SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No. 068777/25
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 25 September 2025
SIGNATURE
In the matter between:
S…. T…
Applicant
and
N... P... S...
THE CHIEF FAMILY ADVOCATE
First Respondent
Second Respondent
__________________________________________________________________
NEUKIRCHER J:
1] On 15 May 2025 the applicant (ST) launched an urgent application in this
court
for the return of his son (MMT) to Turino, Italy. The application is brought in terms of
the provisions of The Hague Convention on the Civil Aspects of International Child
Abduction (the Convention). Although the application is opposed by the first
respondent (NPS)1, the parties agreed to interim relief pending the final adjudication
of the application, and on 3 June 2025 an order was made in which ST was granted
interim contact to MMT pending the finalisation of the application . Ms Fitzroy was
also appointed as MMT’s legal representative:2
“3.1 To investigate the best interests of the minor child in relation to this
application, including the child’s views and wishes if ascertainable.”
2] The application was set down for hearing on 9 and 10 September 2025. A
case management meeting was held on 13 September 2025 to ensure that the
application would be ripe for hearing. Time periods were set for the filing of furt her
affidavits, the heads of argument and Ms Fitzroy’s report.
3] By the time the matter proceeded on the date of set down, all the affidavits
and reports had been filed. However, NPS’s argument was that, as Ms Fitzroy had
not appointed an expert to asse s MMT, his voice and views were not properly before
the court – this despite the fact that she had been appointed as his legal
representative. The argument was that this meant that MMT’s objection to his return
to Italy was not properly articulated and the application should not be finalised until
1 The child’s mother
2 Her function, according to the order is “akin to that of a curator ad litem”
such time as this was done. For the reasons that will become apparent, I do not
agree.
4] I pause to mention two further aspects:
a) although the Chief Family Advocate is a party to the proceedings as the
second respondent in this application 3, there was unfortunately no
appearance by them4;
b) Article 11 of the Convention provides for a decision to be made within a
period of 6 weeks of commencement of the proceedings. But this is not
always practical or possible. In my view, this is recognised in
Regulation 23 of the Children’s Act 38 of 2005 (the Children’s Act),
which provides:
“ (1) Proceedings for the return of a child under the Hague Convention
must be completed w ithin six weeks from the date on which judicial
proceedings were instituted in a High Court, except where exceptional
circumstances make this impossible.”5
5] The application was initiated on 27 May 2025 and the interim order was
made, by agreement, on 3 June 2025. That order makes provision for the filing of
certain processes within specified time periods and the application was set down for
3 Section 276 of the Children’s Act 38 of 2005 provides that for purposes of the Convention, the “Central
Authority” means the Chief Family Advocate and the Chief Family Advocate must perform the functions
assigned by the Convention to Central Authorities
4 CAR v The Central Authority of the RSA and Another [ 2024] ZASCA 103 where the court noted the obligations
in terms of the Convention and its concern with the non -appearance of the Central Authority before it, which
deprived it of important information in cluding issues involving whether the Central Authority of the other
contracting country would be willing to enforce or, at least assist, the parent to apply for a mirror order
complimenting the order this court would make
5 The Practice Directives of the G auteng Division do not make provision for time periods within which the
parties are to file affidavits and reports. Instead, it is left to the allocated judge to determine the hearing
bearing in mind the period set out in Article 11 of the Convention as re ad with Regulation 23 of the Children’s
Act
hearing as soon as my duty roster permitted. From initiation t o date of hearing, a
period of three-and-a-half months had lapsed.
6] I have already stated that Ms Fitzroy was appointed as MMT’s legal
representative in this matter. This was done in terms of s279 of the Children’s Act
which reads:
“A legal representative must represent the child, subject to section 55, in all
applications in terms of the Hague Convention of International Child Abduction.”
7] Section 556 of the Children’s Act resorts under the chapter that re gulates the
Children’s Court, its establishment, procedures and processes. Although Ms Fitzroy
is not appointed in terms of s55, she is appointed by agreement between the parties.
8] The objects of the Convention are:
“(a) to secure the prompt return of children wrongfully removed to or retained in
any
Contracting State; and
(b) to ensure that rights of custody and of access under the law of one
Contracting
State are effectively respected in other Contracting States.”
9] With these objectives in mind, the Convention then provides:
“Article 12
6 “(1) Where a child involved in a matter before the children’s court is not represented by a legal
representative, and the court is of the opinion that it would be in the best interests of the child to have leg al
representation, the court must refer the matter to Legal Aid South Africa referred to in section 2 of the Legal
Aid South Africa Act, 2014.”
Where a child has been wrongfully removed or retained in terms of Article 3 and, at
the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period of less
than one year has elapsed from the da te of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in the preceding
paragraph, shall also order the return of the child, unless it is demonstrated that the
child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to
believe that the child has been taken to another State, it may stay the proceedings or
dismiss the application for the return of the child.
Article 13
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 r ights at the time of removal or
retention, or had consented to or subsequently acquiesced in the removal of
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 chi ld in an intolerable
situation.
The judicial or administrative authority may also refuse to order the return of the child
if it finds that the child objects to being returned and has attained an age and degree
of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account the information relating to the social
background of the child provided by the Central Authority or oth er competent
authority of the child's habitual residence.”
Common cause
10] It is common cause before me that:
a) MMT was habitually resident in Turino, Italy;
b) MMT was unlawfully retained in South Africa without ST’s consent and
in breach of his custody rights;
c) MMT’s return to Italy is peremptory unless NPS establishes a defence
under Article 13 of the Convention;
d) NPS’s argument is that:
(i) there is a g rave risk that MMT’s return would expose him to a
psychological7 harm or place him in an intolerable circumstance;
and
(ii) MMT has voiced an objection to his return to Italy.
11] NPS also argues that a court may refuse to order MMT’s return in terms of
Article 20 of the Convention which states:
“The return of the child under the provision 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.”
12] It is not in dispute that given that it is admitted that MMT’s habitual residence
prior to his retention was Italy, that ST’s has rights of established custody in Italy, that
he did not consent to or subsequently acquiesce in the MMT’s retention in South
7 It not being alleged that there is a physical harm element in his return
Africa, the onus rests on NPS to establish the Article 13 defences on a balance of
probabilities8.
Background
13] The parties met in the USA in 2003 whilst pursuing post-graduate studies. At
that stage, NPS was living in South Africa. ST relocated to South Africa in 2007 and
the parties were married in a traditional celebration on 23 March 2007. Shortly
thereafter, and for reasons which are not relevant to the determination of the
application, the parties were divorced 9 and then married again on 26 October 2007 .
At this time, NPS was working in South Africa and ST in Kigali, Rwanda.
14] ST moved to Pret oria in October 2007 after he was transferred to South
Africa.
15] Two children were born of the parties’ marriage:
a) MAT (a daughter) was born on 4 August 2008). She is now 17 years
old; and
b) MMT (a son) was born on 9 July 2013. He is now 12 years old.
16] MAT resides in Italy. This being so, she is not the subject -matter of this
application. Even were she to have been wrongly retained in South Africa, the
Convention would not apply to her as Article 4 provides that “ the Convention shall
cease to apply when a child attains the age of 16 years.”
