Pennello v Pennello and Another (238/2003) [2003] ZASCA 147; [2004] 1 All SA 32 (SCA) (1 December 2003)

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[2003] ZASCA 147
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Pennello v Pennello and Another (238/2003) [2003] ZASCA 147; [2004] 1 All SA 32 (SCA); 2004 (3) BCLR 243 (SCA); 2004 (3) SA 117 (SCA) (1 December 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO:
238/2003
In
the matter between
ROBERT
SALVATORE PENNELLO APPELLANT
and
HAYLEY
SARAH-DAWN PENNELLO RESPONDENT
THE
CHIEF FAMILY ADVOCATE AMICUS CURIAE
CORAM
:
Mpati DP, Farlam, Brand, Lewis JJA and Van Heerden AJA
HEARD:
4 NOVEMBER 2003
DELIVERED
:
1 DECEMBER 2003
Summary:
Minor ─ abduction of ─ Hague Convention on Civil Aspects of
International Child Abduction (1980) ─ defences ─ provision in
art 13(b) that requested State not bound to order return of child if
existence of grave risk of physical or psychological harm, or
that
child would otherwise be placed in an intolerable situation.
JUDGMENT
VAN
HEERDEN AJA
VAN HEERDEN AJA
Introduction
[1]
This
appeal concerns a two-and-a-half year old girl, A.M.P. (A.), who was
brought to South Africa by her mother, the respondent,
from New
Jersey, United States of America, in September 2002. Both mother and
daughter are still in this country, presently living
in Knysna
(Western Cape).
[2]
On
22 November 2002, on the application of the appellant (A.’s
father), the Durban and Coast Local Division (Pillay J) ordered the
summary return of A. to New Jersey, subject to relatively detailed
conditions designed to protect the interests of the child pending
the
final adjudication and determination, by the New Jersey courts, of
the issues of custody, care of and access to her. This order
was
made pursuant to the provisions of the Hague Convention on the Civil
Aspects of International Child Abduction (1980) (the Convention),
as
incorporated into South African law by the Hague Convention on the
Civil Aspects of International Child Abduction Act 72 of 1996
(‘the
Act’), which came into operation on 1 October 1997.
1
[3]
With
the leave of Pillay J, the respondent appealed against this order to
the Full Court of the Natal Provincial Division. On 14
February 2003,
the Full Court (Hurt, Van der Reyden and Kondile JJ) upheld the
appeal.
2
The present appeal is against the judgment and order of the Full
Court, leave to appeal having been granted by this Court, which
also
ordered that the Chief Family Advocate be admitted as an
amicus
curiae.
3
Background
[4]
The
appellant (presently 42 years old) is a citizen of and resident in
the United States of America. He and the respondent (who
is 29 years
old) were married on 2 April 1999 in New Jersey, United States of
America. The parties’ daughter, A., was born in New
Jersey on 9 May
2001. The family lived together in New Jersey until 25 September
2002, on which date the respondent clandestinely
removed A. from the
United States of America without the knowledge or consent of the
appellant. It is common cause that, at the
time of A.’s removal,
she was habitually resident in the United States of America and that
both parents were exercising equal custody
rights in respect of their
child. Thus, in terms of art 3 of the Convention, A.’s removal
from the United States of America (also
a Contracting State to the
Convention) was wrongful.
4
[5]
Article
8 of the Convention provides that any person, institution or other
body who claims that a child has been removed ‘in breach
of custody
rights’ may apply either to the Central Authority of the child’s
habitual residence or to the Central Authority of
any other
Contracting State for assistance in securing the return of the child.
In terms of art 7(
f
),
one of the obligations imposed upon Central Authorities is to
‘initiate or facilitate the institution of judicial or
administrative
proceedings with a view to obtaining the return of the
child’.
[6]
In
this case, the appellant applied to the United States Central
Authority for its assistance in securing A.’s return and that
Central Authority, in turn, transmitted the appellant’s application
to the Chief Family Advocate of South Africa for further action.
5
Unfortunately,
the Office of the Family Advocate of Kwa-Zulu Natal
6
(the Durban Family Advocate), although apparently the delegate of the
Chief Family Advocate (as the South African Central Authority)
in
that jurisdiction,
7
badly (albeit in good faith) misconstrued its role in terms of the
Act. In a letter dated 31 October 2002, addressed to the appellant’s
Durban attorneys, the Durban Family Advocate purported
‘
...
to confirm our telephone conversation this morning during which I
informed you that the Office of The Family Advocate would not
be able
to finalise the above-mentioned matter expediently because of the
immense bureaucracy that would impede my functioning in
this matter.’
The
letter stated further that:
‘I believe that your
office would be able to assist Mr Pennello more expeditiously. I
confirm that I requested you to contact
Mr Pennello and inform him of
my difficulties, as I do not have the time to communicate with him
today as I am dealing with an urgent
application and will be called
upon to give evidence in the High Court.’
[7]
As
a result of the attitude adopted by the Durban Family Advocate, the
appellant ‘took up the cudgels himself',
8
instituting an application on 5 November 2002 for A.’s immediate
return. Needless to say, this application was vigorously opposed
by
the respondent and as set out above, the matter eventually came to
this Court, the appellant being ordered by the Full Court
to pay the
costs of the respondent’s appeal to it. I shall deal with the
effect of the stance taken by the Durban Family Advocate
later in
this judgment.
[8]
In
opposing the appellant’s application in the Durban and Coast Local
Division, the respondent relied on art 13(b) of the Convention,
contending that there should not be an order for the return of A. to
New Jersey because there was a grave risk that, if the child
were
returned, she would be exposed to physical or psychological harm or
would otherwise be placed in an intolerable situation.
In her
opposing affidavit the respondent listed a number of instances of
behaviour
by the appellant towards her which (according to the respondent)
constituted physical and mental abuse. She described the appellant
as ‘an extremely volatile person... incapable of moderating his
behaviour’
;
as ‘obsessive’ (particularly as regards his ‘fanatic’ gym
schedule); as ‘extremely intolerant,’ with a ‘very low level
of
frustration’, resulting in his resorting to violence against her
‘on numerous occasions’. According to the respondent,
her
marriage relationship with the appellant had long been a troubled
one, characterised by ‘frequent bitter arguments’ between
them
and by ‘continual’ physical and verbal abuse directed against her
by the appellant. She was allegedly so traumatised by
the
appellant’s conduct that she eventually reached the stage where she
‘simply could not continue’, and felt that she had
‘nowhere to
go other than to return to the safety of [her] family in South
Africa’.
[9]
The
respondent submitted further that her actions in leaving New Jersey
with A. and returning to her parental home in South Africa
were
motivated by fear for her safety and ‘an inability to continue in
the intolerable situation’ which had developed between
herself and
the appellant. She went so far as to say that she ‘genuinely
believe[d] that if I return to America, my life will
be at risk if I
reside with the [appellant]’ and that, even if she were to have
separate accommodation, the appellant would ‘continually
harass me
and make my life unbearable’. On the respondent’s version, A. had
clearly been traumatised by the appellant’s behaviour
and now
displays this in her interaction with other men. Were the court to
order A.’s return to New Jersey, there would allegedly
be ‘a
grave risk to her health, both physically and psychologically’,
should the child have to stay with her father. Moreover,
even if the
respondent were to return with A. to New Jersey, the relationship
between the appellant and the respondent would still
expose A. to
serious psychological harm and place the child in intolerable
situation.
[10]
Much
of the factual matrix upon which the respondent’s reliance on art
13(b) was based was disputed by the appellant. Indeed,
Pillay J
agreed with the respondent’s contention that there were substantial
disputes of fact between the parties which could not
be resolved on
the papers before him. However, in his view, these factual disputes
related ‘in the main to the issue of custody
which ... is not an
issue before this Court and which is best resolved in the Court of
habitual residence, viz. New Jersey’. Relying
on the judgment of
the Constitutional Court in
Sonderup v
Tondelli and Another,
9
the judge held that, once the appellant had established that the
removal of the child was wrongful within the meaning of art 3 of
the
Convention – which he had done on the papers before the Court –
the onus was then on the respondent to establish the defence
on which
she was relying in terms of art 13(b).
[11]
Pillay
J stated that he was –
‘ ... by no means
satisfied that ... a sustained and established pattern of domestic
violence
1
0
has been shown to exist. The physical and verbal abuse, even on the
Respondent’s version, appears to me to arise over apparently
trivial disagreements and conduct which one or the other party finds
offensive or unacceptable ... there are insufficient facts before
this Court to justify a finding that the child would be placed in the
intolerable situation or exposed to the grave risk of physical
or
psychological harm as the Respondent would have the Court find on the
probabilities ... The reasons advanced by Respondent that
she and the
child would be exposed to physical and mental trauma if ordered to
return to America, appear to arise out of her own
reasons rather than
out of fear of harm to the child’.
1
1
[12]
The
judge regarded as ‘crucial’ the undertakings given by the
appellant’s counsel on his behalf during the course of argument
that addressed ‘to an appreciable extent’ the concerns of the
respondent and ameliorating the potential hardships to which A.
might
be exposed should the court order her return to New Jersey.
Accordingly, as already mentioned, the court ordered A.’s return
to
New Jersey, subject to a number of protective conditions based on the
undertakings given by the appellant.
