes irresolvable on the papers. Convention
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
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of material. A determination made in terms thereof must be based on an overall
assessment of all the evidential material placed before the court.
(j) Expert evidence, even if uncontradicted, remains an opinion that must be
scrutinised by a court to determine its value.
(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 neces sary determination regarding long -term custody and care. The
two inquiries should not be conflated.
(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 beco me a strategic tool to evade its objectives. ’
[10]. That then brings me back to the facts in the matter and the application to
those facts of the aforegoing legal principles.
[11]. The second applicant and the respondent were involved in a relationship
from which relationship the minor child was born.
[12]. The respondent denies that her removal of the minor child from Israel was
wrongful. She contends that the child was removed with the knowledge and
consent of the second applicant. In that regard, the respondent’s case is that
during November 2020 both she and the second applicant attended with the child
at the District Government Office in Eilat to apply for a passport for the child. The
respondent also avers that the second applicant signed the requisite parental
consent letter required by the Department of Home Affairs in South Africa, at the
respondent’s request to enable her to remove the minor child from Israel to South
Africa . The second applicant provided the respondent with a photocopy of his
identity document which she attached to the parental consent letter for the
purposes of removing the minor child from Israel to South Africa.
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[13]. I accept, as more probable, the version of the r espondent . She clearly told
him that she was returning to South Africa to live with her family . He had visited
South Africa with her in 2016 when he stayed with her at her family home (which
is the very same address that the respondent resides at with the minor child ). The
address where the respondent would be residing was on the parental consent
form which the second applicant signed electronically and which the respondent
sent to him via WhatsApp and to whic h the second applicant responded with a
thumb’s up emoji.
[14]. For this reason alone the application should fail. The simple point is that
all of the jurisdictional facts required in order to invoke the obligatory provisions
of Article 12 are not present in this matter . Moreover, more than a year had
passed since the date of the removal of the minor child from Israel (30 March
2021) to the date on which these proceedings were instituted (2 August 2023).
[15]. It is also the case on behalf of the respondent that, if returned to Israel, the
minor child would be exposed to a grave risk or be placed in an intolerable
situation. In that regard, the report by the curator as litem is, in my view,
instructive.
[16]. The minor child has been residing in South Africa since 31 March 2021 –
therefore, for a period of just under four years . The Hague application was issued
by the first applicant on 2 August 2023, almost two and a half years after the
respondent and the minor child arrived in South Africa. It is not mandatory for a
court to order the return of a child where it is established that the court
proceedings are commenced after a period of one year from the date of the
wrongful removal or retention of the child and where the child is now settled in
the new country. Article 12, in the relevant part, reads as follows: -
‘The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the preceding
paragraph, shall also order the return of the child unless it is demonstrated that the chil d
is now settled in the new environment .’
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[17]. During the period from March 2021 to date, the minor child has been living
in South Africa, and, as per the findings of the curator as litem , she has settled
into her life, home and new environment in Johannesburg. She resides with the
respondent and her parents and she attends Yeshiva College Nursery School .
She only speaks English, is settled and has made good friends, she is happy and
thriving and has no recollection of her life in Israel.
[18]. On th e basis of the aforegoing , I am of the view that I should exercise my
discretion in favour of not ordering the return of the minor child to Israel.
[19]. I am also of the view that the defences envisaged in article 13(b) is also
available to the respondent. I concluded, again on the basis of the findings by the
curator ad litem that t here is a grave risk that the minor child’s return to Israel
would expose her to physical or psychological harm or otherwise place her in an
intolerable situation . I say so because, as contended on behalf of the respondent,
the minor child will be separated from her mother , who has been her primary
caregiver since the time of he r birth both in Israel and in South Africa. By all
accounts, the respondent is the child’s primary attachment figure and the source
of her emotional stability and security. It would be extremely detrimental to the
child if she were removed from her mother’s care and deprived of the love,
affection and security.
[20]. The respondent herself cannot return to Israel as she has no tertiary
education and the last job that she had before the child was born was working at
the duty -free store at the airport. For the most part the respondent worked the
nightshift and would return home from work after midnight . She was unable to
cope financially after the minor child was born and approached a welfare
organization , Revacha , to obtain social support and obtain financial assistance .
[21]. The simple point being that, because of her financial distress whilst in
Israel, the respondent, if she is required to return to Israel, would be financially
imperilled, as she was before. It also didn’t help that the second applicant refused
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to assist her with maintenance . When he did pay towards the maintenance of the
child, it was sporadically and he paid such amounts as he determined unilaterally .
[22]. The aforegoing undoubtedly translates into a high risk of the psychological
and physical harm to the child, as well as an intolerable situation for her. What is
more is that the minor child has no relationship with the second applicant. She is
unable to communicate with him as her only language is English , whereas the
second applicant’s first language is Russian, and he is also conversant in
Hebrew. In the circumstances, if she is returned to Israel and placed in the care
of the second applicant, the minor child will not only be in a foreign country and
an unfamiliar environment, but she will be unable to communicate with her
caregiver or other members of his family, all of whom speak predominantly
Russian and/or Hebrew.
[23]. The minor child will be placed in an intolerable situation . About that there
can be little doubt. The curator ad litem , who conducted a thorough investigation
and produced for the court a comprehensive report on 26 June 2024 , concluded
that the minor child has settled into her new environment given that more than
three years have passed since her removal from Israel . She also concluded that
the child has made friends, is used to her school, attends extra mural activities,
has a settled routine, a stable hom e and cannot imagine her life without her
grandparents .
[24]. Importantly, so the curator ad litem opines, the minor child would have to
learn a new language and will have to form new relationships in the absence of
a support structure apart from her mother and in a foreign country. She will be
unable to communicate with her peers at school and the culmination of all these
factors will make the situation highly stressful and intolerable for her. Accordingly,
it would be detrimental for her to be returned to Israel .
[25]. I reiterate that, in my view, the minor child will suffer physical or
psychological harm or be exposed to an intolerable situation should she be
returned to Israel . Moreover, I find that there are no conceivable protective
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measures or a package of protective measures that would ameliorate or mitigate
the obvious grave risk of return to Israel .
[26]. The applicants’ application falls to be dismissed.
[27]. Finally, as regards costs , I am of the considered view that it is fair that
each party should pay their own costs.
Order
[28]. In the result, the order which I grant is as follows : -
(1) The applicants ’ application is dismissed .
(2) Each party shall bear her/his own costs of this opposed application.
________________________________
L R ADAMS
Judge of the High Court
Gauteng Division, Johannesburg
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HEARD ON: 27 September 2024
JUDGMENT DATE: 10 February 2025
FOR THE FIRST AND
SECOND APPLICANT S: A Mofokeng
INSTRUCTED BY: The State Attorney, Johannesburg
FOR THE RESPONDENT : L Segal SC
INSTRUCTED BY: Alexandra Budin Attorneys Inc,
Viewcrest , Johannesburg
CURATOR AD LITEM: C Young