Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another (CCT 150/22) [2023] ZACC 37 (27 November 2023)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 150/22

In the matter between:

THE AD HOC CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH AFRICA First Applicant

PB Second Applicant

And

HK N.O. First Respondent

HK Second Respondent



Neutral citation: The Ad Hoc Central Authority for the Republic of SA and Another
v Koch N.O. and Another [2023] ZACC 37

Coram: Zondo CJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Potterill AJ, Rogers J, Theron J and Van Zyl AJ


Judgments: Van Zyl AJ (dissenting): [1] to [145]
Majiedt J (majority): [146] to [220]

Heard on: 09 May 2023

Decided on: 27 November 2023

Summary: Hague Convention on the Civil Aspects of International Child
Abduction — interpretation of Article 13(b) — determination of
the threshold for “grave risk” of psychological harm or
an intolerable situation

ORDER



On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Western Cape Division):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Supreme Court of Appeal and the High Court are set
aside.
4. E (the minor child) shall be returned to the juri sdiction of the
Central Authority for England and Wales (CAEW) in the
United Kingdom (UK) by the end of February 2024.
5. Pending the return of E to the UK as provided in this order, the
second respondent (the aunt) shall not, without the prior written con sent
of the Central Authority for the RSA (CASA), remove E from the
province of the Western Cape in the Republic of South Africa (RSA) and
shall keep CASA informed of her and E’s physical address and
contact details.
6. In the event of th e second responden t intending to accompany E on her
return to the UK, she shall notify CASA and the second applicant
(the father) in writing, within one week of the date of issue of this order ,
and in that event she is granted leave and authorisation, insofar as it may
be necessary, to remove E from the RSA and accompany E on her return
to the UK.
7. In the event of the second respondent failing to notify CASA in terms of
para 6 and the second applicant intending to accompany E on her return
to the UK, he shall notify CASA and the second respondent in writing,
within one week of such failure, and he is granted leave and authorisation,

insofar as it may be necessary, to remove E from the RSA and accompany
E on her return to the UK
8. In the event of the second respondent and the second applicant failing to
notify CASA in terms of paras 6 and 7, CASA is authorised to make such
arrangements as may be necessary to ensure that E is safely ret urned to
the custody of the CAEW and to take such steps as are necessary to ensure
that such arrangements are complied with.
9. Pending the return of E to the UK and for as long as the second applicant
is in the UK, contact between E and the second applicant shall take place
in accordance with the High Court’s Order of 10 September 2020.
10. In the event of the second applicant being present in the RSA for the
purpose provided in para 7, CASA shall liaise with the respondents’ legal
representatives to esta blish a schedule for contact between E and the
second applicant. Such schedule shall provide for the second applicant’s
enjoyment of contact with E on a daily basis, taking into account E’s daily
activities and any other factors relevant to E’s well-being at the time.
11. Upon E’s arrival in the UK, the second applicant must procure all
appropriate social and medical services to ameliorate E’s return to the UK
and cooperate with any assessment that the Department of Health and
Social Care in the UK may wis h to undertake in relation to him and the
welfare of E.
12. Proceedings regarding the determination of parental rights are stayed
pending E’s return to the UK.
13. In the event of either the second respondent or second applicant notifying
CASA, in terms of para 6 or para 7 , CASA shall forthwith give notice
thereof to the Registrar of this Court, to the CAEW and to the second
respondent and the second applicant. In the event of either the second
respondent or the second applicant making the election provide d for in
para 6 or 7 of this order respectively, then the second respondent or the
4
second applicant, as the case may be, shall provide the Central Authority
with regular information in writing of all logistical and other
arrangements made for the return of E to the UK. This information shall
include, but not be limited, to information regarding flight dates and
times, and compliance with any passport, visa or health requirements, if
applicable. CASA shall also be entitled to request from either the second
respondent or the second applicant, as the case may be, details of the
arrangements made for the return of E to the UK. Any such request shall
promptly be responded to.
14. A copy of this order shall be transmitted forthwith by the first applicant
to the CAEW.
15. Each party is to bear their own costs in this Court, the Supreme Court
of Appeal and the High Court.


JUDGMENT




VAN ZYL AJ (Madlanga J, Rogers J and Theron J concurring):

Introduction
This is an application for leave to appeal the judgment of the
Supreme Court of Appeal. If we grant leave, the case is concerned with Article 13(b)1
of the Hague Convention on the Civil Aspects of International Child Abduction
(Convention).2 The Convention provides for an internationally agreed mechanism for
dealing with the global phenomenon of child abduction. With limited exceptions, it
provides for the prompt return of an abducted child to their home country.

1 Article 13(b) is comprehensively dealt with in paras [40] to [65] of the first judgment.
2 The Convention was created by the Fourteenth Session of The Hague Conference on Private International Law
and was adopted at The Hague on 25 October 1980.
VAN ZYL AJ
5

One of the exceptions is found in Articl e 13(b). It provides that the judicial or
administrative authority in the state which is hearing the application for the return of
the abducted child may refuse to order the child’s return if it finds that there is a grave
risk that their return would exp ose the child to physical or psychological harm, or
otherwise place the child in an intolerable situation.

In Danaipour v McLarey 3 the Court accurately described its task of deciding
whether to return an abducted child to his or her home country under the Convention as
one of the “most difficult and heart -rending tasks” when a party to the Convention
proceedings raises an Article 13(b) defence. The task of the court is rendered difficult
due to the fact that Article 13(b) requires the court to make a decision about the interests
of a particular child in a specific case in the context of, on the one hand, a factual
situation that is more often than not charged with emotion and expectation, and on the
other, the very limited determination of what constitutes an exception to the duty of the
court to order the immediate return of the child. The present matter has proven not to
be an exception.

Background
The facts concern a little girl who is six years old and who lives with her maternal
aunt in SA (SA). To protect the child’s anonymity, I shall call her E. She was born in
the United Kingdom (UK) to parents who were both British nationals. Her parents were
not married. E’s mother, who died after the commencement of the proceedings for
E’s return to the UK, was originally from SA.

E travelled from the UK to SA with her parents in September 2019. At the time,
E was two years and two months old. Her mother was diagnosed with cancer in April
of that year. The family came to SA in order for her mother to consult with doctors
regarding the possibility of further medical treatment for her cancer. If there were no

3 Danaipour v McLarey 286 F. 3d 1 (1st Cir. 2002) at para 4.
VAN ZYL AJ
6
treatment options for the mother in SA, E and her parents were to return to the UK in
October 2019. They made their travel arrangements accordingly. Upon their arrival in
SA, E and her parents stayed with E’s maternal aunt and her grandmother. E’s mother
consulted with a medical practitioner and she was scheduled to undergo surgery during
the latter part of September. After she had undergone surgery, she was unable to return
to the UK with E and her father as they intended. E’s fa ther left as planned in
October 2019, leaving E behind with her mother.

By the time of the father’s return to the UK, the relationship between him and
E’s mother had deteriorated and was strained. This is evidenced by the fact that the
father moved to alternative accommodation before his return to the UK, and the reasons
advanced by E’s mother for her subsequent decision not to return with E to the UK. Her
evidence was that she came to the realisa tion that her health would not allow her to
return to the UK, and that she should make arrangements for E’s care after her death.
She did not believe that E’s father would be in a position to raise E and provide her with
the necessary stability and securi ty. She informed the father that she was going to
remain in SA with E, and that her sister must raise E after her death. The father was
opposed to the mother’s unilateral decision and he insisted that E must be returned to
the UK.

In February 2020 , the father approached the UK Central Authority (UKCA) 4
under the Convention and sought their assistance in securing the immediate return of E
to the UK. His request was on the basis that he had not given consent for E to remain
indefinitely in SA. At the direction of the UKCA, the appointee of the Ad Hoc Central
Authority in SA (AHCA)5 asked the mother to agree to the return of E to the UK, failing

4 Article 6 of the Convention requires the appointment of a “Central Authority” as the relevant official to ensure
that the provisions of the Convention are implemented. The United Kingdom’s Central Authority is called the
International Child Abduction and Contact Unit.
5 Section 276(1) of the Children’s Act 38 of 2005 states that the “‘Central Authority’–
(a) in relation to the Republic, means the Chief Family Advocate appointed by the
Minister of Justice and Constitutional Development in terms of the
Mediation in Certain Divorce Matters Act; or
VAN ZYL AJ
7
which it intended to approach the court for appropriate relief. E’s mother, through her
attorneys, refused the request. She instead proposed that an assessment be made
regarding E’s best interests after her death. The proposal was rejected by the AHCA on
the basis that the purpose of the Convention is to secure the return of a child to their
country of habitual residence, and that it was for the courts of that c ountry, in this case
the UK, to decide any questions regarding the custody of E.

Litigation history
High Court
On 25 June 2020, before the AHCA could commence proceedings under the
Convention, E’s mother and aunt brought an application in the High Court of
South Africa, Western Cape Division ( High Court) wherein they asked that certain
parental rights and responsibilities in respect of E be conferred upon the aunt, and that
E be raised in SA. The father opposed the application, and with the assistance of the
AHCA launched proceedings under the Convention on 20 July 2020 by way of a
counter-application. At that stage E was just over three years old. The first applicant
in the Convention proceedings in the High Court was the AHCA. E’s father was the
second applicant. As in this matter, his participation in the proceedings as a cited party
was unnecessary. 6 The procedural aspects of the Convention are regulated by the

(b) in relation to a convention country, means a person or office designated for such convention
country under Article 6 of the Hague Convention on International Child Abduction.”
6 Unlike in some other jurisdictions such as New Zealand, where the Central Authority performs a facilitative role
rather than initiating proceedings as a party, the AHCA is obliged to initiate proceedings for the return of a child
under the Convention. Regulation 17 of the regulations issued under section s 75 and 280 of the Children’s Act
provides:
“(1) If a child has been wrongfully removed to the Republic or retained in the Republic, the
Central Authority of the Republic must—
(a) upon receipt of the documents from the other country's Central Authority,
study the application; and
(b) within 10 days after the child has been located, bring an application to the
High Court on behalf of the parent or person with parental rights and
responsibilities from whom the child has been wrongfully removed, to have
the child returned to his or her place of habitual residence.
VAN ZYL AJ
8
Regulations issued in terms of the Children’s Act 38 of 2005 (Children’s Act).7 In terms
thereof, proceedings under the Convention are initiated by the Central Authority.8

The respondents in the High Court were initially E’s mother and the maternal
aunt. After the death of the mother, which occurred shortly before the High Court
delivered its judgment, the aunt was substituted for the mother as the executor in the
latter’s deceased estate, and so featured as a respondent in the High Court in both her
personal and nominal capacity.

Article 16 of the Convention dictates that a judicial authority of the state to which
a child was removed to or in which they are retained, shall not decide the merits of a
custody dispute until such time it has determined that the child is not to be returned
under the Convention9. The parties accordingly agreed that the application for parental
rights be stayed pending the outcome of the Convention proceedings. This agreement
and the agreement that E would in the interim continue to reside with her aunt was
embodied in an order of the Court on 21 July 2020. At the same time, the Convention
application was postponed to 7 September 2020.


(2) An application for assistance made by an applicant to the Chief Family Advocate must,
unless the contrary is proved, be deemed to constitute authorisation by the applicant
for the Chief Family Advocate or a Family Advocate to exercise any power and
perform any duty conferred or imposed on him or her under the Hague Convention,
and to appear on the applicant’s behalf in any proceedings that may be necessary under
the Hague Convention.”
7 Regulations relating t o Children’s Courts and International Child Abduction, GN R250 GG 33067, 31 March
2010 (International Child Abduction Regulations).
8Pennello v Pennello [2003] ZASCA 147; [2004] 1 All 32 (SCA) (Pennello) at para 5 and Central Authority v H
[2007] ZASCA 88; 2008 (1) SA 49 (SCA) (Central Authority v H) at para 22.
9 Article 16 of the Convention reads:
“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 S tate 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 returned under this Convention or unless an
application under this Conven tion is not lodged within a reasonable time following receipt of
the notice.”
VAN ZYL AJ
9
At the adjourned hearing the High Court raised a number of concerns with regard
to the sufficiency of the information placed before it, and allowed the parties to file
further affidavits to address those concerns. On 10 September the Court adjourned the
proceedings for argument to 20 October 2020. The High Court delivered its judgment
on 11 December 2020, ordering the return of E to the UK. E was now three years and
five months old.

The aunt applied for leave to appeal and filed a notice of appeal in January 2021.
On 11 February 2021, the aunt was granted leave to appeal to the
Supreme Court of Appeal. A notice of appeal was filed with that Court on
4 March 2021. Following the application for leave to appeal the AHCA and the father
launched an urgent application in terms of section 18 of the Superior Courts’ Act 10 for
E to be returned to the UK. The application was dismissed on 21 March 2021 by reason
of the existence of the agreed terms of the 21 July 2020 order. On 23 April 2021 the
aunt filed an application with the Supreme Court of Appeal to admit an expert report by
Ms Leigh -Anne Pettigrew (Ms Pettigrew), an educational psychologist as further
evidence in the appeal. That report was yet to be compiled at the time and only became
available nine months later in January 2022. It was not clear when the report was
ultimately filed with the registrar of the Supreme Court of Appeal.

The appeal was heard on 28 February 2022, some fourteen months after the
High Court had ordered E to be returned to the UK. The judgment of the
Supreme Court of Appeal was delivered two months later on 26 April 2022. At that
time E was four years and seven months old. The Supreme Court of Appeal upheld the
appeal. Dissatisfied with the outcome of the appeal, the AHCA and E’s father then
applied for leave to appeal the order of the Supreme Court of Appeal. The application
for leave to appeal was opposed. The appeal was heard by this Court on 9 May 2023,
at which time E was five years and ten months old.


10 10 of 2011.
VAN ZYL AJ
10
For convenience I shall continue to refer to the two applicants in the present
proceedings as the “AHCA” and the “father” respectively, and to the two respondents
as the “aunt”. Any reference to the AHCA will include the father unless the context
indicates otherwise.

In her opposition to the Convention appli cation, E’s mother raised
three defences. She firstly contended that E was not wrongfully detained in SA in
breach of the applicant’s rights of custody as defined in Article 3 11 read with Article 5
of the Convention. 12 Article 3 provides that the removal or retention of a child away
from their country of habitual residence is to be considered wrongful . When in breach
of custody rights attr ibuted to anyone, either jointly or alone, and when those rights
were actually exercised either jointly or alone, or would have been so exercised, but for
the removal or retention of the child. The High Court rightfully found no merit in this
argument. A s the natural father, E’s father’s rights of custody arose by operation of
law.


11 Article 3 of the Convention reads:
“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 ex ercised, 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.”
12 Article 5 of the Convention reads:
“For provides for purposes of the 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.”
VAN ZYL AJ
11
The second defence raised was, with reliance on Article 20 of the Convention,13
that the Court should construe the father’s consent for E to remain in SA with her mother
in such a manner so as not to limit it to the period during which the mother was receiving
treatment for cancer. By the time of the hearing of the application by th e High Court
this argument appears to have morphed into one that any order for the return of E to the
UK would be contrary to the fundamental principles under our law relating to human
rights and fundamental freedoms. These arguments were not pursued with any vigour
in the High Court. Their rejection by that Court was not pursued in the
Supreme Court of Appeal, or in this Court, and nothing f urther needs to be said about
them.