8 Ad Hoc Central Authority, South Africa and Another v Koch NO and Another (Koch) 2024 (3) SA 249 (CC) at par
158
9 It was not, however, because of an irretrievable breakdown of the marriage relationship. It appears (and this
is according to NPS) that there was an issue with the initial marriage being recognised in Italy
17] Both children hold dual Italian and South African citizenship, as does NPS by
virtue of her marriage to ST. She has also retained her South Africa citizenship.
18] In December 2022, both parties and the children permanently relocated to
Turino, Italy. They did not sell the matrimonial home in South Africa and instead,
retained it and their movable property in Pretoria. It appears that NPS has a large
family in South Africa10 and she and MMT have visited South Africa on at least three
occasions since the family’s relocation to Italy in 2022.
19] It is common cause that NPS voiced a desire to return to South Africa. In
particular, she expressed this in November/December 2024 and, according to ST, he
“…indicated that while it could be a future possibility, MAT’s ongoing treatment and
recovery in Italy were the immediate priority. MMT needed to complete his current
school year, separating the siblings was not an option…”
20] Unfortunately, the parties’ marriage did not survive the relocation to Italy. It is
apparent from the affidavits that the parties had been experiencing marital difficulties
prior to their relocation, but once in Italy their relationship soured even more. In late
2023 they decided to pursue a divorce. Each retained their own legal representative
and they were in the midst of settlement negotiations when NPS wrongfully retained
MMT in South Africa11.
10 She states that “I came from a polygamous family. My father was married to three wives and had 18 children
in total…I am the youngest of 5 children born with my father to my mother.”
11 They came to South Africa ostensibly on a week-long vacation and NPS refused to return on the agreed upon
date
21] Added to their marit al issues, it appears that their eldest daughter, MAT,
suffers from severe mental health issues to the extent that she is on medication and
requires frequent and extended periods of hospitalisation. A detailed account of
MAT’s health issues is not necessar y. Suffice it to state that NPS uses this, in
addition to several other accusations that she places at ST’s door, to argue that the
siblings do not share a close bond and therefore it would neither be a hardship nor
sever the sibling bond were MMT to remain in South Africa without his sister.
22] Most of NPS’s 225-page answering affidavit is spent repetitively detailing ST’s
abusive behaviour from the time they met in 2003 and, anecdotally, long before that
to the present date. According to her, his constant serious alcohol abuse, financial
abuse towards her, racist and patriarchal behaviour 12 towards her and the children,
his clear favouritism of MAT and his verbal abuse of her were constant and
emblematic of their failed relationship and of his abusive and controlling nature.
23] Added to this was the controlling nature and interference by her mother-in-law
and it all resulted in the mental breakdown of MAT and her own breakdown which
manifested itself in skin break-outs on her elbow, blackouts and frequent headaches
and her constantly being ill “because of stress”. I interpose here to state that there is
no medical evidence to support the latter allegations.
24] I do not intend to detail NPS’s allegations chapter and verse. Nor do I intend
to detail each and every complaint. Instead, I intend to deal with those that lend the
most weight to NPS’s Article 13(b) defence.
12 Which includes allegations that the Italy and particularly the Italian justice system is patriarchal and racist
and unlikely to favour her
25] Ms Fitzroy has filed a comprehensive report in which she has detailed the
discussions and consultations she had with various persons and experts, as well as
with MMT. None of the allegations levelled by NPS against ST in these proceedings
were either corroborated or confirmed by any of the sources13 she spoke to.
The Article 13(b) defence
26] It is common cause that once it has been established by the leave behind
parent
that the child has been unlawfully retained in the contracting country, that this wa s
done without his consent and that he has established rights of custody in the leave
behind country, the onus rests upon the parent who unlawfully retained the child to
prove, on a balance of probabilities 14, that a 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] It is also common cause that the requirements set by the Convention have
been met by ST and that it is for NPS to establish the defences under Article 13(b)
as well as the defence that MMT objects to his return and that he is of an age and
degree of maturity where it is appropriate that this court takes into account his views.
13 And I exclude MMT from this for reasons that are set out later in this judgment
14 The Plascon-Evans rule is not conducive to a determination of factual disputes in Convention proceedings. A
determination made must be based on an overall assessment of all the evidential material placed before the
court. NM V Central Authority RSA (1078/2024) [2024] ZASCA 178 (19 December 2024) para 17(i)
28] In Ad Hoc Central Authority, South A frica and Another v Koch NO and
Another15 (Koch) Majiedt J explained the concepts of ‘grave risk” and “intolerable
circumstance” as follows:
“[158] The art 13(b) defence plainly lies at the heart of this case. The aunt had to
prove on a balance of probabilities that there is a grave risk that E’s return to the UK
would expose her to physical or psychological harm or otherwise place the child in an
intolerable situation. In G v D the Court cited Re E (Children), where the UK Supreme
Court set out the principles applicable in art 13(b) defences. These are…
(a) …
(b) …
(c) The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It
must have reached such a level of seriousness that it can be characterised as
‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in
ordinary language a link between the two.
(d) The words ‘physical or psychological harm’ are not qualified, but do gain colour
from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. ‘Intolerable’
is strong word, but, when applied to a child, must mean ‘a situation which this
particular child in these circumstances should not be expected to tolerate.’ “
29] It is with this in mind that NPS’s Article 13(b) defence must be assessed.
The Police Investigation
30] On 16 January 2025 NPS filed a complaint with the Office of General
Prevention and Public Aid in Turino, Italy. The “subject” is described as “Report of ST
Behaviour” and it lists NPS’s complaints in respect of events that occurred between
August 2023 and 16 January 2025. In my view this complaint is relevant to the Article
15 Supra para 153
13(b) defences raised by NPS in opposing the return of MMT to Ita ly. The complaint
states:
“…Specifically, the person constantly humiliates me, makes me feel like a useless
woman, insults me using words like ‘you disgust me’, and says I am not capable to
taking care of our children…
Following our constant arguments, he often shouts, especially when he’s drinking,
and continuously threatens to take the children away from me in an intimidating
manner.
Because of this stressful situation, our older daughter MAT, on several occasions,
inflicted self-harm by cutting her arms using a razor blade…
ST abuses alcohol and was advised to seek help from SERT (addiction services),
which he has not done.
I did not call the police immediately, but I went directly to the hospital. He doesn’t
beat me, but during arguments he sometimes becomes violent and pushes me. This
has happened to the children as well on some occasions.
At the moment, I am not asking to be placed in a protected shelter with my child.
However, the man has taken away all my bank cards and given me one with a
spending limit. I cannot make any transactions freely. For any need, I have to ask
him, and this situation makes me feel deeply humiliated.
Currently, I cannot access any psychologic al support because I do not have the
financial means . I con tacted the ASL (local health authority)…but was unable to
communicate due to language barriers.” (emphasis provided)
31] ST states that these allegations have not been raised by NPS at all during the
parties’ divorce proceedings in Italy. In fact, ST states in his replying affidavit:
“25. I was also not aware of this report until I received her answering affidavit.
