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[2001] ZASCA 19
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Smith v Smith (112/2000) [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 (SCA) (16 March 2001)
REPORTABLE
IN THE SUPREME
COURT OF APPEAL
OF SOUTH AFRICA
Case No 112/2000
In the matter between:
WARREN DEAN SMITH Appellant
and
LISA VIVIENNE SMITH Respondent
CORAM: HEFER ACJ, SMALBERGER
ADCJ
et
SCOTT JA
HEARD : 2 MARCH 2001
DELIVERED: 16 MARCH 2001
Hague Convention on the Civil
Aspects of International Child Abduction 1980 - acquiescence
by wronged parent
J U D G M E N T
S
COTT
JA/...
SCOTT
JA:
[1]
The
appellant is the father of two young children who are presently in
South Africa with their mother, the respondent. They have
been here
since 20 January 1999. The appeal is against the order of Foxcroft J
in the Cape Provincial Division dismissing the appellantâs
application for the return of the children to the United Kingdom in
terms of the Hague Convention on the Civil Aspects of International
Child Abduction 1980. The Convention has the force of law in South
Africa by virtue of s 2 of the Hague Convention on the Civil
Aspects
of International Child Abduction Act 72 of 1996 (âthe Actâ) which
came into operation on 1 October 1997. The appeal
is with the leave
of the Court
a quo.
[2]
No
fewer than five sets of affidavits were filed in the Court below.
The appellant embarked upon a scathing attack on the respondent
alleging
inter alia
that she was an unfit mother, a lazy housewife and mentally unstable.
All this was stoutly denied by the respondent who in turn accused
the
appellant of being hypercritical, a âcontrol freakâ, and lacking
all understanding. Much of what is contained in the papers
is
wholly irrelevant to the relief claimed. The facts giving rise to the
application may be stated shortly.
[3]
The
parties are both South African citizens. They were married in Cape
Town on 6 April 1996. For the first six months of their
marriage they
lived with the respondentâs parents in a suburb of Cape Town. In
September 1996 the appellant was seconded to his
employerâs office
in the United Kingdom. He applied for and obtained an âancestryâ
visa which allowed him in effect to reside
and work in the United
Kingdom for five years. The respondent was also granted a visa which
entitled her to work and reside in the
United Kingdom but it was
subject to her being married to the appellant and his remaining in
the country. Shortly after their arrival
the respondent obtained
employment as a freelance secretary. However, she fell pregnant and
their first child, J., was born on 24
June 1997. By this time the
appellant had resigned from his employment and had set up his own
business as a software engineer. The
respondent, too, had resigned
and was working at home for the appellant. J. was apparently a poor
sleeper and the respondent was
frequently up at night attending to
him. The extent of the role each parent played in attending to the
needs of J. is the subject
of dispute. Nonetheless, it is clear that
the appellant was working long hours and of necessity the bulk of the
caring for J. was
left to the respondent. During this period the
appellantâs mother came from South Africa to stay with the young
couple for some
5 weeks. The respondentâs parents also came to
see the baby. In addition, there were numerous other South African
visitors
who came to stay. The respondent says she found it all very
stressful.
[4]
In
January 1998 the couple travelled to South Africa for a holiday.
The appellant returned after a week but the respondent, who
by then
was once again pregnant, stayed on with J. for two and a half months,
returning on 9 April 1998.
[5]
The
coupleâs second child, J., was born on [day/month] 1998. By then,
or within a very short time thereafter, the marriage relationship
had
all but disintegrated. In December 1998 the appellant sought and
obtained information regarding divorce proceedings from a solicitor.
On 28 December he went on a business trip to Moscow taking with him a
woman, Ms Dorfman, whom he said he proposed employing as an
au-pair
and whose background he wished to investigate. On 1 January 1999 Ms
Dorfman moved in to commence her duties as an au-pair.
There is a
dispute as to how this came about but it need not be resolved. The
respondent consulted a solicitor and the parties agreed
that the
respondent and the children would spend a two-month holiday in South
Africa with her parents, whereafter they would return
to the United
Kingdom on 21 March 1999. She left on 19 January with the children.