The third and primary defence raised was that E’s return to the UK should be
refused as there was a grave risk that she would be exposed to psychological harm or
be placed in an otherwise intolerable situation as envisaged in Article 13(b) of the
Convention. This contention was, to paraphrase, base d on the following allegations
that—
(a) her father was not capable of providing her with the necessary care in the
UK;
(b) E had developed a bond with her aunt who was willing and financially
able to raise her;
(c) E was on a positive developmental trajectory;
(d) her return to the UK would cause her to be dislodged fro m her secure
environment;
(e) the lack of continuity of everyday life would be detrimental to her having
to deal with the loss of her mother; and

13 Article 20 of the Convention provides:
“The return of a child under the provisions of Article 12 may be refused if this would not be
permitted by the fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms.”
VAN ZYL AJ
12
(f) there existed the possibility of E developing a complicated grief disorder
of early childhood , due to the combined loss of her mother and an
attachment figure in the person of the aunt, with possible adverse
psychological consequences in the long-term.

On the evidence placed before it, the High Court found that there was no
substance in the objections raised as to the ability of the father to take care of E upon
her return to the UK. The Court was further satisfied that the father would have the
support of family members and friends in the UK in taking care of E. In this regard the
Court acknowledged the fact that a family friend, and a mother of five children, who
knew E from birth, had given an undertaking to accompany the applicant to SA, and to
assist with the transition and adjustment of E should she be returned to the UK. The
Court found that it was satisfactorily demonstrated that the social services available in
the UK would be able to provide the necessary assistance to E, for example bereavement
counselling, so as to mitigate the risk of any harm. It was further found that E’s young
age pre sented her with the advantage of being able to form a relationship and an
attachment to a person who has physical contact with her and is able to provide her with
daily care. This made it possible for E to form (or re -establish) a bond with her father
should she be returned to the UK.

The High Court ordered the return of E to the UK, and in addition made
appropriate orders aimed at ensuring E’s transition into the care of her father. It ordered
the parties to bear their own costs.

In dealing with the au nt’s subsequent application for leave to appeal, the Court
considered that she had failed to demonstrate that there were reasonable prospects of
another court coming to a different conclusion or that there were compelling reasons to
grant leave to appeal. Nevertheless, and because the High Court was concerned that
protracted appeal processes in Hague Convention matters could defeat the purpose and
objective of the Convention, the High Court granted leave to appeal to the
Supreme Court of Appeal. The High Court was presumably worried that, if it refused
VAN ZYL AJ
13
leave to appeal, there would be a delay while the aunt petitioned the
Supreme Court of Appeal for leave to appeal. In retrospect, the wisdom of this decision
by the High Court may be doubted.

Supreme Court of Appeal
As I have already mentioned, in the Supreme Court of Appeal the aunt applied
for leave to introduce further evidence. This application was premised on the
psychological wellbeing of E following the death of her mother. The
Supreme Court of Appeal granted the aunt leave to introduce Ms Pettigrew’s report into
evidence. It did so essentially based on a finding of exceptional circumstances, namely
that the report dealt with E’s position following her mother’s death, and the likely
impact of that event on E, should her return to the UK be ordered. Such an assessment,
the Court found, could only have been made after the death of E’s mother.

The application to introduce the further evidence of Ms Pettigrew was initially
opposed by the AHCA and the father. However, at the hearing of the appeal they
undertook to abide by the decision of the court. They were given an opportunity to
place further evidence of its own before the Supreme Court of Appeal, but elected not
to do so. The reasoning was that the evidence of Ms Pettigrew could not assist the aunt
in her opposition to the application for E’s return and that obtaining further evidence
would only serve to delay the finalisation of the proceedings.

Having admitted Ms Pettigrew’s repor t into evidence, the
Supreme Court of Appeal conducted what was effectively a rehearing of the matter. It
considered and dealt with two issues . The first was the mother’s defence that the
retention of E in SA was not wrongful as the father had consented thereto or acquiesced
to her retention. Proceeding from the premise that on the undisputed evidence the
father’s consent for E to remain in SA was for as long as her mother was undergoing
treatment, the Court found that the mother had failed to establish on the evidence that
the applicant consented to E’s continued retention beyond the period of her treatment.
The father’s consent, the Court found, was not unequivocal, and the mother
VAN ZYL AJ
14
unequivocally signified her intention to no longer be bound to the agreed conditions for
E to remain in SA. It also rejected the defence of acquiescence as not having been
established on the evidence.

The Court concluded, that this meant that the High Court was bound to order the
return of E to the UK unless the mother could establish the existence of the
circumstances envisaged in Article 13(b). Finding that the burden to prove the factual
existence of the defence in the Article rests on the party raising it, and that factual
disputes which may arise must be resolved through the application of the Plascon-Evans
rule,14 the Supreme Court of Appeal considered whether the defence in Article 13(b)
was proved. The Supreme Court of Appeal found that on the evidence of Ms Pettigrew,
Professor Astrid Berg (Professor Berg) who is a child and adolescent psychiatrist, and
E’s mother, the High Court was not obliged to order the return of E to the UK, as the
mother and E’s aunt had succe ssfully established that her return would expose her to
the risk of psychological harm, or otherwise place her in an intolerable situation as
contemplated in Article 13(b) of the Convention.

This finding was made on two bases. The first was that the return of E to the UK
would expose her to a grave risk of psychological harm or place her in an intolerable
situation assessed on the basis of the evidence of Professor Berg and Ms Pettigrew.
The second was the existence of that risk on the basis of the evidence of the mother that,
by reason of the personal circumstances of E’s father, he was not capable of raising E
and providing her with the necessary care in the UK.

The Supreme Court of Appeal then next considered whether it was established
that the authorities in the UK would not be able to mitigate the risks raised in the
evidence of the aunt. It found that there was compelling evidence that the measures in
place in the UK would not be suffi cient to ameliorate the psychological and emotional

14 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A)
(Plascon-Evans) at paras 634E-635C. In summary, the rule is that, where there are material and bona fide disputes
of fact in motion proceedings, the case must be decided on the respondent’s version of the disputed facts.
VAN ZYL AJ
15
harm to which E would be exposed to on her return to the UK. This finding was based
on Professor Berg’s evidence in her initial report that E would be entering a completely
new environment upon her retur n to the UK, and what is said to be “much uncertainty
about the quality of the care that E will receive in the UK”.15

With regard to the availability of bereavement counselling for E on her return to
the UK, the Court again relied on the evidence of Professor Berg that counselling cannot
counter the trauma induced by the loss of two attachment figures. This finding does not
account for Professor Berg’s evidence in her supplementary report to the High Court
that E could benefit from bereavement counselling if returned to the UK, and that it may
be possible for her to transition into the care of the applicant in a relatively short period
of time. I deal more fully with the evidence later in this judgment.

Based on these findings, the Supreme Court of Appeal granted the application to
admit Ms Pettigrew’s report with costs, it upheld the appeal with costs, and it set the
decision of the High Court aside. The order of the High Court was replaced with an
order dismissing the Convention application with costs. It is this order that is the subject
matter of the proceedings before us. Importantly, there is no appeal against the order
pertaining to the admission of Ms Pettigrew’s evidence.

In this Court
The submissions of the AHCA
The AHCA submits that this Cour t has jurisdiction as the matter raises a
constitutional issue and arguable points of law of general public importance.
The constitutional issue is said to be the fact that the issues raised implicate the
best interests of the child in section 28(2) of th e Constitution. The arguable points of
law deal with the manner in which a court must conduct an enquiry as envisaged in
Article 13(b) of the Convention and what the relevant considerations are when mak ing

15 Koch N.O. v Ad Hoc Central Authority for the Republic of South Africa [2022] ZASCA 60; 2022 (6) SA 323
(SCA) at para 50.
VAN ZYL AJ
16
an order in terms thereof. These include the nat ure of the test that must be applied in
deciding whether a grave risk of harm or an intolerable situation exists as envisaged in
Article 13(b), how to find a balance between the short and long-term interests of a child
in the enquiry envisaged by the Artic le, and the weight to be accorded in this
determination to the fact that the party who seeks to resist the return of the child to their
country of habitual residence with reliance on Article 13(b) does not hold any existing
rights of custody or access to the child concerned.

With regard to the findings made by the Supreme Court of Appeal, the AHCA
submits that in her two reports submitted to the High Court Professor Berg does not
express the opinion that the risk to E’s mental health would be grave in the event of her
return to the UK. The AHCA argues that the consequences of E’s return outlined by
Professor Berg are the inevitable disruption that is inherent in a court -ordered and
unwelcome return of an abducted child to their country of habitual residenc e.
Further, with reliance on Professor Berg’s opinion, AHCA submits that the cognitive
capacity of a child under the age of ten to comprehend the concept of death has the
benefit that it serves to postpone the initial psychological impact that would typic ally
arise from an immediate and complete understanding of the death of a primary
caregiver.

Based on Professor Berg’s evidence that a young child tends to bond with the
person who is responsible for their daily needs and care, the AHCA argues that there
was no evidence to substantiate why E would not or should not re-establish a bond with
her father upon her return to the UK. The AHCA contends further that the
Supreme Court of Appeal failed to give adequate consideration to the evidence
regarding the social services available to E in the UK, which may provide E with the
necessary support should she be returned to that country. Furthermore, that the expert
opinions relied on by the Supreme Court of Appeal for its findings failed to adequately
consider, in E’s best interests, the importance of a continued relationship with her only
biological parent. The emphasis placed by the experts on the bond that E had with her
aunt would result in her being deprived of the care and affection of her father who is by
VAN ZYL AJ
17
law her custodian. It follows, so the argument goes, given all the circumstances of the
matter and the facts placed before the High Court, that the High Court was correct in
finding that it was not demonstrated that, if E’s return to the UK were ordered, she
would not be protected from the potential consequences arising from her court-ordered
return.

The submissions of E’s aunt
The aunt’s submission is that this Court’s constitutional jurisdiction is not
engaged. The best interests of the child are paramount in every matter involving a child
and any consideration of section 28(2) in this matter could only have limited application
to other Convention applications.

The aunt argues that this matter does not raise any new principle in respect of the
Convention that this Court has not previously ruled on or that warrants a ruling from
this Court. It is disputed that what the AHCA contends are legal questions or that any
arguable points of law of general public importance are raised thereby. The submission
is that these questions have previously been determined by this Court in Sonderup,16
that those determinations have consistently been applied by the lower courts, and are
consistent with that of courts in the majority of foreign jurisdictions.

With regard to the merits of the matter, the aunt submits, firstly, that there is no
evidence that E would be able to establish a bond with her father if she were to be
returned to the UK. Based on the evidence of Professor Berg and Ms Pettigrew, it is
submitted that the Supreme Court of Appeal correctly found that E’s return to the UK
would expose her to a grave risk of psychological harm and an intolerable situation as
envisaged in Article 13(b). The second submission is that the Supreme Court of Appeal
correctly concluded that the social and other services available to E in the UK would
not be sufficient to mitigate the grave risk E would face upon a return to that country.
The third submission is that although Article 13(b) is forward looking, that is , it looks

16 Sonderup v Tondelli [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC) (Sonderup).
VAN ZYL AJ
18
at what the position would be if a child were to be returned to their home country, this
does not mean that a court should not pay attention to the past. Accordingly, so it is
submitted, the Supreme Court of Appeal correctly relied on the evidence of E’s mother
with regard to the past conduct of her father in support of the submission that he would
not be fit to care for her, should she be returned to the UK.

The jurisdiction of this Court and leave to appeal
This matter de als with the interpretation of A rticle 13(b) of the Convention.
The Convention implicates the rights of a child in section 28(2) of the Constitution by
mandating contracting states to return a child to the country of habitual residence when
the child was removed in the circumstances postulated by the Convention. The return
of the child takes place without any comprehensive determination of what the best
interests of the child may demand. In the scheme of the Convention, that is the function
of the state where the child is habitually resident.

The court’s usual investigatory powers are as a result inevitably constrained.
The defence in Article 13(b) provides an exception to the court’s otherwise limited
function. However, the courts in various jurisdictio ns have con sistently held that
Article 13(b) should be narrowly interpreted. This approach is based on the purpose
and the text of the Convention. It is further given effect to in some jurisdictions by a
heightened burden of proof by requiring the party opposing th e return of the child to
establish by clear and convincing evidence that a grave risk of harm exists in the return
of the child.

This approach places a limitation on the usual authority of the court to investigate
and determine what would be in the best i nterest of a child. The interpretation of
Article 13(b) therefore raises a constitutional matter. It raises the question whether
Article 13(b) is capable of an interpretation that strikes a fair balance between the
competing interests and constitutional rights at stake in Convention proceedings. These
aspects serve to place a limitation on the rights of the child in section 28(2) of the
Constitution, and their consideration raises a constitutional matter.
VAN ZYL AJ
19

There are also two important arguable points of law of general public importance
which ought to be considered by this Court. Those issues arise in the context of the
application of the exception in Article 13(b) and from the issues raised by the AHCA in
the appeal. They are the legal principles which find application in the determination of
factual disputes in deciding whether a defence raised in terms of Article 13(b) has been
established, and the nature and the content of the discretion which a court is required to
exercise following a finding that t he defence in Article 13(b) has been proved.
Neither of these matters were dealt with by this Court in Sonderup, and their
determination involves the interpretation of Article 13(b) in the wider scheme of
the Convention. The general public importance of these issues is emphasised by the
fact that the Convention is, as a whole, designed to protect the interests of children
generally,17 and its current application implicates the duty of the state, of which the
judiciary is the third arm, to comply with its i nternational obligations.18 The exercise
of the discretion envisaged in Article 13(b) does not arise very often, in that the defences
raised in terms thereof often fail.

In the circumstances, the AHCA must be granted leave to appeal. The matter
raises issues of general public importance, it has reasonable prospects of success and a
decision thereon will be in the interests of justice in that it goes beyond the narrow
interests of the parties in this matter. The applicants must accordingly be granted leave
to appeal.

The Convention
Introduction
The return of children who have been wrongfully abducted from their place of
habitual residence is governed by the Convention. It is an international agreement to

17 An entrenched right in section 28(2) of the Constitution.
18 Section 231 of the Constitution.
VAN ZYL AJ
20
which SA acceded on 8 July 1997. The Convent ion was first incorporated into our
domestic law by way of the Hague Convention of Civil Aspects of Intentional Child
Abduction Act (Hague Convention Act) .19 This Act was later repealed, and the
Convention was thereafter incorporated into the Children’s Ac t.20 The objective and
the purpose of the Convention are found in its preamble and in Article 1.21 The purpose
of the Convention is to protect children from the harmful effects of their wrongful
removal or retention, to ensure their prompt return to their state of habitual residence;
and to secure protection for rights of access. Its stated objective is to give effect to the
paramount importance of the interests of children in matters relating to their custody.
As will be demonstrated, the provisions of t he Convention seek to achieve its stated
purpose in a manner that promotes its overarching objective of protecting the interest
of children.

To give effect to the objectives of the Convention, Article 1 requires contracting
states to promptly return a chi ld who has been wrongfully removed or retained, and to
ensure that rights of custody and of access under the law of one contracting state are
effectively respected in other contracting states. The purpose of return is to enable the
courts of the country of habitual residence, rather than the courts of the country to which
the child has been wrongfully removed to, to decide matters of custody and other rights.
A removal or retention will be wrongful where it is in “breach of rights of custody
attributed to a person, an institution or any other body, either jointly or alone.” 22 The
wrongfulness of the removal or retention of a child is accordingly determined with

19 72 of 1996.
20 In terms of section 275 of the Children’s Act the provisions of the Convention are law in the Republic “subject
to the provisions of this Act”.
21 Article 1 of the Convention provides:
“The objects of the present 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 the other Contracting States.”
22 Article 3(a) of the Convention.
VAN ZYL AJ
21
reference to the applicable custody laws. The rights of custody with which the
Convention is co ncerned are defined to include rights to the care of the child and the
right to determine the child’s place of residence. 23 A child that is wrongfully removed
or retained is considered to be an abducted child, who is subject to the provisions of the
Convention.