Crucially, as confirmed by my Italian lawyer, ASF, the First Respondent’s own
Italian layers were never informed of any allegations of abuse during out
extensive divorce negotiations, nor were they aware of her intention to
relocate to South Africa…”
32] A confirmatory affidavit, duly apostilled, has been provided by ASF who is a
member of the Bar Association of Attorneys of Biela, Italy , and ST’s attorney in Italy.
She states, inter alia, the following:
“4. I handled the negotiations on behalf of ST regarding his divorce in Italy from
NPS…
5. I confirm that during the course of these extensive and in -depth negotiations,
neither NPS not h er lawyers…have ever raised, mentioned or averred any
accusation of domestic abuse, violence or ill treatment on the part of ST.
6. I furthermore confirm that the negotiations regarding the consensual divorce
have not been finalised in Italy, mainly due to financial reasons…
7. Based on my professional discussions with [NPS’s attorney] I can furthermore
confirm that he was not aware that NPS had ever filed a complaint with the
police, nor submitted a sworn affidavit containing accusations of abuse on the
part of ST.
8. In fact, confirmation that no accusations of abuse by the husband towards the
wife had ever been made,…on the 9 th of April 202516, in the offices of [NPS’s
attorney], a meeting was held between the couple in the presence of their
respective lawyers, during which extensive discussions took place regarding
the possible resolutions of the consensual divorce, and NPS never once
mentioned violence or abuse by her husband, nor mentioned him abusing
alcoholic beverages, and the only aspect on which bo th spouses agreed was
that MAT…would be placed in the care of her father, and MMT would
16 A mere week before she and MMT left for South Africa on vacation until 25 April 2025
continue to live in Turino in two separate homes, which ST undertook to find
in close proximity to each other, so that the latter could love for half of the
week with his father and the other half with his mother...” (my emphasis)
33] It is not for this court to pre-determine the outcome of the police investigation ,
which I am given to understand is ongoing , and thus the fact of the complaint is
accepted simply for what it is: a complaint made by NPS against ST which has yet to
be finalised. It does not rise to the level of proven allegations merely because it has
been filed. But it is a factor to be consider ed with adjudicating the Article 13(b)
defence.
Alcohol abuse
34] NPS has, in minute detail , chronicled ST’s alleged abuse of alcohol which
includes driving under the influence, being so under the influence that he did not
know where he was, falling whils t carrying a child, disguising alcohol in a green golf
bottle and pretending that it was Coke, being so drunk that he broke a glass shelf in
their house whilst reaching for alcohol , being severely intoxicated around the
children, and generally being emotio nally and verbally abusive towards her whilst
under the influence and otherwise.
35] Whilst ST does not deny that he partakes in alcohol socially, he denies that he
abuses it. He alleges that NPS also drinks socially. He conceded to Ms Fitzroy that
“at some point he did drink ‘more’ but he currently has completely stopped drinking.”
36] On 19 August 2025 Ms Fitzroy asked ST to take a carbohydrate deficient
transferrin and liver function test. The results, dated 22 August 2025, are attached to
her report and state:
“…the tests dated 19 August 202517 are normal and these tests do not indicate that
ST is a regular consumer of alcohol.”
37] It is unsurprising that NPS contests the outcome and probative value of these
tests, but she is not an expert on this issue and there is no report from any expert to
refute the test results.
38] MMT has questioned his father’s truthfulness regarding the alcohol abuse. He
recounted to Ms Fitzroy that his sister questioned ST about the content of a plastic
bottle he kept in his motor vehicle which ST insisted contained Coke. But when she
opened it, MAT discovered it contained alcohol.18 Ms Fitzroy asked MMT whether his
sister told him this and he stated “No, but I think it was beer.” Ms Fitzroy then states:
“The undersigned sought clarification by asking, ‘How do you know there was alcohol
in it?’ To which MMT responded, “Because my mom told me when we were on a walk
when I was 11.”
39] Ms Fitzroy consulted with Mrs S who worked as a live -in helper to the family
between 2014 and 27 May 2024. She continued to work in their Pretoria home after
the family relocated to Italy . She cared for MMT since was 7 months old until the
relocation.
17 Ie the same date they were requested
18 NPS says that MMT was wrong when he says it was MAT who discovered this. She states that it was MMT
himself who found the Coke bottle
40] Ms Fitzroy states:
a) “When MMT experienced challenges while completing his homework with his
mother, Mrs S would frequently intervene, hel ping to calm him down and
provide the support needed for him to finish his assignments successfully”;
b) that MMT ha d “a good relationship with his father and a very close bond.
The children would sometimes prefer to be with their father and she assumed
it was because he travelled a lot and they missed him when he was away
from home.”
c) that Mrs S confirmed that both p arents consume alcohol but she never
saw them intoxicated;
d) that Mrs S stated that “ as long as the children stay with their father the
children will be safe” but she was not prepared to elaborate;
e) that Mrs S stated that the two children were “ very close” and that MMT
“is very concerned about his sister”. (my emphasis)
41] Both ST and Ms Fitzroy point out that Mrs S is reluctant to become involved in
the legal proceedings. Ms Fitzroy states:
“Mrs S was very hesitant to consult with the undersigned and was willing to provide
limited information since she is fearful of the possible consequences of providing her
views in this matter.”
42] This is also borne out by the WhatsApp messages exchanged betw een ST
and Mrs S that are attached to the founding affidavit where, in one, she states:
“I know she loves going out and then what about the child. Do you think you can take
him? To me the kids are better off with you even if you are travelling with your
work…”
43] I do not mention this to voice an opinion on which of the parents should be
granted primary care and reside nce – that is not a decision a court hearing a
Convention application has authority to make.19 Instead, it rather provides a balance
to the serious allegations of alcohol and other abuse levelled by NPS to support her
Article 13(b) defence.
44] In my view, at present there is no evidence to support NPS’s allegations: the
blood alcohol test is negative; MMT’s observations are not his own but rather those
of his sister and are also those th at NPS told him a year ago; Mrs S ’s view
expressed in her WhatsApp messages and to Ms Fitzroy also demonstrate the
contrary. But even more importantly, ST’s excessive alcohol consumption has not
been raised at any stage during the ongoing divorce proceedings.
45] Dr Berra, who is MMT’s psychologist in Italy and who has been seeing him
regularly for therapy since May 2023, also informed Ms Fitzroy that MMT was unable
to recall or describe any instance related to his father’s drinking or any associated
incidents.
46] Thus, even were I to accept that these allegations to have been true in the
past, they do not appear to ring true now.
Economic abuse
19 Koch (supra) para 165
47] NPS alleges that ST has expose d her and the children to serious economic
abuse and hardship:
a) she alleges that he has confiscated her $5 000 credit card and has
reduced the debit order on his card from €4 000 to €1 500 whilst she is
in South Africa “totally disregarding our needs, such as medical
emergencies, that may arise”;
b) in her answering affidavit NPS appears to contradict this time line:
(i) she states that the financial abuse started in February 2023
when she voiced an intent to separate;
(ii) in July 2024 , ST reduced her debit card allowance from €4 000
to €1 500;
(iii) ST refused to apply for her for spousal dependency support
from
the World Health Organisation (WHO) after they moved to Italy
which left her vulnerable;
(iv) he withheld money from her even though she was unemployed.