J. was then 18 months old; J. was a baby of four
months. Back in
South Africa the respondent sought professional help and guidance
regarding her marriage. She decided that it had
come to an end and on
17 March 1999 advised the appellant that she was not returning to the
United Kingdom but would remain in South
Africa with the children.
She consulted an attorney in Cape Town and commenced divorce
proceedings in the High Court, Cape Town
on 25 March 1999. The
appellant has since vacated the former matrimonial home and has moved
in with Ms Dorfman with whom he lives
as husband and wife.
[6]
The
object of the Convention is plain; it is to protect children
internationally from the harmful effects of their wrongful removal
from the country of their habitual residence to another country or
their wrongful retention in another country. To this end the
Convention
establishes a procedure to ensure their prompt return to
the country of their habitual residence so that the issues of custody
can
be adjudicated upon by the courts of that country.
[7]
In
terms of articles 3 and 4 the removal or retention of a child under
the age of 16 years is said to be wrongful when it is effected
in
breach of the rights of custody attributed to any person, institution
or body under the law of the State in which the child was
habitually
resident. Articles 6 and 7 make provision for each contracting
State to designate a central authority to discharge the
duties
imposed upon it by the Convention. (In South Africa the designated
central authority is the chief family advocate appointed
in terms of
the Mediation in Certain Divorce Matters Act 24 of 1987 (see s 3 of
the Act). The central authority for England and
Wales is the Lord
Chancellorâs Department.) Article 8 entitles a party claiming that
a child has been wrongfully removed or retained
to apply to the
central authority of the State in which the child is habitually
resident or to the central authority of any other
State for
assistance in securing the return of the child. If the central
authority receiving such an application has reason to
believe that
the child is in another contracting State it is obliged in terms of
article 9 to transmit the application to the central
authority of the
State to which the child has been removed. Under art 10 the latter
central authority must take all appropriate measures
to obtain the
voluntary return of the child. A party claiming that a child has been
wrongfully removed or retained may also in terms
of art 29 apply
directly to the judicial or administrative authorities of a
contracting State for the return of the child.
[8]
Article
12 is crucial to the achievement of the Conventionâs objective. It
provides that where a child has been wrongfully removed
or retained
in terms of art 3 and less than one year has elapsed between the date
of removal or retention and the date of the commencement
of
proceedings before the judicial or administrative authority of the
State where the child is, the authority in question is obliged
to
order the return of the child forthwith. Even if a period longer
than a year has elapsed the authority concerned is still obliged
to
order the return of the child unless it is demonstrated that the
child is settled in its new environment.
[9]
The
return of a child may be refused only on certain limited grounds.
Two such grounds are contained in article 13, which in so
far as
relevant provides:
â
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.â
A judicial or administrative authority hearing an
application for the return of a child is required by art 16 not to
decide on the
merits of a custody claim until it has been determined
that the child is not to be returned under the Convention.
[10]
As to the third ground on which the return
of a child may be refused, art 20 provides:
â
The return of the child under the provisions of
Article 12 may be refused if this would not be permitted by the
fundamental principles
of the requested State relating to the
protection of human rights and fundamental freedoms.â
The signatories to the Convention accordingly
acknowledged in this article that in countries such as South Africa
where there is a
constitution containing a bill of rights the right
of an applicant to procure the return of a child may be subject to
further limitations.
In
Sonderup v Tondelli and Another
2001(1) SA 1171 (CC) the Constitutional Court had occasion to
consider the extent to which an order for the return of a child under
the Convention may be affected by s 28 (2) of the Constitution.
However, in view of the conclusion to which I have come in the
present
case it is unnecessary to consider the constitutional issues
which may have arisen from the relief sought.
[11]
It is apparent from the aforegoing that a
party seeking the return of a child under the Convention is obliged
to establish that
the child was habitually resident in the country
from which it was removed immediately before the removal or retention
and that the
removal or retention was otherwise wrongful in terms of
art 3. Once this has been established the onus is upon a party
resisting
the order to establish one or other of the defences
referred to in art 13 (a) and (b) or that the circumstances are such
that a refusal
would be justified having regard to the provisions of
art 20. If the requirements of art 13 (a) or (b) are satisfied the
judicial
or administrative authority may still in the exercise of its
discretion order the return of the child.
