SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1396/2024

In the matter between:

THE CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH AFRICA APPELLANT

and

MV FIRST RESPONDENT
VL SECOND RESPONDENT

Neutral citation: The Central Authority for the Republic of South Africa v MV and
Another (1396/2024) [2025] ZASCA 197(18 December 2025)
Coram: MOCUMIE and MBATHA JJA and NORMAN AJA
Heard: 28 OCTOBER 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website
and released to SAFLII. The time and date for hand -down is deemed to be 11h00 on 18
December 2025.

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Summary: The 1980 Hague Convention o n the Civil Aspects of International Child
Abduction – application for the return of a minor child to Switzerland – meaning of
habitual residence – determination of the habitual residence of a minor child born of
unmarried parents – consideration of custodial rights of unmarried parents in terms of
Italian and Swiss laws – defences in terms of Article 13 – whether consent or
acquiescence is proven – whether the child would be at grave risk of psychological
harm and be placed in an intolerable situation should he be returned to his habitual
residence – whether the return of the minor child to Switzerland should follow.

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ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Swanepoel J, sitting as
a court of first instance):
1 The appeal is upheld, with each party to pay their own costs.
2 The order of the high court is set aside and substituted with the following:
2.1 It is ordered and directed that the minor child (L) be returned forthwith, subject to
the terms of this order, to the jurisdiction of the Central Authority of Switzerland.
2.2 In the event of the first respondent, Ms MV, the mother, giving written notification
to the Central Authority of the Republic of South Africa, Pretoria (the RSA Central
Authority) within ten (10) days of the date of issue of this order that she intends to
accompany, the minor child, L on his return to Switzerland, the provisions of
paragraph 2.3 and 2.4 shall apply.
2.3 In the event of 2.2, above, ie, Ms MV being willing to accompany the minor child,
L, on his return to Switzerland, the following undertakings given by Mr VL, the
father, are recorded :
2.3.1 He will not institute or support any proceedings, whether criminal or
contempt of court proceedings, if any, for the arrest or punishment of Ms
MV, or any member of her family, whether by imprisonment or otherwise, for
any matter arising out of the retention of the minor child, L, in South Africa.
He will take all steps that he reasonably can for the withdrawal of any
criminal charges pending against Ms MV, in this regard.
2.3.2 Upon Ms MV, the mother indicating that she intends to remain in
Switzerland, Mr VL shall take steps that he reasonably can to assist Ms MV,
the mother, to obtain Swiss citizenship.
2.4 The second respondent , Mr VL, the father, shall, within 20 (twenty) days of the
date of issue of this order, institute proceedings and pursue them with due
diligence to obtain an order of the appropriate judicial authority in Switzerland in
substantially the following terms:

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2.4.1 Unless and until ordered by the appropriate court in Switzerland:
2.4.1.1 On the date of departure of Ms MV, the mother, and the minor child,
L from South Africa to Switzerland in terms of the order of the
Supreme Court of Appeal of South Africa (SCA) under SCA case
number 1396/2024, the residence of the minor child, L shall vest
with Ms MV, the mother, subject to the reasonable rights of contact
of Mr VL, the father.
2.4.1.2 The minor child, L, will remain in the de facto custody of Ms MV, the
mother, pending the final adjudication and determination of the
proceedings pending in Switzerland o n the issues of custody , care
and access to the said minor child which adjudication and
determination, the applicant and Mr VL, the father, or either of
them, must request forthwith.
2.4.1.3 Mr VL, t he father , is ordered to purchase and pay for economy-
class air tickets for Ms MV, the mother, and the minor child, L, to
travel by the most direct route from South Africa to Geneva,
Switzerland, or any other route from South Africa to Geneva,
Switzerland, including Johannesburg and or Cape Town.
2.4.1.4 Mr VL, the father, is ordered to make his current home, situated at
A[...] d[...] R[...] P[...] 1[...] , 1209, Geneva, Switzerland, (the Riant
Parc home), or equivalent accommodation available to , Ms MV, the
mother and the minor child, L as their residence, leaving all
furniture, appliances, cutlery, crockery and linen in the home, and
for such purpose shall vacate such home before date of departure
of Ms MV, the mother, and the minor child, L from South Africa to
Switzerland. In the event that the Riant Parc home has been sold,
or leased out, or occupied by his family, Mr VL, the father, shall
provide Ms MV, the mother, with equivalent accommodation.
2.4.1.5 Mr VL, the father , is ordered to pay the following costs and
expenses associated with the minor child, L and Ms MV's

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occupation of the home in para 2. 4.1.4 above: rates, levies,
electricity, refuse, water, heating, and internet.
2.4.1.6 Mr VL, the father, is ordered to pay the mother 1500 (one thousand
five hundred) Swiss Francs per month in advance or by the 1 st of
every month, into an account of Ms MV, the mother's choosing, as
cash maintenance for her and the minor child, L. The first pro rata
payment shall be made to Ms MV, the mother, three days prior to
the day upon which she and the minor child, L, arrive in Switzerland
and thereafter monthly in advance on the first day of each
succeeding month. All payments must be made into her bank
account, which she will provide through the Central Authority. The
details will be communicated to both the Central Authority, RSA ,
and Switzerland, as well as Mr VL.
2.4.1.7 Mr VL, the father, is ordered to pay the costs of and associated with
the agreed upon crèche that the minor child, L, may attend in
Switzerland.
2.4.1.8 Mr VL, the father, is ordered to continue to pay for the medical aid
on which he has reg istered the minor child, L, and to cover any
further reasonable and necessary medical costs not covered by the
government of Switzerland or any medical aid.
2.4.1.9 In the event that Ms MV , the mother and the minor child, L, are not
registered on Mr VL’s medical aid as his dependants, Mr VL must
pay all reasonable expenses, including hospitalisation for the minor
child, L and Ms MV, the mother , should a need for such medical
expenses arise.
2.4.1.10 Mr VL, the father, is ordered to provide Ms MV, the mother, with
access to a roadworthy motor vehicle upon her arrival in Geneva,
Switzerland. Alternatively, provide Ms MV, the mother, with
reasonable transport expenses.
2.4.1.11 Mr VL, the father, and Ms MV, the mother, are ordered to cooperate
fully with the Central Authority, RSA and the Central Authority for

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Switzerland, the relevant court (s) in Switzerland, and any
professionals who are approved or appointed by the relevant
court(s) in Switzerland to conduct any assessment to determine
what future residence and contact arrangements will be in the best
interests of the minor child, L.
2.5 In the event of Ms MV, the mother, giving notice to the Central Authority , RSA in
terms of paragraph 2.2 above, the order for the return of the minor child, L shall
be stayed until an appropriate court in Switzerland has made the order referred
to in paragraph 2.4 above and, upon the Central Authority , RSA being satisfied
that such an order has been made, it shall notify Ms MV, the mother, accordingly
and ensure that the terms of paragraph 2.4.1 are complied with.
2.6 In the event of Ms MV, the mother, failing to notify the Central Authority , RSA in
terms of paragraph 2.2 above, of her willingness to accompany the minor child, L
on his return to Switzerland, or electing not to return to Switzerland with the
minor child, L, the Central Authority , RSA is authorised to make such
arrangements as may be necessary to ensure that the minor child, L is safely
returned to the custody of the Central Authority for Switzerland and to take such
steps as are necessary to ensure that such arrangements are complied with, and
in such event the minor child, L is to return to Switzerland in the care of Mr VL,
his father.
2.7 Pending the return of the minor child, L to Switzerland as provided for in this
order, Ms MV, the mother, shall not remove the minor child, L, permanently from
the province of Gauteng , and, until then, will keep the Central Authority , RSA,
informed of her physical address and contact telephone numbers.
2.8 The Central Authority , RSA, is directed to seek the assistance of the Central
Authority for Switzerland in order to ensure that the terms of this order are
complied with as soon as possible.

complied with as soon as possible.
2.9 In the event of Ms MV, the mother, notifying the Central Authority, RSA in terms of
paragraph 2.2, above, that she is willing to accompany the minor child, L to
Switzerland, the Central Authority , RSA shall forthwith give notice thereof to the

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Registrar of Gauteng Division of the High Court, Pretoria, to the Central Authority
for Switzerland, and to Mr VL, the father.
2.10 In the event of the appropriate court in Switzerland failing or refusing to make the
order referred to in paragraph 2. 4 above, the Central Authority , RSA and/or Mr
VL, the father, is given leave to approach this Court for a variation of this order.
2.11 A copy of this order shall forthwith be transmitted by the Central Authority, RSA to
the Central Authority for Switzerland.


JUDGMENT
Norman AJA (Mocumie and Mbatha JJA concurring):

Introduction
[1] This is an appeal against the judgment and order of the Gauteng Division of the
High Court, Pretoria (the high court), per Swanepoel J, wh o dismissed with costs , an
application by the Chief Family Advocate in her capacity as the Central Authority for the
Republic of South Africa (the Central Authority), in terms of the 1980 Hague Convention
on the Civil Aspects of International Child Abduction (the 1980 Hague C onvention). In
the application, the Central Authority sought an order for the return of a now four-year-
old minor child, a boy (L), to Geneva, Switzerland. The appeal centres around the issue
of habitual residence of the minor child, L prior to being retained in South Africa after his
parents attended a wedding in South Africa with him. The appeal is with the leave of the
high court.