[13]
After
she had been granted leave to appeal to the Full Court and had
delivered a notice of appeal on 13 January 2003, the respondent
filed
an application in which she sought to have the matter remitted to the
court
a quo
for the
purpose of adducing further evidence, either orally or by way of
affidavit. This further evidence concerned the ‘efficacy
and
reliability’ of the undertakings given by the appellant (and used
by Pillay J as a basis for formulating his order), and the
effect on
the respondent and A. of any failure by the appellant to comply with
these undertakings. The respondent also sought to
place before the
court certain ‘pleadings and documents filed in the proceedings
brought by the [then] Respondent [the current
appellant] in the
Superior Court of New Jersey’. The appellant answered the
allegations made by the respondent in the affidavit
deposed to by her
in support of this application, and the respondent, in turn, replied
to the appellant’s answering affidavit.
[14]
In the view of the Full Court:
‘Much of the
documentary material which the respondent seeks to place before this
Court in the form of “further evidence” post-dates
the completion
of the parties’ affidavits in the original application proceedings
and reflects a series of moves and counter-moves
which both parties
have made for the purpose of furthering their respective aims in the
litigation between them. Ordinarily, because
this is a matter which
involves the interests of a very young child, and because the
proceedings have been extremely urgent, we would
have been disposed
to allow the application to adduce further evidence by way of
affidavit on appeal (subject, of course, to stipulations
aimed at
avoiding any prejudice to the applicant [the present appellant]).
However, on the view which we take of the appeal itself,
judged in
isolation from the further evidence which has been tendered, it is
not necessary to make any order in respect of the respondent’s
application.’
1
2
As
indicated above, the Full Court upheld the respondent’s appeal to
it, with costs, setting aside the order made by Pillay J and
dismissing the appellant’s application for the return of his
daughter to New Jersey.
Further
applications before this Court
[15]
On
10 October 2003, the respondent delivered another application for
leave to adduce further evidence before this Court, both by way
of
affidavit and documentary material (including all the documents which
she had previously sought to place before the Full Court)
‘in proof
of the fact that the undertakings given by the appellant to the court
of first instance did not constitute adequate safeguards
in the best
interests of the minor child A. and accordingly should not have been
accepted as such by the Court of first instance.’
[16]
The
appellant gave notice that he would abide the decision of this Court
in respect of the respondent’s application but that, in
the event
of her application being granted, he also sought leave to adduce
further evidence, by way of affidavit and documentary
material
(including his affidavit answering the respondent’s previous
application to adduce further evidence, and the annexures
thereto).
[17]
While
courts in foreign jurisdictions, such as England and Australia, have
generally taken the view that applications under the Convention
‘are
intended to be heard expeditiously by a summary form of procedure to
enforce or otherwise the terms of the Convention,’
1
3
this is not an invariable rule. Thus, for example, in
J
(A Minor),
1
4
the English Court of Appeal held that evidence of events subsequent
to the initial return hearing could be accepted, provided that
this
‘fresh’ evidence is such ‘as substantially to change the basic
assumptions on which the court made the [original] order
and ... such
that in general it would be an affront to one’s sense of justice
not to admit it’; evidence ‘which if given would
probably have
an important influence on the result of the case and …which is such
as presumably can be believed; in other words…evidence
which is
apparently credible, though of course not necessarily
incontrovertible.’
1
5
This is a common-sense approach which satisfies one’s sense of
justice and which, in my view, accords with the approach adopted
by
South African courts in determining applications to adduce further
evidence on appeal,
1
6
particularly in cases where the interests of children are at stake.
[18] The
evidence covered by the respondent’s application and the
appellant’s conditional counter-application would seem to satisfy
the above-mentioned criteria, in so far as it may have an effect on
the question as to whether the respondent has established a defence
in terms of art 13(b) of the Convention and, if not, the adequacy of
the ‘protective mechanisms’ contained in the order of the
court
of first instance. In any event, in the light of the fact that
counsel for each party did not really oppose these applications
in
respect of such further evidence, both respondent’s application and
appellant’s conditional counter-application were granted
at the
outset of the hearing before this Court. Counsel for the respondent
initially sought to amend the respondent’s notice of
motion in this
regard so as to provide for three supplementary affidavits deposed to
by the respondent (dated 9 October 2003, 28
October 2003 and 30
October 2003, respectively) to be placed before us, but ultimately
did not persist with this request.
[19]
In
the main, the ‘new’ evidence which the respondent thus adduced
before this Court related to various orders obtained by the
appellant
in the Superior Court of New Jersey after the original judgment and
order by Pillay J on 22 November 2002. It would appear
that, on 27
November 2002, the appellant obtained against the respondent,
ex
parte
, an ‘order to show cause’ in terms
of which,
inter alia,
the parties would have ‘temporary joint legal custody of A.’, the
respondent would ‘be designated as primary residential parent’,
and the appellant would have extensive ‘shared parenting time with
A. on an alternating week basis’. The provisions of this
order,
the ‘return date’ of which was 20 December 2002, clearly
contradicted several of the important conditions for A.’s return,
as contained in the order made by Pillay J,
1
7
notwithstanding the fact that, in terms of Pillay J’s order, the
appellant was required –
‘
...
within 14 days of the date of delivery of judgment [to] launch
proceedings and pursue them with due diligence to obtain an order
from the appropriate judicial or administrative authority in the
State of New Jersey, United States of America’,
which
order had to reflect the conditions set by Pillay J (a so-called
‘mirror order’).
[20]
According
to the appellant, he had instructed his attorney in New Jersey to
take the necessary steps to obtain a ‘mirror order’,
as required
by Pillay J’s order. At the same time, he had also instructed the
attorney to commence proceedings against the respondent
for divorce
and ‘the necessary ancillary relief’. His attorney had
instituted proceedings in New Jersey ‘with a two-fold purpose:
(i)
to obtain interlocutory relief in the divorce proceedings; (ii) to
obtain an Order which would...meet the requirements of the
Order of
[the Durban High Court]’. However, allegedly because of
differences in the legal systems of New Jersey and South Africa
and a
‘misunderstanding’ by the appellant’s New Jersey attorney of
‘the exact requirements of the South African court order’,
the
‘order to show cause’ made by the New Jersey court on 27 November
2002 was not ‘strictly in accordance with’ Pillay J’s
order –
something of an understatement, to put it mildly. The Durban Family
Advocate then prepared a memorandum dated 10 December
2002, pointing
out a number of respects in which the ‘order to show cause’ was
not compatible with the conditions imposed by
Pillay J. The day
before, on 9 December 2002, the appellant had applied for and
obtained from the Superior Court of New Jersey a
second order,
largely ‘mirroring’ the requirements set in the order made by
Pillay J, and this second order was approved by the
Durban Family
Advocate. The appellant states that this was done because his South
African legal representatives had advised him that
the ‘order to
show cause’ made on 27 November 2002 did not meet the requirements
of the court of first instance. The appellant’s
New Jersey
attorney subsequently confirmed in writing to the appellant’s South
African attorneys, by way of a letter dated 23 January
2003, that he
had ‘withdrawn the Order to show Cause, so that the only order in
existence in New Jersey is the mirror Order’.
[21]
The
appellant’s ‘complaint for divorce’ against the respondent was
filed in the Superior Court of New Jersey on 26 November
2002. One
of the orders sought was that he be awarded ‘legal custody’ of
A., ‘with reasonable parenting rights’ to the respondent.
It
would appear that, prior to this, the respondent had (on 18 October
2002)
1
8
applied to the Durban and Coast Local Division for leave to institute
proceedings against the appellant by way of edictal citation
for a
decree of divorce and an order awarding custody of A. to her. Leave
was granted on 28 October 2002 and, on 31 October 2002,
the
respondent instituted such proceedings which were defended by the
appellant. The respondent’s plea to the appellant’s conditional
claim in reconvention was served on 11 June 2003 and the matter
thereafter placed on the awaiting trial roll.
[22]
Notwithstanding
these developments, the appellant went ahead with the divorce
proceedings in the Superior Court of New Jersey and,
on 24 July 2003,
succeeded in obtaining (by default) a final order of divorce against
the respondent, in terms of which no maintenance
is payable by either
party to the other, certain specified debts must be paid by each
party and, upon the return of A. to New Jersey,
the appellant is
obliged to pay child support for her in the amount of US $102 per
week. According to the divorce order, this figure
is based on the
appellant and the respondent earning US $40 000 and US $18 000 per
year, respectively, and the appellant ‘having
40% parenting time
with the child’. Furthermore, the New Jersey order provides that
the appellant must continue to pay medical
insurance for A. (even
while she is in South Africa), that the respondent is responsible for
the first US $250 per year in unreimbursed
medical expenses for A.
and that, ‘in accordance with the Child Support Guidelines
percentages’, the appellant must pay 65% and
the respondent 35% of
all A.’s medical and like expenses. The order does not, however,
deal with the issues of custody of and
access to A..
[23]
By means of the further evidence placed by the respondent before this
Court, she again sought to cast doubt on the adequacy of the
appellant’s undertakings, as incorporated in the order made by the
court of first instance, and on the appellant’s ability and
willingness to comply with such undertakings. In summary, the
respondent submitted that, in all probability, she would not be able
to obtain employment should she return to New Jersey and would hence
be unable to support herself financially. She contended, furthermore,
that the appellant’s financial position was such that he would not
be able to comply with the undertakings made by him, let alone
provide her (the respondent) with any direct financial support (no
provision for which was made in Pillay J’s order, in any event).