The core provision in the Convention to give effect to its stated objectives is
found in Article 12(1). It reads as follows:

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

Article 12(1) thus requires contracting states to provide a process which will
result in the mandatory return of an abducted child to their country of habitual residence
whenever an application is made within a period of less than one year following the
removal of a child. The primary rule is therefore that if, following the wrongful removal
of a child, the application for return is made within twelve months, an order for return
must forthwith be made.

The drafters of the Convention realised, however, that the best interests of a
particular child may not always be best served by their speedy and compulsory return
to their home country. It accordingly provides for exceptions to the mandatory return
of a child. An exception to the man datory return of an abducted child is found in
Article 12(2). In terms thereof, if the return proceedings are commenced a year or more
after the removal of the child, the court or other administrative authority of the
contracting state remains obligated t o order the return of the child, unless it is
demonstrated that the child is settled in their new environment. It reads:

23 Article 5(a) of the Convention.
VAN ZYL AJ
22

“The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one y ear 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.”

Article 12(2) thus recognises that where a lengthy period has passed
(twelve months) and the child has settled in their new environment, the return of the
child to their country of habitual residence may no longer be in their best interest.
The objectives of the Convention of securing a speedy return of the child can no longer
be met and the return of the child might cause further disruption and distress to the child.
This exception calls for an assessment of whether a wrongfully removed child has
become integrated in their new environment. Not unlike the other exceptions to
Article 12(1), it serves the overall purpose of giving effect to the declared aim of the
Convention in its Preamble of protecting the best interests of affected children.

Further exceptions to Article 12(1) are found in Article 13. It reads as follows:

“Notwithstanding the provisions of the preceding Article, the judicial or administrative
authority of the requested State is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes that—
(a) the person, institution or other body having the care of the person of the child
was not actually exercising the custody rights at the time of removal or
retention, or had consented to or subsequently acquiesced in the removal or
retention; or
(b) there is a grave risk that his or her return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation.
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
VAN ZYL AJ
23
background of the child provided by the Central Authority or other competent authority
of the child’s habitual residence.”

What Article 13 does is recognise that in some circumstances it might not be
appropriate to order t he return of a child. It gives the court of the requested state the
power not to return an abducted child if the person opposing the return establishes one
of the grounds which Article 13 specifies. In summary, those grounds are : the
non-exercise of custody rights, consent or acquiescence in removal , the existence of a
grave risk of harm to the child or an intolerable situation if the return of the child is
ordered, or the child, being of sufficient age and maturity, objects to being returned.

There are two important aspects to Article 13 that have significance in the context
of the issues raised in this matter that must be highlighted. The one is that,
notwithstanding that the party opposing the return of a child establishes one of the
grounds in Articl e 13, the court retains a general discretion to order the return of the
child. The existence of one of the grounds in Article 13 means only that the Court is
not obliged (“bound”) to order the return of the child, but it may still do so. The other
is that Article 13 provides that, in considering the specified exceptions, the relevant
authority in the requested state must take into account the information relating to the
social background of the child provided by the Central Authority of the requesting state.

The Convention facilitates the return of the abducted child by requiring
contracting states to designate a Central Authority, that is, a specific government office,
to perform the task of receiving applications for assistance in securing the return of a
child and for that authority to take or cause to take all appropriate measures to obtain
the voluntary return of the child. It is important to point out that the Convention does
not seek to determine who should have custody of a child. 24 It rests implicitly on the

24 Article 16 of the Convention provides that:
“the judicial or administrative authorities of the Contracting S tate 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 retu rned under the Convention.” (Emphasis
added.)
VAN ZYL AJ
24
principle that any dispute with regard to rights of custody or access must be determined
by the competent authorities or the courts in the state where the child has their habitual
residence prior to their removal. The purpose of the return is to enable the courts of the
country of the child’s habitual residence, rather than the courts of the country to which
the child was wrongfully removed, to decide matters of custody and access.

The underlying premise of the Convention is therefore that the best interests of
abducted children generally are best served by their prompt return to their country of
habitual residence. This is based on a number of assumptions that—
(a) the wrongful removal of children from their country of habitual residence
is not in their best interests;
(b) the prompt return of children to their state of habitual residence will
normally serve their best interests and facilitate the resolution of custody
disputes by avoiding delays;
(c) the courts of the country of habitual residence are in a position to protect
the child upon their return; and
(d) the expeditious and summary return of a child protects children generally
by acting as a deterrent to their abduction.

The exceptions in Article 13 therefore serve to recognise this fact by enabl ing
the court hearing a Convention matter to make a determination with regard to the
welfare and best interests of a particular child in their own circumstances. As I proceed
it will be pointed out, the determination is not made in isolation, but within the context
of the objectives of the Convention.

VAN ZYL AJ
25
The Convention and the paramountcy of the child’s best interest in
section 28(2) of the Constitution
Section 28(2) of our Constitution provides that “[a] child’s best interests are of
paramount importance in every matter concerning the child”. In Sonderup25 this Court
considered the fact that the duty placed by the Convention on the court of the state where
the child is located, to return the child to their home country, may place a limitation on
what is, in the short-term, in the best interests of the child. This Court accordingly
proceeded to determine whether that limitation is inconsistent with section 28(2).
In conducting the proportionality analysis as envisaged in section 36 of the
Constitution,26 this Court concluded that the Convention goes no further than is
necessary to achieve its objective, and that the means employed by it to achieve that
objective are proportional to the end it seeks to attain.27

In arriving at this conclusion, this Court consid ered the purpose of the
Convention, its overriding aim of protecting the best interests of children in general by
the prevention of their abduction and its negative impact, as well as the fact that the
scheme of the Convention is carefully crafted to mitigate the extent of the limitation by
providing for exceptions to the mandatory return of a child. 28 The exceptions in

25 Sonderup above n 16 at para 28.
26 Section 36 of the Constitution provides —
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into account
all relevant factors, including —
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
(2) Except as provided in subsection (1) or in any other provision of the Constitution,
no law may limit any right entrenched in the Bill of Rights.”
27 Sonderup above n 16 at para 35.
28 Id at para 32.
VAN ZYL AJ
26
Article 13, and what was referred to as the appropriate application of the Convention
and the ability of the court to shape an order ensuri ng that any limitation that the
Convention may place on the entrenched rights in section 28(2) “[i]s narrowly tailored
to achieve the important purposes of the Convention”, led to the finding that the
Convention, and the Hague Convention Act, which incorporated its provisions into our
domestic law, are consistent with the Constitution.29

The interpretation of Article 13(b)
Sonderup and Article 13(b)
In addition to the constitutionality of the Convention, this Court in Sonderup also
dealt with the exception in Article 13(b) on the facts before it. In the context of the
issues raised in the present matter, the following aspects in the judgement are worth
mentioning:
(a) The interrelated nature of the provisions of the Convention in serving its
main purpose of protecting the interests of children was recognised. This
is best achieved by: the hearing of custody disputes by the appropriate
courts; preventing that hearing being delayed by turning
Convention proceedings into a custody determination; preventing the
wrongful circumvention of that forum by the unilateral actions of one
parent; and recognising that there may be specific circumstances of a
particular child that may dictate that it is not in the interest of that child to
be returned to their country of habit ual residence by the provision of the
exemptions of Article 13.30 The limited nature of these exemptions was
emphasised by the statement quoted earlier, namely that they are intended
to provide exceptions, in certain circumstances, to protect the welfare and
best interests of the child.31

29 Id at para 37.
30 Id at paras 29 and 31.
31 Id at para 32.
VAN ZYL AJ
27
(b) The psychological harm relied u pon in Sonderup was the compromising
effect on the healthy psychological development of the child by being
exposed, upon her return to her home country (British Columbia in
Canada), to the relationship of her parents that was characterised by
domestic abuse. The harm contemplated was found not to be harm of a
serious nature as contemplated by Article 13(b): “[i]t is in the main harm
which is the natural consequence of the child’s removal from the
jurisdiction of the courts of British Columbia, a Court ordered return, and
a contested custody dispute in which the temperature has been raised by
the mother’s unlawful action”.32
(c) This Court left the question open as to whether our courts should follow
a strict approach to the interpretation and application of Article 13(b) set
by courts in other jurisdictions.33
(d) The existence and the nature and incidence of any burden of proof which
may arise in those instances where a party to Convention proceedings
seeks to rely on the exception in Article 13(b) was not addressed.
(e) Because of the finding that the Article 13(b) defence was not proved, this
Court did not need to consider the nature of, and the considerations
relevant to the exercise of the discretion implicit in the terms of
the Article.
(f) Another aspect not address ed was the approach to be adopted to the
resolution of factual disputes where the parties have elected to place
evidence on affidavit and other documentary evidence before the court
hearing the return application.


32 Id at para 46.
33 Id at para 44.
VAN ZYL AJ
28
The scope of Article 13(b)
Recognising that the interests of the child are of fundamental importance,
the Convention acknowledges, through the exceptions to the duty to secure the prompt
return of a child, that there may be factual situations which have to do either with t he
person of a particular child or with the environment with which that child is most likely
connected or to which the ch ild is requested to be returned, where the return would be
detrimental to the interests of the child and contrary to the objectives of the Convention.
The Convention accordingly makes it possible for a departure from the assumption that
a prompt return is generally in the best interests of a child. In this manner the
Convention serves to protect the short -term best interests of a particular child by
authorising the court seized with an application under the Convention to have regard to
the welfare and best interests of that child in specified circumstances, and to refuse, in
limited circumstances, to order the return of that child. The focus is on the child and
the issue is the risk of harm to that child in the event of their return.34

The words “grave risk” in Article 13(b) indicate that the exception is
“forward looking”, in that it requires the court to look at the future by focusing on the
circumstances of the child upon their return, and on whether those circumstances would
expose the child to a grave risk as envisaged in Article 13(b). The focus, in determining
what constitutes a “grave risk” of “psychological harm” as contemplated by
Article 13(b), is on the harm that is likely to eventuate should the child be returned. The
evidence must therefore be limited to the psychological and emotional impact of
returning a child to their habitual residence.

The enquiry is, as a result, of a limited nature. It does not allow the court to
otherwise turn the proceedings into an adversarial contest on the merits of the dispute

34 Re IG [2021] EWCA Civ 1123 (Re IG) at para 47 and Z v Z [2023] EWHC 1673 (Fam) (Z v Z) at para 28.
VAN ZYL AJ
29
with regard to rights of custody and access, which underlie the removal of the child
from their home country. This Court in Sonderup held:

“It would be quite contrary to the intention and terms of the Convention were a court
hearing an application under the Convention to allow the proceedings to be converted
into a custody application. . . . Rather, the Convention seeks to ensure that cust ody
issues are determined by the court in the best position to do so by reason of the
relationship between its jurisdiction and the child. That court will have access to the
facts relevant to the determination of custody.”35

The long -term best interests o f a child are usually reserved for custody
proceedings on the merits. Article 13(b) is concerned with the short -term interests of
the child if returned to the country where the custody proceedings are to be determined.
It follows that it is important to distinguish between those issues and evidence which
are relevant to a determination of the merits of a custody question, and those which are
relevant within the much narrower scope of determining whether a return order would
create the risks envisaged in A rticle 13(b). It would not be proper for the court, in the
case of an Article 13(b) determination, to consider issues and information pertaining to
custody beyond what is necessary to determine the existence of an exemption.

Accordingly, aspects such as the psychological profiles of the parents, detailed
evaluations of parental fitness, evidence concerning lifestyles, and the nature and
quality of relationships, all bear upon the issues that will ultimately be determined by
the appropriate tribunal in the child’s home country. To this may be added the projected
long-term psychological consequences of the return of the child in the nature of that
which was considered in Sonderup.36


35 Sonderup above n 16 at para 30.
36 Id.
VAN ZYL AJ
30
The terms “grave risk” and “intolerable situation” are not defined by
the Convention. In some jurisdictions, Article 13(b) is construed narrowly. 37 In the
United States of America, for example, this is achieved by the imposition of a higher
standard of proof: a party raising an Article 13(b) defence in Convention proceedings
must prove the defence by “clear and convincing evidence”. 38 The reasoning behind
the narrow interpretation of the exception appears to be the fear that an Article 13(b)
determination might otherwise morph into a best interests determination, and that it may
be exploited by parties attempting to forum shop by substituting the forum chosen by
the abductor for that of the child’s habitual residence. That would defeat the objectives
of the Convention and may render it ineffective. This is a valid consideration. That it
is an aim of the Convention to prevent forum shopping was recognised by this Court in
Sonderup:

“Given the inappropriateness of a specific forum, the Convention also aims to prevent
the wrongful circumvention of that forum by the unilateral action of one parent.
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”.39

It is in my view unnecessary to resort to an attempt to give Article 13(b) a
meaning that is any more restrictive than what is not already clearly conveyed by the
plain meaning of its wording. In KG v CB 40 our Supreme Court of Appeal approved
the approach adopted by the United Kingdom’s Supreme Court in Re E (Children) .41
In that case the Court held:

“[T]here is no need for the Article to be narrowly construed. By its very terms, it is of
restricted application. The words of Article 13 are quite plain an d need no further
elaboration or gloss.

37 See the cases referred to in para 44 in Sonderup above n 16.
38 Friedrich v Friedrich 78 F 3d 1060 (6th Cir. 1996) (Friedrich).
39 Sonderup above n 16 at paras 31 and 43.
40 KG v CB [2012] ZASCA 17; 2012 (4) SA 136 (SCA) (KG v CB) at para 50.
41 Re E (Children) (Wrongful Removal: Exceptions to Return) [2011] UKSC 27 (Re E) at para 31.
VAN ZYL AJ
31
First, it is clear that the burden of proof lies with the person, institution or other body,
which opposes the child’s return. It is for them to produce evidence to substantiate one
of the exceptions. There is nothing to indicate that the standard of proof is other than
the ordinary balance of probabilities . . .
Second, the risk to the child must be ‘grave’. It is not enough, as it is in other contexts
such as asylum, that the risk must be ‘real’. It must have re ached such a standard of
seriousness as to be classified as ‘grave’. Although ‘grave’ characterises the risk rather
than the harm, there is in ordinary language a link between the two. Thus a relatively
low risk of death or serious injury might properly be qualified as ‘grave’ while a higher
level of risk might be required for other less serious forms of harm.
Third, the words ‘physical or psychological harm’ are not qualified. However, they do
gain colour from the alternative ‘or otherwise’ placed ‘in a n intolerable situation’
(emphasis supplied). As was said in Re D42 at para 52, ‘“Intolerable” is a strong word,
but when applied to a child must mean “a situation which this particular child in these
particular circumstances should not be expected to tole rate”’. Those words were
carefully considered and can be applied just as sensibly to physical or psychological
harm as to any other situation. Every child has to put up with a certain amount of rough
and tumble, discomfort and distress. It is part of growing up. But there are some things
which it is not reasonable to expect a child to tolerate.”43

The approach that Article 13(b) does not require elaboration beyond its terms
must be endorsed. It is implied in the plain meaning of the words used in Article 13(b)
that it sets a high threshold, and any other approach will be inconsistent with the
language used and the objectives of the Convention. The level of the risk must be of a
serious nature, and the words “otherwise place the child in an intolerable position”
throw considerable light not only on the degree of seriousness of the risk of the harm,
but also the harm itself, that the Convention has in mind. 44 The word “otherwise” is
indicative of a conclusion that the physical and emotional harm contempla ted is harm
to the degree that also amounts to an intolerable situation.