[2] The first respondent , Ms MV, is the biological mother of the minor child, L. She
holds dual citizenship : South Africa and Italy. The second respondent , Mr VL, is the
minor child L’s biological father. He is an Italian national. He obtained Swiss citizenship
during these proceedings. This matter engages both Italian and Swiss laws.

Factual background

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[3] It is necessary to set out the factual background in some detail for context. Ms
MV and Mr VL met in June 2019 in Rovere di Rocca di Mezzo (Rovere), a small village
in the city of L ’Aquila, Abruzzo province, Italy. Both their families were living in Rovere.
At that time, Mr VL was employed by the city council of Lausanne , Switzerland
(Lausanne).

[4] On 26 December 2019, the parties got engaged to be married in Cerveteri,
Rome. During March 2020, due to the C ovid-19 pandemic, Mr VL sought and was
granted permission to travel to Italy, where he remained until June 2020. When the
international borders reopened, Ms MV agreed to leave Rovere and moved to Lausanne
with Mr VL. It is common cause that Ms MV’s parents, based on their religious beliefs,
were against Ms MV living together with Mr VL ,as they were not married.

[5] During August 2020, w hen the COVID-19 restrictions were lifted , Ms MV and Mr
VL returned to Rover e for the summer holidays. After the holidays , they returned to
Lausanne. Ms MV discovered that she was pregnant. During September 2020, VL
joined the United Nations High Commissioner for Refugees (the UNHCR), Geneva. He
stayed together with Ms MV in Lausanne and worked from home . Shortly before the
minor child L’s birth, they travelled to Ro seto degli Abruzzi, Italy (Abruzzi), where the
midwife had her rooms . It is common cause that Mr VL was responsible for paying for
all the travelling, accommodation , and birthing costs because Ms MV was unemployed.
The minor child, L was born on 14 May 2021 in Abruzzi. After his birth, the family went
back to Geneva . Mr VL was responsible for maintaining both Ms MV and the minor
child, L.

[6] From June 2021 until October 2021, Ms MV and Mr VL travelled between
Switzerland, Italy, and France. In October 2021, Mr VL bought an apartment in Geneva,
and they moved in together. In January 2022, when the minor child, L was about eight

and they moved in together. In January 2022, when the minor child, L was about eight
months old, the parties agreed to have the child enrolled at a crèche. Mr VL also applied
for the minor child, L to be issued with an official Swiss identity document , and in this

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regard, Ms MV signed the authorization form. The minor child, L was also listed as a
dependent on Mr VL’s travel insurance, issued in line with VL’s United Nations passport.

[7] During November 2021, Mr VL was on a work mission in Chad, Africa. The
relationship between the parties deteriorated. Mr VL ended the relationship through a
text message. Ms MV and the minor child, L went back to Rovere to stay with her
parents. During December 2021, Mr VL went to Rovere for the holiday s, whereupon the
parties reconciled. After the holidays, they returned to Geneva with the minor child, L.

[8] During March 2022, VL was hospitalised due to mental illness , which he
described as a burnout due to work -related pressures. His mother and sister joined
them in Geneva to assist Ms MV in taking care of Mr VL. After his recovery, Ms MV
suggested, and Mr VL agreed to attend a wedding of Ms MV’s brother in South Africa ,
which was going to be held on 14 May 2022 . Ms MV and the minor child, L arrived in
South Africa on 6 May 2022, and Mr VL joined them on 11 May 2022. They stayed as a
family at a guest house in Waterkloof, Pretoria. Mr VL had booked return tickets , and
they were scheduled to return to Geneva on 19 May 2022. On 19 May 2022 , Ms MV
tested positive for the COVID-19 virus. As a result, Mr VL left alone for Geneva. The
parties agreed that Ms MV and minor child, L would join Mr VL once she was cleared of
the infection.

[9] After her recovery from the COVID-19 infection, Ms MV made several excuses to
delay her return to Switzerland. On 18 November 2022, Ms MV purchased an air ticket
and sent confirmation of a return flight for her self and the minor child, L, to Geneva,
Switzerland. She subsequently cancelled the flight booking. She decided not to return to
Mr VL and opted to stay in South Africa , where she had a support system. Mr VL told
Ms MV that the minor child , L, should stay with him in Europe , and if she wished , she

Ms MV that the minor child , L, should stay with him in Europe , and if she wished , she
could always come and visit the child during holidays , or she should relocate to Europe
to live closer to him and the child.

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[10] Mr VL consulted Bollo and Lamberti attorneys in Italy. On 28 November 2022, Ms
MV was contacted and invited to attend a meeting with Judge Luca Pascali, an Italian
judge at the Italian embassy in Pretoria, who enquired into , the minor child, L’s
circumstances. She attended the meeting and was advised by the judge that he also
intended to do a home visit. Post that meeting, she attempted to register the minor child
as a South African citizen, but the Italian embassy did not cooperate.

[11] On 6 December 2022, Ms MV approached the high court in an ex parte
application to seek various orders. The high court, amongst others, granted Ms MV full
parental responsibilities and rights over, minor child, L in terms of s 18 and 19 of the
Children's Act 38 of 2005 (the Children’s Act); Mr VL was granted parental
responsibilities and rights over L in terms of s 21 of the Children ’s Act; the minor child
L’s primary care vest ed in Ms MV; the Department of Home Affairs was ordered to
register, the minor child, L as a South African citizen and to provide him with a South
African identity document . The high court also awarded Mr VL contact rights over the
minor child, L, pending investigations by the Office of the Family Advocate.

[12] On 1 January 2023, Mr VL travelled to South Africa together with his mother. In
South Africa, Mr VL exercised his visitation rights in terms of the court order and
opposed the ex parte application, which is pending the finalisation of this appeal.

The findings of the high court
[13] As aforementioned, the high court dismissed the application with costs. I t made
the following findings:
13.1 Ms MV admitted that the parties both enjoy full parental rights and
responsibilities. The issue of marriage was important in the case . The parties returned
to Switzerland after the birth of their son. In October 2021 , the parties relocated to
Geneva, where Mr VL had purchased an apartment. The parties rekindled their

Geneva, where Mr VL had purchased an apartment. The parties rekindled their
relationship during December 2021 and they returned to Geneva in January 2022.
There is no doubt that upon travelling to South Africa, Ms MV had the intention of
returning to Europe. The parties had booked return tickets to Rome via Addis Ababa on

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19 May 2022 , and they were scheduled to then travel to Geneva. In the emails
exchanged between the parties, Mr VL did not say the home of the minor child, L was in
Geneva, but he said he was resident in Rovere;
13.2 The messages between the parties d id not support the version of Mr VL that he
had always demanded that Ms MV and the minor child, L return to Switzerland. Mr VL
made it clear that he did not want the minor child, L to return to Switzerland without Ms
MV. Ms MV had moved to Switzerland with a view to marry ing Mr VL. As soon as they
were settled in Switzerland , Mr VL had started making excuses for not marrying her. It
seems that neither the minor child, L nor Ms MV had settled in the Swiss community;
13.3 Ms MV did not intend to remain in Switzerland permanently unless Mr VL married
her;
13.4 It is not certain that Mr VL regarded Geneva as the minor child, L’s habitual
residence. The court did not believe that the parties had the settled purpose of residing
in Switzerland. Consequently, it found that the minor child , L was not a habitually
resident in Switzerland at the time of his removal to South Africa;
13.5 That removing the minor child, L from Ms MV’s care would cause the minor child,
L serious emotional harm. Mr VL brought a belated application to the Swiss authorities
some eight months after Ms MV had travelled to South Africa and five weeks after Ms
MV had obtained an ex parte order in respect of parental rights. Therefore , Mr VL had
acquiesced to the minor child, L residing in South Africa;
13.6 There is no evidence that if the minor child, L returned to Europe with Ms MV that
he would be at grave risk of harm. If the minor child , L were to be returned to
Switzerland, Ms MV would have to be placed in a position to return with him. Mr VL
would have to be ordered to assist Ms MV in obtaining a residency permit. Mr VL would
have to be ordered to provide for Ms MV and the minor child , L in the form of a place to
reside and maintenance;

reside and maintenance;
13.7 Mr VL has no regard for court orders as he hatched a kidnap plan to remove the
minor child, L from South Africa in defiance of the court order of 6 December 2022. Mr

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VL’s conduct is appalling, and [it] had no confidence that he would comply with any
condition imposed on Ms MV’s return to Switzerland;
13.8 For these reasons, it exercised its discretion against ordering the minor child, L’s
return to Switzerland.
13.9 Even if the findings regarding habitual residence were wrong, it would have
exercised its discretion against ordering the minor child, L’s return to Switzerland.

Before this Court
Submissions by the Central Authority

[14] Counsel for the Central Authority submitted that the high court misdirected itself
by placing too much emphasis on the issue of marriage and making it a central issue in
the case. The sole enquiry is whether or not the parties and the minor child, L were
habitually resident in Switzerland at the time Ms MV retained the minor child, L in South
Africa without Mr VL’s consent as contemplated in Article 3, read with Articles 5,12, and
13 of the 1980 Hague Convention.