48] But NPS contradicts herself as is clear from par 4 7(b)(ii) supra. Also, insofar
as par 4 7(b)(iii) supra is concerned, ST has attached the children’s Italian Health
Care cards to his affidavit. I nsofar as the WHO spousal dependency support is
concerned, an email from the WHO dated 22 March 2022 clearly states that it
rejected the application because NPS was working at the time and her earnings
exceed the limit. This was later revised and a certificate from the WHO dated 4
December 2024 states that NPS:
“…is currently a participant in the World Health Organisation (WHO), Staff Healt h
Insurance (SHI) covers the reimbursement of the major portion of medical expenses
related to accident or illness, within the limits laid down and the SHI Rules.”
49] Thus, not only does NPS receive support of at least, on her own version,
€1 500 per month, but she is in fact covered by the WHO program and she is now
employed in South Africa.
50] There is also no evidence that whilst they l ived in Italy, MMT was not fully
emotionally supported by ST , nor that his education was not covered in full by his
father, nor that any medical treatment for him and MAT was not paid for by ST – in
fact, the contrary evidence has been provided by ST.
51] At present, and even though MMT is enrolled at Crawford Coll ege in
Pretoria20, he remains enrolled at WINS 21 in Italy which is paid for by ST. Save for
PE, Art, Music and Design all other courses have continued for MMT online whilst he
has been in South Africa and MMT has successfully passed his end -of-year WINS
examinations.22
52] Thus, the economic abuse element of the Article 13(b) defence is without
merit.
Racism and patriarchy
20 Without ST’s consent
21 World International School
22 Which were scheduled from 26 May 2025 to 6 June 2025
53] This issue was not argued at the hearing but is rather dealt with as the court
was informed that the fact that argument is not made on a particular issue does
mean that NPS has abandoned it.
54] NPS accuses ST, Italian society and the Italian legal system of racism and
patriarchy. She argues that she and MMT ha ve been constant victims of both subtle
and overt conduct and that to return him to Italy would be detrimental to his well -
being.
55] According to NPS, MMT has experienced racism in Italy. The incidents of
racism include:
a) a schoolmate asking him if he was coloured;
b) that he experienced that “people looked at him diffe rently because he was
brown”;
c) that MMT “believes Applicant shouted and pointed fingers at me (being NPS)
because I am brown”.
56] She states that she has also experienced racism in Italy inter alia that:
a) “…[l]ack of integration in Italy is a known fact, ranging from soccer fans calling
a soccer start a Monkey. I was not necessarily called monkey, but I was
reduced to a nameless, faceless object, I was referred to as ‘lady’ by the
Applicant’s lawyer…while the Applicant was called Mr T. I was reduced to
being a maid and a singer by the Applicant…
b) she has been accused of being an unfit mother due to her cultural
values;
c) the applicant believes his culture is superior to hers. Interestingly
however, she states that at a meeting with one of MAT’s doctors “the
Applicant tried to argue that my cultural way of raising children is
unaffectionate, a claim that one of the doctors disputed, stating that his
culture might also not be appropriate.” This is a clear indication to the
contrary of NPS’s broad and sweeping assertions;
d) she struggled to learn Italian as she associated it with a person who
was “constantly” abusing her and she was expected to learn Italian
nonetheless;
e) “the justice system is patriarchal and racist, and unlikely to favour me.”
57] Whilst it may be so that the above is the s ubjective view of NPS, at issue is
whether MMT has been exposed to this allege d racism and behaviour. If so, the
question would then be whether his return would expose him to this again and
whether that would constitute a grave risk of psychological harm or would place him
in an intolerable situation.
58] MMT expressed to Ms Fitzroy “… I have to admit the people here are way different
from Italian people. And even in conversation we said23 that Spanish and Italian people are
really racist. Especially racist to people like me and my mom.”
59] Ms Fitzroy states:
“99. MMT explained that the people inside of his school in Italy are very nice
people and they’re not racist. He enjoyed school but he enjoys Crawford
better. He explains that there’s nicer people in South Africa and less bullies.”
23 He and his mother
60] In my view, the answer lies in the view of Dr Berra. She informed Ms Fitzroy
that MMT had never reported any racism directed towards him in Italy. Given that
MMT has consulted with Dr Berra for over 2 years, and that he has a good
relationship with her and trusts her24 it is highly unlikely that, had he experienced any
racism or bullying, this would not have come up in his therapy sessions.
61] Importantly, he also informed Ms Fitzroy that the peop le in his school are not
racist and, according to her, from her discussions with him, there is no indication that
MMT understands the concept of racism.
62] This being so, I cannot find that MMT has been exposed to racism and it
appears his “experiences” and understanding of the concept are informed by what
NPS has told him. This being so, I cannot find that his return to Italy would expose
him to any grave risk or intolerable circumstance.
The grandparents
63] NPS describes the relationship between ST and his mother as “dysfunctional”.
She goes to pains to describe their volatile relationship and has detailed events an d
instances which lead one to assume that ST’s mother is controlling and interfering in
their marriage, dismissive of NPS and incapable of properly caring for MMT were he
to be left in his care which he frequently has been in the past25.
64] This notwithstanding, Ms Fitzroy states:
24 Which is admitted by NPS
25 Because of ST’s extensive travelling, which NPS states will simply continue
“111. The minor child explained that his paternal grandfather is “Very chilled, a kind
person and he’s a simple person. Even though he needs help getting out of
bed26, yeah, because he’s really old, but he’s a very nice person.” He
complains that his grandmother constantly kisses him but he loves her.
He said “I love her. It’s just, she doesn’t have to kiss me, She’s annoying me
a little bit. Also, she hasn’t told me yet, but my mom says that my grandma
had a beef with my mom. I think she’s been a racist and fighting with my
mom. That’s why my mom is never coming back to their house.” (my
emphasis)
65] In my view, the complaints that NPS has about the grandparents cannot be
elevated t o circumstances where his return to Italy would pose any grave risk or
intolerable circumstance. Whilst it may be so that NPS has a fraught relationship with
the grandmother, it appears that MMT has a good and loving relationship with both of
them.
MMT’s relationship with MAT
66] It is clear from all the affidavits and reports filed that MAT is emotionally very
fragile and has been for many years. At present, she is institutionalised and receiving
treatment in Turino and so her care (for the moment) is on going and monitored by
professionals, including social services. ST visits her regularly and pays for her care.
Part of ST’s objection to the family relocating to South Africa is that MAT cannot be
moved right now. He also argues that it is not in the inte rests of the siblings to be
separated as they share a close bond.
26 Both grandparents are elderly
67] NPS denies that the latter is still the case. She alleges that because of ST’s
conduct towards MAT the relationship between the siblings is fractured. This includes
that he allowed MAT to do as she pleases, allowed her to vape, gives her whatever
gifts she wants, allows her access to sharp objects 27, and in general gives in to her
every whim, whilst he is stricter with MMT.
68] She states that MAT has not called MMT once si nce their arrival in South
Africa and
“I had sent her pictures of her brother cooking scrambled eggs on Mother’s Day. Her
response was ‘Oh cute’. She did not even ask me to pass on the greetings.”
69] She also denies that ST facilitates calls between the siblings as he alleges.