42 Re D (a child) [2006] UKHL 51.
43 Id at paras 31-4.
44 Sonderup above n 16 at para 44.
VAN ZYL AJ
32
The risk of harm that will meet the threshold in Article 13(b) will inevitably be
determined by the facts of any particular case. As a general proposition, it may be said
that the risk of harm must be of a severity which is more than is inherent in the inevitable
disruption, uncertainty and anxiety which follows on an unwelcome return to the
jurisdiction of the child’s home country. It is important to make the observation that
Article 13(b) does not require there to be a certainty that harm will occur. What is
required is persuasion by applying the legal standard of proof that there is a risk which
warrants the qualitative description of a “grave risk” that the return will “expose” the
child to harm. Whether the risk reaches that threshold must inevitably be determined
on the facts of the case and by the nature of the projected harm.

It is further necessary to place a caveat on the words in the last paragraph of the
above quoted pa ssage from the judgment in Re E (Children) . It was certainly not
intended to convey that any type of harm that is more than the ordinary “rough and
tumble” of growing up will constitute harm or an intolerable si tuation as envisaged in
Article 13(b).45 Such a suggestion is contrary to the exceptional nature of the
exemptions in the Article, which exemptions, as stated in Sonderup, were “intended to
provide exceptions, in extreme circumstances, to protect the welfare of children”.46

The answer to the concerns which underlie the notion that the exceptions must
be given a restrictive interpretation must rather be found, as envisaged in Sonderup, in
a balanced approach to the determination made in Article 13(b), and the correct
application of the Convention. 47 This requires the court to approach the enquiry in a
manner that will give effect to the meaning of the language of the Article, the objectives
of the Convention, the limited nature of the assessment the court is required to make
with regard to what the short-term best interests of a particular child are, the location of
the burden of proof, and the summary nature of the proceedings.


45 Re E above n 41 at para 34.
46 Sonderup above n 16 at para 32.
47 Id at para 35.
VAN ZYL AJ
33
An integral part of the scope of the enquiry the court is required to conduct, in
determining whethe r there is a grave risk of harm or an intolerable situation as
contemplated in Article 13(b), is the presence or absence of ameliorative measures to
ensure the child’s safety upon return to their home country. 48 Simply put, if the child
can be sufficiently protected from grave harm when returned, then the child does not in
fact face a “grave risk” of serious harm as contemplated by Article 13(b). This is
consistent with the underlying premise of the Convention that the judicial and social
authorities of the home country are in a position to provide the necessary protection and
support in dealing with any eventuality that may arise from the return of the child.

There must as a result be cogent evidence placed before the court by the person
raising an Articl e 13(b) defence that establishes the absence of adequate or effective
measures which may either reduce the risk of the harm from occurring or the seriousness
of the projected harm itself. What the nature of such measures are , must inevitably be
dictated by the nature of the harm and its accompanying risk that is established on the
evidence in any particular case.

The burden of proof and summary nature of Convention proceedings
What is evident from the foregoing is the exceptional nature of Article 13(b). It
serves to moderate the obligation of the court to return an abducted child to their home
country. It follows that the duty rests on the person who invokes the exception in
defence to an application for the return of the child to show that the factual situation
contemplated therein exists. I am in agreement with the conclusion in KG v CB49 that
the duty placed on the person raising a defence in Article 13 is no higher than th e
ordinary standard of proof applicable in civil proceedings, namely a balance of
probabilities.50 What is not required is a standard of proof informed by the existence or
otherwise of “clear and convincing” evidence found in the American legal system ,

48 Re IG above n 34 at para 49 and Z v Z above n 34 at para 28.
49 KG v CB above n 40.
50 Re E above n 41 at para 38.
VAN ZYL AJ
34
which is a standard somewhere between the ordinary civil standard and the criminal
standard of beyond a reasonable doubt found in the American legal system.51

An aspect that must be emphasised, as made clear in Re E, is that, in examining
whether the exemptio n in Article 13(b) has been established, the court is required to
evaluate the evidence against the ordinary civil standard of proof whilst being mindful
of the limitations involved in the summary nature of Convention proceedings. Flowing
from this is that the evaluation by a trial court of the evidence must be treated with the
necessary deference in any subsequent appeal proceedings.

Further, the nature of the postulated harm will inform the degree of persuasion
that may be enough to conclude that the bu rden of proof has been discharged. 52
What the Court must be persuaded of is the existence of a grave risk. A grave risk
within the meaning of Article 13(b) may be shown to exist even though the court cannot
say that the risk is more likely than not to eve ntuate. As was made clear in Re E, in
determining whether a particular risk is “grave”, there is an inter -relationship between
the feared harm and the likelihood of it occurring. A risk with a modest likelihood of
occurring may be a grave risk if the fea red harm is very serious. Conversely, if the
feared harm is more mundane, a greater likelihood of it occurring may be required in
order to describe the risk as grave.53

A determination of the existence of a grave risk or an intolerable situation as
contemplated in Article 13(b) raises a factual question that requires the party raising the
defence, in the discharge of the burden of proof, to place evidence of a factual nature
before the court. This creates the obvious potential for factual disputes. Follo wing its
earlier decision in Pennello54 the Supreme Court of Appeal dealt with the factual

51 Addington v Texas 441 US 418 (1979).
52 Re E above n 41 at para 33.
53 Id.
54 Pennello above n 8 at paras 39-41.
VAN ZYL AJ
35
disputes which arose in the present matter by applying the principles articulated in
Plascon-Evans.55 Namely, that where disputes of fact have arisen in application
proceedings, a final order may be granted only if the facts alleged in the respondent’s
affidavits, together with those facts alleged in the applicant’s affidavits that have been
admitted by the respondent or which the respondent cannot dispute, justify such an
order.

I am unable to agree with this approach to evidence in Convention proceedings.
Convention proceedings are designed to provide a speedy resolution of disputes over
abducted children. As proclaimed in Article 1, the aim of the Convention is to secure
the prompt return of children removed from the country of habitual residence, and to
restore the status quo ante (the situation that prevailed before [the abduction]) so that
the custody and other issues that underlie the removal of a child can be decided by the
courts of that country. Article 11 further expressly directs the relevant authorities to act
expeditiously.56 Regulation 23 of the Regulations relating to Children’s Courts and
International Child Abduction ( International Child Abduction Regulations ) stipulates
that “[p]roceedings for the return of a child under the Hague Convention must be
completed within six weeks from the date on which judicial proceedings were instituted
in a High Court, except where exceptional circumstances make this impossible”.57

The nature of the proceedings under the Convention, and the manner in which
the court hearing the matter decides to receive and assess the evidence placed before it,

55 Plascon-Evans above n 14 at 634E-635C.
56 Article 11 of the Convention provides:
“The judicial or administrative authori ties of Contracting States shall act expeditiously in
proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks
from the date of commencement of the proceedings, the applicant or the Central Authority of
the requested State, on its own initiative or if asked by the Central Authority of the requesting
State, shall have the right to request a statement of the reasons for the delay. If a reply is received
by the Central Authority of the requested state , that Authority shall transmit the reply to the
Central Authority of the requesting State, or to the applicant, as the case may be.”
57 International Child Abduction Regulations above n 7.
VAN ZYL AJ
36
must inevitably be dictated by the aforementioned objectives of the Convention and the
legislation that incorporates it into our domestic law. Proceedings under the Convention
are clearly designed with the objective of providing an expeditious outcome.
The compulsory procedure for initiating proceedings is by way of an application to the
High Court.58 It is not open to SA’s Central Authority to choose the procedural form
of the proceedings under the Convention. Also, neither the Children’s Act 59 nor the
Regulations60 are prescriptive as to how the court should receive evidence.

The Hague Regul ations do not prescribe that an application in
Convention proceedings must conform to rule 6 of the Uniform Rules. The Regulations
simply provide for the filing of:
(a) an “application”;61
(b) a “response” to the application within five days from the date of its
service;62 and
(c) a “statement” in reply within a further five days.63


58 Regulation 17(1) of the Hague Regulations provides:
“If a child has been wrongfully removed to the Republic or retained in the Republic, the
Central Authority of the Republic must:
(a) upon receipt of the documents from the other country’s Central Authority, study the
application; and
(b) within 10 days after the child has been located, bring an application to the High Court
on behalf of the parent or person with parental rights and responsibilities from whom
the child has been wrongfully removed, to have the child returned to his or her place
of habitual residence.”
59 38 of 2005.
60 International Child Abduction Regulations above n 7.
61 Regulation 17(1) id.
62 Regulation 29(1) id.
63 Regulation 29(3) id.
VAN ZYL AJ
37
Ordinarily, no doubt, the application, response and reply will be in the form of
affidavits but this is not made mandatory.64 Regulation 33 in turn obliges the court to
record the proceedings before it, of which record must, amongst others, include “all viva
voce evidence given in court”. These provisions are consistent with proceedings which
are intended to be of summary nature, and the vesting of a discretion in the court to
allow evidence to be placed before it of a nature enabling it to arrive at an informed
decision with the speed that the Convention dictates. It is not necessary to say anything
with regard to how the discretion of the court to admit evidence must be exercised. It
is a matter that will be dictated by the circumstances of the particular case, the nature
of the proposed evidence, as well as the contested issues which that evidence seeks to
deal with.

The body of evidence placed before the court in Convention proceedings may
thus include evidence other than evidence on affidavit. The present matter serves to
confirm this. The information received from the UKCA was not under oath. Neither
were the reports of Professor Berg, Ms Anne Cawood (a social worker), Ms Pettigrew
or that of Ms Carstens, the Legal Aid practitioner who provided this Court with a report
at its request. In addition to the prompt response required by the Convention and the
Regulations, the AHCA, as the applicant in proceedings under the Convention in this
country, is likely to find itself at an evidential disadvantage, since the person from
whom the child was taken will be resident in another country, often on a different
continent. These considerations militate against strict rules on the adducing of
evidence. The body of evidence placed before the court in proceedings under the
Convention may accordingly consist of a hotchpotch of different types of material. This
is not conducive to a determination of factual disputes by applying the Plascon-Evans
rule.

64 A court hearing a Hague application is given wide procedural powers in terms of regulation 24 id:
“Where an application has been made to a High Court by the Central Authority of the Republic
under the Hague Convention, that Court may, at any time before the application is determined,
give any interim direction that it deems fit in order to regulate any aspect of the progress of an
application under the Hague Convention an d to ensure the welfare of the child in question and
to prevent any changes in the circumstances relevant to the determination of the application.”
VAN ZYL AJ
38

On the contrary, Article 13 itself makes the application of the Plascon-Evans
principle inimical to a determination of a defence raised in terms thereof. The use of
the word “shall” in the Article obliges the court tasked with making such a
determination, to “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”. Such evidence is bound to be factual in nature, and the
obligation placed on the court to take it into account in making a decision is inconsistent
with the process of fact selection that is inherent to the Plascon-Evans rule.

There are tw o further considerations that militate against applying ordinary
motion principles to Convention proceedings. The first is that, as a general rule,
competing factual versions on affidavit cannot, in ordinary motion proceedings for
final relief, properly be determined on a consideration of the probabilities.65 The second
is that, otherwise than with applications under the Uniform Rules, it is not open to an
applicant in Convention proceedings to choose the procedural form of the proceedings.
By applying Plascon-Evans, the applicant, that is, the AHCA and by extension the
person from whose custody the child has been taken, will accordingly find themselves
at “peril” not by reason of their own choice, as in the case of elective application
proceedings under the Rules. The Court in Ngqumba v State President held:

“A litigant is entitled to seek relief by way of notice of motion. If he has reason to
believe that facts essential to the claim will probably be disputed he chooses that
procedural form at his peril for the Court in the exercise of its discretion might decide
neither to refer the matter for trial nor to direct that oral evidence be placed before it,
but to dismiss the application.”66


65 Administrator Transvaal v Theletsane 1991 (2) SA 192 (A) at 197A-C.
66 Ngqumba v Staatspresident; Damons NO v Staatspresident 1988 (4) SA 224 (A) at 261C -D. See also
Tamarillo v BN Aitken 1982 (4) SA 398 (A) at 430G and Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd 1949 (3) SA 1155 (T) at 1168.
VAN ZYL AJ
39
Proceedings under Article 13(b) are therefore summary in nature, a nd a
determination made in terms thereof must be based on an overall assessment of all the
evidential material placed before the court. 67 This is consistent with the approach to
Convention proceedings in other jurisdictions. In Re CC (A Child) the Court held:

“As Dame Elizabeth Butler-Sloss P (as she then was) observed in Re U (L) (A Child)
(2) B (L) ( A Child) (Service Injury: Standard of Proof) [2004] EWCA Civ 567,
the court ‘invariably surveys a wide canvas’. I take this precept to be no less applicable
in Hague Convention cases. It is a fundamental tool and technique of proper evidential
analysis.
In Re T (Children) 2004 EWCA Civ 558, her Ladyship added:
‘. . . evidence cannot be evaluated and assessed in separate
compartments. A judge in these diff icult cases has to have regard to
the relevance of each piece of evidence to the other evidence and to
exercise an overview of the totality of the evidence.’”68

In evaluating the oral evidence that has been tested under cross -examination
should not present any difficulty. The determination of disputes arising from contested
affidavits and other documentary evidence must be approached by making an overall
assessment based on the common facts, those parts of the evidence which are
unchallenged or not challenged in any seriousness, the parts which are corroborated by
other cogent independent evidence, as well as the probabilities as they arise from
that evidence. In the absence of the court being able to arrive at a decision, the result
would be that the part y who bears the burden of proof will have failed to establish the
defence in Article 13(b).

The judicial discretion in Article 13(b)
The words “is not bound to order the return” in t he introductory part of
Article 13(1) makes it clear that the court, upo n it being established that one of the
exceptions in the Article exists, is required to consider whether, notwithstanding the

67 Z v Z above n 34 at para 5.
68 Re CC (A Child: Article 13(b), Hague Convention 1908) [2022] EWHC 743 (Fam) at para 79.
VAN ZYL AJ
40
availability of the defence, the child must nevertheless be returned. Its effect is simply
that the court is no longer forced to order the return, as Article 12 would oblige it to do,
but has a judicial discretion not to do so. 69 In Smith v Smith 70 it was said without
elaboration that this discretion is exercised in the context of the approach to
the Convention. As already indicated, the interpretation of Article 13(b) takes place in
the wider context of the objectives and purpose of the Convent ion. The discretion in
Article 13 is approached no differently. Whilst the Article seeks to protect the
short-term best interests of a particular child by providing for limited exceptions, it does
not displace the other policies of the Convention. To hold otherwise , would place an
undue limitation on the exercise of the court’s discretion. Like any other discretion in
similar terms, it must be exercised judicially, having regard to the subject matter, scope
and purpose of the Convention.

The exercise of the discretion takes place in the context of the interrelated nature
of the provisions of the Convention that has as its primary aim the be st interests of the
child. It requires the balancing of those considerations which inform the application of
the Convention. The Convention has two sides to it. The one side is its general purpose
to prevent child abductions and of one parent gaining an unfair advantage over the other
by forum shopping in the hope of securing a favourable outcome to a custody dispute.
This is achieved by ensuring the prompt return of the child as mandated by Article 12(2)
and operates in the interests of children generally.

The other side of the Convention is its recognition that it may not always be in
the interests of a particular child to be returned to their home country. This is consistent
with its overall purpose to protect the interests of all children. It gives effe ct to this
purpose by recognising in Article 12(2) that the interests of a child who has become
settled in their new environment may not be best served by their return to the country

69 Smith v Smith [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 (SCA) at 853B.
70 Id.
VAN ZYL AJ
41
from which the child was removed and by providing in Article 13 for grounds to refuse
the return of a child.