[15] It contended further that t he high court erred in finding that Mr VL did not
establish that Ms MV intended to return to Geneva as Ms MV’s family had relocated to
South Africa, and she had only one place to return to, namely Switzerland. Therefore,
Mr VL succeeded in proving that the minor child , L was habitually resident in
Switzerland before his retention in South Africa.

[16] It was submitted that the high court misdirected itself in failing to order the return
of the minor child, L in terms of the Hague Convention. In this regard , reliance was
placed on Sonderup v Tondelli and Another (Sonderup)1 .


1 Sonderup v Tondelli and Another [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC).

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Submissions by Mr VL
[17] Mr VL supported the submissions on behalf of the Central Authority. He placed
reliance on the decision in Senior Family Advocate, Cape Town , and Another v
Houtman (Houtman)2 for the meaning of the word ‘ habitual residence’ . He contended
that , on these facts, the word ‘habitual residence’ should have some degree of settled
purpose or intention.

[18] He argued that in terms of the registration of the minor child , L’s birth in Italy,
both parents were automatically granted shared parental authority and custody rights
under A rticles 316, 337(ter), and 337( quarter) of the Italian Civil Code. Parental
responsibility, which exists under the law of the State of the child’s habitual residence,
subsists after a change of that habitual residence to another State . This means that the
parental rights awarded to him, under Italian law, automatically remained vested in him
when Ms MV retained the child in South Africa. Joint parental authority recognized in
Italy does not need to be officially re -registered in Switzerland for it to be valid, so he
contended. This position arose by operation of law.
Submissions by Ms MV
[19] This Court records its appreciation to Mr Zietsman SC , with Mr Van der Merwe ,
his junior counsel, of the Free State Bar , for their invaluable assistance in this complex
matter, rendered pro bono. This Court is indebted to both counsel for their services.

[20] Counsel for Ms MV submitted that Mr VL has no parental rights because he was
not married to her. And in terms of Swiss laws , as an unmarried mother , she was the
minor child , L’s sole custodial parent. Ms MV and Mr VL neither agreed nor determined
the child’s habitual residence for it to be Switzerland or Italy, for that matter. Mr VL never
demanded that they should return to Switzerland but wanted her to return to Italy, which,
it was contended, was indicative of the fact that Mr VL regarded Italy as their home. Mr

it was contended, was indicative of the fact that Mr VL regarded Italy as their home. Mr
VL did not obtain any rights under Article 298(a) of the Swiss Civil Code.


2 Senior Family Advocate, Cape Town, and Another v Houtman 2004 (6) SA 274 (C).

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[21] It was further contended with reliance on the provisions of Art icle 252 of the
Swiss Civil Code that , because they were not married to each other and absent a
declaration, Mr VL had no rights. That a distinction must be made between pure
parental rights and custodial rights. Mr VL has failed to make out a case about the rights
that he has over the minor child, L.

[22] If this Court accepts that Mr VL obtained rights in terms of Italian law, that will not
be the end of the matter because Article 316 of the Italian Civil Code affords both
parents the right to determine the child’s habitual residence by mutual agreement. In the
absence of such mutual agreement, it means Mr VL did not approach the Italian court
for judicial intervention in terms of Article 316.2 of the Italian Civil Code. The onus ,
therefore, rests on Mr VL to establish custodial rights.

[23] He argued that Mr VL had to concede that the minor child, L’s habitual residence
was Italy. If not , the Swiss Civil Code provides that the father does not have any
automatic parental rights. That, it was argued, in line with the dictum in KLVC v SDI3, Mr
VL had not established that the minor child, L had been retained unlawfully in South
Africa.

[24] Habitual residence has to be determined at the outset of a return application , as
the law of the country of habitual residence determines whether a person had rights of
custody at the time of the removal or retention. If the person requesting the return of the
child did not have custody rights in terms of the law of the country of habitual residence
at the time of the removal or retention, the 1980 Hague Convention would also not
apply.

[25] Relying on Central Authority for the Central Republic of South Africa and Another
v LC 4, he submitted that an appreciable period of time and a settled intention are

3 KLVC v SDI [2014] ZASCA 222; [2015] 1 All SA 532 (SCA) 4.

3 KLVC v SDI [2014] ZASCA 222; [2015] 1 All SA 532 (SCA) 4.
4 Central Authority for the Central Republic of South Africa and Another v LC 2021 (2) SA 471 (GJ) 56.

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necessary to enable the child to become habitually resident. Habitual residence must be
determined by the facts of the matter , and this must be done on a balance of
probabilities. He submitted that t he high court was correct in its finding that the parties
did not have a settled purpose to reside in Switzerland . And that Mr VL, the father, had
no rights of custody to the minor child, L.

[26] He argued that Mr VL did not exercise his rights as contemplated in Article 5 of
the 1980 Hague Convention. The dependency model test 5 should be applied ,
considering that the minor child, L was too young to decide where his habitual residence
was. Over and above, Mr VL is emotionally and psychologically unstable, and the minor
child, L will be subjected to emotional abuse if left in his care as contemplated in Article
13(b) of the 1980 Hague Convention . That Mr VL gave tacit or implied consent that the
minor child,L may remain in South Africa in terms of Article 13(a).

[27] He further submitted that it was not necessary to decide the consent or
acquiescence defence unless this Court finds that the minor child, L was habitually
resident in Switzerland and that Mr VL had settled rights of custody to the minor child, L.
Mr VL was open to working towards Ms MV, staying in South Africa whilst asserting that
‘she had abducted the minor child, L illegally to South Africa’, he had acquiesced in the
retention of the minor child, L in South Africa. On this ground , too, he argued that the
appeal should be dismissed.

Curator ad litem
[28] With the belief that the minor child , L’s best interests should be taken into
account in the application before it , the high court appointed a curator ad litem , Adv

5 In Central Authority for the Central Republic of South Africa and Another v LC, Opperman J stated:
[63] ‘Three basic models of determining habitual residence of a child have developed from judicial

interpretation of habitual residence, namely: the dependency model, the parental rights model and the
child centred model. In terms of the dependency model, a child acquires the habitual residence of his or
her custodians whether or not the child independently satisfies the criteria for acquisition of habitual
residence in that country.’

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Fitzroy.6 She filed an interim report. She also filed heads of argument in this Court. The
report filed by her focused mainly on the minor child L’s contact and primary residence.
This is for purposes of a full best interests inquiry , which ought not to have been
conducted considering that the court was only supposed to consider short -term best
interests in an application of this nature in line with the approach espoused by the
Constitutional Court in Ad Hoc Central Authority,South Africa and Another v Koch N.O.
and Another (Koch). 7

Issues for determination
[29] Before this Court, t he core issue is the minor child, L’s habitual residence at the
time Ms MV retained him in South Africa. Put in another fashion , the minor child, L’s
habitual residence prior to his alleged unlawful retention in South Africa . Flowing from
this, whether the minor child, L’s retention by Ms MV in South Africa without Mr VL’s
consent is wrongful. The resolution of the core issue will, of necessity, as found by this
Court in KLVC v SDI ,8entail determining two aspects stipulated in Article 3 of the 1980
Hague Convention, namely, first, in terms of Article 3( a), whether the removal of the
child was wrongful because it was in breach of Mr VL’s rights of custody of L under
Swiss law, immediately before the minor child, L’s removal. Second, in terms of Article
3(b), whether the relevant rights of custody were actually being exercised at the time of
the minor child L’s removal. That enquiry will resolve the custodial rights and
wrongfulness of the minor child L’s retention in the present case.

[30] If it is found that the minor child, L’s retention is wrongful, the next issue would be
whether the minor child, L’s return to Switzerland should follow . And whether the minor
child, L would be at grave risk of psychological harm , or be placed in an intolerable
situation, should he be returned as envisaged in Article 13 (b) of the 1980 Hague
Convention.

Convention.

6 A curator ad litem is appointed by a judge to investigate the circumstances of the child and whether it is
in the child’ best interest to remain in a particular jurisdiction or be returned.
7 Ad Hoc Central Authority, South Africa and Another v Koch N.O. and Another (Koch) 2023 ZACC 37;
2024(2) BCLR 147 ( CC) ; 2024(3) SA 249 ( CC).
8 Op Cit fn 3 para 4.

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Applicable Legislative Framework
[31] The objects of the 1980 Hague Convention are to secure the prompt
return of children wrongfully removed or retained in any contracting state,
and to ensure that rights of custody and access under the law of one
contracting state are effectively respected in the other contracting state. It
also entrenches the interests of children as being of paramount importance
in matters relating to their custody. It gives effect to its objects by providing,
amongst others, in Articles 3, 5, 16, 18, and 19 in the following terms:
Article 3 provides:
‘The removal or the retention of a child is to be considered wrongful where -
a) it is in breach of rights of custody attributed to a person, an institution , or any other body,
either jointly or alone, under the law of the State in which the child was habitually resident
immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or
alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub -paragraph a) above may arise in particular by operation
of law or by reason of a judicial or administrative decision, or by reason of an agreement having
legal effect under the law of that State.’