[12]
In the present case it was common cause
that both children were habitually resident in the United Kingdom at
the time of their retention
in South Africa and that their retention
was wrongful within the meaning of art 3. It was contended on
behalf of the respondent,
however, that the appellant had
subsequently acquiesced in their retention in South Africa and that
there was in any event a grave
risk that their return to the United
Kingdom would expose them to physical or psychological harm or would
otherwise place them in
an intolerable situation. The learned judge
in the Court
a quo
found that it had been established that
there was a grave risk that the children would be placed in an
intolerable situation if removed
from their mother. He was not
satisfied on the basis of the undertakings given by the appellant
that there was adequate provision
for her support in England and, as
the respondent had a very real fear that she might not be permitted
to stay in England for any
length of time, had no guarantee of
employment and the means to stay in England during what might be
protracted proceedings, he held
that the application had to fail.
In the course of his judgment, the judge disposed of the
respondentâs contention that there
had been an acquiescence with
the following remarks:
â
... I would be loath to deny [the appellant] the
opportunity of placing his argument before me on the basis that he
had, on his version,
dropped the proceedings for a week or two until
being given different advice. I am satisfied that it was always his
desire to proceed
with a Hague Convention application and that the
entry into negotiations after receiving the first advice should not
stand in the
way of placing his argument before me.â
In this Court counsel for the respondent persisted in
the contention that the appellant had acquiesced in the retention of
the children
in South Africa and urged that on this ground alone the
appeal be dismissed.
[13]
It accordingly becomes necessary to revert
to the facts. On learning that the respondent was not returning to
the United Kingdom
the appellant immediately consulted his solicitor
who on 17 March 1999 wrote to the respondent advising that unless the
children
were returned within the following week their removal -
â
.... will become wrongful and we have advised our
client as to the appropriate steps that he can take, if needs be.â
The appellant was presumably advised of his rights under
the Convention. Indeed, on 26 March 1999, being the day after the
respondent
commenced divorce proceedings in Cape Town, the
appellantâs solicitor wrote advising -
â
Our client has therefore issued an Application under
the Hague Convention through the Child Abduction Unit of the Lord
Chancellorâs
Department.â
In fact it was subsequently on 19 April 1999 that the
appellant deposed to an
affidavit in support of his
application to the Lord Chancellorâs Department
under art 8 of the Convention. On 22 April the
application was transmitted to the chief family advocate in South
Africa in terms of
art 9 and received by the latter on 30 April.
[14]
On
2 May 1999 the appellant travelled to Cape Town where he remained
until 10 May. Before leaving for Cape Town he contacted a
Durban
attorney who, according to the appellant, advised him âthat a
father has no chance of having such young children returned
through
the procedures of the Hague Convention and that a father would have
absolutely no chance of winning custody of such children.â
On
arriving in Cape Town he consulted an attorney, Mr Gerald Shnaps. He
also had several discussions with a friend who is a partner
of
another firm of attorneys in that city. Both, he said, gave him
similar advice ânamely, that a father would not be granted custody
of such young children.â
[15]
As
a result of this advice, which the appellant categorized as
âincorrectâ, he gave instructions to Mr Shnaps to inform the
family advocate that he was not proceeding with his application under
the Convention. Mr Shnaps and the respondentâs attorneys
entered
into negotiations and on 6 May 1999 a so-called round table
conference was held which was attended by the attorneys representing
both parties as well as the appellant himself and his
attorney-friend. On 11 May 1999 Mr Shnaps wrote to the family
advocate advising
that he had written instructions to the effect that
the appellant was no longer proceeding with his application under the
Convention
and that he had returned to England. On the same day he
wrote to the respondentâs attorneys informing them of his
communication
to the family advocate and advising that he would be
writing âunder separate cover with regard to the action itselfâ.
The reference
to âthe actionâ was clearly a reference to the
respondentâs action for divorce which she had instituted on 25
March 1999.
Subsequently the appellant was contacted by another
attorney who advised him to launch the present proceedings which he
did on 4
June 1999.