She would also not be in a financial position to take any legal
action in New Jersey to enforce or vary the ‘mirror order’ made
on 9 December, to defend any proceedings instituted by the appellant
to vary or amend such order, or to procure legal representation
for
herself in the envisaged custody and access proceedings in New
Jersey. The appellant, on the other hand, gave details of his
financial position and submitted that he was indeed able and willing
to comply with the undertakings made by him, as slightly amended
to
take account of certain changes in his circumstances.
[24]
With particular emphasis on the New Jersey divorce order obtained by
the appellant, counsel for the respondent argued that the appellant
had by his own actions rendered the appeal to this Court nugatory and
robbed it of all practical import. In his submission, we should
dismiss the appellant’s appeal on this ground alone. There is, in
my view, no merit in this argument. Despite the granting of the
divorce order, the courts of A.’s habitual residence under the
Convention (New Jersey) have not finally adjudicated upon and
determined
the key issues of custody of and access to A.. The main
issue to be addressed in this appeal is whether, as was found by the
Full
Court, this is indeed a case in which art 13(b) applies and
should bar the return of A. under the Convention to the state of
habitual
residence. If these questions are answered in the negative
by the court of the requested State, then any conditions imposed by
such
court to govern the return of the child, which conditions are
often (but not invariably) based on undertakings given by the
applicant,
are designed ‘to smooth the return of [the child] to the
country of …habitual residence
1
9
,
and to give the child ‘the maximum possible protection until the
courts of the other country…can resume their normal role in
relation to the child.’
2
0
The
purpose of the Convention and the proper approach to the article
13(b) ‘defence’
[25]
The primary purpose of the Convention is to secure the prompt return
(usually to the country of their habitual residence) of children
wrongfully removed to or retained in any Contracting State, viz to
restore the
status quo ante
the wrongful removal or retention as expeditiously as possible so
that custody and similar issues in respect of the child can be
adjudicated upon by the courts of the state of the child’s habitual
residence.
2
1
The Convention is predicated on the assumption that the abduction of
a child will generally be prejudicial to his or her welfare
and that,
in the vast majority of cases, it will be in the best interests of
the child to return him or her to the state of habitual
residence.
The underlying premise is thus that the authorities best placed to
resolve the merits of a custody dispute are the courts
of the state
of the child’s habitual residence and not the courts of the state
to which the child has been removed or in which
the child is being
retained.
2
2
[26]
Where the removal or retention of the child in question is indeed
wrongful within the meaning of art 3,
2
3
and a period of less than a year after the wrongful removal or
retention has elapsed – as is the case with A. – then the
appropriate
judicial or administrative authority of the requested
State is
obliged
to
order the immediate return of the child.
2
4
There are, however, certain limited exceptions to the mandatory
return of the child, one of which is contained in art 13(b), which
provides 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 [in other words, it has a discretion in this
regard] if the person, institution or other body which
opposes its
return establishes that –
(a)…
(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.’
[27]
An attack on the constitutionality of the Act incorporating the
provisions of the Convention into South African law, based on the
argument that this Act obliges South African courts to act in a
manner which does not recognise the paramountcy of the best interests
of the child,
2
5
was rejected by the Constitutional Court in
Sonderup
v
Tondelli and
Another.
2
6
Writing for the Court, Goldstone J emphasised the purposes of the
Convention and stated
2
7
that:
“
It
would be quite contrary to the intention and terms of the Convention
were a court hearing an application under the Convention to
allow the
proceedings to be converted into a custody application. Indeed, art
19 provides that:
“
A
decision under this Convention concerning the return of a child shall
not be taken to be a determination on the merits of any custody
issue.”
Rather,
the Convention seeks to ensure that custody issues are determined by
the court in the best position to do so by reason of
the relationship
between its jurisdiction and the child. That Court will have access
to the facts relevant to the determination of
custody.’
2
8
[28]
In concluding that the Act incorporating the Convention is consistent
with the Constitution, the Constitutional Court pointed out
2
9
that:
‘…
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 art 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.’
[29]
Addressing the question whether the ‘abducting’ mother of the
child concerned (a four year old girl) had established, under
art
13(b) of the Convention, that there was a grave risk that the child’s
return to the state of her former habitual residence
(British
Columbia, Canada) would expose her to psychological harm or otherwise
place her in an intolerable situation, the Constitutional
Court made
the following statements:
3
0
‘
A
matrimonial dispute almost always has an adverse effect on children
of the marriage. Where a dispute includes a contest over custody,
that harm is likely to be aggravated. The law seeks to provide a
means of resolving such disputes through decisions premised on the
best interests of the child. Parents have a responsibility to their
children to allow the law to take its course and not to attempt
to
resolve the dispute by resorting to self-help. Any attempt to do that
inevitably increases the tension between the parents and
that
ordinarily adds to the suffering of the children. The Convention
recognises this. It proceeds on the basis that the best interests
of
a child who has been removed from the jurisdiction of a Court in the
circumstances contemplated by the Convention are ordinarily
served by
requiring the child to be returned to that jurisdiction so that the
law can take its course. It makes provision, however,
in art 13 for
exceptional cases where this will not be the case.
An
art 13 enquiry is directed to the risk that the child may be harmed
by a Court-ordered return. The risk must be a grave one. It
must
expose the child to “physical or psychological harm or otherwise
place the child in an intolerable situation”. The words
“otherwise
place the child in an intolerable situation” indicate that the
harm that is contemplated by the section is harm
of a serious
nature. I do not consider it appropriate in the present case to
attempt any further definition of the harm, nor to consider
whether
in the light of the provisions of our Constitution, our Courts should
follow the stringent tests set by Courts in other countries.’
[30]
Despite the litany of alleged incidents of physical and mental abuse
of the mother by the ‘left-behind’ father on which counsel
for
the former relied in argument before the Constitutional Court in the
Sonderup
case,
3
1
as well as the report of a South African clinical psychologist to the
effect (
inter alia
)
that the continuation of the
status quo
in Canada would have a ‘severely compromising effect on the healthy
psychological development’ of the child in question, the
Court held
that the harm to which the child would allegedly be subjected by a
court-ordered return was not harm of the serious nature
contemplated
by art 13, but rather –
‘…
in
the main harm which is the natural consequence of her removal from
the jurisdiction of the Courts of British Columbia, a Court-ordered
return, and a contested custody dispute in which the temperature has
been raised by the mother’s unlawful action. That is harm
which all
children who are subject to abduction and Court-ordered return are
likely to suffer, and which the Convention contemplates
and takes
into account in the remedy that it provides.’
3
2
The
Constitutional Court thus confirmed the order made by the court a quo
for the return of the child, subject to detailed conditions
which
were very similar to those imposed by Pillay J in the present
matter.
3
3
[31]
As was canvassed in considerable detail by counsel for the appellant
in her heads of argument before this Court, courts in other
Contracting States have given art 13(b) a restrictive interpretation
and, by and large, ‘have resisted efforts to convert Article
13(b)
into a substitution for a best interests determination’,
3
4
on the basis that ‘the Convention’s drafters … did not intend
for this exception to be used by defendants as a vehicle for
the
litigation or relitigation of the abducted child’s best
interests.’
3
5
[32]
Thus, for example, it has been held that the ‘grave risk’
required to establish an art 13(b) defence to return must be –
‘…
more
than an ordinary risk, or something greater than would normally be
expected on taking a child away from one parent and passing
him to
another…not only must the risk be a weighty one, but…it must be
one of substantial, and not trivial, psychological harm.
That, as it
seems to me, is the effect of the words “or otherwise place the
child in an intolerable situation”.’
3
6
[33]
Courts in (
inter alia
)
England, Canada, Australia and the United States of America have
emphasised that:
‘
...the
threshold to be crossed when an article 13(b) is raised is a high one
and difficult to surmount…The risk must be grave and
the harm must
be serious. The courts are also anxious that the wrongdoer should not
benefit from the wrong: that is, that the person
removing the
children should not be able to rely on the consequences of that
removal to create a risk of harm or an intolerable situation
on
return.’
3
7
[34]
In the words of Ward LJ in
Re C (Abduction:
Grave Risk of Psychological Harm)
:
3
8
‘
There
is, therefore, an established line of authority that the court should
require clear and compelling evidence of the grave risk
of harm or
other intolerability which must be measured as substantial, not
trivial, and of a severity which is much more than is
inherent in the
inevitable disruption, uncertainty and anxiety which follows an
unwelcome return to the jurisdiction of the court
of habitual
residence.’
3
9
[35]
Referring to several of the more recent English cases cited above,
counsel for the respondent argued that, in England, more is required
(in an evidentiary sense) from a party seeking to establish a defence
under art 13(b) of the Convention that would be the case in
a normal
civil matter. While this may or may not be so, I do not consider it
to be either necessary or appropriate in the present
case to consider
whether South African courts should follow ‘the stringent tests set
by Courts in other countries’
4
0
in this regard. My reasons for this conclusion will become apparent
later on in this judgment.
The
judgment of the Full Court
[36]
In
Smith v Smith,
4
1
Scott JA stated that, once the applicant for a return order under the
Convention has established that the child was habitually resident
in
the Contracting State from which he or she was removed immediately
prior to the removal or retention and that such removal or
retention
was wrongful in terms of art 3:
‘…
the
onus
is upon a party resisting the order to establish one or other of the
defences referred to in article 13(a) or (b) or that the
circumstances
are such that a refusal would be justified having
regard to the provisions of article 20.