Article 5 states:
‘For the purposes of this Convention-
a) “rights of custody” shall include rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence;
b) “rights of access” shall include the right to take a child for a limited period of time to a place
other than the child’s habitual residence.’

Article 16 stipulates:
‘After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the
judicial or administrative authorities of the contracting State to which the child has been
removed or in which it has been retained shall not decide on the merits of rights of custody until

it has been determined that the child is not to be retained under this convention or unless an

18



application under this convention is not lodged within a reasonable time following receipt of the
notice.’

Article 18 states:
‘The provisions of this chapter do not limit the power of a judicial or administrative authority to
order the return of the child at any time.’

Article 19 reads:
‘A decision under this Convention concerning the return of the child shall not be taken to be a
determination on the merits of any custody issue.’

[32] Article 3 of the 1996 Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co -operation in Respect of Parental Responsibility and
Measures for the Protection of Children (the 1996 Hague Convention) provides:
‘Article 3
The measures referred to in Article 1 may deal in particular with –
a) the attribution, exercise, termination or restriction of parental responsibility, as well as its
delegation;
b) rights of custody, including rights relating to the care of the person of the child and in
particular, the right to determine the child's place of residence, as well as rights of access,
including the right to take a child for a limited period of time to a place other than the child's
habitual residence;. . . ’

[33] Articles 12 and 13 of the 1980 Hague Convention read:

Article 12 :
‘Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of
commencement of the proceedings before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year has elapsed from the date of
the wrongful removal or retention, the authority concerned shall order the return of 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

19



order the return of the child, unless it is demonstrated that the child is now se ttled 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 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 established that –
(a) the person, institution or other body having the care of the person of the child was not
actually exercising the custody rights at the time of removal or retention, or had consented to or
subsequently acquiesced in the removal or retention; or
(b) there is a grave risk that his or her return would expose the child to physical or psychological
harm or otherwise place the child in an intolerable situation. 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 other competent authority of the
child’s habitual residence’

Article 17 of the 1996 Hague Convention reads:
‘The exercise of parental responsibility is governed by the law of the State of the child's habitual
residence. If the child's habitual residence changes, it is governed by the law of the State of the
new habitual residence.’

Swiss Federal Act on Private International Law
[34] In terms of the Swiss Federal Act on Private International Law 9 (PILA), Article 14
thereof provides:
‘Art.14

thereof provides:
‘Art.14

9 Federal Act on Private International Law of 18 December 1987.

20



1 If the applicable law refers back to Swiss law or to another foreign law, such renvoi shall be
taken into account only if this Act so provides.
2 In matters of personal or family status, a renvoi from the foreign law to Swiss law is accepted.’

[35] Renvoi is defined as the action or process of referring a case or dispute to the
jurisdiction of another country . It is used as a tool for judges to engineer the
determination of the lex causae towards the legal system that is considered to provide
the best decision.10

[36] Section 4 of PILA reads:
‘Section 4 Domicile, Seat and Citizenship
‘Art. 20 reads:
1 Within the meaning of this Act, a natural person:
a. has their domicile in the state where they reside with the intent of establishing permanent
residence;
b. has their habitual residence in the state where they live for a certain period of time, even if
this period is of limited duration from the outset; (Emphasis added)
c. has their establishment in the state where the centre of their professional or commercial
activities is located.
2 No person may have more than one domicile at the same time.If a person does not have a
domicile anywhere, the habitual residence is the relevant place. The provisions of the Civil Code
relating to domicile and residence do not apply.’11 (Emphasis added)

‘Art .82:
1 The relations between parents and child are governed by the law of the state of the child’s
habitual residence.’

[37] The Swiss Civil Code provides :
‘Section Three: Parental Responsibility
Art.296

10 Renvoi defined in the book Dasar- Dasar Hukum Perdata Internasional (Fundamentals of International
Private Law) by Dr Bayu Seto Hardjowahono.
11 (Civil code is referenced as footnote 23, which is SR210.)

21



1 Parental responsibility serves the best interests of the child.
2 Until such time as they attain the age of majority, children remain the joint parental
responsibility of their father and mother.’
This article is provided as outlining the principles applicable under parental
responsibility.

South African Law
[38] Section 28 of the Constitution of the Republic of South Africa of 1996 (the
Constitution) entrenches the paramountcy principle in every matter concerning a child.12

[39] The Children’s Act was promulgated as stated in the Preamble to, inter alia, give
effect to certain rights of children as contained in the Constitution; to define parental
responsibilities and rights , and to give effect to the Hague Convention on International
Child Abduction. The Children’s Act specifically dedicated Chapter 17 to deal with child
abduction and wrongful removal or retention of a child in addressing its obligations in
terms of the 1980 Hague Convention.

[40] One of the objects of the Children’s Act is to reinforce the constitutional right that
the best interests of a child are of paramount importance in every matter concerning the
child; to promote the preservation and strengthening of families; to give effect to the
Republic’s obligations concerning the wellbeing of children in terms of international
instruments binding on the Republic ; and to generally promote the protection,
development and wellbeing of children.

Analysis
Is the Hague Convention applicable?
[41] I hasten to state that although this was an issue in Ms MV’s answering affidavit, it
was not pursued with vigour in argument. Nevertheless, it was not abandoned, and it is

12 Section 28(2) of the Constitution 108 of 1996 provides: ‘A child’s best interests are of paramount
importance in every matter concerning the child’.

22



for that reason that it shall be addressed herein. Switzerland is the signatory to the 1996
Hague Convention. South Africa is a signatory to the 1980 Hague Convention but not
the 1996 Hague Convention.

[42] On 12 January 2023, the Swiss authorities, relying specifically on the 1980
Hague Convention, submitted an application to the office of the Chief Family Advocate,
Central Authority for the Republic of South Africa, requesting it to take all the necessary
steps and measures for the speedy and safe return of the child. Of importance is that it
is in that correspondence that the Swiss aut horities recorded, inter alia, that the parents
have joint custody according to the It alian Family Law. According to Article 16(3) of the
1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co- Operation in respect of Parental Responsibility and Measures for the Protection of
Children (the 1996 Hague Convention), which is in force between Switzerland and Italy,
parental responsibility which exists under the law of the State of the child’s habitual
residence subsists after a change of that habitual residence to another State.

[43] It is the 1996 Hague Convention that enables the determination of the issues that
are extra-territorial such as these. Absent the 1996 and the 1980 Hague Conventions,
our courts and so is our State would not be able to lean on the international agreements
between states on matters involving, amongst others, the international abduction and
retention of children.

[44] The Constitutional Court in Sonderup13, outlined the purpose of the 1980 Hague
Convention, namely to protect children from the harmful effects of their wrongful
removal or retention and to ensure their prompt return to the state of their habitual
residence. There is no doubt that the 1980 Hague Convention applies to these
proceedings for the reasons advanced above.

Did Mr VL have custodial rights? If so, did he exercise them?

13 Op cit fn 1 para10.

23



[45] Ms MV relied on the provisions of Article 298a of the Swiss Civil Code for the
contention that Mr VL does not and never had custodial rights because the parties did
not sign a joint declaration as envisaged in this section.

[46] Article 298 a of the Swiss Civil Code provides:
‘Art 298a
1 If the parents are not married to each other and if the father recognises the child,or the parent-
child relationship is established by court judgment but joint parental responsibility was not
ordered at the time of the judgment, joint parental responsibility is established based on a joint
declaration by the parents.
2 In the declaration, the parents confirm that they :
1. are prepared to accept joint responsibility for the child; and
2. have agreed on residence and contact or on the sharing of parenting duties and on the child
maintenance contribution for the child.
3. . .
4. . .
5 Unless and until the declaration has been made, the mother has sole parental responsibility.’

[47] Ms MV relied on the provisions of Article 298 a of the Swiss Civil Code .
Throughout the proceedings Ms MV contended that the habitual residence of the minor
child , L is in Italy and not in Switzerland. Some of the relief sought , and the averments
made by Ms MV in the ex parte application , were that, amongst others, Mr VL has full
parental responsibilities and rights over the minor child , L . She sought an order
declaring that those rights were vested in terms of s 21 of the Children ’s Act . The
reliance on Article 298a contradict the posture adopted by Ms MV before the high court .
I , therefore, find that in the light of those admitted facts by Ms MV , her reliance on the
provisions of Article 298a , is misplaced.