Accordingly, in the shared context of the objectives of the Convention, the
exercise of the discretion requires the court to weigh and strike a balance between two
considerations: the one is the welfare and the best int erests of the child in the case
under consideration, and the other is the significance of the deterrent policy and the
general purpose of the Convention in the circumstances of the case. This is consistent
with the approach adopted by the House of Lords in Re M, where Baroness Hale said:

“In cases where a discretion arises from the terms of the Convention itself, it seems to
me that the discretion is at large. The court is entitled to take into account the various
aspects of the Convention policy, alongside the circumstances which gave the court a
discretion in the first place and the wider considerations of the
child’s rights and welfare. I would, therefore, respectfully agree with Thorpe LJ in the
passage quoted at para 32 above, save for the word ‘ove rriding’ if it suggests that the
Convention objectives should always be given more weight than the other
considerations. Sometimes they should and sometimes they should not.”71

The correctness of the findings of the Supreme Court of Appeal
I next proceed to consider the correctness of the findings of the
Supreme Court of Appeal in the context of the principles underlying Article 13(b).
The jurisdictional facts necessary for the operation of the o bligatory provisions of
Article 12 to find ap plication were all present. It was not in dispute that E was
habitually resident in the UK as contemplated by the Convention. Her retention in SA
by her mother beyond the agreed time was found to be unlawful, and less than a year
had elapsed between E’s retention and the date when the AHCA launched
the Convention proceedings in the High Court. This meant that the
Supreme Court of Appeal was bound to confirm the High Court’s order for E’s return
to the UK unless it was found that the aunt had established, in the language of

71 Re M (Children) (Abduction: Rights of Custody) [2007] UKHL 55 (Re M) at para 43.
VAN ZYL AJ
42
Article 13(b), the existence of a grave risk that E’s return would expose her to
physical or psychological harm or place her otherwise in an intolerable situation.

Applying the principles discussed above to the present case,
the Supreme Court of Appeal erred in its approac h to the application of Article 13(b).
The first and more obvious error was the manner in which it dealt with the evidence.
Its application of the principles in Plascon-Evans meant that it effectively decided the
matter solely on the evidence of the aunt, and disregarded the evidence of the AHCA
on matters such as the social services and other levels of support available in the UK to
mitigate the projected harm.

Flowing therefrom, the second error relates to its finding, based on the evidence
of E’s mother, that the father would not be able to raise E and provide her with the
necessary emotional and financial security. Contrary to the High Court, which correctly
did not attach any weight to that evidence, the Supreme Court of Appeal accepted that
evidence when dealing with the contention that matters such as the applicant’s history
of mental health issues, abuse of alcohol and other substances, and his unstable
employment history created the risk of exposing E to psyc hological harm and an
intolerable situation envisaged in Article 13(b).

As explained earlier, it is important to bear in mind that the Convention is
concerned with the return of a child to the jurisdiction of their country of habitual
residence to enable the appropriate authorities and the courts of that country to decide
issues relating to custody.72 Issues about who would be the more suitable person to be
given rights of custody or access to the child are to be determined by the appropriate
judicial or o ther authorities that will eventually be asked to determine the long -term
best interests of the child. Matters such as lifestyle and parental fitness bear upon the
ultimate issues to be determined in a full hearing by the appropriate forum. At the stage
of Hague proceedings for the return of an abducted child, the enquiry should rather be

72 See [33] of first judgment.
VAN ZYL AJ
43
focused on a consideration of the availability of adequate and effective measures of
protection in the state of habitual residence pending the final determination of car e
proceedings.

The AHCA is correct that, unlike the High Court, the Supreme Court of Appeal
effectively embarked on deciding issues outside the scope of Article 13(b). In
any event, the High Court comprehensively dealt with the evidence of E’s mother in
support of her contention that the return of E into the care of her father posed a risk of
harm as contemplated by Article 13(b). On the evidence placed before it,
the High Court correctly, in my view , found that such a risk did not exist, and that E
could be adequately protected from the projected harm arising from her father’s
personal circumstances in the UK by the administrative, judicial, and social services of
that country.

The third error relates to the discretion that follows upon the finding that the
exception in Article 13(b) was established. The Supreme Court of Appeal failed to
address the question whether the High Court, in the exercise of its discretion, or
more correctly, its own discretion following its decision to admit the evidence of
Ms Pettigrew, E should be returned to the UK. It is not clear from the judgment of the
Supreme Court of Appeal that it made any attempt to exercise such a discretion.
It certainly does not say that it did, and even if it did do so, it quite clearly failed to make
any attempt to balance both the interests of the child and the general purposes of
the Convention.

It follows that the Supreme Court of Appeal erred in its appli cation of
Article 13(b). That being so, it is the task of this Court to reconsider the matter.
How Article 13(b) should be applied in the case will require an examination of
the evidence, to which I now turn.

VAN ZYL AJ
44
The evidence
The evidence of Professor Berg was, without the addition of the later evidence
of Ms Pettigrew, insufficient to establish the likelihood of a grave risk of
psychological harm as envisaged in Article 13(b), and the High Court correctly found
that it did not meet the threshold set by the Article. Like Ms Pettigrew, Professor Berg’s
evidence was based on what was referred to as the “child attachment theory”. This is a
theory that seeks to describe the cognitive and psychological development of children
generally during their age related p hases of development, and their ability to form
relationships with those around them. The central position taken by Professor Berg was
that E, whose mother was still alive at the time, had formed a bond with her aunt, who
was providing her with the necessary care during her mother’s illness. E was provided
with a safe and secure environment where she was receiving the necessary care and
support that was conducive to her having to deal with her mother’s anticipated death.

In dealing with the short -term consequences of E’s return to the UK,
Professor Berg could not place it any higher than that E “could develop a Complicated
Grief Disorder of Early Childhood – that the loss of her mother as well as her aunt could
result in persistent crying, and searching for the lost person”. Long -term,
Professor Berg’s opinion was that there is “some” indication that young children that
have lost an attachment figure may develop depression and suicidal thoughts later in
life. In a supplementary report which Professor Berg provided in response to questions
which the Judge in the High Court posed to her, Professor Berg acknowledged that E
would benefit from bereavement counselling if she was returned to the UK.
She qualified this by stating that bereavement counselling i n and of itself could not
make up for the loss of E’s mother and other relationships she had formed, and that
“a once a week hourly session cannot counter the trauma induced by the losses”.

Professor Berg’s evidence does not raise the predicted harm above the inevitable
disruption, uncertainty and anxiety that would follow a court ordered return.
The wording of Article 13(b) requires evidence of the existence of a grave risk of harm.
Professor Berg’s evidence does not address the seriousness of the anticipated harm, the
VAN ZYL AJ
45
occurrence of which she sets no higher than a possibility. Further, the question is not
whether bereavement counselling may serve to counter the predicted harm, but rather
whether it can serve to reduce the risk of the harm occurring or the seriousness thereof.
It further begs the question whether, if one session of therapy a week is insufficient,
how many sessions would be sufficient?

Professor Berg also did not address the question whether there are any other
measures available that ma y reduce the risk of harm or the seriousness thereof if it
does occur. On the contrary, her evidence in her supplementary report
to the High Court – that E could, if managed correctly, transition into the care of her
father within two to three months – points to the prospect of E forming a relationship
with her father, which would in turn give her the coping mechanisms to deal with the
loss of her mother and the disruption of having to return to the UK.

That brings me to the evidence of Ms Pettigrew. The declared focus of her
assessment was the impact on E’s psychological functioning at her stage of
development at that time, in the context of the childhood attachment theory, should she
be taken away from the aunt and from her known environment. In summar y,
she expressed the following view:
(a) A child in E’s position will form an attachment to those who have
regularly been available to her both physically and emotionally, and who
have responded positively to her needs. Until her death, E’s mother was
her primary attachment figure. After her mother’s death, that role was
filled by the aunt.
(b) Children with a secure attachment exhibit a greater capacity for adaptive
coping skills. At E’s age and her stage of development in terms of the
child attachment theory, a child starts to launch herself fully into the world
by entering a phase where negotiation and compromise can be
successfully applied. The child does so from the physical and
psychological security of the primary attachment figure and in the
knowledge that the primary attachment figure is ever-present.
VAN ZYL AJ
46
(c) From six to seven years of age, the child enters a new phase, in which the
child may be able to avoid separation distress if there is a trusted plan for
the caregiver’s departure and arrival. Attachment is then less focused on
the physical presence of the caregiver, and is more of a psychological
nature, that is, the awareness of the availability of the caregiver.

Ms Pettigrew expressed the opinion that the aunt had become E’s primary
caregiver to whom she has securely attached. She then proceeded to consider the
potential impact on E’s psychological well-being should she be removed from the care
of the aunt. It would, said Ms Pettigrew, in effect result in a second maternal death
for E. In the context of the stage of her development, E’s perception of death is limited
to an understanding that her mother disappeared altogether and she has very little ability
to fully understand her apparent “disappearance” for some time. Developing an
emotional understanding of her mother’s death will continue through E’s different
stages of development with the assistance of an emotionally available and trusted carer
who can guide her through these phases. The absence of a carer will likely in moments
of need lead to a high level of distress and emotional trauma.

Dealing with the impact on E should she return to the UK, Ms Pettigrew was of
the opinion that, although E may have had an attachment with her father when she came
with him and her mother to SA in September 2019, it was not a secure bond, and that it
is unlikely that she would form a secure bond with him if she were to be returned to the
UK. She reasoned that, because E is no longer in the attachment formation phases of
the attachment theory, there would be no transition for her from her aunt’s care into that
of her father, and that she would not form an attachment with him if placed in his care.
Her return to the UK would mean that E would be placed with a person who is a stranger
to her. In addition to coming to terms with this, she will be grieving the loss of her two
attachment figures, namely her mother and the aunt, in addition to the loss of the safe
and predictable structures of her life in SA.

VAN ZYL AJ
47
Faced with these losses, Ms Pettigrew was of t he opinion that E’s coping
resources would in all likelihood be overwhelmed, and that there was a significant risk
of a complete breakdown with psychosis and psychological damage to her, in the short
and long-term. Therapy, said Ms Pettigrew, would not ameliorate the sense of loss that
E would experience nor the emotional damage to her, and it would be challenging for
her to develop a trust relationship with a therapist in the UK in the absence of her also
having established a bond with the applicant.

The main thrust of Ms Pettigrew’s evidence may be summarised thus. There is
a likelihood that E will suffer serious psychological harm by being removed from the
aunt who has become her primary attachment figure. The basis of this evidence is that
E will not have the capacity to deal with the trauma of being removed from the aunt
who has become her primary attachment figure. Her ability to cope with stresses of this
nature is grounded in the psychological and physical security, safety and the
predictability that is currently provided by the aunt. E is, according to Ms Pettigrew,
no longer in a stage of developing primary attachments. If placed with a person who is
effectively a stranger to her, and faced with the loss of her mother, of her aunt and of
her safe environment, her coping resources would in all probability be overwhelmed.
Ms Pettigrew expressed the opinion that “[f]aced with all these losses and adjustments,
[E’s] coping resources will with high probability be completely overwhelmed and there
is a significant risk for a psychosis and emotional and psychological damage to her in
the short, medium, and long-term”.

Ms Pettigrew was further of the opinion that therapeutic intervention would not
serve to ameliorate the significant losses E would experience and the emotional damage
she was likely to suffer. This is similarly attributed by Ms Pettigrew to the fact that her
return to the UK would leave her without a primary attachment figure. In the absence
of a primary attachment figure who can provid e the necessary care and a
secure environment, therapy would have little benefit, and E would be unable to develop
a trust relationship with a therapist. In short, nothing would serve to mitigate the harm
to E in the absence of the support of a primary attachment figure.
VAN ZYL AJ
48

In deciding whether the evidence of Ms Pettigrew is sufficient to establish the
threshold for the risk of harm as contemplated in Article 13(b) on the required standard
of proof, and that there are insufficient measures that would reduce the risk of the harm
eventuating or the harm itself, it is important to recognise that her evidence goes beyond
that of Professor Berg and the other evidence that was placed before the High Court.
Ms Pettigrew dealt with the position of E more than a year after the death of her mother.
Her evidence was premised on the fact that E was now older; that she had moved into
a new age related phase in terms of the child attachment theory; and that following the
death of her mother E had formed a secure bond with her aunt and had become settled
in a stable and secure environment that is assisting her to deal with the loss of her mother
who was previously her primary carer.

Ms Pettigrew’s evidence stands uncontroverted. That being so, the question that
must then be asked is whether there is anything in the evidence that the AHCA placed
before the High Court with regard to the probability of the predicted risk of harm
materialising, or which otherwise points to the availability in the UK of measures that
may ameliorate the probability of the harm predicted by Ms Pettigrew from
materialising or reducing the impact thereof.

The decision of the AHCA not to respond to Ms Pettigre w’s evidence in the
Supreme Court of Appeal meant that there was no evidence to contradict her evidence
on these aspects. Ms Pettigrew’s evidence was that there is a significant risk for a
complete breakdown and a psychosis should E be returned to the UK and that there are
no measures that would serve to mitigate the anticipated harm. Any weight that is to be
attached to the evidence of the AHCA that initially served before the High Court must
be assessed in light of the absence of evidence contradicting this new evidence.

In addition, it is important to recognise what the focus was of the evidence placed
by the AHCA before the High Court. It was meant to deal with the evidence of E’s
mother and her aunt and the issues raised thereby. The focus was cons equently on
VAN ZYL AJ
49
dealing with matters such as the anticipated death of E’s mother, the availability of
bereavement counselling in the UK should E’s mother pass away, the structures and
services in the UK which might serve to allay the fear expressed with regard to the
ability of E’s father to care for her should she be returned to the UK, and dealing with
Professor Berg’s postulated possibility of psychological harm arising from E having to
deal with the loss of her mother upon her return to the UK. These consi derations have
all effectively been overtaken by Ms Pettigrew’s evidence that deals with the changed
circumstances following the death of E’s mother, and in particular her evidence that
there is nothing that will serve to prevent or reduce the harm that sh e says E will in all
probability suffer if she is returned to the UK at this time.

I am satisfied that the evidence established the primary facts on which
Ms Pettigrew based her opinion. It was not in dispute that a child of E’s age and her
stage of deve lopment forms an attachment to the person who, in the words of
Professor Berg, takes care of the child the best and whom the child gets to know, rely
on, and feel safe with. A primary attachment figure may be someone other than a
biological parent. It is the person who is the most consistently and predictably
prominent in the child’s day-to-day life.

E was two years and two months old when she came to SA with her parents.
It is uncontentious that the parent’s relationship was not stable and marred by conflict.
The result was that E’s contact with her father was not consistent and she was mostly
in the care of her mother. There was a time in the UK when her parents were living
apart and E would only see her father during weekends. After their arrival in SA,
the relationship of the parents again reached a stage where the father had to move to
alternative accommodation.

Since then E has lived with her mother (until her death) and her aunt. E was
three years and five months old at the time of her mother’s death. Her father only saw
E once since his departure in 2019 when he came to SA in December 2020 following
the mother’s death and the High Court’s return order. He stayed until March 2021
VAN ZYL AJ
50
during which time he had contact with E. His contact with her was otherwise limited
to communicating virtually with her. Ms Pettigrew’s own observation of E was that her
behaviour around her aunt was very typical of a child who seeks out her primary
attachment figure. This is consistent with the report submitted to this Court by
Ms Carstens, the Legal Aid practitioner appointed for E, that E has formed a bond with
the aunt and is well established in her present environment.

It can accordingly safely be accepted, on the undisputed evidence and the
probabilities as they arise therefrom, that E’s mother was her primary attachment figure
until her death, and that she was subsequently replaced by E’s aunt in whose care she
has remained since. Ms Pettigrew’s evidence, based on the attachment theory , that E
has moved through the window period for developing primary attachments, and that her
return to the UK would result in a second maternal death, which, in addition to the loss
of her known environment, is likely to lead to a complete breakdown and a child
presenting with psychosis, is opinion evidence.