70] In fact, NPS alleges that:
a) MAT “play[s] out her drama to get what she wants”;
b) the “visible bond that once existed between the siblings vanished, and the
Applicant continued to fuel our son’s resentment towards his sister through
his favoritism treatment of her…”;
c) MMT resents MAT;
d) MMT started asking if MAT was faking her sickness.
71] But this fractured sibling relationship is not borne out in the conversations
between MMT and Ms Fitzroy where he told her he misses MAT and she states that
“…when I enquired whether he and his sister used to have a good relationship, he
27 He gave her access to a razor and she tried to commit suicide
immediately stopped me and corrected me stating that ‘I still have a very good relationship
with my sister’.”
72] According to Dr Berra:
“132. MMT maintained a very strong bond with his sister, frequently mentioning her
during therapy sessions. He openly recognised that their bond was unique
and expressed his eagerness for her to return home.”
73] Given MMT’s unequivocal statement to Ms Fitzroy, as well as Dr Berra’s
opinion, I cannot find that the siblings have a fractured relationship nor that MMT
harbours any resentment towards his sister. Given the objective evidence, this
ground does not meet the threshold required by Article 13(b).
ST’s abusive behaviour
74] It is clear that the parties’ relationship was a volatile one. In fact, so much so
that MMT informed Ms Fitzroy “that the circumstances in Italy in their family home has
become unbearable”. He stated “I mean, usually they don’t fight, but it is pretty common for
a fight to happen over simple things and it is usually him that starts it…”
75] Ms Fitzroy also states:
“88. The minor child started to list all his father’s wrongdoings spontaneously and
whenever the undersigned requested him to elaborate, he respond ed: ‘I will
explain later’ or ‘I think that is all I have to talk about’.”
In other words, he could not mention one event of physical or emotional abu se
directed towards him.
76] It appears that the allegation s of abuse are those directed towards NPS and
there is no proof that ST has acted in an abusive manner towards MMT.
77] In any event, were I to order MMT to return to Italy, he would not be exposed
to the frequent occurrence of the parties’ volatile relationship as:
a) I was informed by Mr Haskins 28 at the outset, that even were this court
to order MMT to return to Italy, NPS would not return with him;
b) Ms Fitzroy informed me that she had also, that morning, had a
discussion with NPS who had confirmed this to her;
c) even were NPS to return to Ital y, the parties would not reside together
as ST had, during the divorce negotiations, undertaken to provide NPS
with alternative accommodation. This tender is repeated in a draft order
handed up to me during argument by Mr Nel29.
78] NPS’s stance notwithst anding, she is still entitled to change her mind. It is
also not for this court to determine whether or not the financial support tendered by
ST is reasonable – the point is that there is a tender and that MMT will not be
exposed to the parties’ volatile r elationship on an ongoing basis as they will no
longer be residing together.
79] But even were this not to be so, I am still of the view that the facts do not bear
out the alleged emotional abuse as:
a) NPS has left MAT in Italy alone in ST’s care despite MAT’s extremely
fragile emotional state;
28 Who acts for NPS
29 Who acts for ST
b) she has informed MAT that she has no intention of returning to Italy;
c) it is common cause that when MAT is discharged from the care facility,
she will be discharged into ST’s care – this is the same p erson whom
NPS alleges is an emotionally abusive person who is unsuited to care
for their children;
d) in the divorce negotiations, she was willing to grant primary care and
residence of MAT to ST and to share residency of MMT with him.
80] Thus, her vers ion is contradictory and does not support the Article 13(b)
defence raised on this ground.
The child’s objection
81] Over and above the Article 13(b) defences raised by NPS, she alleges that
MMT has voiced an objection to his return – this is for all the reasons already raised
by her supra.
82] In Central Authority of the RSA and Another v B30, Meyer J stated:
“Even though the part of art 13 which relates to the child’s objection to being returned
is not separately numbered, it is separate from paras (a) and (b) and constitutes a
separate defence.
83] He thus concluded 31 that it is therefore unnecessary to conclude that the
child’s objection must “import […] a requirement to establish a grave risk that the return of
30 2012 (2) SA 296 (GSJ) para 6
31 In line with the dictum of Balcombe LJ in Re S (A Minor) (Abduction: Custody Rights) [1993] Fam 242 at 250
the child would expose her to psychological harm, or otherwise place her in an intolerable
situation.”
84] Mr Haskins argues that, when considering not just the Article 13(b) defences
but also the child’s objection, a court is obliged to take into account the provisions of
the Children’s Act and in particular s10 which states:
“Every child that is of such an a ge, maturity and stage of development as to be able
to participate in any matter concerning that child has the right to participate in an
appropriate way and views expressed by the child must be given due consideration.”
85] But one must also take into account the provisions of s278(3) of the Children’s
Act, which reside under Chapter 17 of the Children’s Act specifically d ealing with the
application of The Hague Convention and the abduction of children, and which reads
as follows:
“(3) The court must, in considering an application in terms of this Chapter for the
return of the child, afford that child an opportunity to raise an objection to
being returned and in so doing must give due weight to that objection, taking
onto account the age and maturity of the child.”
86] In my view, s10 of the Children’s Act is not dissonant with s278(3) of the
Children’s Act and, specifically, Article 13 of the Convention which specifically
provides that a court may refuse to order the return of a child
“…if it fi nds that the child objects to being returned and has attained an age and
degree of maturity at which it is appropriate to take account of its views.”
87] He also argues that it is necessary for a court to consider the best interests of
the child as was d one in Central Authority v MV (Intervening)32 and Central Authority
of the RSA and Another v B33.
88] Although Sonderup v Tondelli and Another 34 was decided 14 years ago, and
prior to the enactment of the Children’s Act, the Constitutional Court found that Art 12
of the Conven tion was consistent with s28(2) 35 of the Constitution. In Central
Authority for the RSA and Another v LC36 the court found that the
“…argument that the Children’s Act alters this position is, in my view, unfounded and
has been found to be wrong.37 There is no inconsistency or need for one to trump the
other – they complement each other.”
89] In fact, when consideri ng the three provisions38 side-by-side they both speak
to
the court taking into account the child’s views if the child is o f sufficient age and
maturity. The court, in applying s28(2) of the Constitution as well as s10, s278(3) and
s279 of the Children’s Act and Article 13 of the Convention, provide s a platform in
which the child is given an opportunity to voice its views and objections. I n this way,
the court applies the ‘best interests’ principle.
90] In my view, there are no hard and fast rules to apply in this consideration.
Each case would depend on its own facts. Two of those factors are already given
voice in the sections: they are the age of the child and the level of his/her maturity.
32 2011 (2) SA 428 (GNP) para 28
33 Supra par 7
34 2001 (1) SA 11171 (CC)
35 “A child’s best interests are of paramount importance in every matter concerning the child”
36 2021 (2) SA 471 (G) at par 105
37 Central Authority of the RSA v JW 2013 JDR 1117 (GNP) par 19; KG v CB and Others 2012 (4) SA 136 (SCA)
38 Ie s10, s278(3) and Article 13
Some other factors to be considered would be, for example, whether the child has
been influenced by either parent, whether the parent who has wrongfully retained the
child has alienated him/her from the leave behind parent; whether the child’s views
find substantiation in the facts and any expert report that may have been filed 39 and
the findings and recommendations of the child’s appointed legal representative or
curator ad litem. Ultimately, each case must be decided on its own facts. What may
be afforded more weight in one matter, may not necessarily be afforded the same
weight in another.