[48] Since the child is Italian and had been registered as such at birth , his habitual
residence was Italy , and when the parties moved to settle with him in Switzerland , it
changed to Switzerland. Therefore, the founding principles on parental responsibility to

changed to Switzerland. Therefore, the founding principles on parental responsibility to
be relied upon are those prescribed in terms of Italian laws because those are the

24



responsibilities that both parents acquired by operation of law on the day the child was
born. Articles 316 and 337 ter of the Italian Code entrench those rights. The Italian
Code, as translated, provides :
‘Article 316
1. Both parents have parental responsibility, which is exercised by mutual agreement ,
taking into account the child’s abilities, natural inclinations and aspirations. The parents, by
mutual agreement, determine the minor’s habitual residence. (Emphasis added)
2. In the event of disagreement on matters of particular importance, each of the parents
may refer the matter to the judge without formalities indicating the measures he or she
considers most appropriate.
3. The parent who has recognised the child exercises parental responsibility over the child.
If the recognition of the child, born out of wedlock, is carried out by both parents, the exercise of
parental responsibility belongs to both.’(Emphasis added)

‘Article 337 ter provides:
1. The minor child has the right to maintain a balanced and contin uous relationship with
each of his or her parents, to receive care, education, instruction and moral assistance from
each of them, and to maintain meaningful relationships with relatives of each branch of
parenthood.
2. ....
3. Parental responsibility is exercised by both parents . Decisions of major interest to
children concerning the education, health and choice of the minor’s habitual residence are taken
by mutual agreement, taking into account the capacities , natural inclinations and aspirations of
the children.’( Emphasis added)

[49] The body of evidence shows that prior to birth and after the minor child , L’s birth,
the parties exercised joint parental responsibilities. For context , the following common
cause facts do not support the contention that Mr VL never had custodial rights over the
minor child, L: Prior to minor child, L’s birth, Ms MV and Mr VL , were living together in

minor child, L: Prior to minor child, L’s birth, Ms MV and Mr VL , were living together in
Switzerland and were engaged to be married . During the relevant period immediately
prior to minor child L’s birth, from 22 January 2021 until 10 April 2021 , they were
residing in Switzerland . On 10 April 2021 , they left for Italy in preparation for the minor
child, L’s b irth, who was born in Italy on 14 May 2021. Mr VL was present and

25



supportive throughout the pregnancy and the minor child , L’s birthing. He was
responsible for all the expenses relating to acco mmodation and the minor child , L’s
birth. On 10 June 2021, Ms MV and Mr VL returned to Switzerland with their newly born
baby, L.

[50] They all lived together , with Mr VL being away sometimes due to work
commitments. After the minor child, L’s birth, the parties travelled and stayed together
with the minor child, L on vacation, weekends , or paternity leave in Italy, France , and
Switzerland. Ms MV and Mr VL resided in Switzerland together with the minor child, L,
in an apartment purchased by Mr VL, from 16 January 2022 until 5 May 2022, before
their departure to South Africa . Before their departure to South Africa , Mr VL had been
admitted to hospital due to mental illness. T hey travelled to South Africa to attend a
wedding of Ms MV’s brother. Both Ms MV and Mr VL intended to return to Switzerland
after the wedding. They were all due to return to Switzerland on 19 May 2022 and had
return air tickets evincing that. The reason Ms MV and the minor child, L remained
behind on 19 May 2022 was that Ms MV had contracted the COVID–19 virus. The
relationship between the parties became strained. Ms MV intended to return to
Switzerland during November 2022 , and she purchased an air ticket , which she sent to
Mr VL. She later cancelled it . VL was responsible for all expenses and maintenance
relating to the minor child, L and Ms MV in Switzerland , and was responsible for the
child’s expenses and maintenance even after the retention of the minor child, L in South
Africa.
[51] Those facts demonstrate that Mr VL had custodial rights to the minor child, which
were exercised prior to his retention in South Africa. The high court correctly found that
Ms MV did not deny that Mr VL enjoys custodial rights. It also correctly found that Ms
MV admitted that the parties both enjoy full parental rights and responsibilities. In light of

MV admitted that the parties both enjoy full parental rights and responsibilities. In light of
those findings and the evidence tendered, the contention by Ms MV that Mr VL never
had custodial rights and had never exercised them at the time of the retention of the
minor child, L in South Africa is legally untenable , and it stands to be rejected. VL had
demonstrated, as found by the high court , that he had acquired full parental
responsibilities in respect of the minor child, L. Once those parental responsibi lities,

26



including joint custody, were acquired under Italian laws , they were not relinquished or
extinguished when the parties moved to Switzerland. They remained extant. In this
regard, Article 16(3) of the 1996 Hague Convention recognises and enforces them.
‘Article 16:
(1) The attribution or extinction of parental responsibility by operation of law, without the
intervention of a judicial or administrative authority, is governed by the law of the State of the
habitual residence of the child.
(2). . .
(3) Parental responsibility which exists under the law of the State of the child's habitual
residence subsists after a change of that habitual residence to another state.’

[52] The continuity of those rights where there is a change of habitual residence
accords with the best interests of the child principle that the Hague Convention seeks to
protect. This legal position exists in order to ensure continuity of the parental authority
without requiring official re -registration in Geneva. I therefore find in this regard, and as
correctly found by the high court, the first leg of the article 3 test has been satisfied.

Is the retention of the minor child, L in South Africa wrongful?
[53] The retention of the minor child, L in South Africa was a decision taken by Ms MV
alone without the consent of Mr VL. She wanted to be closer to her family , that had at
that point in time indicated that it was not returning to Italy but was going to remain in
South Africa. Her other reason was that Mr VL was not committing to marriage. She
retained the child without consulting Mr VL, as the father of the child, who had custodial
rights. She decided unilaterally to retain the child in South Africa. Ms MV has failed to
offer a satisfactory explanation to dispel the presumption of wrongful retention of the
minor child.

[54] Having found, as the high court did, that both parents had custodial rights
towards the child in Switzerland, Mr VL’s consent to the retention of the child in South

towards the child in Switzerland, Mr VL’s consent to the retention of the child in South
Africa was peremptory. It follows that failure to seek and obtain Mr VL’s consent before
retaining the child in South Africa was wrongful. I find that Ms MV’s actions of retaining
the minor child, L in South Africa were wrongful.

27




Did Mr VL consent or acquiesce to the minor child, L, remaining in South Africa?
[55] When Ms MV approached the high court in Pretoria on an ex parte basis, she
had already been contacted by the Italian Judge and by an Italian attorney. Despite
such knowledge, she sought an ex parte order awarding her full parental responsibilities
towards the minor child. The fact that , after the ex parte order, Mr VL visited his son in
South Africa does not amount to consent or acquiescence because there was a court
order which gave him rights of access to the child , and he was obliged to comply
therewith or challenge it as he did.

[56] Ms MV invoked one of the def ences provided for in Art icle 13(a) of the 1980
Hague Convention that Mr VL had consented to or subsequently acquiesced in the
removal or retention of the minor child in South Africa. Ms MV bore the onus to establish
that defence. That defence is also provided for in Article 7 (a) of the 1996 Hague
Convention.

[57] In Smith v Smith (Smith),14 this Court, in making findings on acquiescence, relied
on the following facts: That the appellant had been aware of the 1980 Hague
Convention and that the respondent was retaining the children in South Africa
unlawfully. He had been aware, too, that the 1980 Hague Convention afforded him a
remedy. Armed with this knowledge , he had nonetheless instructed his attorney to
withdraw his application under the 1980 Hague Convention. Those facts, this Court
found, clearly justified the inference that, with knowledge of his rights, the appellant had
in fact acquiesced in the wrongful retention of the children in South Africa. His conduct
would certainly have led the respondent reasonably to believe that he was not insisting
on their summary return. It found that the respondent succeeded in discharging the
onus of establishing that the appellant acquiesced in the wrongful retention of the
children in South Africa.15

children in South Africa.15


14 Smith v Smith [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 SCA para 19.
15 Ibid para 20.

28



[58] The facts in this case are distinguishable from those in Smith in that, after the
cancellation of the flight return ticket by Ms MV, amongst others, Mr VL established that
Ms MV was not intending to return with the child to Switzerland. He consulted lawyers ,
and a report was made to Swiss authorities , which culminated in the application for the
return of the minor child, L, to Switzerland. He pursued it until it reached this Court. It is
important to note that a finding of acquiescence by the high court is based on the
following obiter:
‘. . . It is only on 13 January 2013, some eight months after MV travelled to South Africa, and
five weeks after MV had obtained an ex parte order in respect of parental rights, that VL brought
this belated application to the Swiss authorities. Therefore, I find that VL acquiesced to L
residing in South Africa.’

[59] By relying solely on the above -mentioned obiter remarks, the high court failed to
take into account the following uncontroverted facts: That Mr VL had made it clear to Ms
MV that he intended to take L to Europe. He reported the minor child, L’s retention in
South Africa to the Italian authorities immediately he realised that Ms MV was set on
retaining the minor child, L when he was issued with an interim court order of 6
December 2024. Mr VL approached the Swiss Central Authority to process the minor
child , L’s return to Switzerland. The Swiss Central Authority took action within one (1)
year of the minor child , L’s wrongful retention in South Africa as provided for in Article
12 of the 1980 Hague Convention. All these facts militate against the finding by the high
court that Mr VL acquiesced to the minor child L’s retention in South Africa.

[60] It follows that the high court, misdirected itself on the facts in assessing whether
or not Mr VL had acquiesced as alleged by Ms MV. By so doing, it reached a decision
which, in the result, could not reasonably have been made by a court properly directing

which, in the result, could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles. This court is accordingly at large to interfere
with the decision of the high court 16. I find that on the correct facts , Mr VL did not

16 Trencon Construction ( Pty ) Limited v Industrial Development Corporation of South Africa Limited and
Another [2015] ZACC 22; 2015 (5) SA 245 (CC); 2015 (10) BCLR 1199 (CC) para 88; and also Media
Workers Association of South Africa and Others v Press Corporation of South Africa Limited [1992]
ZASCA 149 ; 1992 (4) SA 791 (A) at 1392E.