4
2
If the requirements of article 13(a) or (b) are satisfied, the
judicial or administrative authority may still in its discretion
order
the return of the child.’
[37]
In
its judgment in this case, the Full Court, quoting this
dictum
of Scott JA, held that ‘it is clear from the wording of Article 13
that the person opposing an application for the return of a
child
must “establish” circumstances falling within sub-paragraph (a)
or sub-paragraph (b)’.
4
3
So far, so good. However, the court went on ‘to consider precisely
what was intended by the use of the term “onus
”
in [the]
dictum
’
of Scott JA, and held that it was ‘not appropriate to equate the
requirement that the person opposing an order under Article
12
“establish” certain facts, to the customary requirements for the
discharge of an onus in our civil law.’
4
4
[38]
In
my view, this approach cannot be accepted. There is nothing in the
wording of art 13 of the Convention or in the analysis of this
wording by either the Constitutional Court in
Sonderup
or this Court in
Smith
to suggest that the person resisting an order for the return of a
child under the Convention by relying on the art 13(b) defence
does
not bear the usual civil
onus
of proof, as it is understood in our law, in that regard, viz that he
or she is required to prove the various elements of the particular
art 13(b) defence on a preponderance of probabilities.
4
5
[
39
]
As regards the approach to be adopted to disputed evidence on
affidavit in Convention applications, counsel for the appellant (at
that stage the respondent) contended before the Full Court that the
court should apply the time-honoured principles articulated by
Corbett JA in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
4
6
─
where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order may be granted if those facts
averred in
the applicant’s affidavits that have been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. This rule has been held to apply even in cases
where the onus of proving facts in a dispute rests on the respondent
and not only when the onus
rests
on the applicant.
4
7
The Full Court rejected this contention, stating that:
‘
Although
this is, at first sight, an attractive proposition and one which has
the substantial merit of providing the court with a
familiar and
eminently workable basis upon which to decide cases on paper without
resorting to oral evidence, we do not feel that
it is an appropriate
test for the special circumstances which arise in proceedings under
the Convention. This is because, in ordinary
application proceedings,
the applicant invariably has an option as to whether he should seek
final relief on application or have
the matter referred to trial or
oral evidence. When he decides to dispense with reference to oral
evidence such applicant is effectively
required to argue his case for
relief on what is common cause and on the respondent’s version of
the facts which are in dispute.
In the case of proceedings under the
Convention, the person seeking an order in terms of article 12 has
little or no option but to
proceed by way of application and, as
pointed out above, the judicial authority must almost invariably make
its assessment to grant
or refuse the order on the basis of what is
said in the affidavits before it. In those circumstances to load an
applicant with the
burden of making his or her case largely on the
basis of contentious statements in the respondent’s affidavits
might well lead
to unjust decisions. In our view, therefore, the
approach to the question of whether a respondent has “established”
circumstances
such as are contemplated in Articles 13(a) or (b) must
be the type of “robust approach” mentioned in a wide variety of
judgments
in our courts in situations where matters have to be
disposed of expeditiously and without all of the trappings which go
with a full-scale
hearing.’
4
8
[
40
]
I am in agreement with the argument of counsel for the
appellant that the Full Court erred in departing from the well-known
Plascon-Evans
rule, as
applied in the
Ngqumba
case, with regard to disputes of fact in proceedings on affidavit. As
indicated above, the Convention is framed around proceedings
brought
as a matter of urgency, to be decided on affidavit in the vast
majority of cases, with a very restricted use of oral evidence
in
exceptional circumstances.
4
9
Indeed, there is direct support in the wording of the Convention
itself for return applications to be decided on the basis of
affidavit
evidence alone,
5
0
and courts in other jurisdictions have, in the main, been very
reluctant to admit oral testimony in proceedings under the
Convention.
5
1
In incorporating the Convention into South African law by means of
Act 72 of 1996, no provision was made in the Act or in the
regulations
promulgated in terms of s 5 thereof indicating that South
African courts should not adopt the same approach to proceedings
under
the Convention as that followed by other Contracting States. In
accordance with this approach, that Hague proceedings are peremptory
and ‘must not be allowed to be anything more than a precursor to a
substantive hearing in the State of the child’s habitual residence,
or if one of the exceptions is satisfied, in the State of refuge
itself’.
5
2
[41]
As counsel for the appellant pointed out (correctly, in my view),
there is no reason in law or logic to depart, in Convention
proceedings,
from the usual approach to the meaning and discharge of
an onus in civil law and from the application of the
Plascon-Evans
rule to disputes of fact arising from the affidavits filed in such
proceedings. In the circumstances of the present case, a proper
application of this usual approach would have rendered it unnecessary
for the Full Court to make somewhat confusing statements such
as the
following:
5
3
‘
A
further question arises, however, which was not dealt with either in
the case of
Sonderup
(
supra
)
or in the decision of the Supreme Court of Appeal in the case of
Smith
(
supra
).
It concerns the meaning of the reference to a “grave risk” [in
art 13(b) of the Convention]. In our view, the contemplated
risk can
have two possible sources. Firstly it can be a risk which emerges as
a matter of probability from an assessment of the affidavit
evidence.
Secondly it can be a risk which must necessarily be associated with
the rejection of relevant assertions made by the respondent
without
the benefit of having these assertions tested at a hearing of
viva
voce
evidence.
Accordingly where a respondent contends that the applicant is guilty
of conduct which will compromise the safety, well-being
and interests
of the child, and the applicant puts up evidence to refute these
contentions, the court, in assessing whether an order
for the return
of the child will be associated with the “grave risk” should,
even though it is not able to resolve the issue,
be alert to the
consequences that may possibly flow if the respondent’s evidence
is, in fact, true.’
[42]
In considering the merits of the appeal, the Full Court ‘tend[ed]
to agree with the general statement by the learned judge in
the court
a quo
that the
respondent has not made out “an established pattern of domestic
violence” in relation to her’.
5
4
It accepted that, ‘on an objective appraisement of the evidence’,
the marriage relationship between the parties had deteriorated
to the
point where, at least from the respondent’s perspective,
cohabitation with the appellant had become physically and
psychologically
intolerable. In view of,
inter
alia
, the fact that the parties had been
attending marriage counselling for some time, the appellant’s poor
‘track record…insofar
as his ability to participate in a
successful marriage relationship is concerned’, and the manner in
which the respondent had left
the United States with A., the Full
Court was prepared to assume, in the respondent’s favour, that her
‘assertions that life
with the [appellant] will be
intolerable
for her
are
bona fide
and genuine’ (emphasis added).
5
5
As the judges correctly stated, however, the main question to be
determined was
not
whether the respondent’s attitude to the continuation of her
marriage was reasonable or justified, but rather whether or not the
court should order the return of A. to New Jersey under the
Convention.
[43]
The Full Court disapproved of the reliance by the court of first
instance on the above quoted
dictum
of Butler-Sloss LJ in
C v C (Minor: Abduction:
Rights of Custody Abroad
), (henceforth
referred to as
C v C (1989)
)
,
5
6
which
dictum
commenced
with the following statements:
‘
The
grave risk of harm arises not from the return of the child, but the
refusal of the mother to accompany him. The Convention does
not
require the court in this country to consider the welfare of the
child as paramount, but only to be satisfied as to the grave
risk of
harm. I am not satisfied that the child would be placed in an
intolerable situation if the mother refused to go back…’
According
to the Full Court:
‘There
are several aspects of this passage which, to put the matter at its
lowest, are not compatible with the law as applied in
this country.
In the first place, the statement that the Convention does not
require English courts to consider the “welfare”
of the child
[
sic:
the words ‘as paramount’ appear to have been inadvertently
omitted] is (if we have correctly understood “welfare” to mean
“general interests and well-being”) directly contrary to the
express stipulation in the preamble which stipulates that the
interests
of children are “of paramount importance”.
Furthermore, we cannot accept the suggestion that the principle of
international
comity should outweigh the interests of the child. We
do not think that the fact that the mother created a situation which
would
cause problems about the return of the child should be taken as
a basis for deciding that the child should not be returned. The
emphasis here seems to be to preclude the mother from relying on a
situation which she had created when, instead, the court should
have
been considering the question posed by Article 13(b) from the child’s
point of view. It follows that we can also not agree
with the “rule
of thumb” that a mother who removes a young child from his or her
habitual residence cannot rely on her own refusal
to return with the
child as a basis for opposing an application in terms of Article 12
... Insasmuch, therefore, as
C
v C
purports to lay
down any principle of general application relating to young children
or to situations where a parent refuses to accompany
a child who is
the subject of an order under Article 12, we do not consider such
principle to be acceptable in our law. In our law
where the
interests of the child are paramount, the only basis on which to
decide each case is on its own particular facts.’
5
7
[44]
These statements by the Full Court reveal several
misconceptions regarding the objectives of the Convention and its
underlying assumptions,
as well as a misunderstanding of the meaning
of the
dictum
of
Butler-Sloss LJ in
C v C (1989),
particularly as regards the meaning of the word ‘welfare’ as
utilised in such
dictum.
[45]
It is clear from the judgments of courts in other Contracting States
that, in considering the art 13(b) defence to the summary return
of
an abducted child, the court must distinguish between its role as a
court determining matters of custody and access, on the one
hand, and
its role under the Convention as a court dealing with an application
for the return of an abducted child to the state of
his or her
habitual residence, on the other. From several
dicta
in judgments subsequent to
C v C
(1989),
it is apparent
that the reference by Butler-Sloss LJ to the ‘welfare of the child’
in the abovequoted
dictum
from
her judgment in that case was a reference to the principles guiding
the courts in the determination of custody and other like
matters.