91] In casu it is common cause that, even prior to his retention in South Africa,
and
whilst in Italy, MMT had voiced a desire to return to South Africa. He informed Ms
Fitzroy that he wants to stay in South Africa
“98. …Because it’s just a place where I belong and since I was born here. Its not
only because the people here are very nice. I have to admit, the people here
are way different to the Italian people. And even in a conversation we said,
that Spanish and Italian people are really racist. Especially racist to people
like me and my mom.”
92] Ms Fitzroy explained that although MMT enjoyed his Italian school “ he enjoys
Crawford better” as “there’s nicer people in South Africa and less bullies.”
93] Interestingly, no specific bullying incident has been mentioned in the myriad of
accusations made by NPS, nor did MMT complain of bullying to Dr Berra. No
incident is mentioned by Ms Fitzroy.
39 See for example Koch (supra) ; Re S (A Child) (Abduction: Article 13(b) [2025] EWCA Civ 119
94] And as part of his objection he states that were he to be returned to Italy he
would feel
“106. ….Disappointed, sad, unhappy and really mad. I’m not going to change into
the person I was, but I am definitely not going to be happy there. First of all,
because I’m being taken away from my mom. And I don’t even know w hat he
is going to do with me at that point because all he was doing was just to prove
that my mom was a bad person and to prove that she was not a good parent.”
95] He was of the view that his dad is a “bad father” and that he would be scared
to return to Italy because
“115. …With this guy, the options for him is infinite. For what he can do to you, he
has chased my mom, except for chasing my mom he has done nothing else.
Shouting at me to go on a trip. When I’m alone with my father I feel fine. But
that’s if I go to Italy, but I want to stay here.”
96] MMT is 12 years old, but his age alone does not determine whether this court
must give preferential weight to his views. In addition, the court must look at his level
of maturity.
97] Dr Berra expressed the view that not only was MMT emotionally immature,
but she never got the impression that he had a bad relationship with his father: she
saw them together on many occasions where the interaction was “spontaneous and
playful” and he was happy in Italy. He also told Dr Berra that he is happier about the
easier workload at school in South Africa.
98] Mr Haskins has submitted that it was necessary for Ms Fitzroy to obtain an
expert’s opinion on this issue 40. Whilst it is so that in her interim report she did
express this view, in her final report she explained why she deemed it necessary:
firstly, to obtain an expert’s assessment and report in such a short period of time
proved to be infeasible; secondly, she incorporated the views of Dr Berra (a
psychologist) with whom MMT has a good relationship and who is able to give expert
insight into MMT’s emotional state and level of maturity; thirdly, she incorporated Mrs
S views and lastly those of MMT.
99] I agree with Ms Fitzroy that it is unnecessary to obtain another expert’s views
on this issue. Ms Fi tzroy has voiced concerns that NPS’s conduct may well
constitute parental alienation and that there is a possibly enmeshed relationship
between mother and child. Whilst I take note of her concerns, I make no finding in
this regard and my conclusions are not based on this.
100] I also take into account the following:
a) it is not in dispute that an incident occurred on Sunday 3 August 2025
at 19h05 where MMT sent a series of messages to ST in which he inter
alia stated:
“Papa, Mamy is not acting ok”;
“Call me now! Papa! Papa! Papa! Call me now!”
b) what precisely occurred is in dispute, but what is very clear is that
MMT’s first thought was to call his father for emotional support,
40 In Re S (A Child) (Abduction: Article 13(b)) [2025] EWCA Civ 1119 a report was obtained from a Consultant
Forensic Psychiatrist who had assessed the mother and reported on her mental healt h concerns were she to
return to the leave behind country with the child
reassurance and comfort – this is the same person he la bels as ‘a bad
father’;
c) Ms Fitzroy states:
“158. The undersigned expresses reservations regarding the authenticity of
the minor child’s stated preference to remain in South Africa. Upon
careful consideration, it appears that the child’s sentiments may not be
entirely independent. Instead, there is evidence to suggest that the
minor child’s perspective has been shaped by significant maternal
influence. Furthermore, the nature of the relationship between the
minor child and his mother may b e characterised by enmeshment,
raising concerns about the degree of autonomy present in the child’s
expressed wishes.
159. MMT currently aligns himself with his mother . The undersigned is
concerned about the information shared by the first respondent…”;
d) she also states:
“166. The removal of the minor child from his familiar environment, including
Italy and his school, has disrupted his sense of security and stability .
This upheaval may influence his overall emotional and psychological
well-being.”;
e) it also appears, and this from his registered class and mathematics
teacher at Crawford, that MMT struggles with concentration and focus
“and that he is spaced out, staring outside the window”. According to her, he
has one friend (R) who is his close friend, but she has not seen him
with anyone else. He does not socialise with the other children and he
is quiet and reserved;
f) lastly, Dr Berra informed Ms Fitzroy that:
“127. Since MMT has been in South Africa, he has been very avoidant in
therapy and he is not sharing spontaneously what’s going on as in the
past. He is very alert and when she enquired about it, he said that it is
because he is online. It has been Dr Berra ’s impression that MMT is
controlled by his mother since MMT keeps on looking around whilst
talking to her during virtual consultations. When he responds, it also
appears as if he has been coached. Dr Berra is unable to confirm
whether NPS is present when he has his sessions.”
101] In my view there are too many contradictions in MMT’s expressed views and it
appears from the evidence set out supra that much of what he perceives to be true is
not actually formed by his own experiences, but rather those of hi s mother. He can
also not provide any rationale for his views towards ST. Dr Berra and Ms Fitzroy are
both of the view that MMT is immature for his age, and given all this, whilst I do take
into account that MMT has expressed that he does not wish to retur n to Italy, I am of
the view that his objection cannot carry the day. In my view, there is nothing to
indicate that his return to Italy would not be in his best interests , and it is for that
court to determine which of the parties is most suited to be awarded primary care
and residence in MMT’s best interests.
The Article 20 argument
102] No case has been made out on NPS’s papers that support s a defence under
Article 20 of the Convention. There is no argument or allegation that relates to an
infringement of MMT’s rights and fundamental freedoms or that they would not be
protected were his return ordered. In fact, all the facts point to the contrary: ongoing
therapy, contact with MAT and his grandparents, support from ST overseen by social
services and the Central Authority and his continued education, all point to the
protection of MMT’s rights and freedoms.
The disruptive consequences of a return to Italy
103] In Sonderup, the court stated:
“[43] 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 d o 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 Article 13 for exceptional cases where this will not be the case.”
104] This view was endorsed in 2024 by the Constitutional Court majority in Koch41
where Majiedt J stated:
“The harm the aunt42 must prove extends beyond the harm that flows naturally from a
court-ordered return.”
41 At para 159
42 In this case it is NPS
105] In casu, there is no suggestion or evidence to show that there is a grave risk
(or any risk at all) to MMT’s psychological health were he to return to Italy. There is
also no mention of any other South African family member with whom he has formed
a close attachment th at he would lose; there is no suggestion that he has formed
attachments with any other classmate than Richard; nor is there a suggestion that
his schooling would suffer were he to return to Italy.