29



acquiesce to the minor child, L’s retention in South Africa. Ms MV failed to discharge the
onus resting on her and that defence must accordingly fail.

Is Switzerland the habitual residence of the minor child, L ?
[61] There are certain facts which have been outlined above that militate against Ms
MV’s contention that Italy was the habitual residence of the parties . I shall repeat them
herein briefly for context. When the international borders reopened during 2020, Ms MV
agreed to leave Rovere and moved to Lausanne with Mr VL. They we nt to Italy for the
minor child, L’s birth. After his birth , they returned to Geneva. Mr VL bought an
apartment in Geneva. They stayed in that apartment until they left for South Africa in
May 2022. Most importantly, they had booked tickets to return to Geneva on 19 May
2022 after the wedding in South Africa, which was on 14 May 2022.

[62] Ms MV contends that on two occasions when the ir relationship ended, she took
L, with her to Italy , and Mr VL did not protest. It is common cause that during the
relevant times, the minor child, L was still being breastfed , even when they travelled to
South Africa for the wedding. During those times , both Ms MV and Mr VL had their
families in Ita ly. As found earlier in this judgment, Italy was L’s habitual residence and
his birth residence until his parents moved to Switzerland. At that point, the minor child ,
L’s habitual residence and his parents became Switzerland. The facts outlined above
fortify that conclusion.

[63] The arguments on behalf of Ms MV seem to be that she had no intention of
residing in Switzerland permanently . That view only came to the fore after she had
retained the child in South Africa. Her actions of even looking for a crèche for the minor
child, L and intending to return to Switzerland by booking air tickets in November 2022
do not support that argument. She had spent almost two years in Switzerland. In any

do not support that argument. She had spent almost two years in Switzerland. In any
event, t hat argument is flawed for t wo reasons. First, it goes against the definition of
habitual residence that Swiss laws accord to that term. Article 20 (b) of PILA refers to
habitual residence as ‘ has their habitual residence in the state where they live for a
certain period of time, even if this period is of limited duration from the outset’ . Second,

30



if it is accepted that according to the dependency model , a child acquires the habitu al
residence of his or her custodians whether or not the child independently satisfies the
criteria for acquisition of habitual residence in that country, then it would make no sense
to contend that although the minor child, L was residing with his parents in Switzerland ,
his habitual residence (alone) was in Italy.

[64] To hold as such would go against the intention of the 1980 Hague Convention ,
which distinguishes the ‘ habitual residence’ that is relevant for the purposes of Article 3,
as being the one‘ prior to the removal or retention of the child’. Third, that contention
would also go against the principles in Houtman17 where the court stated:
‘In practice, however, it is often impossible to make a distinction between the habitual residence
of a young child and that of its custodians - it cannot reasonably be expected that a young child
would have the capacity or intention to acquire a separate habitual residence.’18

[65] The court further held19: defining ‘habitual residence’:
‘The word ‘habitual’implies a stable territorial link; this may be achieved through length of stay or
through evidence of a particularly close tie between the person and the place. A number of
reported foreign judgments have established that a possible prerequisite for ‘ habitual residence’
is some degree of ‘settled purpose’ or ‘intention’.
A settled intention or settled purpose is clearly one which will not be temporary. However, it is
not something to be searched for under a microscope. If it is there at all i t will stand out clearly
as a matter of general impression.”20

[66] There was a ‘settled purpose’ that made Mr VL and Ms MV as the minor child ,
L’s parents to be in Switzerland . That settled purpose was Mr VL’s employment in
Geneva. He had been working in Switz erland long before the minor child , L was born.
Ms MV was staying with him even when he was in Lausanne .Ms MV was offered a job

Ms MV was staying with him even when he was in Lausanne .Ms MV was offered a job
to provide English lessons to an Albanian diplomat in Geneva. Although the minor child,
L was born in Italy, the Italian Consulate General in Geneva wrote, on 15 December

17 Op cit fn 2 para 8
18 Ibid para 10.
19 Ibid para 9.
20 Ibid para 10.

31



2022, to Mr VL after he had made a report about the ‘ missing return of minor L.. .’, that
he must submit a repatriation request to Swiss authorities, recognized as the minor’s
place of residence before the minor’s removal to South Africa.’
The letter further provided instructions and contact details for the competent federal
office in Switzerland. This then puts to bed the suggestion that the minor child, L’s
habitual residence was in Italy prior to his removal.

[67] I find that t he high court misdirected itself when it focused on the issue of
marriage as an important issue when determining the issue of habitual residence.
Although the high court had found that the parties had ‘settled’ in Switzerland, contrary
to that finding, it found that it did not believe that the parties had the settled purpose of
residing in Switzerland and thus found that Switzerland was not the habitual residence
of the parties.

[68] The correct facts show that the parties were settled in Switzerland , as correctly
found by the high court. They had applied for the minor child, L to be enrolled at a
crèche in Switzerland, Mr VL applied and Ms MV consented to the minor child, L being
registered with the Swiss authorities; they moved and stayed in an apartment that Mr VL
had purchased; the minor child, L’s name was displayed on the entrance door and on
the letter box of the apartment; at the time they left for South Africa on , 5 May 2022 ,
they were in Switzerland; both parents and, the minor child L, had return tickets from
Geneva to South Africa and back to Geneva on 19 May 2022 ; Mr VL had applied for
Swiss citizenship which he obtained in December 2024 thus entitling the minor c hild, L
to Swiss citizenship and social benefits attendant thereto. Ms MV returned to the
apartment in Switzerland without the minor child, L to collect her jewellery and
belongings in May 2024. All these factors and the conduct of both Ms MV and Mr VL

belongings in May 2024. All these factors and the conduct of both Ms MV and Mr VL
demonstrate that they both regarded Switzerland as their home and that of the minor
child , L.

[69] In arriving at this conclusion , one must be guided, in particular, by Article 20 of
PILA, above which states categorically that their habitual residence is in the state where

32



they live for a certain period of time, even if this period is of limited duration from the
outset; or have their establishment in the state where the centre of their professional or
commercial activities is located. In this instance, both categories have been met.
[70] Once the custodial rights are established in terms of Italian laws, as I have found,
they are automatically recognized in Swiss law in terms of Article 85 of PILA 21, and in
terms of Article 7 of the 1996 Hague Convention on Jurisdiction, Applicable Law,
Recognition, Enforcement and Co -operation in Respect of Parental Responsibility and
Measures for the Protection of Children 22, recognition is given to the authorities of the
State in which the child was habitually resident immediately prior to the removal or
retention. Those authorities retain their competence to take measures for the protection

21 Article 85 of PILA provides:
1.In respect of protection of children, the jurisdiction of the Swiss judicial or administrative authorities, the
applicable law and the recognition and enforcement of foreign decisions or measures are governed by the
Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children.
2. . . . .
3. . . ..
4 Measures taken in a State which is not party to the Conventions referred to in paragraphs one and two
are recognized if they were taken or are recognized in the State of habitual residence of the child or the
adult.’
22 Articles 5 and 7 of the 1996 Hague Convention provide :
‘Article 5
(1)The judicial or administrative authorities of the Contracting State of the habitual residence of the child
have jurisdiction to take measures directed to the protection of the child's person or property.
(2) Subject to Article 7,in case of a change of the child's habitual residence to another Contracting State,

the authorities of the State of the new habitual residence have jurisdiction.
‘Article 7
(1) In case of wrongful removal or retention of the child, the authorities of the Contracting State in which
the child was habitually resident immediately before the removal or retention keep their jurisdiction until
the child has acquired a habitual residence in another state and
(a) each person, institution or other body having rights of custody has acquiesced in the removal or
retention; or
(b) the child has resided in that other State for a period of at least one year after the person, institution or
other body having rights of custody has or should have had knowledge of the whereabouts of the child,
no request for return lodged within that period is still pending, and the child is settled in his or her new
environment.
(2) The removal or retention of a child is to be considered wrongful where –
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly
or alone, under the law of the State in which the child was habitually resident immediately before the
removal or retention; and
(b) at the time of removal or retention, those rights were actually exercised, either jointly or alone, or
would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub -paragraph a above, may arise in particular by operation of law or
by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under
the law of that State.’

33



of the child, even after the child’s removal. The actions taken by the Swiss authorities in
requesting the Central Authority to take measures for the minor child , L’s return are
consistent with those legislative imperatives.

[71] It must follow that Ms MV’s argument on habitual residence must accordingly fail.
For all the reasons advanced I find that the minor child, L’s habitual residence, prior to
his retention in South Africa was Switzerland.