[16]
There
can be little doubt that the acquiescence referred to in art 13 (a)
involves an informed acceptance of the infringement of
the wronged
partyâs rights. But that is not to say that acquiescence requires
full knowledge of the precise nature of those rights
and every detail
of the guilty partyâs conduct. As observed by Stuart-Smith LJ in
Re A and another
(minors) (abduction:
acquiescence
)
[1992] 1 All ER 929
(CA) at 940 b:
â
A party cannot be said to acquiesce unless he is
aware, at least in general terms, of his rights against the other
parent. It is not
necessary that he should know the full or precise
nature of his legal rights under the convention...â
What he or she should know is at least that the removal
or retention of the child is unlawful under the Convention and that
he or
she is afforded a remedy against such unlawful conduct.
[17]
It is also necessary to observe that art 13
(b) requires no more than that the person seeking relief should have
acquiesced. Once
he has done so the requirement is satisfied and the
fact that he has subsequently changed his mind does not alter the
situation.
It must be remembered, of course, that an acquiescence
in the past does not mean that the court will necessarily refuse to
order
the return of the child. Its effect is no more than to âunlock
the doorâ (as it is sometimes expressed) to the exercise of the
courtâs discretion under art 13. That discretion is to be
exercised âin the context of the approach of the convention.â
(Per
Lord Donaldson of Lymington MR in
Re A and another, supra,
at
942 d.)
[18]
In several decisions of the Court of Appeal
in England a distinction was drawn between active and passive
acquiescence. In the case
of the former the uncommunicated subjective
intention of the wronged parent was normally regarded as irrelevant
while in the latter
the subjective intention was regarded as
relevant. This distinction was rejected by the House of Lords in
Re
H and others (minors) (abduction : acquiescence)
[1997] 2 All ER
225
(HL). Lord Browne-Wilkinson considered that art 13 looked to the
subjective state of mind of the wronged parent and that accordingly
the true inquiry was simply whether he had in fact consented to the
continued presence of the children in the jurisdiction to which
they
had been removed or had been retained. At 235 e the learned law lord
said:
â
In my judgment, therefore, in the ordinary case the
court has to determine whether in all the circumstances of the case
the wronged
parent has, in fact, gone along with the wrongful
abduction. Acquiescence is a question of the actual subjective
intention of the
wronged parent, not of the outside worldâs
perception of his intentions.â
And continued (at 235 g):
â
In the process of this fact-finding operation, the
judge, as a matter of ordinary judicial common sense, is likely to
attach more
weight to the express words or conduct of the wronged
parent than to his subsequent evidence as to his state of mind. In
reaching
conclusions of fact, judges always, and rightly, pay more
attention to outward conduct than to possibly self-serving evidence
of
undisclosed intentions. But in so doing the judge is finding the
actual facts. He can infer the actual subjective intention from
the
outward and visible acts of the wronged parent. That is quite a
different matter from imputing to the wronged parent an intention
which he did not, in fact, possess.â
I respectfully agree. Indeed, I can see no justification
for importing into art 13 (a) a rule of thumb distinction which is
not to
be found in the words used.
[19]
To the above approach, Lord
Browne-Wilkinson added one qualification; that is the case where
although the judge is satisfied that
the wronged parent did not, in
fact, acquiesce his outward conduct was such as to lead the abducting
parent to believe that the wronged
parent was not going to insist on
the summary return of the child. This was because (at 236 f) -
â
[n]o developed system of justice would permit the
wronged parent in such circumstances to go back on the stance which
he has, to the
knowledge of the other parent, unequivocally adopted:
to do so would be unjust.â
In the present case the appellant was aware of the
Convention and that the respondentâs conduct in retaining the
children in South
Africa was unlawful. He was aware, too, that he
was afforded a remedy under the Convention. With this knowledge he
nonetheless
instructed his attorney to withdraw his application under
art 8 of the Convention and to enter into settlement negotiations
with
the respondentâs attorney. These facts clearly justify the
inference that the appellant, with knowledge of his rights, in fact
intended to go along with the wrongful retention of the children in
South Africa. His conduct would certainly have led the respondent
reasonably to believe that he was not insisting on their summary
return.