106] In fact, the contrary appears to be true: he will ret urn to a home he has known
since 2022; to his sister with whom he has “a very close relationship” 43; a school he
likes and grandparents he loves44. He has successfully passed his WINS end-of-year
examinations and there is no indication that his schooling w ould be disrupted. And
he would continue therapy with Dr Berra with whom NPS states that he has formed a
“relationship of trust” and “which has allowed him to openly express his feelings, emotions
and fears.”45
107] Insofar as the police investigation into NPS’s complaint is concerned, that
investigation would continue and, as pointed out by Ms Fitzroy, social services are
already involved with the family. In fact, NPS herself states that on 7 April 2025 there
was a meeting with social services and the doctors looking after MAT.
108] Given all of this, I cannot find that there is any risk to MMT’s return, and
certainly not one that establishes the high bar required for a successful Article 13(b)
defence46 or child’s objection:
43 His words
44 His words
45 According to NPS
46 Koch at para 161
“[161] Article 13(b) sets a high threshold. In Re C (Abduction: Grave Risk of
Psychological Harm) Ward LJ held:
‘There is …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 habit ual
residence…’ “
109] Put differently
“[A] certain degree of harm is inherent in the court -ordered return of a child to their
habitual residence, but that is not the harm or intolerability envisaged by art 13(b),…
that harm or intolerability extends beyo nd the inherent harm referred to above and is
required to be both substantial and severe.”47
110] Insofar as NPS complaints relate to issues that will inform the question of
primary care and residence, it is not for this court to express any view on that,
whether
prima facie or otherwise - nor do I. The sole consideration was whether those were
of sufficient gravity to rise to test posed by Article 13 – they do not.
111] Mr Haskins has requested that NPS be given a ‘ spatium deliberandi’ period
despite her instruction to him that she would not return to Italy. It is unnecessary to
specifically do so as the order will provide for a period within which NPS must notify
47 NM v Central Authority for the RSA and Another (1078/24) [2024] ZASCA 178 (19 December 2024) para 24
quoting LD v Central Authority of the RSA and Another 2022 (3) SA 96 (SCA) para 29
the second respondent and ST’s attorney of her decision whether or not she will
return with MMT to Italy.
112] Ms Fitzroy has recommended that measures be put in place immediately
upon MMT’s arrival in Italy and therapy from Dr Berra must be available to him. She
has also strongly advocated that were NPS not to return to Italy, MMT should not
travel as an unaccompanied minor, but that ST must accompany him on the flight
back to Italy. Mr Nel informed me that his instructions were that ST would come to
South Africa to fetch MMT a nd accompany him back to Italy. I agree that this is
necessary in order to minimise any further disruptions that will flow from this court -
ordered return.
113] Given all the above and the fact that the social services are already
monitoring
the family, I am of the view that it is unnecessary to order further interv entions, and
none were suggested by Ms Fitzroy.
Costs
114] Mr Haskins argues that although NPS admittedly retained MMT unlawfully,
she genuinely believes that his objection should prevail. This is even more so
because he voiced a desire to return to South Africa when the parties were living in
Italy. He argues that, as a result, each party should pay his/her own costs.
115] Mr Nel argues that an attorney and client costs order should be granted
against NPS as it is the only just order to be made. He argue s that it is clear that
NPS acted in “profound” bad faith. He argues that t his is clear from her 225 page
answering affidavit which was unnecessary and which failed to refute any o bjective
evidence put up by ST. He also submits that her true motives are cl ear as, in her 42-
page supplementary affidavit, she states:
“32.4 `Finally, sh ould this Court nevertheless find it appropriate to order MMT’s
return to Italy, I place it on record that I choose to remain in South Africa. This
fact must be weighed carefully in determining MMT’s best interest, as forcing
his return would further destabilise him emotionally and psychologically as
stated in the curator’s report.”48
116] It is certainly NPS’s right to choose to remain in South Africa. But that does
not mean that MMT must remain with her. Insofar as her allegations are concerned, I
have already dealt with them supra.
117] It is so that, ultimately, costs rest within the discretion of the court which must
be exercised judicially. I am disinclined to order each party to pay his/her own costs.
In casu, NPS has filed 3 affidavits totalling approximately 300 pages. Her account o f
issues is unnecessarily repetitive and replete with wild allegations 49 that are made
based on pure conjecture and are without support.
118] Whilst Mr Haskins did not rely on NPS’s more controversial allegations during
his argument, I was informed that he was not abandoning arguments contained in
48 In NM v Central Authority RSA at para 22, it was stated that a parent ’s “uncompromising and unexplained
recalcitrance can never constitute a justifiable basis for establishing an Article 13(b) defence“ and “the refusal
of a parent to accompany a child is what gives rise to the risk, not the return itself. […] the parent who
unlawfully retained [the child] should not be permitted to rely on the consequence of that removal to create a
risk of harm on [his/her] return”
49 For example, that she was used as an “egg donor” and an “incubator” and that Italians are racist and
patriarchal
his heads of argument. I nasmuch as those highlight the salient points of the
opposition to the applicant’s relief, th ey are founded in the papers which must be
taken into account as, at no stage, were any of the allegations made withdrawn or
abandoned.
119] I also take into account that much of NPS’s argument relates to issues of
ultimate primary care and residence. The opposition to the application leads one to
the indelible impression that this court is being called upon to make a prima facie
finding on those issues in order to substantiate a refusal of the application – but, as
stated supra, that is not the function of this court.
120] Whilst I am of the view that costs should follow the result, I am not of a mind
to grant punitive costs against NPS. I take into account that she has raised (at the
very least) an arguable point that relates to MMT ’s objection to his return. That is an
important issue that required adjudica tion by this court. Whilst I do frown upon the
manner in which she has chosen to voice her Article 13(b) defences, MMT’s
objection was raised by her. It is for this reason that I am of the view that punitive
costs should not be granted against her. Insofar as the scale of costs is concerned , I
am of the view that the application is an important one to the parties, the issue is not
a simple one and that papers are lengthy. It is also not lost on me that NPS, despite
her allegations of impecuniosity, has engaged the services of senior counsel. It is for
these reasons that costs on Scale C are awarded.
The draft order
121] I have already mentioned that Mr Nel handed up a prop osed draft order. I
have carefully perused it. There are several issues vis-à-vis its terms:
a) the draft makes provision for MMT to be returned to Italy and to live in
the family home in Turino. In light of NPS’s continued insistence that
she will not return to Italy, it is important that MMT has stabilit y, and a
home that he has lived in since 2002 will provide a familiar environment
to which to return;
b) ST is to fetch MMT in South Africa and accompany him to Italy;
c) the draft makes provision for NPS to be dropped off at the check -in
counter at OR Tambo Airport not less than 3 hours before the departure
of the flight. I am of the view that this is not in MMT’s interests. In my
view ST must fetch MMT from the MMT’s Pretoria address no less than
4 hours before the scheduled departure of the flight;
d) for purposes of travel and making travel arrangements, NPS’s
attorneys of record will be ordered to hand MMT’s original passport and
travel documents to ST’s attorney of record on/before 2 9 September
2025;
e) the contact to be given to NPS, should she remain in South Africa and
until such time as the court in Italy makes a decision vis -à-vis custody
and contact will be daily video and/or voice calls between 17h00 -18h00
SAST;
f) ST is to continue to take MMT to therapy with Dr Berra , or any other
professional person she deems necessary until she (or they) deem it
unnecessary.