[72] The findings made above are consistent with the interpretation given to the term
‘habitual residence’ in Switzerland. In X v Y 23, in its judgment the Federal Tribunal held
:
‘The Hague Convention on the Civil Aspects of International Child Abduction (Hague Child
Abduction Convention) is limited in its scope to children who, immediately prior to a violation of
custody or visitation rights, had their habitual residence in a contracting state and have not yet
reached the age of 16 (Art. 4 Hague Child Abduction Convention). The point of contention is
whether the Hague Child Abduction Convention applies to the two children. The appellant
accuses the High Court of having wrongly assumed that the two children had their habitual
residence in Italy (as a contracting state).
The concept of habitual residence within the meaning of the Hague Convention on the
Protection of Children corresponds to the connecting factor concept as used in the Hague
Convention on the Protection of Children and other Hague Conventions. This refers to the
actual center of the child's life, which results from the actual duration of the stay and the
relationships established thereby, or from the expected duration of the stay and the integration
that can be anticipated.’(Footnotes omitted)
Allegations of Ms MV’s arrest upon her return to Switzerland
[73] These allegations have no merit because Ms MV travelled to Switzerland during
May 2024 and remained there for six days. Unfortunately, this misinformation was given

May 2024 and remained there for six days. Unfortunately, this misinformation was given
to the curator ad litem , and it must have influenced some of her findings. Even if there
was a pending criminal case against Ms MV in Switzerland, this Court ,as the

23 X v Y Federal Tribunal Judgment; 5P.367/2005 ; judgment of 15 November 2005; II Civil Division; at
para 5-5.1; Constitutional Appeal against the decision of the High Court of the Canton of Zurich, Second
Civil Chamber of 30 September 2005 ( NL050087).

34



Constitutional Court did in Sonderup, referred to above, would add a protective measure
that Mr VL must not pursue any such criminal charges or assist in the same 24. In fact,
that is exactly what Mr VL undertook to do even before the high court, which the high
court ignored.

Whether a return of the minor child, L to Switzerland poses a grave risk of harm
to him?
[74] The high court made the following findings in this regard: There was no evidence
to suggest that if the minor child, L is returned to Europe with Ms MV, he would be at
grave risk of harm; if the minor child, L were to be returned to Switzerland, Ms MV would
have to be placed in a position to return with him. Having made those findings , the high
court inexplicably found that Ms MV couldn't return to Switzerland because she does not
have permanent rights of residence in Switzerland. The high court further stated in
obiter that to resolve that difficulty , one would have to order Mr VL to assist Ms MV in
obtaining a residency permit if possible.

[75] Ms MV, on the other hand, raises the mental and psychological state of Mr VL as
posing a grave risk of harm to the minor child, L. She refers to the two incidents when
Mr VL was admitted to the hospital due to his mental state. Mr VL explained that he
suffered from burnout due to work pressures. She also mentioned an incident where,
when the minor child, L was still very young, Mr VL fell asleep in the bath whilst holding
him. Before this Court, counsel for Mr VL confirmed that from July until August 2025, Ms
MV and the minor child, L visited Mr VL. During that visit, the minor child, L spent twenty
one nights with Mr V L. This fact was brought to the attention of the Re gistrar of this
Court in an email sent to the Court by Ms MV advising the Court of the minor child, L’s
visit to Switzerland for the July/August 2025 holidays. Without downplaying her
concerns, the lack of expert evidence that Mr VL posed any danger at all to the minor

concerns, the lack of expert evidence that Mr VL posed any danger at all to the minor
child, L does not assist her.


24 Op cit fn 1 para 49.

35



[76] It is worth mentioning that a report from Dr Giada Del Fabbro, suggested that the
primary residence of the minor child should remain with the mother , Ms MV, with the
father, Mr VL exercising contact rights. This recommendation is based on the time that
the child has spent with the mother , Ms MV. As indicated in this judgment , a full best
interests inquiry conducted by the high court was not warranted, which is what was
addressed in the medical report. Dr Del Fabbro did not suggest that the child would be
at grave risk of harm if returned to Switzerland.

[77] The body of evidence shows that both Ms MV and Mr VL do have some mental
challenges. Those challenges will be better addressed by the Swiss Court , which will be
deciding the merits on parental and custody rights and the measures to be taken to
assist the parties with parental skills, if needed. Those are not factors for decision by
this Court or any South African court, for that matter. The presence of mental challenges
does not translate to the grave risk of harm contemplated in Article 13(b). It is apparent
from the record that the minor child, L’s retention in South Africa also contributed to Mr
VL’s mental state . There is accordingly no reason to disturb the findings of the high
court in this regard.

Should the minor child, L, be returned to Switzerland?
[78] It is common cause that there were delays in having the application for the minor
child, L’s return to Switzerland finalised. Those delays range from the curator ad litem
taking almost a year in filing her report to various supplementary affidavits filed by the
parties, including processes relating to appeals. Whilst all that was happening , the
minor child, L was growing up, attending crèche in South Africa , and inevitably
becoming accustomed to Ms MV’s family only.

[79] The fact that the minor child, L has stayed longer in South Africa is largely due to
Ms MV’s actions retaining him , including the delays occasioned by the curator ad litem

Ms MV’s actions retaining him , including the delays occasioned by the curator ad litem
referred to above. In C.A.R v The Central Authority of the Republic of South Africa and

36



Another25, this Court, relying on Koch,26 citing with approval LD v Central Authority RSA
and Another ,27 stated that regrettable as they may be, inordinate delays cannot be held
against the parent applying for the child’s return, because to do so would subvert the
Hague Convention’s aims.

[80] The Court further held that the fact that there had been these developments does
not mean that the minor child, L’s return to Switzerland is not in his best interests. To
refuse an order for the minor child, L’s return to Switzerland would reward unlawful
conduct. On these facts, the central authorities of Switzerland and South Africa have co-
operated with one another. The fact that the minor child, L spent 21 nights with Mr VL
dispels any alleged fears of harm. It cannot be in the minor child, L’s best interests, in
the circumstances, to consider the period that he has been in South Africa in favour of
the party who retained him unlawfully in the first place. That, would render the
application of the 1980 Hague Convention nugatory. And would leave aggrieved parents
without the protection that the 1980 Hague Convention affords them.

[81] In Koch, the Constitutional Court expressed its disquiet about the length of time
that had lapsed in adjudicating the application under the 1980 Hague Convention .
Those remarks apply equally herein. Article 11 of the 1980 Hague Convention enjoins
contracting states to act expeditiously in proceedings for the return of children. If there is
no decision reached within six weeks from the date of commencement of the
proceedings, the Central Authority of the requesting state has the right to request a
statement of the reasons for the delay. These time limits must be borne in mind by the
litigants, including the courts, whenever there is litigation of this nature.

[82] In this case, unlike in Koch, no evidence evinces a grave risk of harm if the minor
child, L is returned to Switzerlan d. I find that the high court erred in not ordering the

child, L is returned to Switzerlan d. I find that the high court erred in not ordering the

25 C.A.R v Central Authority of The Republic of South Africa and Another [2024] ZASCA 103; [2024] 3 All
SA 653 (SCA); 2024 (6) SA 351 (SCA).
26 Op cit fn 7 paras 132 -133.
27 LD v Central Authority RSA and Another [2022] ZASCA 6; [2022] 1 All SA 658 (SCA); 2022 (3) SA 96
(SCA).

37



prompt return of the minor child, L to Switzerland once it had found that there was no
grave risk of harm.

[83] Counsel for Mr VL s ubmitted that Mr VL supports the order proposed by the
Central Authority properly modified by this Court to cater for the minor child, L’s needs
and so too those of Ms MV, in the event she chooses to return to Switzerland with the
minor child, L. One of the reasons advanced by the high court for not ordering the
minor child, L’s return was that Ms MV does not have Swiss citizenship. I have no doubt
that if she chooses to accompany the minor child , L, the Swiss courts will make
provision for her stay in Switzerland in such a way that , in exercising her parental rights,
she will not be prejudiced. I accordingly find that, on the facts of this case, it would be in
the minor child, L’s best interests to be returned to Switzerland.

[84] In Carlson v Switzerland28, the Court held:
‘It is therefore a matter, once the conditions for the application of the Hague Convention have
been met, of restoring as soon as possible the status quo ante in order to avoid the legal
consolidation of de facto situations that were brought about wrongfully, and of leaving the issues
of custody and parental responsibility to be determined by the courts that have jurisdiction in the
place of the child’s habitual residence, in accordance with Article 19 of the Hague Convention . .
.’
I endorse this judgment.

Costs
[85] Ms MV was afforded an opportunity to agree to the minor child, L’s voluntary
return to Switzerland. She declined that opportunity. Mr VL, on the other hand ,
burdened the court record with unnecessary evidence , which displayed all sorts of
problems that existed between him and Ms MV, matters that were not relevant to the
adjudication of the issues before us , including translated versions of the Italian and
Swiss laws which this Court only had to consider on a very narrow issue: what Swiss

Swiss laws which this Court only had to consider on a very narrow issue: what Swiss

28 Carlson v Switzerland (Application no. 49492/06: Council of Europe : European Court of Human Rights,
First Section at 17, para 74

38



and Italian laws say on the habitual residence of a child of unmarried parents. Both Ms
MV and Mr VL failed to reflect on thi s course and failed to take steps to keep out of the
record those parts that were not relevant. As a result, this Court had to trawl through a
record consisting of 15 volumes plus 4 extra core bundles. It is for that reason that in
this Court’s discretion, even the successful party would be deprived of their costs.