5
8
Thus, in
Re M (Abduction: Psychological
Harm),
5
9
Butler-Sloss LJ stated that:
‘…
the
approach of the Convention is directed to the welfare of the child
but the welfare test generally is to be applied in such a way
as to
enable the courts of the habitual residence of the child to make
decisions as to what are the best interests of that child…the
Convention none the less exceptionally makes provision for specific
consideration of the welfare of the particular child with whom
the
requested State is concerned, where the threshold has been crossed
and the needs of the child require the court to take another
course
than summary return under Article 12. That specific consideration of
welfare is only to be found in Article 13’
(the
relevant part which is then cited as being art 13 (b)).
6
0
At
a later stage in this judgment,
6
1
Butler-Sloss LJ again pointed out that–
‘Article 13 gives the requested State this limited but none the
less important opportunity to look at the specific welfare of these
children at the time when the application for summary return is
made.’
[46]
The same point was cogently made by Laws LJ in the English Court of
Appeal judgment in
TB v JB (Abduction: Grave
Risk of Harm)
,
6
2
in which case the abducting parent (the mother) had relied upon,
inter alia,
the art
13(b) defence, alleging that the children in question would be
exposed to a grave risk of physical or psychological harm
or would be
placed in an intolerable situation should the court order their
return to New Zealand:
‘
In
my judgment it is critical to recognise and to bear in mind at every
stage of the court’s consideration of the case, the difference
between the judicial exercise upon which we are here engaged in
administering the Convention on the Civil Aspects of International
Child Abduction 1980…and the task which family courts daily
undertake (in care proceedings and otherwise) of deciding where the
welfare of a child or children lies. In dealing with an application
to return a child under art 12 of the Convention we do not apply
a
straightforward welfare test; if we did, we should risk frustrating
the plain purpose of the Convention.’
[47]
As was submitted by counsel for the appellant, these
dicta
are entirely consistent with – indeed, are predicated upon – the
preamble to the Convention which records that the States signatory
to
the convention are ‘[f]irmly convinced that the interests of the
children are of paramount importance in matters relating to
their
custody’, and desire ‘to protect children internationally from
the harmful effects of their wrongful removal or retention
and to
establish procedures to ensure their prompt return to the State of
their habitual residence.’
[48]
As regards the statement by the Full Court
(in the passage quoted above) to the effect that ‘we cannot accept
the suggestion that
the principle of international comity should
outweigh the interests of the child’, this too reflects a
misunderstanding of the
purpose and scope of the Convention which,
as
a matter of international comity
, has as its
basic premise the idea that the policy of prompt return to the state
of habitual residence protects the interests of
children
generally
by reversing the ill-effects of the wrongful removal or retention as
quickly as possible and by deterring wrongful removals or retentions
in the first place.
6
3
[49]
The misconceptions underpinning the statements of the Full Court in
the passage quoted above are thrown into further relief by the
following
dicta
of the
Constitutional Court in
Sonderup v Tondelli
and Another:
6
4
‘
The
Convention itself envisages two different processes ­â€“ the
evaluation of the best interests of children in determining
custody
matters, which primarily concerns long-term interests, and the
interplay of the long-term and short-term best interests of
children
in jurisdictional matters. The Convention clearly recognises and
safeguards the paramountcy of the best interests of children
in
resolving custody matters. It is so recorded in the preamble’,
6
5
and
‘
It
would be quite contrary to the intention and terms of the Convention
were a court hearing an application under the Convention to
allow the
proceedings to be converted into a custody application…Rather, the
Convention seeks to ensure that custody issues are
determined by the
court in the best position to do so by reason of the relationship
between its jurisdiction and the child…
Given
the appropriateness of a specific forum, the Convention also aims to
prevent the wrongful circumvention of that forum by the
unilateral
action of one parent. In addition, the Convention is intended to
encourage comity between States parties to facilitate
co-operation in
cases of child abduction across international borders. These purposes
are important and are consistent with the values
endorsed by any open
and democratic society.’
6
6
[50]
The passage from the judgment of Butler-Sloss LF in
C
v C (1989)
cited by the Full Court, as
clarified in subsequent cases, also does not support the
interpretation given to it by the Full Court
to the effect that ‘the
fact that the mother has created a situation which would cause
problems about the return of the child should
be taken as a basis for
deciding that the child should not be returned’.
6
7
It is evident from the judgments of
inter
alia
the English Court of Appeal, including
that of Butler-Sloss LJ herself in
Re M
(Abduction: Psychological Harm),
6
8
that the approach to the art 13(b) defence always remains focused on
the
child
in question
and the risk of harm to which a return order may expose the
child,
while the conduct of the abducting parent may, in appropriate cases,
be
one
of the factors
relevant to the determination of the existence and gravity of such
risk of harm to the child.
6
9
[51]
The
Full Court referred to ‘the fundamental assumption’ upon which
the Convention is based, namely ‘that it is a child’s best
interests to have questions of custody and/or access decided by the
judicial authority in the place of the child’s habitual
residence’.
7
0
In this regard, however, they expressed the view that –
‘
As
a general statement this is probably true, especially of children who
have developed social relationships with peers and who have
attended
schools or even day-care institutions as part of their lifestyle. It
is also plainly true of children whose parents are,
for one reason or
another, not living together and whose custody and access
arrangements have been governed by agreement or order
in their place
of habitual residence.
But
when it comes to a young child on the very threshold of life such as
[A.], the applicability of the assumption becomes doubtful.
It is
difficult to conceive [of] any benefit which might flow to [A.] by
having the question of her custody and the parties’ respective
access rights decided by a court in Princeton [New Jersey].’
7
1
(Emphasis added.)
[52]
I
agree with the submission made by counsel for the appellant that the
approach of the Full Court in this regard (particularly the
statements highlighted above) is also questionable. While the age of
the child in question may well, in certain circumstances, be
one
of the factors relevant to the determination of whether a
court-ordered return would expose the child to a grave risk of
physical
or psychological harm or otherwise place the child in an
intolerable situation, there is no basis to differentiate
in
principle
on the basis of age, or to be
swayed by some kind of ‘tender years’ principle in the
application of the Convention. Moreover,
while it
may
be so (as was apparently accepted by the Full Court),
7
2
that the appellant’s chances of ultimately obtaining custody (joint
or otherwise) of A., judged according to South African law,
are
somewhat slim – I do not express any view one way or the other in
this regard – I share the doubts expressed by Ward LJ in
Re
C (Abduction: Grave Risk of Psychological Harm)
7
3
as to the appropriateness of a court hearing
a return application under the Convention ‘to engage in
speculation’
7
4
on the possible outcome of a custody dispute or leave to relocate
application to be heard in the courts of the State of habitual
residence.
[53]
It
is important to bear in mind that a return order made under art 12 of
the Convention is an order for the return of the child in
question to
the Contracting State from which he or she was abducted, and
not
to the ‘left-behind’ parent. The child is not,
by
virtue of a return order
, removed from the
care of one parent, or remanded to the custody of the other parent.
In the words of Butler-Sloss P in the very
recent case of
Re
H (Children)
:
7
5
‘
The
return of children under the convention is to the jurisdiction of
their habitual residence and it is not generally necessary or
likely
that the return would be to the same situation.’
[54]
Furthermore,
it must be remembered that the policy of the Convention appears to
require that the evaluation of risk, for the purposes
of
consideration of an art 13(b) defence, be carried out:
‘
...
on the basis that the abducting parent will take all reasonable steps
to protect herself and her children and that she cannot
rely on her
unwillingness to do so as a factor relevant to risk...’
7
6
As
in several of the cases referred to above, the respondent before us
is, to a large extent, the author of her present predicament
and it
would be reasonable to expect her to make all appropriate use of the
welfare system and the machinery of the courts which
may be available
to her in New Jersey for her protection and that of her daughter. In
any event, the undertakings given by the appellant,
which formed the
basis of the conditions imposed by the court of first instance, in my
view do ameliorate to a large extent the concerns
expressed by the
respondent and the potential hardships to which A. might be exposed
should her return to New Jersey be ordered.
I agree fully with the
submission by counsel for the appellant and for the
amicus
curiae
that the reasons given by the Full
Court for finding that there was a grave risk that A. would be
exposed to harm or be placed in
an intolerable situation were she to
be returned to New Jersey under the aegis of the protective order
(framed as a mirror order
in New Jersey), are inadequate and
unconvincing. Accepting at face value the relevant allegations made
by the respondent, I am firmly
of the view that she has
not
discharged the onus resting on her, in terms of art 13(b) of the
Convention, of showing that the return of A. to New Jersey will
expose the child to a grave risk of physical or psychological harm or
otherwise place the child in an intolerable situation.