As stated, Ms Pettigrew’s evidence stands uncontroverted. That does not mean
that it must simply be adopted. As in the case of any expert opinion evidence, it remains
the task of a court to examine the evidence in order to determine whether it should be
accepted.73 Whilst the court would not subject an uncontroverted expert report to the
same kind of scrutiny as when evaluating a contested report, the opinion must be
reasoned and be supported by the evidence on which it is based.74 If the unchallenged
opinion is on the face of it based on sound logical reasoning, the expert has reached a
defensible position supported by the basic facts and the probabilities, and there is no
other reason not to accept the evidence, “. . . it is difficult to envisage a situation in
which it would be appropriate to decide that it is wrong”.75


73 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 616H.
74 Coopers ( SA) (Pty) Ltd v Deutsche Gesellschaft Für Schädlingsbekämpfung mbH 1976 (3) SA 362 (A)
(Coopers) at 371G-H and Griffiths v Tiu (UK) Ltd [2021] EWCA Civ 1442 (Griffiths) at paras 42 and 83.
75 Griffiths id at para 50.
VAN ZYL AJ
51
In this case Ms Pettigrew’s report represents a reasoned conclusion based on the
facts set out in her report. That does not mean t hat there are no shortcomings in her
evidence. It is so that her opinion is predicated on human behaviour in response to a
certain set of circumstances, which as a matter of logic must have an inherent
uncertainty to it. Further, Ms Pettigrew did not per tinently address the impact, if any,
of the natural relationship of father and daughter that exists between them, and the
father’s familial support system in the UK on the likelihood of the postulated poor
outcome of E’s return to the UK.

However, the ele ction of the AHCA not to place expert evidence of their own
before the court left the evidence of Ms Pettigrew uncontradicted and consequently
without the need for her to expand upon her reasoning. 76 The aforementioned aspects
cannot as a result detract from the reasoned evidence of Ms Pettigrew, at least not to the
extent where it must be found that her expressed opinion is wrong, or that it is unreliable
and lacking in probative value that justify its rejection without more.

The evidence of Ms Pettigrew is directly relevant to the issue which the
High Court and the Supreme Court of Appeal were asked to decide by the raising of the
defence in Article 13(b). The question is then whether her evidence is sufficient to
establish the existence of a “grave risk” of harm or intolerable situation as contemplated
in Article 13(b):
(a) Other than Professor Berg, Ms Pettigrew raised the postulated harm
occurring to the level of a probability that is high.
(b) The nature of that harm is also of a much more serious nature. The
likelihood of E experiencing a psychosis and “significant” short to
long-term psychological damage and harm constitutes a grave risk of
psychological harm as contemplated in Article 13(b). It is more than the
uncertainty, disruption or anxiet y which could naturally be expected to

76 Id at para 88.
VAN ZYL AJ
52
follow on the forced return of any child to the country of their habitual
residence.
(c) Rather, it arises from a consideration of external factors which are
inter alia comprised of E’s age and the dynamics created thereby; the loss
of her mother; her attachment to a person who has become her primary
attachment figure; the fact that she had become settled in a safe and
secure environment; and that her return to the UK would be to a
person and environment she has very little connection with.
(d) The probability of the risk of harm occurring is supported by the fact of
E’s young age; the circumstances in which she came to be in the care of
the aunt; the length of time she has been in the care of the aunt, who has
now become her primary attachment figure; the absence of the formation
of any significant bond with her father; and the fact that her return to the
UK will take her away from her primary attachment figure and out of her
known family and social environment to a cou ntry of which she is
unlikely to have much recollection, and to family members with whom
she has not as yet formed any relationships.
(e) The extent of the risk of the projected harm and the seriousness of the
harm itself must be assessed against Ms Pettig rew’s uncontroverted
evidence that therapy will not ameliorate the projected harm.

I, accordingly, conclude that by the time of the hearing in the
Supreme Court of Appeal the aunt established on a balance of probability that which
she and E’s mother had failed to establish in the High Court, namely the existence of a
grave risk of psychological harm as contemplated in Article 13(b). As discussed earlier,
this finding establishes a ground for the refusal of an order for the return of a child to
their home country.

Before I proceed to consider whether, despite this finding, E must nevertheless
be returned to the UK, it may be convenient to deal with the main reasons advanced in
VAN ZYL AJ
53
the judgment by my Colleague Majiedt J (second judgment) for his disagreement wi th
the finding. The first matter of disagreement is in relation to the evidence of
Ms Pettigrew. It is whether it meets the threshold of the risk of harm in Article 13(b)
or whether it is not simply a risk of harm that may typically be expected to follow from
E’s return to the UK following her wrongful retention in SA.

For the reasons mentioned earlier, Ms Pettigrew’s expert opinion in my view
meets the requirements for evidence of this nature. It presents a reasoned conclusion
that is supported by the facts and the probabilities. Her evidence went beyond that of
Professor Berg, and the AHCA elected not to put up anything in answer thereto. In the
absence of evidence to the contrary, there is simply no reason to question the reliability
or the correctness of Ms Pettigrew’s evidence, which raises the projected harm, other
than that of Professor Berg, to that of a probability that is said to be high.

I am unable to agree that the harm postulated by Ms Pettigrew is the risk of harm
that will arise ordinar ily from a court ordered return of a child who was wrongfully
retained. The evidence of Ms Pettigrew that E is likely to suffer a complete breakdown
and a psychosis is based on E’s age-related inability to deal with the trauma of being
removed from a second primary attachment figure and to cope with the stresses of such
a removal. It is grounded in the physical and psychological security, safety and
predictability that is provided by her aunt. This opinion of Ms Pettigrew is informed
by external features such as E’s age, the death of her mother, her inability to form an
attachment with her father should she be returned to the UK, and the absence of, in
Ms Pettigrew’s opinion, any measures that may serve to mitigate the projected risk of
harm.

The first step in an Article 13(b) enquiry is whether the evidence of the person
who invokes the Article in defence establishes the risk of harm or an otherwise
intolerable situation. The exception in Article 13(b) is often raised in the context of an
attempt to avoid the return of an abducted child to an environment where the child might
face sexual or physical abuse, domestic violence, disease or regional conflict.
VAN ZYL AJ
54
In the present matter the harm does not lie in circumstances of this kind but rather in
her being taken away from the person to whom she had become attached and who has
filled the void left by the death of her mother, and from a secure and safe environment
in which she has become settled.

Ultimately the question is the existence of harm of the kind contemplated by
Article 13(b). It does not matter where that harm is coming from. It may be harm
arising from removing the child from the country where the child was retained or harm
that is awaiting the child upon return to the requesting state:

“The focus of Article 13(b) is on the risk to the child: if there is a grave risk that return
would expose the child to physical or psychological harm or otherwise place the child
in an intolerable situation, then the source of the risk and how it arises is irrelevant.”77

That the separation of a child from her primary attachment figure can establish
the required grave risk is consistent with the position in other jurisdictions:

“It is also clear that the effect of the separation of a child from the taking paren t can
establish the required grave risk. This situation is one of those listed as potentially
falling within the scope of this provision, at [36], in the Guide to Good Practice under
the Convention of 25 October 1980 on the Civil Aspects of International Child
Abduction, Part VI Article 13(1)(b) published in 2020 by the Permanent Bureau of the
Hague Conference on Private International Law . . . . This was the basis on which a
return order was set aside by the Court of Appeal in Re W and another (Children)
[2019] Fam 125.”78

The second judgment proposes that a finding that E should not be returned to the
UK will have the effect of giving insufficient weight to the evidence of the support
systems in the UK. I don’t agree. I have dealt with this aspect in sufficient detail earlier

77 G v G [2020] EWCA Civ 1185 at para 61. See also Re E above n 41 at para 34 and Re S (A Child) (Abduction:
Rights of Custody) [2012] UKSC 10; [2012] 2 FLR 442 at para 34.
78 Re A (Children ) (Abduction: Article 13(b)) [2021] EWCA Civ 939 at para 88 . See also Re IG above n 34
at para 47 and Re W (Children) [2018] EWCA Civ 664 at para 57.
VAN ZYL AJ
55
in this judgment. 79 Ms Pettigrew’s uncontradi cted evidence was that there are no
measures that would serve to mitigate the anticipated harm. Any weight that is or can
be attached to the evidence which the AHCA initially placed before the High Court was
intended to deal with the evidence of E’s mothe r with regard to the father’s supposed
inability to provide for E should she be returned to the UK, and Professor Berg’s
evidence about the effect that her mother’s anticipated death would have on E.
Accordingly, the evidence was never meant to deal with Ms Pettigrew’s evidence that
the proposed harm is incapable of being prevented.

With regard to the criticism that the evidence of Ms Pettigrew does not give
consideration to the harm that E is likely to suffer from her father’s absence and that the
father’s position should receive more attention in the determination of the issue raised
by t he Article 13(b) defence, the answer in my view is twofold. It is so that
Ms Pettigrew does not deal with the need for the continuation of a relationship by E with
her father. I have raised that as a possible criticism of her report. The question however
is whether it means that her evidence regarding the nature of the anticipated harm and
the absence of any measures to prevent it materialising must be rejected.
I do not think so. As stated, the focus of Ms Pettigrew’s assessment was the impact on
E’s psychological functioning at her stage of development at the time of the report,
should E be taken away from her aunt. There is no evidence that a failure to return E
to the UK will cause her to suffer harm. There was therefore strictly no need for
Ms Pettigrew to elaborate beyond the focus of her report, as she was not called upon to
do so.

It is important to keep in mind that the focus of Article 13(b) is on the
abducted child. It deals with the risk of harm to the child in the short -term. Any harm
that is of a long -term nature or matters relating to the interests of a left -behind parent
are, in the scheme of the Convention, to be dealt with by the court that will e ventually
be asked to determine issues relating to custody and other rights to the child. A final

79 See [102]to [103] above.
VAN ZYL AJ
56
observation is to emphasise that ultimately each case must be decided on its own facts
and circumstances. Findings and statements in other judgments are of limited use, as
they are made in their own context and with reference to the particular evidence placed
before the court. Each matter is bound to have its own features and the court’s findings
are bound to be informed by those features.

Should E be returned to the UK?
The decision whether or not to return E to the UK requires the court, as the next
step, to exercise a discretion by having due regard to the objectives of the Convention
and those considerations which represent what is the best shor t-term interests and
welfare of E. As discussed earlier, an important policy consideration of the Convention
is that it serves: to discourage one parent from taking the law into his or her own hands;
to prevent one parent from gaining an unfair advantage , by his or her own unlawful
conduct, over the other parent by placing that parent in a position where it is impossible
or difficult to either establish or to maintain a relationship with the child; and to prevent
a parent from establishing, through his or her own unlawful conduct, the factual
situation for one of the exceptions in Article 13(b). What the Convention envisages is
an enquiry into whether its deterrent purpose should, in the circumstances of the case,
outweigh the interests of the child in question.

In this matter, the decision of E’s mother to retain her in SA beyond the agreed
time meant that during the relevant phases of her development E did not establish a
secure bond with her father. Instead, she bonded with her aunt who has become her
primary attachment figure. It is among other factors the “loss” of her aunt as the
primary caregiver and the safe and secure environment that was established by her
continuous stay in SA, that will be the cause of the predicted harm should she be
returned to the UK. It is thus apparent that it was primarily on account of the mother’s
actions that the aunt has established the ground in Article 13(b).

It may therefore be argued, as the AHCA did in this matter, that to refuse an
order for the return of E to the UK would reward unlawful conduct, and act as an
VAN ZYL AJ
57
incentive that is inherent in such an order in the present circumstances, and that this
outweighs the interests of E. This is undoubtedly a relevant consideration.
However, the weight to be given to an y relevant consideration will be dictated by the
facts and circumstances of the case. Put differently, the significance of the general
purpose of the Convention must be determined in the circumstances of the case.

E’s mother did not abduct her from the U K. E came to SA with her parents to
seek treatment for her mother’s illness. The decision of E’s mother to retain her in SA
was made in circumstances which point to an acknowledgement that her relationship
with the father had broken down, and the fact th at she was terminally ill. It can safely
be accepted that the aunt had no role to play in the decision of the mother to retain E in
SA in the circumstances, and that she is simply carrying out the wish of her late sister
that she must raise her child. Co nsidering the circumstances in which E was retained
in SA, I do not believe that an order refusing her return to the UK will send the wrong
message or undermine the integrity of the Convention, particularly when weighed
against the lack of culpability on t he part of the aunt and what are the best interests of
E in the circumstances.

With regard to what represents the best interests of E, there are three
considerations that must be given due weight. The first is the length of time that has
elapsed since E’s initial retention in SA:
(a) The scheme of the Convention is one of hot pursuit and the restoration of
the status quo ante . This policy consideration can carry little weight in
this matter, in that the primary objective can no longer be fulfilled. It can
no longer be assumed that the country of origin is the better forum for the
resolution of the dispute over parental rights.
(b) The Convention acknowledges in Article 12 that, if no timeous steps were
taken following the removal or retention of a child, eventually a point may
be reached when the child becomes settled in their environment and that
VAN ZYL AJ
58
the return of the child might well cause further distress and a disruption.80
This emphasises the importance of the expeditious finalisation of
proceedings under the Convention, an aspect I will next address.
(c) In the absence of evidence of a manipulative delay caused by the conduct
of a party opposing an order for the return of a child, the fact that E has
become settled in a new environment where she has stability is a relevant
factor as to what is in her best interests. Her return to the UK will mean
that she will leave the place where she has been living for the past nearly
four years, away from her primary carer, her school and her friends.
(d) In the circumstances, the assumed interests which could otherwise have
been expected to be served by the prompt return of the abducted child
were no longer able to be fulfilled by the time the matter was heard in the
Supreme Court of Appeal.

The second consideration is the fact that E was only two years and two months
old when she came to SA with her parents. She has since spent nearly two thirds of her
life in SA. By reason of her age at the time, it is unlikely that she had formed any
meaningful relationships with anyone in the UK before her departure, or that she would
have any recollection of that country. Any assumption that her removal from the UK
would per se have had a harmful effect on her therefore similarly does not exist.
The only consideration is the harm which the absence of a relationship with her father
may cause in the long -term, in respect of which no evidence was placed before the
courts by any of the parties. It is however an aspect that would most certainly be
addressed by the court tasked with determining the aunt’s application for parental rights.

The third and important consideration that relates to the welfare of E is the
finding of the likelihood of a grave risk of psychological harm should she be returned
to the UK. The implication of this finding, the nature of the anticipated harm, and the

80 Z v Z above n 34 at para 32.
VAN ZYL AJ
59
absence of there being any protective measures to reduce the risk or the seriousness
thereof, mean that an order for the return to the UK is likely not to be in her best
interests. This conclusion is strengthened by the absence of any evidence of meaningful
undertakings by the authorities in the UK to provide reasonable protection against the
harm postulated by Ms Pettigrew in her evidence. I hasten to add that there is no
indication that the authorities in the UK were inv ited by the AHCA to consider
Ms Pettigrew’s report and to set out the undertakings they could give in that regard.