[86] The Central Authority did not seek any cost order against Ms MV. Mr VL, on the
other hand , sought all costs and disbursements that he paid to the curator ad litem .
There is no basis for such an order because the curator ad litem was appointed by the
high court and no appeal served before us in respect of those costs . This is a matter
where it would be fair and just to order that each party is to bear their own costs. Suffice
to say that courts of first instance in applications under the 1980 Hague Convention
should be very circumspect on when and why they order the appointment of a curator
ad litem, conscious that it is the Central Authority and thus the Department of Justice
that has to bear these extraordinary costs. This is so f or the simple reason that when
the court of first instance considers the best interests of a minor child in circumstances
such as in this case, it does not hold a full blown best interests inquiry , as the
Constitutional Court has reiterated since Sonderup, followed up in Koch and judgments
of this Court.

[87] In the result, the following order is granted:
1 The appeal is upheld, with each party to pay their own costs.
2 The order of the high court is set aside and substituted with the following:
2.1 It is ordered and directed that the minor child (L) be returned forthwith, subject to
the terms of this order, to the jurisdiction of the Central Authority of Switzerland.
2.2 In the event of the first respondent, Ms MV , the mother, giving written notification

2.2 In the event of the first respondent, Ms MV , the mother, giving written notification
to the Central Authority of the Republic of South Africa, Pretoria (the RSA Central
Authority) within ten (10) days of the date of issue of this order that she intends to
accompany, the minor child, L on his return to Switzerland, the provisions of
paragraph 2.3 and 2.4 shall apply.

39



2.3 In the event of 2.2, above, ie, Ms MV being willing to accompany the minor child,
L, on his return to Switzerland, the following undertakings given by Mr VL, the
father, are recorded :
2.3.1 He will not institute or support any proceedings, whether criminal or
contempt of court proceedings, if any, for the arrest or punishment of Ms
MV, or any member of her family, whether by imprisonment or otherwise, for
any matter arising out of the retention of the minor child, L, in South Africa.
He will take all steps that he reasonably can for the withdrawal of any
criminal charges pending against Ms MV, in this regard.
2.3.2 Upon Ms MV, the mother indicating that she intends to remain in
Switzerland, Mr VL shall take steps that he reasonably can to assist Ms MV,
the mother, to obtain Swiss citizenship.
2.4 The second respondent, Mr VL, the father, shall, within 20 (twenty) days of the
date of issue of this order, institute proceedings and pursue them with due
diligence to obtain an order of the appropriate judicial authority in Switzerland in
substantially the following terms:
2.4.1 Unless and until ordered by the appropriate court in Switzerland:
2.4.1.1 On the date of departure of Ms MV, the mother, and the minor child,
L from South Africa to Switzerland in terms of the order of the
Supreme Court of Appeal of South Africa (SCA) under SCA case
number 1396/2024, the residence of the minor child, L shall vest
with Ms MV, the mother, subject to the reasonable rights of contact
of Mr VL, the father.
2.4.1.2 The minor child, L, will remain in the de facto custody of Ms MV, the
mother, pending the final adjudication and determination of the
proceedings pending in Switzerland on the issues of custody, care
and access to the said minor child which adjudication and
determination, the applicant and Mr VL, the father, or either of
them, must request forthwith.
2.4.1.3 Mr VL, the father, is ordered to purchase and pay for economy -

2.4.1.3 Mr VL, the father, is ordered to purchase and pay for economy -
class air tickets for Ms MV, the mother, and the minor child, L, to

40



travel by the most direct route from South Africa to Geneva,
Switzerland, or any other route from South Africa to Geneva,
Switzerland, including Johannesburg and or Cape Town.
2.4.1.4 Mr VL, the father, is ordered to make his current home, situated at
A[...] d[...] R[...] P[...] 1[...] , 1209, Geneva, Switzerland, (the Riant
Parc home), or equivalent accommodation available to, Ms MV, the
mother and the minor child, L as their residence, leaving all
furniture, appliances, cutlery, crockery and linen in the home, and
for such purpose shall vacate such home before date of departure
of Ms MV, the mother, and the minor child, L from South Africa to
Switzerland. In the event that the Riant Parc home has been sold,
or leased out, or occupied by his family, Mr VL, the father, shall
provide Ms MV, the mother, with equivalent accommodation.
2.4.1.5 Mr VL, the father, is ordered to pay the following costs and
expenses associated with the minor child, L and Ms MV's
occupation of the home in para 2.4.1.4 above : rates, levies,
electricity, refuse, water, heating, and internet.
2.4.1.6 Mr VL, the father, is ordered to pay the mother 1500 (one thousand
five hundred) Swiss Francs per month in advance or by the 1 st of
every month, into an account of Ms MV, the mother's choosing, as
cash maintenance for her and the minor child, L. The first pro rata
payment shall be made to Ms MV, the mother, three days prior to
the day upon which she and the minor child, L, arrive in Switzerland
and thereafter monthly in advance on the first day of each
succeeding month. All payments must be made into her bank
account, which she will provide through the Central Authority. The
details will be communicated to both the Central Authority , RSA,
and Switzerland, as well as Mr VL.
2.4.1.7 Mr VL, the father, is ordered to pay the costs of and associated with
the agreed upon crèche that the minor child, L, may attend in
Switzerland.

41



2.4.1.8 Mr VL, the father, is ordered to continue to pay for the medical aid
on which he has registered the minor child, L, and to cover any
further reasonable and necessary medical costs not covered by the
government of Switzerland or any medical aid.
2.4.1.9 In the event that Ms MV, the mother and the minor child, L, are not
registered on Mr VL’s medical aid as his dependants, Mr VL must
pay all reasonable expenses, including hospitalisation for the minor
child, L and Ms MV, the mother, should a need for such medical
expenses arise.
2.4.1.10 Mr VL, the father, is ordered to provide Ms MV, the mother, with
access to a roadworthy motor vehicle upon her arrival in Geneva,
Switzerland. Alternatively, provide Ms MV, the mother, with
reasonable transport expenses.
2.4.1.11 Mr VL, the father, and Ms MV, the mother, are ordered to cooperate
fully with the Central Authority, RSA and the Central Authority for
Switzerland, the relevant court(s) in Switzerland, and any
professionals who are approved or appointed by the relevant
court(s) in Switzerland to conduct any assessment to determine
what future residence and contact arrangements will be in the best
interests of the minor child, L.
2.5 In the event of Ms MV, the mother, giving notice to the Central Authority, RSA in
terms of paragraph 2.2 above, the order for the return of the minor child, L shall
be stayed until an appropriate court in Switzerland has made the order referred
to in paragraph 2.4 above and, upon the Central Authority, RSA being satisfied
that such an order has been made, it shall notify Ms MV, the mother, accordingly
and ensure that the terms of paragraph 2.4.1 are complied with.
2.6 In the event of Ms MV, the mother, failing to notify the Central Authority, RSA in
terms of paragraph 2.2 above, of her willingness to accompany the minor child, L
on his return to Switzerland, or electing not to return to Switzerland with the
minor child, L, the Central Authority, RSA is authorised to make such

minor child, L, the Central Authority, RSA is authorised to make such
arrangements as may be necessary to ensure that the minor child, L is safely

42



returned to the custody of the Central Authority for Switzerland and to take such
steps as are necessary to ensure that such arrangements are complied with, and
in such event the minor child, L is to return to Switzerland in the care of Mr VL,
his father.
2.7 Pending the return of the minor child, L to Switzerland as provided for in this
order, Ms MV, the mother, shall not remove the minor child, L, permanently from
the province of Gauteng, and, until then, will keep the Central Authority, RSA,
informed of her physical address and contact telephone numbers.
2.8 The Central Authority, RSA, is directed to seek the assistance of the Central
Authority for Switzerland in order to ensure that the terms of this order are
complied with as soon as possible.
2.9 In the event of Ms MV, the mother, notifying the Central Authority, RSA in terms of
paragraph 2.2, above, that she is willing to accompany the minor child, L to
Switzerland, the Central Authority, RSA shall forthwith give notice thereof to the
Registrar of Gauteng Division of the High Court, Pretoria, to the Central Authority
for Switzerland, and to Mr VL, the father.
2.10 In the event of the appropriate court in Switzerland failing or refusing to make the
order referred to in paragraph 2.4 above, the Central Authority, RSA and/or Mr
VL, the father, is given leave to approach this Court for a variation of this order.
2.11 A copy of this order shall forthwith be transmitted by the Central Authority, RSA to
the Central Authority for Switzerland.


___________________________
T V NORMAN
ACTING JUDGE OF APPEAL

43



Appearances
For the appellant: KM Mokotedi SC with SR Mabaso
and CV Beukes
Instructed by: The State Attorney, Pretoria
C/o The State Attorney
Bloemfontein

For the First respondent: P Zietsman SC with R van der Merwe
Acting Pro bono
Instructed by: The Free State Society of Advocates

For the Second Respondent: F Botes SC
Instructed by: Hartzenberg Incorporated, Pretoria
C/o Van Wyk Attorneys Inc.
Bloemfontein.