[55]
What
then is the effect (if any) on this conclusion of the ‘new’
evidence which this Court allowed both the appellant and the
respondent to adduce on appeal? Despite the contention of counsel
for the respondent to the contrary, the fact that the appellant
has,
subsequent to the date of the judgment of the Full Court, obtained a
decree of divorce against the respondent, does not in my
view in
itself assist the respondent in establishing the 13(b) defence. As
indicated above, despite this divorce order, the New
Jersey courts
have not yet finally adjudicated upon and determined the key issues
of custody of and access to A.. It would, however,
appear from the
report of the
amicus curiae
to this Court and other documentation (emanating from the United
States Central Authority) placed by the
amicus
curiae
before us at the hearing of the
appeal, that the permanent resident’s status and work permit
(‘green card’) held by the respondent
in the United States of
America prior to her departure in September 2002 might well have
lapsed because of her absence from the United
States for more than 12
consecutive months. Furthermore, it would seem that, because the
appellant has obtained a divorce from the
respondent in the interim,
he will not be able to ‘sponsor’ the respondent to obtain
permanent residence (and a work permit)
in the United States of
America – she is no longer his direct family member. There is
therefore a possibility that the respondent
will not be permitted to
return to the United States and an even stronger possibility that,
should she be allowed to return with
A., this will only be for a
limited period of time and she will not legally be able to work while
in the United States.
[56]
It was for the above reasons that the draft order presented to this
Court (at our request) on behalf of the respondent, setting out
the
conditions which should, in the respondent’s submission, be imposed
should this Court order A.’s return to New Jersey, stipulated
that
such return order should only operate once the respondent had been
granted leave to reside
permanently
in the United States of America and be lawfully employed there. The
order proposed by the
amicus curiae
and accepted by the appellant, on the other hand, appears to envisage
only a temporary visa enabling the respondent to reside in
the United
States for a limited period (to encompass the period of the custody
proceedings). I am of the view that, were this Court
to impose a
condition along the lines of that proposed in this regard by the
respondent, this would thwart the objectives of the
Convention and in
effect allow the respondent to rely on the consequences of her
wrongful removal of the child to avoid having to
return to the state
of habitual residence so as to allow the courts of that state to
adjudicate upon the issues of custody and access.
7
7
This would amount to permitting the respondent ‘to effectively
blackmail this Court into shirking its obligations under the
Convention’.
7
8
[57]
It
follows from what I have said above that, in my view, the respondent
has not established the art 13(b) defence relied upon by
her and that
A.’s return to New Jersey must be ordered in terms of art 12 of the
Convention. I have carefully considered the draft
conditions for
such a return order prepared and filed (at our request) on behalf of
the respondent, on the one hand, and the
amicus
curiae
and the appellant, on the other. In
formulating the conditions which I intend to impose, I have
attempted, as far as possible, to
secure the best possible interim
protection of A.’s needs, while at the same time not subjecting the
appellant to unreasonable
and excessive financial demands with which
he has little or no chance of complying.
[58]
To
a large extent, the order which we intend to make is very similar to
that made by Pillay J on 22 November 2002. Because of the
lapse of
time since that order was made, however, there have in the interim
been various changes in the circumstances of both the
appellant and
the respondent, and other developments. It has
inter
alia
been made clear by counsel for the
respondent that, should this Court order A.’s return to New Jersey,
the respondent
will
accompany her daughter. Thus, certain parts of the order made by
Pillay J are no longer necessary, while other parts require
amendment.
It is therefore more convenient to replace Pillay J’s
order in its entirety, despite the fact that many of the conditions,
as
originally formulated, remain largely unchanged.
Costs
[59]
As indicated above,
7
9
the appellant initially applied, via the United States Central
Authority, to the Office of the Durban Family Advocate (as the
relevant
delegate of the South African Central Authority), for its
assistance in securing A.’s return. Had the Chief Family Advocate
or
her delegate carried out the obligation imposed by the Convention
‘to initiate or facilitate the institution of judicial ...
proceedings
with a view to securing the return of the child’,
8
0
the Chief Family Advocate or her delegate would probably have brought
the application for A.’s return. As pointed out by the
Constitutional
Court in
Sonderup v Tondelli
and Another,
8
1
the Chief Family Advocate ‘is a State official acting in terms of
an International Convention which provides in art 26 that each
Central Authority should bear its own costs in applying the
Convention’.
8
2
In terms of the regulations made under s 5 of the Act, it is
envisaged that the Chief Family Advocate or her delegate will
represent
a return applicant in any court proceedings necessary to
give effect to the provisions of the Convention in those cases where
the
applicant either does not qualify for legal aid or does not wish
to appoint his or her own legal representative.
8
3
Thus, had the Office of the Durban Family Advocate not misconstrued
its role and declined to assist the appellant, the latter would
probably have been spared most of the costs incurred by him in the
legal battles to secure A.’s return to New Jersey. This being
so,
I am of the view that it would be just and equitable to order the
Chief Family Advocate and the (ultimately) unsuccessful respondent
to
pay jointly and severally the costs incurred by the appellant in the
appeal to the Full Court, as well as in the appeal in this
Court.
[60]
The
court of first instance took the view that it would be inappropriate
to make a costs order against the respondent in relation
to the
application before it. Pillay J thus ordered each party to bear his
or her own costs. There was no appeal against this order
and I do
not propose to alter it in any way.
[61]
As
concerns the costs of the respondent’s application to this Court
for leave to adduce further evidence on appeal, and the appellant’s
conditional counter-application in this regard, I am of the view that
the most equitable outcome is that each party should pay his
or her
own costs.
Order
[62]
The
following order is made:
A.
The appeal is upheld and the Order of the Full Court dated 14
February 2003 is set aside.
B.
The Order of Pillay J in the Durban and Coast Local Division dated 22
November 2002 is replaced by the following order:
1
It is ordered and directed that the minor child, A.M.P. (A.), be
returned forthwith, subject to the terms of this Order, to the
jurisdiction of the Central Authority, New Jersey, United States of
America.
2.1 The
order for the return of A. shall only come into operation once Hayley
Sarah-Dawn Pennello (the respondent) has been granted
leave by the
relevant immigration authorities of the United States of America to
enter and remain in the United States of America
until at least the
final adjudication and determination, by the New Jersey courts, of
the issues of custody and care of and access
to A., including any
appeal. To this end the respondent is ordered forthwith to contact
the relevant American immigration authorities
and to comply timeously
with all of their requirements and procedures. The Family Advocate
(Kwa-Zulu Natal) is directed to request
the United States Central
Authority to do everything within its power to facilitate and
expedite the granting of such leave to the
respondent by the relevant
immigration authorities.
2.2 Should
the respondent fail to contact the relevant immigration authorities
within seven days of this Order or thereafter fail
to comply
timeously, to the satisfaction of the Family Advocate (Kwa-Zulu
Natal), with any requirements or procedures of such authorities,
the
order for the return of A. in terms of paragraph 1 above shall,
subject to the terms set out in the other paragraphs of this
Order,
come into immediate operation.
3 Robert
Salvatore Pennello (the appellant) shall, within 14 days of the date
of this Order, launch proceedings and pursue them with
due diligence
to obtain an order of the appropriate judicial authority in the State
of New Jersey, United States of America, in the
following terms:
3.1 The
warrant for the arrest of the respondent is withdrawn and will not be
re-instated and the respondent will not be subject to
arrest or
prosecution by reason of her removal of A. from New Jersey and the
United States of America on 25 September 2002 or for
any past conduct
relating to A.. The appellant will not institute or cause to be
instituted or support any legal proceedings or
proceedings of any
other nature in the United States of America for the arrest,
prosecution or punishment of the respondent or any
member of her
family, for any past conduct by the respondent relating to A..
3.2 The
respondent is awarded interim custody of A. pending the final
adjudication and determination by the appropriate court in New
Jersey
of the issues of custody and care of and access to A., which
adjudication and determination shall be requested forthwith by
the
appellant.
3.3 Until
otherwise ordered by the appropriate court in New Jersey:
3.3.1 The
appellant is ordered to arrange, and to pay any required deposit for,
suitable separate furnished accommodation (either
a rented apartment
or hotel accommodation) for the respondent and A. in New Jersey, in a
similar neighbourhood to that in which the
former matrimonial home
was situated, and to pay all the rentals or tariffs for such
accommodation timeously and in full. The appellant
shall provide
proof to the satisfaction of the Family Advocate (Kwa-Zulu Natal),
prior to the departure of the respondent and A.
from South Africa, of
the nature and location of such accommodation and that such
accommodation is available for the respondent and
A. immediately upon
their arrival in New Jersey. The Family Advocate (Kwa-Zulu Natal)
shall (in consultation with the Central Authority,
New Jersey, United
States of America) decide whether the accommodation thus arranged by
the appellant is suitable for the needs of
the respondent and A.,
should there be any dispute between the parties in this regard, and
the decision of the Family Advocate shall
be binding on the parties.
3.3.2 The
appellant is ordered to pay maintenance for A. from the date of her
arrival in New Jersey at the rate of US $102 per week
or such other
amount as may reasonably be required for her maintenance and upkeep,
and failing agreement between the parties in this
regard, such amount
as may be ordered by the appropriate authority responsible for such
matters in New Jersey. The first such payment
shall be made to the
respondent on the day upon which she and A. arrive in New Jersey and
thereafter weekly in advance on the Monday
of every week.
3.3.3 The
appellant is ordered to pay maintenance for the
respondent in
the sum of US $200 per month from the date of her arrival in New
Jersey, the first such payment to be made on the day
upon which she
and A. arrive in New Jersey and thereafter monthly in advance on the
first day of every month.
3.3.4 The
appellant is ordered to pay any medical expenses reasonably incurred
by the respondent in respect of herself and/or A..