[20]
Counsel
for the appellant, however, argued that there had been no proper
acquiescence as the appellant was misled as to his rights
under the
Convention by the incorrect advice given to him by his legal advisers
in South Africa. I am far from persuaded that in
the circumstances
outlined above it is even open to the appellant to put in issue the
correctness of the advice he received. Quite
apart from Lord
Browne-Wilkinsonâs âexceptionâ, it strikes me as quite unfair
to require the respondent, who bears the onus,
to establish what was
said or not said in the course of privileged conversations between
the appellant and his legal advisers. Nonetheless
I shall assume,
without deciding, that it is permissible in these circumstances to
enquire into what the appellant was told by his
legal advisers. It
is important to bear in mind that all three attorneys consulted by
the appellant were aware of the appellantâs
rights under the
Convention, as was the appellant himself. The question which
confronted them was whether the appellant would succeed
in obtaining
an order for the summary return of the children and indeed, if so,
whether he would ultimately obtain a custody order
in his favour.
Counsel criticised the advice given (on the basis of the appellantâs
cryptic version of that advice) because it
was founded on an
over-emphasis of the tender age of J. and J.. She pointed out that
summary returns are ordered under the Convention
even in the case of
very young children. That is undoubtedly so, but while age is not
necessarily decisive it could well be a weighty
factor when
considering the exceptions under art 13 (a) and for that matter art
20. I can see no reason for accepting that the
advice was anything
other than an informed expression of opinion as to the appellantâs
prospects of success. It is in any event
quite clear from the
appellantâs own evidence that his advisers considered it very
unlikely that he would ultimately obtain custody
having regard to the
age of the children. That advice can hardly be categorised as
incorrect or unreasonable and whether or not
the appellant would
ultimately succeed in the custody proceedings would, of course, have
been a vital consideration when deciding
whether it was worth
persisting in the application under the Convention. I am unpersuaded
therefore that the appellant was misled
by his legal advisers.
Furthermore, he elected to accept their views in preference to what
he claimed in his founding affidavit was
contrary advice received
from his English solicitor. In my judgment the respondent succeeded
in discharging the onus of establishing
that the appellant acquiesced
in the wrongful retention of the children in South Africa.
[21]
There
remains the question of the discretion. Counsel for the appellant
very fairly conceded that in the event of it being found
that there
was an acquiescence, the Court should not in the exercise of its
discretion order the return of the children to England
having regard
to the long lapse of time since they were first retained in this
country. I think the concession was well made. The
Convention
envisages a prompt restoration of the
status
quo ante
so that
the questions of custody or access can be determined by the courts of
the country from which the children were removed.
Not only is there
a statement to this effect in art 1 but art 11 expressly enjoins the
judicial or administrative authorities of
contracting States to act
expeditiously in proceedings for the return of children.
Furthermore, in terms of art 12 the non-discretionary
obligation to
order the return of children is inapplicable if a year or more has
elapsed between the removal and the commencement
of proceedings. In
the present case the proceedings were anything but expeditious. The
application was launched only some two and
a half months after the
respondent had made it clear that she was not returning. Voluminous
affidavits were filed and the matter
was set down for hearing on the
semi-urgent role on 8 September 1999. (The final set of affidavits
was filed by the appellant on
6 September.) The hearing took two days
and judgment was delivered by Foxcroft J a little more than a week
later on 17 September
1999. An application for leave to appeal was
filed on 8 October 1999 but for some reason which is unexplained the
application was
only heard on 2 March 2000. Leave was granted
immediately but it took until 14 July 2000 for the record of the
proceedings to
be lodged with the registrar of this Court. Finally,
it was only when counselâs heads of argument and practice note were
filed
on 31 October 2000 that notice was given that the matter was
urgent. By then it was too late to place the matter on the roll for
November and it was accordingly set down for hearing in the first
term of 2001.
[22]
The
result of all this is that more than two years have elapsed since the
children first arrived in South Africa. J. was then a
baby of 4
months; he is now two and a half years old. J. was 18 months; he is
now three and a half years old. It is unlikely that
either child has
any recollection of having lived in England. Whatever the reason,
their home is now with their mother in Cape
Town. I can see no sense
at this stage in sending them back to England for the question of
custody to be determined there.
[23]
It
is accordingly unnecessary to consider the defence raised under art
13 (b) of the Convention.
The appeal is dismissed with costs.
D
G SCOTT
JUDGE OF APPEAL
CONCUR
HEFER ACJ
SMALBERGER ADCJ