Accordingly, on balance, I do not consider that the exerci se of the discretion in
Article 13 in the circumstances of this case favours the return of E to the UK.
At this point, the policy of the Convention is probably best served by allowing her to
remain in SA, and for an appropriate forum in this country to consider and decide what
would be in her long-term best interests. I accordingly disagree with the suggestion in
the second judgment that a refusal to return E to the UK will undermine the objective
of the Convention to ensure an expeditious restoration of the status quo ante .
Expeditious return as envisaged by the Convention is no longer possible. As correctly
stated in Re M:

“[T]he policy of the Convention does not yield identical results in all cases, and has to
be weighed together with the circumstances which produced the exception and such
pointers as there are towards the welfare of a particular child. The Convention itself
contains a simple, sensible and carefully thought out balance between various
considerations, all aimed at serving the interests of children by d eterring and where
appropriate remedying international child abduction.”81

The obligation to ensure the expeditious return of children under the Convention
The proceedings in this matter were not dealt with the urgency which the
Convention demands. From t he time the application was launched in the High Court,
it took nearly three years before the matter was heard by this Court. It is undeniably so
that the passing of time that had elapsed since the proceedings were instituted

81 Re M above n 70 at para 48.
VAN ZYL AJ
60
contributed to E having becom e settled in SA following the death of her mother, a
consideration that has played a significant role in my decision to refuse her return to
the UK.

The prompt return of children wrongfully removed or retained is one of the
primary objectives of the Conve ntion.82 Several provisions of the Convention are
intended to reinforce the Article 1 mandate of prompt action. Article 2 requires that
“Contracting States shall take all appropriate measures to secure within their territories
the implementation of the ob jects of the Convention. For this purpose they shall use
the most expeditious procedures available” . Article 7 mandates that “Central
Authorities shall co -operate with each other and promote co -operation amongst the
competent authorities in their respective States to secure the prompt return of children”.
Article 11 provides that “ [t]he judicial or administrative authorities of Contracting
States shall act expeditiously in proceedings for the return of children” . In addition, in
terms of Article 11 “ [i]f the judicial or administrative authority concerned has not
reached a decision within six weeks from the date of commencement of the
proceedings”, the applicant can request a statement of the reasons for the delay.
The Convention therefore envisages the determination of a Convention application
within six weeks. This requirement is embodied in regulation 23(1) of the International
Child Abduction Regulations issued in terms of the Children’s Act. It reads:

“Proceedings for the return of a child under the Hague Convention must be completed
within six weeks from the date on which judicial proceedings were instituted in a
High Court, except where exceptional circumstances make this impossible.”

The obligation to act expeditiously in Convention proceedings means, according
to the 1980 Explanatory Report83 by Professor Elisa Perez-Vera, the Rapporteur to the
1980 sessions of the Hague Conference that produced the Convention, that contracting
states must use the most expeditious procedures available, and that applications are as

82 See the Preamble and Article 1(a) of the Convention.
83 Pérez-Vera “Explanatory Report on the 1980 Hague Child Abduction Convention” (1982) at paras 63 and 104.
VAN ZYL AJ
61
far as possible to be granted priority treatment. This would include any appeal process.
The Guide to Good Practice under the 1980 Convention, drafted by the
Permanent Bureau of the Hague Conference on Private International Law, states as one
of its “key operating principles” that “expeditiousness is essential at all stages of the
Convention process including appeals”.84

At the fifth meeting of the Special Commission of the Convention held in 2006,
the Commission reaffirmed the following recommendations made at the 2001 meeting:

“3.3 The Special Commission underscores the obligation (Article 11) of
Contracting States to process return applications expeditiously, and that this
obligation extends also to appeal procedures.
3.4 The Special Commission calls upon trial and appellate courts to set and adhere
to timetables that ensure the speedy determinations of return applications.
3.5 The Special Commission calls for firm management by judges, both at trial and
appellate levels, of the process of return proceedings.”85

It therefore rests with each contracting state to ensure that
Convention proceedings proceed with the necessary speed at all levels. To achieve the
objective of the prompt return of children, the obligation to proceed with expedition
cannot only extend to the courts. It must necessarily include all those who are directly
or indirectly included in Convention proceedings. In regulation 23(2) referred to earlier,
a number of procedural steps are listed, the stated purpo se of which is “to ensure that
applications under the Hague Convention are handled expeditiously”. These steps are
the following:


84 Quoted in Central Authority v H above n 8 at para 29.
85 Hague Conference on Private International Law – Special Commission “Conclusions and Recommendations of
the fifth meeting of the Special Commission to review the operation of the Hague Convention of 25 October 1980
on the Civil Aspects of International Child Abduction and the Practical Implementation of the Hague Convention
of 19 October 1996 on Jurisdiction, Applicable l aw, Recognition, Enforcement and Co -operation in Respect of
Parental Responsibility and Measures for the Protection of Children (30 October – 9 November 2006)”
at para 1.4.1. See also Chapter 1.5 of the Guide to Good Practice on Implementing Measures; Central Authority v
H above n 8 at para 29.
VAN ZYL AJ
62
“(a) A High Court file must be clearly marked and must –
(i) draw attention to the nature of the application; and
(ii) state the date on which the six week period will expire;
(b) priority must, where necessary, be given to these applications;
(c) the transcript of the judgment and its approval must be expedited; and
(d) the transcript of the judgment and its approval must be sent to the Central
Authority of the Republic without delay.”

These steps, in the absence of court rules to support the obligation to determine
Convention proceedings expeditiously, do not seem to be very effective. 86 The delay
in dealing with Conventions proceedings is not a problem unique to SA. In several
decisions of the Supreme Court of the United States of America similar delays were
lamented.87 In Chafin v Chafin Chief Justice Roberts, writing for the Court, noted that
Convention cases in American courts “often take two years from filing to resolution”.88
In her judgment Justice Ginsburg noted the absence of rules for expedited Convention
proceedings and referred with apparent approval to the procedural limitations imposed
in England and Wales on the filing of appeals in such proceedings.

A measure that may assist in expediting the finalisation of Convention
applications and give effect to the call by the Special Commission of the Convention
for “firm management by judges”, is found in regulation 24. It provides:

“Where an application has been made to a High Court by the Central Authority of the
Republic under the Hague Convention, that Court may, at any time before the
application is determined, give any interim direction that it deems fit in order to regulate
any aspect of the process if an application under the Hague Convention and to ensure

86 Central Authority v H above n 8 at para 40.
87 See Taglieri v Monsky 589 US (2020) and Chafin v Chafin 568 US 165 (2013) (Chafin).
88 Chafin id at 179.
VAN ZYL AJ
63
the welfare of the child in question and to prevent any changes in the circumstances
relevant to the determination of the application.”89

This provision enables a High Court seized with a Convention application to case
manage the matter by the issuing of directions. It is a very useful measure, the use of
which must be strongly encouraged. Judicial case management would allow the court
to determine strict time frames for the filing of reports and other evidence, and putting
measures in place that will not only facilitate the expeditious hearing of the matter, but
could also prevent one parent from obtaining an advantage over the other by making
appropriate orders aimed at ensuring effective contact between a parent and the child
pending the resolution of the case.

A step towards expeditious hearings of these matters can be achieved by practice
directives. The Western Cape Division, the Gauteng Local Division and the
North West Division of the High Court have issued practice directives dealing with
Convention matters. These directives, however promising, do not negate the delay that
arises when these cases are taken on appeal and result in further delays.

If the hearing of Convention matters are not properly managed, it not only defeats
the objectives of the Conven tion, it harms both parents and the child. It may result in
the child being deprived of the consortium of one of their parents. The child will be
acclimated in their new environment and will find it difficult to reintegrate once
returned. In addition to the emotional toll of delay on the child and on each party to the
proceedings, it will inevitably also lead to a delay in finalising the custody proceedings.

To conclude, it is necessary that the court rules must give priority to Convention
matters and f acilitate its expeditious finalisation. This must include court rules to
fast-track the hearing of appeals such as limiting the time for the filing of appeals and
prioritising its enrolment for hearing in the courts of appeal.

89 International Child Abduction Regulations above n 7.
VAN ZYL AJ
64

Costs
There is in my view n o justification for the costs order made by the
Supreme Court of Appeal. For the reasons stated, it erred in relying on the evidence of
E’s mother and Professor Berg for its finding that the Article 13(b) defence was proved
and that the order of the High Court had to be set aside. In the final analysis, the defence
was prove n by the evidence by Ms Pettigrew, whose evidence was not before the
High Court and was considered for the first time in the appeal. A more appropriate
order in the circumstances would have been one ordering the parties to bear their own
costs.

With regard to the costs of the hearing of the appeal in this Court, counsel for
the aunt quite fairly indicated during argument that the aunt does not press for a costs
order against the AHCA or the father. As pointed out in Sonderup,90 the Chief Family
Advocate is the official charged with the duty of securing the return of an abducted
child. In terms of section 276 read with section 277 of the Children’s Act, the Chief
Family Advocate or their delegate will represent an applicant in any court proceedings
necessary to give effect to the provisions of the Conve ntion in those cases where the
applicant does not qualify for legal aid or does not wish to appoint their own legal
representative. In light of these provisions, and in the absence of conduct that is
deserving of censure, the most equitable outcome is tha t each party should pay their
own costs.


The Order
Accordingly, the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld in part.

90 Sonderup above n 16 at para 55.
VAN ZYL AJ / MAJIEDT J
65
3. Paragraphs 2 and 3 of the Supreme Court of Appeal’s order are set aside
and replaced with the following:
“2. The appeal succeeds.
3. The order of the High Court of South Africa,
Western Cape Division, Cape Town is set aside and replaced with
the following:
(a) The application is dismissed.
(b) The parties are to pay their own costs.
4. There is no order as to costs.”
4. The parties are to pay their own costs in this Court.

MAJIEDT J (Zondo CJ, Kollapen J, Makgoka AJ and Potterill AJ concurring):


I have read the judgment prepared by my colleague, Van Zyl AJ (first judgment).
I agree with the firs t judgment that this Court has general jurisdiction in this case, for
the reasons articulated. There is a need, transcending the narrow interests of the parties
here, for finality in terms of what constitutes harm as contemplated in Article 13(b) of
the H ague Convention on the Civil Aspects of International Child Abduction 1980
(the Convention), discussed but not finally resolved by this Court in Sonderup.91 But I
take a different view in respect of the outcome regarding the merits of the appeal.
In my view, leave to appeal ought to be granted and the appeal against the order of the
Supreme Court of Appeal ought to be upheld.

I gratefully adopt the detailed narration of the background facts of the first
judgment and will amplify them only insofar as it ma y be necessary for context or
emphasis. At the heart of the case, as the first judgment makes plain, is the Article 13(b)
defence advanced by the aunt. Given its importance, I quote Article 13 again:


91 Sonderup above n 16.
MAJIEDT J
“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—
(c) 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
(d) removal or retention, or had consented to or subsequently acquiesced
in the removal or retention; or
(e) 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.”

In the High Court, the aunt 92 had raised bo th Article 13(a) and (b) defences in
response to the Ad Hoc Central Authority (AHCA)’s 93 Article 3 application.94
That Court rejected both defences and held that no consent or acquiescence had been
proved, nor was there proof of a grave risk of physical har m to E in the event of her
return to the United Kingdom (UK). The High Court consequently ordered that E be
returned to the UK.

The aunt persisted with both the Article 13(a) and (b) defences in the
Supreme Court of Appeal, which upheld only the Article 13(b) defence. The Court

92 I adopt the language of the first judgment, which simply refers to the respondent as “the aunt”.
93 This acronym is used in the first judgment and for ease of reference I do the same.
94 A defence in terms of Article 20 was not pursued at the hearing there. That Article provides: “The return of the
child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental
principles of the requested State relating to the protection of human rights and fundamental freedoms.”
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granted leave for further evidence to be adduced, that of Ms Leigh Pettigrew,
an educational psychologist. As will appear, the approach to her evidence is one of the
primary areas of difference between this and the first judgment . A further point of
divergence is the lapse of time since E arrived in SA. This judgment disagrees with the
first, inasmuch as this judgment holds that the factor of delay cannot redound to the
detriment of E’s father and the AHCA, the statutory applica nt. As I will demonstrate,
that would subvert the objectives of the Hague Convention.

It is necessary to repeat in brief some of the salient background facts as to how
E ended up remaining in SA with the maternal aunt. It is imperative that the narratio n
recount the perspective of both parents. After E’s mother had been diagnosed with
colorectal cancer and had undergone treatment in the UK, a joint decision was taken by
E’s parents that they and E ought to travel to SA to investigate alternate treatment
options. That was because all treatment options in the UK had been exhausted. The
family travelled to this country on 5 September 2019 and, as agreed between the parents,
they were scheduled to return to the UK on 2 October 2019.

E’s mother underwent surgery on 26 September 2019 in SA after which she was
unable to return to the UK. During their time in SA, the relationship between E’s
parents deteriorated. As planned, E’s father returned to the UK on 2 October 2019.
E remained in SA with her ill moth er, the aunt and her maternal grandmother.
The father’s understanding was that E would remain with her mother while she
underwent treatment, after which both of them would return to the UK. This agreement
was confirmed by E’s mother in an email addressed to the father on 14 October 2019,
which stated that E would remain in SA until her mother was well enough for both of
them to return to the UK.

It was after this email that E’s mother informed the father that E would remain
in SA permanently. The reason given was that the mother had decided that, in the event
of her death, her sister, the aunt, should care for the child. This was, in all probability,
at the time that E’s mother became aware that the treatment in SA was not having the
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desired result and that she was terminally ill. It is also common cause that the father
agreed, on compassionate grounds, that E could remain in SA for as long as her mother
was undergoing medical treatment. He later agreed, after active treatment for the
mother had ceased to be feasible, that E could remain in SA for as long as the mother
was alive, even though she was by then only receiving palliative care. The father’s
consent did not extend any further. The mother’s changed outlook and her wish that
after her death E should live with the aunt did not accord with the earlier agreement and
did not find favour with the father. The terms of the parents’ agreement have always
been, and remain, undisputed.

When it became known to E’s father that the mother wished for E to stay in SA
permanently, he approached the Central Authority for England and Wales (UKCA) and
submitted a request for E’s return from SA to the UK on the grounds that E’s retention
in SA by her mother without his consent was in breach of the Convention’s terms.

This brief outline makes plain that this is an allegedly unlawful retention case
and not one of alleged unlawful removal/abduction. This case is unusual inasmuch as
the mother who re tained the child here has subsequently passed away and, as a
consequence, the child remained in SA, separated from her surviving father, instead of
returning to the UK with her mother as the agreement had been all along. Furthermore,
this case presents unique challenges which include what weight to afford to the impact,
in the short-term, of the resul t of the mother’s death on the child, juxtaposed to the
weight to be given to the impact, in the long-term, of the child having been removed
from her state of habitual residence with the resultant estrangement from her only living
parent, her father.

A further unusual dimension is that the father has, under the Convention, rights
of custody and access to the child and has parental rights and responsibilities to her in
the UK. The aunt, who seeks to assert parental rights, has neither rights of custody nor
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access under the Convention, nor does she have parental rights and responsibilities in
terms of the Children’s Act.95

I must emphasise right at the outset that I accept that the
Supreme Court of Appeal was correct in admitting the further evidence of
Ms Pettigrew. That evidence unquestionably meets the requirements laid down in
Lawrence96 and Rail Commuters.97 Undoubtedly, E’s status and circumstances after the
death of her mother were of the exceptional kind envisaged by this Court in those cases.
Its previous exclusion in the High Court was not due to remissness or negligence on the
part of the then respondents, the late mother and aunt. The evidence is material in this
case as it speaks to the psychological state of the child. The factual scenario and
circumstances of the child have changed drastically and should be taken into account.

The first judgment provides an extensive explication of the Convention’s
material provisions. Article 12 of the Convention provides:

“Where a child has been wrongfully removed or retained in terms of Article 3 and, at
the date of the commencement of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a period of less than one year has
elapsed from the date of the wrongful removal or retention, the authority concerned
shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been
commenced after the expiration of the period of one year referred to in th e 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.”