3.3.5 The
appellant is ordered to provide a roadworthy motor vehicle equipped
with a child seat for A., for the use of the Respondent
and A. from
the date of their arrival in New Jersey, and to pay the deposit,
rental and insurance costs in respect thereof.
3.3.6 The
appellant is granted reasonable access to A., which access shall be
arranged without the necessity of direct contact between
the
appellant and the respondent.
3.4 The
appellant is interdicted and restrained from assaulting, threatening,
harassing or abusing in any way the respondent and from
entering any
residence occupied by the respondent or any place of employment
obtained by her, it being noted that the appellant makes
no admission
that he has in the past engaged in any such conduct in respect of the
respondent.
3.5 The
appellant and the respondent are ordered to co-operate fully with the
Family Advocate (Kwa-Zulu Natal), the United States
Central
Authority, the relevant court or courts in New Jersey, and any
professionals who conduct an assessment to determine what
future
custody, care and access arrangements will be in the best interests
of A..
3.6 The
appellant is ordered to pay for the costs of economy class air
tickets, and if necessary, the costs of rail or other travel,
for the
respondent and A. to travel by the most direct route from Knysna,
South Africa, to New Jersey, United States of America.
4
Subject to the provisions of paragraph 2 above, the order for the
return of A. to New Jersey shall be stayed until the respondent
has
been granted leave (as referred to in paragraph 2 above) by the
relevant immigration authorities of the United States of America
to
enter and remain in the United States of America, until the
appropriate court in New Jersey has made an order in the terms set
out in paragraph 3 above, and further until the Family Advocate
(Kwa-Zulu Natal) has been satisfied, by the submission to him or
her
of all relevant documents, that such leave has been granted, that
such an order has been made, and that the appellant has taken
the
necessary steps to secure the accommodation and the motor vehicle for
the respondent referred to in, respectively, paragraphs
3.3.1 and
3.3.5 above.
5
Pending the return of A. to New Jersey, as provided for in this
Order, the respondent shall not remove A. from the district of
Knysna
and, until then, she shall keep the Family Advocate (Kwa-Zulu Natal)
informed of her physical address and contact telephone
numbers.
6
Pending the return of A. to New Jersey, the appellant is to have
reasonable telephone access to A..
7
The Family Advocate (Kwa-Zulu Natal) is directed to seek the
assistance of the United States Central Authority in order to ensure
that the terms of this Order are complied with as soon as possible.
8
In the event of the relevant immigration authorities of the United
States of America failing or refusing to grant leave to the
respondent to enter and remain in the United States, as envisaged in
paragraph 2 above, or in the event of the appropriate court
of
competent jurisdiction in New Jersey failing or refusing to make the
order referred to in paragraph 3 above, the appellant is
given leave
to approach this Court for a variation of this Order.
9
The Chief Family Advocate of South Africa and the respondent are
ordered to pay, jointly and severally, the one paying the other
to be
absolved, the costs incurred by the appellant in the appeal to the
Full Court of the Natal Provincial Division, as well as
the costs
incurred by the appellant in the appeal to this Court.
10
No order as to costs is made in respect of either the respondent’s
application to this Court for leave to adduce further evidence
on
appeal, or the appellant’s conditional counter-application to this
Court for leave to adduce further evidence on appeal.
11
A copy of this Order shall forthwith be transmitted by the Family
Advocate (Kwa-Zulu Natal) to the United States Central Authority
and
its representative in New Jersey.
______________________
BJ VAN HEERDEN AJA
CONCUR:
MPATI DP
FARLAM JA
BRAND JA
LEWIS
JA
1
Section
2 of the Act provides that the Convention (the full text of which is
annexed to the Act as a Schedule) applies in South
Africa. Thus, in
terms of s 231(4) of the Constitution of the Republic of South
Africa Act 108 of 1996, the Convention has the
force of law.
2
The
judgment of the Full Court is reported as
Pennello
v Pennello
[2003] 1 All SA 716
(N).
3
Article 6 of the Convention requires every
Contracting State to designate a Central Authority to discharge
numerous duties imposed
on Central Authorities by the Convention.
In terms of s 3 of the Act, the Chief Family Advocate is designated
as the Central Authority
for the Republic of South Africa.
4
The removal (or
retention) of a child under the age of 16 years is considered to be
‘wrongful’ for the purposes of the Convention
where it is in
breach of custody rights attributed to a person, an institution or
any other body under the law of the state in
which the child in
question was habitually resident immediately prior to the removal or
retention, provided that those custody
rights were actually being
exercised at the time of the removal or retention, or would have
been so exercised but for the removal
or retention: articles 3 and
4 of the Convention (see further
Sonderup
v Tondelli and Another
2001 (1) SA 1171
(CC) para [10] at 1178I-1179E, Van Heerden
et
al
(eds)
Boberg’s
Law of Persons and the Family
(2ed 1999) 578-80, and the other authorities there cited).
5
In
terms of art 9 of the Convention, ‘[i]f the Central Authority
which receives an application referred to in Article 8 has reason
to
believe that the child is in another Contracting State, it shall
directly and without delay transmit the application to the
Central
Authority of that Contracting State and inform the requesting
Central Authority or the applicant, as the case may be.’
6
The province in which the respondent and Alyssa were staying (with
the respondent’s parents) at that time.
7
The Chief Family Advocate, as the Central Authority for South
Africa, may delegate or assign any of her powers or duties under
the
Convention to any Family Advocate appointed in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987: see s 4 of
the
Act, read with regulation 3 of the regulations promulgated under s 5
of the Act in Government Notice R1282 of Government
Gazette
No.18322 dated 1 October 1997.
8
See the reported
judgment of the Full Court (n 2) at 723a-b. In terms of art 29 of
the Convention, a person claiming that a child
has been wrongfully
removed or retained may apply directly to the judicial or
administrative authorities of a Contracting State
for the return of
such child.
9
Above (n 4).
1
0
In
Sonderup
above (n 4) para [34] at 1185I-1186C, Goldstone J said that, in the
application of art 13(b) of the Convention, South African
courts
should not trivialise the impact of domestic violence on children
and families and that ‘recognition must be accorded
to the role
which domestic violence plays in inducing mothers, especially of
young children, to seek to protect themselves and
their children by
escaping to another jurisdiction ... where there is an established
pattern of domestic violence, even though
not directed at the child,
it might very well be that return might place the child at grave
risk of harm as contemplated by art
13 of the Convention.’
1
1
In this regard, Pillay J cited the judgment of the English Court of
Appeal in
C v C (Minor: Abduction: Rights of Custody Abroad)
[1989] 2 All ER 465
(CA) where (at 471b-c) Butler-Sloss LJ held
that, ‘[i]n weighing up the various factors, I must place in the
balance and of
the greatest importance the effect of the court
refusing the application under the Convention because of the refusal
of the mother
to return for her own reasons, not for the sake of the
child. Is a parent to create the psychological situation, and then
rely
on it? If the grave risk of psychological harm to a child is
to be inflicted by the conduct of the parent who abducted him, then
it would be relied on by every mother of a young child who removed
him out of the jurisdiction and refused to return. It would
drive a
coach and four through the Convention, at least in respect of
applications relating to young children. I, for my part,
cannot
believe that this is in the interests of international relations.
Nor should the mother, by her own actions, succeed in
preventing the
return of a child who should be living in his own country and deny
him contact with his other parent.’
1
2
See the reported judgment (n 2) at 722c-f.
1
3
Gsponer v Johnston
(1988) 12 Fam LR 755
(Family Court of Australia) at 769. See also
Re
C (Abduction: Grave Risk of Physical or Psychological Harm)
[1999] 2 FLR 478(CA)
at 483 D-F, Beaumont & McEleavy
The
Hague Convention on International Child Abduction
(1999) 257-9 and the other authorities there cited.
1
4
[1997] EWCA Civ 2841
(27 November 1997) (CA).
1
5
See further in this regard
C v C (Minor: Abduction: Rights of
Custody Abroad)
above (n 11) at 466j and 469 g;
Re C
(Abduction: Grave Risk of Psychological Harm)
[1999] 1 FLR 1145
(CA) at 1155G-H;
S (A Child)
[2002] EWCA Civ 908
(3 July
2002) (CA) at paras 20, 66, 76, 80-93;
Re B (Children)
Abduction: New Evidence)
(2002) 2 FCR 531
(CA) para [23] at
537g-538a (per Butler-Sloss P) and para [42] at 542b-c (per Waller
LJ). This would include the admission of oral
evidence, but only in
exceptional circumstances: see, for example,
Re F ( A Minor) (
Child Abduction)
[1992] 1 FLR 548
(CA) at 553-4, where
Butler-Sloss LJ suggested that oral evidence might be heard where
both parties were present in court and there
was irreconcilable
affidavit evidence on an issue of crucial importance. See also
Re
F ( Child Abduction: Risk of Returned)
[1995] 2 FLR 31
(CA) at
37H-38B.
1
6
See Erasmus
et al
Superior Court Practice
(1993, with loose-leaf updates) A1-54A – A1-58,
Herbstein
and Van Winsen: The Civil Practice of the Supreme Court of South
Africa
(4ed 1997, by Van Winsen,
Cilliers & Loots) 909-911, and the other authorities cited by
these writers.
1
7
In
terms of the order made by Pillay J, it was envisaged that the
respondent would have interim custody of Alyssa ‘pending final
adjudication and determination by a Court in New Jersey on the
issues of care and custody of and access to Alyssa, which
adjudication
and determination shall be requested forthwith by the
father [the appellant]’, and that the appellant would have
‘reasonable
access to Alyssa’ in the interim period.