Ms Fitzroy
122] Lastly, Ms Fitzroy has been of invaluable assistance to this court in reaching a
decision on some very difficult issues in a very short time frame . She is thanked fo r
her efforts.
The order
The following order is made:
1. The first respondent is ordered to forthwith return MMT to the jurisdiction of
the Central Authority for the Republic of Italy, an d specifically to Turino, Italy
within one month of date of this order.
2. Pending the return of MMT to the Republic of Italy as provided for in this
order, the first respondent shall not, without the prior written consent of the
Central Authority for the Republic of South Africa (CASA), remove MMT from
the Province of Gauteng and shall keep CASA and the applicant’s attorney of
record informed of her and MMT’s physical address and contact details.
3. To give effect to the order in paragraph 1 above:
3.1 the applicant’s attorneys are authorised and directed to make all
necessary arrangements for MMT’s travel from South Africa to T urino,
Italy, including the booking of flights;
3.2 the first respondent’s attorneys of record are ordered to hand over
MMT’s original passport and travel documents to the applicant’s
attorney of record by no later than Monday 29 September 2025 at
10h00;
3.3 the first respo ndent is directed to notify CASA and the applicant’s
attorneys of record in w riting on or before 16h00 on 1 October 2025
whether she intends to personally accompany MMT on his return to
Italy. In the event that she does, she is granted leave and authorisation,
insofar as may be necessary, to remove MMT from South Africa and
accompany him on his return to Italy;
3.4 in the event that the first respondent fails to notify CASA and the
applicant’s attorney of record, or notifies them that she does not intend
to accompany MMT, the applicant is authorised to make such
arrangements as are necessary to ensure that MMT is safely returned
to Italy with him;
3.5 the first respondent is ordered to ensure that the minor child and his
luggage are ready , at the residence at 2[…] W[…] Street,
Erasmusrand, Pretoria, to accompany the applicant to the airport no
less than 4 hours prior to the scheduled departure to Italy;
3.6 the applicant’s at torneys shall give the first re spondent’s attorneys at
least 72 hours’ notice of the scheduled departure time;
3.7 the applicant shall bear all reasonable costs a ssociated with the travel
arrangements of this order for MMT, and the first respondent if she
elects to return to Italy;
3.8 the first respondent is directed to co -operate fully and timeously with
the a pplicant’s attorneys and/or CASA to facilitate MMT’s departure
(and that of first respondent if ne cessary), including signing all
necessary travel d ocumentation required to facilitate MMT’s travel and
ensuring that he (and the first respondent personally) is available for
any required administrative processes (such as visa applications or
passport renewals) if necessary within 48 hours of the receipt of such a
request;
3.9 in the event that the first respondent refuses or fails to provide any
necessary or required travel documents to ensure MMT’s return to Italy
in the time period stated above, her consent is waived for that purpose;
3.10 the applicant is ordered to personally accompany MMT on the flight for
his return to Italy.
4. The second respondent is directed to take all necessary steps within her
power to facilitate MMT’s return to Italy in accordance with the terms of this
order, including but not limited to coordination with the Central Authority of
Italy and assisting in overcoming any administrative obstacles to MMT’s
departure from South Africa.
5. Pending MMT’s the physical return to the Republic of Italy in compliance with
this order, the first respondent shall:
5.1 facilitate contact between the applicant and MMT which shall include
daily video and/or voice calls from 17h00 until 18h00 SAST;
5.2 ensure and facilitate MMT’s continued participation in the online remote
schooling program offered by WINS;
5.3 ensure and facilitate MMT’s continued participation in weekly online
psychotherapy sessions with Dr Berra, and to cooperate with any
arrangements necessary to ensure that the sessions take place. The
applicant shall remain liable for the costs of these sessions.
6. The applicant is ordered, upon MMT’s return to the Republic of Italy, to:
6.1 report to the Italian Central Authority on a monthly basis (or such period
as determined by them) regarding MMT’s well-being until such time as
a court in Italy has finalised the issues of the custody and contact rights
of the parties;
6.2 cover all costs associated with MMT’s continued therapy with Dr Berra
or any other person recomm ended by her for such period as she/they
recommend;
6.3 arrange, at his cost , for any additional support services recommended
by the Central Authority in Italy to assist MMT with his reintegration;
6.4 facilitate regular video and telephone contact with MMT’s friends and
extended family in South Afr ica, as well as with the first respondent
should she remain in South Africa;
6.5 continue to provide for all MMT’s reasonable maintenance needs in
Italy, including but not limited to all costs associated with his schooling
at the World International School of Torino (WINS) and all of his
medical and dental expenses and his general daily needs and
reasonable requirements.
7. Should the first respondent elect to return to Italy with MMT , and pending any
further or different order from a competent court in Italy:
7.1 MMT will reside at Via M[…] V[…] 1[…], 10123 Turino, Italy;
7.2 the applicant will provide the first respondent with a once -off payment
of €10 000 to secur e and furnish her own suitable, separate
accommodation;
7.3 the applicant will provide the first respondent with monthly financial
support of €2 800 for her rental, maintenance and living expenses for
at least one year , or such other period as is determined by a court in
Italy;
7.4 the applicant will ensure that the first respondent will remain on the
Italian Health Coverage and the applicant will cover the cost of any
additional reasonable medical costs not covered by the Italian Health
Coverage;
7.5 the first respondent shall be entitled to have contact to MMT as agreed
between the parties and/or their legal representatives or until a court
has made a determination on custody and contact rights. Until such an
agreement has been reached or an order made, the first respondent
shall have the following contact to MMT:
7.5.1 one weekday afternoon from after school until 18h00;
7.5.2 alternative weekends from after school on a Friday until 18h00
on a Sunday.
7.5.3 reasonable telephonic contact after school.
8. Either party shall be entitled to approach a competent court in Italy for the
purpose of having this order recognised and enforced as a ‘mirror order’ in
that jurisdiction, and for any subsequent variation thereof , pending the
finalisation of the divorce proceedings between the parties.
9. A copy of this order shall be served by hand as well as by the Sheriff of this
court on the second respondent.
10. The second respondent shall, upon receipt of the served order, immediately
transmit same to the Central Authority for Italy.
11. The first respondent is ordered to pay the costs of both Part A and Part B of
this application, including the costs of Ms Fitzroy, which costs are to be taxed
in accordance with Scale C.
____________________________
NEUKIRCHER J
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and aut hored by the judge whose name is reflected,
and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for hand-down is deemed to be 25 September 2025.
Appearances
For the appellant : Adv EJJ Nel
Instructed by : Burger Huyser Attorneys
For the respondent : Adv M Haskins SC
Instructed by : Shapiro & Ledwaba Linc
Matter heard on : 10 September 2025
Judgment date : 25 September 2025