1
8
ie
about 3 and a half weeks after her arrival in South Africa and
before the appellant’s application under the Convention for
Alyssa’s return was instituted on 5 November 2002.
1
9
Per Butler-Sloss P in
Re
H (Children)
[2003]
EWCA Civ 355
(20 March 2003) (CA) para 36.
2
0
Per Lord Donaldson of Lymington MR in
C v C
(
Minor:
Abduction: Rights of Custody Abroad
) above (n 11) at 473e-f. See
further, in this regard, Beaumont & McEleavy
op cit
(n
13) 156
et seq
and the other authorities there cited.
2
1
Article 1(a), read with the preamble to the Convention.
2
2
See, for example, Anton ‘The Hague Convention on International
Child Abduction’
(1981) 30
ICLQ
537
at 543-545 (this writer
was the chairperson of the Commission of the Hague Conference on
Private International Law which drafted
the Convention); Reddaway &
Keating ‘Child Abduction: Would Protecting Vulnerable Children
Drive a Coach and Four through
the Principles of the Hague
Convention?’ (1997) 5
Int J of Children’s Rights
77 at
78-9, 86-7 and 94.
2
3
See n 4 above.
2
4
Article 12 of the Convention. See further in this regard
Sonderup
v Tondelli and Another
above (n 4) para [12] at 1179F – 1180B
and
Smith v Smith
2001 (3) SA 845
(SCA) para [8] at 850 B-C.
2
5
Section 28(2) of the Constitution provides what has been called ‘an
expansive guarantee that a child’s best interests are paramount
in
every matter concerning the child’:
Sonderup
v Tondelli and Another
above (n 4) para [29] at 1184F-G.
2
6
Above (n 4).
2
7
Op cit para [30] at 1185A-C.
2
8
These objectives of the Convention were reiterated by this Court in
Smith v Smith
above (n 24) para [6] at 849E-F.
2
9
Sonderup
above (n 4) paras [35] – [36] at 1186D-F.
3
0
Above paras [43] – [44] at 1189 B-E.
3
1
Above para [39] at 1187B-1188F.
3
2
Above para [46] at 1189H-1190A.
3
3
Above para [56] at 1195B-1197D.
3
4
Silberman ‘Hague Convention on International Child Abduction: A
Brief Overview and Case Law Analysis’
(1994) 28
Fam
LQ
9
at 27.
3
5
LeGette ‘International Child Abduction and the Hague Convention:
Emerging Practice and Interpretation of the Discretionary Exception’
(1990) 25
Texas Int LJ
287 at 297.
3
6
Per Nourse LJ in
Re A
(A Minor) (Abduction)
[1988] 1 FLR 365
(CA) at 372, cited with approval in a number of
subsequent cases, including
Thomson
v Thomson
(1994) 119
DLR (4
th
)
253 (Supreme Court of Canada) at 286-287 (per La Forest J),
Re
C (Abduction: Grave Risk of Psychological Harm)
above (n 15) at 1152G-1153B (per Ward LJ),
Gsponer
v Johnstone
above (n
13) at 766.
3
7
Re H (Children)
above (n 19) para 30 (per Butler-Sloss P). See also
Director-General,
Department of Families, Youth and Community Care v Bennett
[2000] Fam CA 253(16 March 2000)
(Full Court of the Family Court of
Australia) paras 25-35,
Sonderup
v Tondelli and Another
above (n 4) 1189 n 41, and the other cases there cited.
3
8
Above (n 15) at 1154A-B.
3
9
As was pointed out by Lord Donaldson of Lymington MR in
C
v C (Minor: Abduction: Rights of Custody Abroad)
above ( n 11) at 473 e-f: ‘… in a situation in which it is
necessary to consider operating the machinery of the Convention,
some psychological harm to the child is inherent, whether the child
is or is not returned. This is, I think, recognised by the
words “or
otherwise place the child in an intolerable situation”, which cast
considerable light on the severe degree of psychological
harm which
the Convention has in mind.’ This approach is very much along the
same lines at that followed by the Constitutional
Court in
Sonderup
v Tondelli and Another
above (n 4) paras [43] – [44] at 1189B-E, as quoted above.
4
0
Sonderup
above (n 4) para [44] at 1189E-F.
4
1
Above (n 24) para [11] at 850J-851B.
4
2
On the ‘defence’ referred to in art 13(a), see
Smith
above paras [16] ─ [20] at 852H-854I. This was the defence raised
by the ‘abducting’ parent which ultimately succeeded before
this
Court in
Smith
.
On the exception to a mandatory return of the child contained in art
20, see Van Heerden
et
al op cit
(n 5)
591-592.
4
3
See
the reported judgment (n 2) at 724d-e.
4
4
Above 724g-h.
4
5
See
‘Evidence’
LAWSA
Vol 9 (first re-issue, 1996) para 642. Cf also
Chief
Family Advocate and Another v G
2003 (2) SA 599
(W) at 610-D.
4
6
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C.
4
7
Ngqumba en ‘n Ander v Staatspresident en Andere; Damons NO en
Andere v Staatspresident en Andere; Jooste v Staatspresident en

Andere
1988 (4) SA 224
(A) at 259C-263E. It should be mentioned
that, in the recent judgment of this court in
ABSA Bank Ltd t/a
Bankfin v Jordashe Auto CC
2003 (1) SA 401
(SCA) para [23] at
409 D-E, there was an oblique indication that the correctness or
otherwise of the
Ngqumba
case might have to be reconsidered
at some stage.
4
8
See the reported judgment (n2) at 725b-e.
4
9
See para [18] above.
5
0
Article 30 of the Convention provides that ‘[a]ny application
submitted to the Central Authorities or directly to the judicial
or
administrative authorities of a Contracting State in accordance with
the terms of this Convention, together with documents and
any other
information appended thereto or provided by a Central Authority,
shall be admissible in the courts or administrative
authorities of
the Contracting States.’
5
1
See the authorities cited in notes 13, 14 and 15 above.
5
2
Beaumont & McEleavy
op cit
(n 13) 258.
5
3
See the reported judgment (n 2) at 725j-726c.
5
4
Above 726d-e.
5
5
Above 726f-h.
5
6
Above (n 11) at 471a-c.
5
7
See
the reported judgment (n 2) at 727c-g.
5
8
Sometimes referred to, particularly by English courts, as ‘the
welfare principle’: see Reddaway & Keating
op
cit
(n 22) 79-83 and
the other authorities there cited. This is hardly surprising, as s
1(1) of the UK Children Act 1989 provides that
‘[w]hen a court
determines any question with respect to: (a) the upbringing of a
child, or (b) the administration of a child’s
property or the
application of any income arising from it,
the
welfare of the child shall be the court’s paramount consideration’
(emphasis added).
5
9
[1997] FLR 690
(CA).
6
0
At 694F-H.
6
1
At 699F.
6
2
(2001) 2 FCR 497
(CA) para 109 at 527f-g.
6
3
See for example Schuz ‘The Hague Child Abduction Convention:
Family Law and Private International Law’ (1995) 44
ICLQ
771 at 775-6 and the other authorities cited by this writer.
6
4
Above (n 4).
6
5
Above para [28] at 1183G-1184B
6
6
Above paras [30] – [31] at 118 A-D.
6
7
See
the reported judgment (n2) at 727e.
6
8
Above (n 59) at 699B-700E.
6
9
See also the judgment of Arden LJ in
TB v JB (Abduction: Grave
Risk of Harm)
above (n 62) para 95 at 524d-e.
7
0
See
the reported judgment (n 2) at 728d-e.
7
1
Above
728e-g.
7
2
Above
730f-h.
7
3
Above (n 15) at 1159 C-E. See also
TB
v JB (Abduction: Grave Risk of Harm)
above
(n 62) para 43 at 509i-510a (per Hale LJ) and para 67 at 516a-b (per
Arden LJ).
7
4
This was also the approach followed by the
Constitutional Court in
Sonderup
above (n 4) para [53] at 1194B-C.
7
5
Above
(n 19) para 33. See also
Gsponer
v Johnstone
above (n 13) at 768 and
In
re the Application of John Walsh
31 F. Supp 2d 200
(United States District Court: Massachusetts)
(1998) para 30.
7
6
TB
v JB (Abudction: Grave Risk of Harm)
above
(n62) para 97 at 5241-525a.
7
7
The
circumstances of the present case can easily be distinguished from
those in the case of
State
Central Authority of Victoria v Ardito
(Family Court of Australia, unreported 29 October 1997) where,
despite strenuous efforts on the part of the abducting mother, she
was not able to obtain even a temporary visa to return to the United
States with the child she had wrongfully removed to Australia.
7
8
Director-General, Department of Families,
Youth and Community Care v Hobbs
[1999] FamCA 2059
(24 September 1999) (Family Court of Australia)
para 94-102, especially para 99.
7
9
See
paras [5]-[7] above.
8
0
Article 7(
f
)
of the Convention.
8
1
Above (n 4) para [55] at 1194I-1195A.
8
2
Article 26 provides further that a Central
Authority may not require a return applicant to contribute to the
costs and expenses
of the return proceedings, including the costs of
legal representation or advice, although payment may be demanded in
respect of
expenses related to implementing the child’s return.
8
3
Above (n 7) regulation 5, read with regulation
2.