95 38 of 2005.
96 S v Lawrence; S v Negal ; S v Solberg [1997] ZACC 11; 1997 (4) SA 1176 (CC); 1997 (10) BCLR 1348 (CC)
at para 24.
97 Rail Commuters Action Group v Transnet Ltd t/a Metrorail [2004] ZACC 20; 2005 (2) SA 359 (CC);
2005 (4) BCLR 301 (CC) at paras 40-3.
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The Article 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.98 In G v D,99 the Court cited Re E, where the UK Supreme Court
set out the principles applicable in Article 13(b) def ences.100
These are (with my emphasis):
(a) There is no need for Article 13(b) to be narrowly construed. By its very
terms, its application is restricted. The words of Article 13(b) are quite
plain and need no further elaboration or gloss.
(b) The burden lies on the person (or institution or other body) opposing
return. It is for them to produce evidence to substantiate one of the
exceptions. The standard of proof is the ordinary balance of probabilities
but, in evaluating the evidence, the court will be mindful of the limitations
involved in the summary nature of the Convention process.
(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”. Al though “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 a strong word but, when applied to a child,
must mean “a situation which this particular child in these particular
circumstances should not be expected to tolerate”.
(e) Article 13(b) looks to the future: the situation as it would be if the child
were returned forthwith to his or her home country. The situation which

98 Pennello above n 8 at para 38.
99 G v D (Article 13b: Absence of Protective Measures) [2020] EWHC 1476 (Fam) at para 35.
100 Re E above n 41. That approach was endorsed by the Supreme Court of Appeal in KG v CB above n 40
at para 50.
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the child will face on return depends crucially on the protective measures
which can be put in place to ensure that the child will not be called upon
to face an intolerable situation when he or she gets home. Where the risk
is serious enough, the court will be concerned not only with the child’s
immediate future because the need for protection may persist.
(f) Where the defence under Article 13(b) is said to be based on the anxieties
of a respondent mother about a return with the child, which are not based
upon objective risk to her but are nevertheless of such intensity
as to be likely, in the event of a return, to destabilise her parenting of the
child to a point where t he child’s situation would become intolerable, in
principle, such anxieties can found the defence under Article 13(b).

The harm that the aunt must prove extends beyond the harm that flows naturally
from a court -ordered return. 101 In Sonderup, this Court po inted out that parental
disputes almost always have an adverse effect on children of the relationship, more
so where there is a custody dispute. This Court said:

“The law seeks to provide a means of resolving such disputes through decisions
premised on the best interests of the child. Parents have a responsibility to their
children to allow the law to take its course and not to attempt to resolve the dispute by
resorting to self-help. Any attempt to do that inevitably increases the tension between
the parents and that ordinarily adds to the suffering of the children. The Convention
recognises this. It proceeds on the basis that the best interests of a child who has been
removed from the jurisdiction of a court in the circumstances contemplated by the

101 Sonderup above n 16 at para 46. See also: LD v Central Authority (RSA) and Another [2022] ZASCA 6;
[2022] 1 All SA 658 at para 29:
“[A] certain degree of harm is inherent in the court -ordered return of a child to their habitual
residence, but that is not harm or intolerability envisaged by Article 13(b); . . . that harm or
intolerability extends beyond the inherent harm referred to above and is required to be both
substantial and severe”.
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Convention are ordinarily served by requiring the child to be returned to that
jurisdiction so that the law can take its course.”102

Citing the dictum of L’Heureux-Dubé J in the Canadian case W(V) v S(D) ,103
this Court in Sonderup held:

“In applying the Convention ‘rights of custody’ must be determined according to this
definition independent of the meaning given to the concept of ‘custody’ by the
domestic law of any state party. Whether a person, an institution or any other body has
the right to determine a child’s habitual residence must, however, be established by the
domestic law of the child’s habitual residence.”104

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 substantia l, not trivial, and of a severity which is much more than is
inherent in the inevitable disruption, uncertainty and anxiety which follows an
unwelcome return to the jurisdiction of the court of habitual residence”.105

The harm must be grave. In Sonderup, t his Court held that t he words
“otherwise place the child in an intolerable situation” is indicative of the harm
contemplated in Article 13(b) being of a serious nature. The Court refrained, however,
from defining that concept or considering “whether in the light of the provisions of our
Constitution, our courts should follow the stringent tests set by courts in other
countries”.106

102 Sonderup above n 16 at para 43.
103 W(V) v S(D) 134 DLR (4th Cir 1996) 481 at 496.
104 Sonderup above n 16 at para 11.
105 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 at 1154A-B.
106 Sonderup above n 16 at para 44.
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As the first judgment indicates, in other jurisdictions the threshold is set very
high and Article 13(b) is construed narrowly. 107 Apart from the
United States of America, other countries like England, Canada, Australia also set a
high threshold.108 Nonetheless, I accept the approach adopted in the first judgment that
it is not necessary to afford Article 13(b) a more restrictive meaning than that conveyed
by its plain meaning.109

Courts vigilantly ensure that the parent who has removed the child should not be
able to rely on the consequences of that removal to create a risk of harm or an intolerable
situation on return. An example is Re C (A Minor) Abduction ,110 where the
Court of Appeal in England had to determine whether an Article 13(b) defence was
proved by the mother who had left Australia for England with the child without
informing the father or obtaining his consent. The mother raised as defences in
Hague Convention proceedi ngs that neither the removal nor the retention were
wrongful and, in any event, if they were, there was grave risk that the return of the child
would expose him to psychological harm. In rejecting the Article 13(b) defence,
Butler-Sloss LJ stated:

“The grave risk of harm arises not from the return of the child, but the refusal of the
mother to accompany him. The Convention does not require the court in this country
to consider the welfare of the child as paramount, but only to be satisfied as to the grave
risk of harm. I am not satisfied that the child would be placed in an intolerable situation,
if the mother refused to go back. In weighing up the various factors, I must place in
the balance and as of the greatest importance the effect of the court ref using the

107 See the first judgment at [58]. The first judgment refers to Friedrich above n 38 where clear and convincing
evidence is required to prove an Article 13(b) defence.
108 In the USA, clear and convincing evidence, rather than merely a preponderance of the evidence, is required;
see: ICARA, 22 U.S.C.A. § 9003(e)(2)(A) (1994); Friedrich id. Australia: Director-General, Department of
Families, Youth and Community Care v Bennett [2000] Fam CA 253 (16 March 2000) (Full Court of the Family
Court of Australia); England: Re H (Children) [2003] EWCA Civ 355 (20 March 2003) (CA). Canada: Thomson
v Thomson (1994) 119 DLR (4th Cir) 253 at 296. Further examples can be found in footnote 41 of Sonderup above
n 16 .
109 See the first judgment at [59].
110 Re C (A Minor) Abduction [1989] 1 FLR 403, CA.
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application under the Convention because of the refusal of the mother to return for her
own reasons, not for the sake of the child. Is a parent to create the
psychological situation, and then rely upon it? If the grave risk of psychological harm
to a child is to be inflicted by the conduct of the parent who abducted him, then it would
be relied upon by every mother of a young child who removed him out of the
jurisdiction and refused to return. It would drive a coach and four through the
Convention, at least in respect of applications relating to young children. I, for my part,
cannot believe that this is in the interests of international relations. Nor should the
mother, by her own actions, succeed in preventing the return of a child who should be
living in his own country and deny him contact with his other parent.”111

The Convention envisages a two -part process that has to balance the long - and
short-term interests of the child. 112 The long -term interests of the child include the
determination of custody matters. The short -term interests of the child centre around
jurisdictional matters. The interplay between these two goals is the crucial inquiry that
goes to the very purpose of the Convention, namely that “the Convention seeks to ensure
that custody issues are determined by the court in the best position to do so by reason
of the relationship between its jurisdiction and the child. That Court will have access
to the facts relevant to the determination of custody”.113

In Re C (A Minor) Abduction, Lord Donaldson MR set out this dual approach:

“We have also had to consider art icle 13, with its reference to ‘psychological harm’.
I would only add that in a situation in which it is necessary to consider operating the
machinery of the Convention, s ome psychological harm to the child is inherent,
whether the child is or is not returned. This is, I think, recognised by the words ‘or
otherwise place the child in an intolerable situation’ which cast considerable light on

111 Id at 410. See also: Re E (A Minor) (Abduction) [1989] 1 FLR 135 at 142, per Balcombe LJ:
“[T]he whole purpose of this Convention is . . . to ensure that parties do not gain adventitious
advantage by either removing a child wrongfully from the country of its usual residence, or
having taken the child, with the agreement of any other party who has custodial rights, to another
jurisdiction, then wrongfully to retain that child”.
112 Sonderup above n 16 above at para 28.
113 Id at para 30.
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the severe degree of psychological harm which the Convention has in mind. It will be
the concern of the court of the State to which the child is to be returned to minimise or
eliminate this harm and, in the absence of compelling evidence to the contrary or
evidence that it is beyond the powers of those courts in the circumstances of the case,
the courts of this country should assume that this will be done. Save in an exceptional
case, our concern, i.e. the concern of these courts, should be limited to giving the child
the maximum possible protection until the courts of the other country, Australia in this
case, can resume their normal role in relation to the child.”114 (Emphasis added.)

The respondent’s Article 13(b) defence places primary reliance on the two expert
reports of essor Astrid Berg dated 1 September 2020 and 8 October 2020 and that of Ms
Pettigrew. I commence with a discussion of the reports of Professor Berg. She did not
express the opinion that the risk to E’s mental health would be grave in the event of her
return to the UK. The high water mark of Professor Berg’s concern in her second report
was that for E to lose the relationships she has formed with her aunt and grandmother,
in addition to losing her mother, could have serious consequences for her mental well -
being. In her first report, Professor Berg furnished the High Court with her opinion
regarding the potential consequences for E in the event of her return to the UK. That
is, as at the time of the first report, 1 September 2020. Professor Berg alluded there to
the fact that E was on a positive developmental trajectory in SA as she had settled into
playschool, has friends and a primary caregiver (her aunt) and a grandmother whom she
has come to know. According to Professor Berg, E’s return to the UK would
significantly disrupt her positive development, inasmuch as she would lose her aunt as
well as her nurturing and stimulating environment.

It seems to me that the disruptive consequences described by Professor Berg are
of the kind that naturally flow from a court-ordered return to the jurisdiction of the court
of an abducted child’s habitual residence. As I will show presently, that approach, also
adopted by the Supreme Court of Appeal, fails to take into account, either adequately
or at all, the extensive support services available in the UK to mitigate the effects of this

114 Re C (A Minor) Abduction above n 110 at 413.
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disruption. Thus, this disruption on its own does not meet the stringent test for a grave
risk of harm or other intolerability required by Article 13(b).

In her first report, Professor Berg laid much emphasis on the effect that her
mother’s death would have on E. 115 But, as Professor Berg’s report itself
acknowledged, in this regard, E’s pre -school age, to some extent, redounds to her
advantage. Professor Berg stated that at E’s age, she does not yet possess the capacity
to fully appreciate the fact of her mother’s passing and instead, because of her age, holds
the belief that her mother has gone away temporarily, to return later. This has the effect
of delaying the immediate psychological insult to E that would ordinarily follow from
an immediate and full appreciation of not only the fact of her mother’s passing, but also
its irreversibility and permanence. So, it seems to me that this position will prevail for
some time if E is to be returned to the UK.

In this regard, there is also the bereavement counselling that E will receive when
she returns to the UK. Professor Berg alluded to this aspect in her second report. 116
Bereavement counselling, according to Professor Berg, would entail support to
E’s father in respect of assistance he may require when the time com es for him, in
response to E’s needs, to give her simple and repeated explanations about her mother’s
death, its permanence and irreversibility, and to do so in the sensitive manner that is
required.


115 She stated:
“The explanation of death to a child needs to take into account that the child’s concepts of death
are immature. That is, the universality, irreversibility and permanence of death is only gradually
acquired by the age of about 10 years . . . For the pre-school child death is regarded as concretely
having ‘gone away’ and the fantasy of return of the deceased or of revival of the deceased may
persist for some time. It would require repeated, sensitive and simple explanations of the
permanence and irreversibility of death.”
116 She said:
“Bereavement counselling, if undertaken regularly and for an extended peri od, would help [E]
– it would give her the opportunity to express, verbally and in play, what she might be feeling.
It could also offer father guidance on how to respond to [E]’s questions and deal with any
possible behaviour difficulties.”
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Professor Berg pointed out in her second report that “i t is the immediacy of the
physical contact and care – such as feeding, putting to bed, bathing, taking to and
fetching from preschool – that matter to a young child”. She pointed out that all these
things had been done by E’s aunt, maternal grandmother, and the aunt’s house help,
over the year preceding her second report. This has forged strong relationships between
E and these persons, as she is still a very young child, “whose experiences are tied to
currently lived physical realities.” According to Pr ofessor Berg, “[l]osing these
relationships, in addition to losing her mother, could have serious consequences for
[E’s] mental well-being”.

But all of this does not detract from the fact that a bond of the nature described
can also be established between E and her father, if he were to be afforded the
opportunity to extend the same care to her. E’s father has in the papers expressed his
intention to routinely perform for E these same tasks upon her return to the UK. He is
prepared to attend to her physi cal care and to the contact tasks of feeding, putting to
bed, bathing, taking to and fetching her from pre -school. This is the care that has
enabled the aunt, grandmother and their helper to forge bonds with E. Professor Berg
does not express the opinion in her second report that such a relationship between E and
her father cannot be established.

In sum, there is nothing in Professor Berg’s two reports that established a grave
risk that the return of E to the UK will expose her to physical or psychological harm, or
otherwise place her in an intolerable situation. That brings me to Ms Pettigrew’s report.

Ms Pettigrew’s evidence is comprehensively detailed in the first judgment.
I confine this judgment to a recapitulation of its salient features. Her declared mandate
was to assess the impact on E’s psychological functioning in the context of the
childhood attachment theory, should she be taken away from the aunt and from her
known environment. After her death, E’s mother’s primary attachment role was ta ken
over by the aunt. Removing E from the aunt’s care would effectively result in a second
maternal death for E. Developing an emotional understanding of her mother’s death
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will continue through E’s different stages of development with the assistance of an
emotionally available and trusted carer who can guide her through these phases. Absent
that carer in times of need, there will likely be a significant level of distress and
emotional trauma for E.

Ms Pettigrew expressed the view that there is no secure bond between E and her
father and it is unlikely that a secure bond would be established with him if E were to
be returned to the UK. According to Ms Pettigrew, because E is no longer in the
attachment formation phases of the attachment theory, there wo uld be no transition for
her from the aunt’s care into that of her father, and that she would not form an
attachment with him if placed in his care. In effect, her return to the UK would mean
that E would be placed with a person who is a stranger to her. Moreover, E will be
grieving the loss of her two attachment figures, namely her mother and the aunt, in
addition to the loss of the safe and predictable structures of her life in SA.

Ms Pettigrew was of the opinion that, faced with these losses, E’s copi ng
resources would in all likelihood be overwhelmed, and that there was a significant risk
of a complete breakdown with psychosis and psychological damage to her, in the short-
and long-term. Therapeutic intervention would not ameliorate the sense of loss that E
would experience nor the emotional damage to her, and it would be challenging for her
to develop a trust relationship with a therapist in the UK in the absence of her also
having an established a bond with her father.

Based on this assessment, Ms Pettigrew concludes that there is a likelihood of E
suffering serious psychological harm if she is removed from the aunt. That is because
E will not have the capacity to deal with the trauma of being removed from her primary
attachment figure.

The first j udgment holds that Ms Pettigrew’s report “represents a reasoned
conclusion based on the facts set out in her report”. I disagree. As I see it,
the first judgment and the Supreme Court of Appeal’s place too much emphasis on
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Ms Pettigrew’s report and fail to consider (in the case of the Supreme Court of Appeal)
or place inadequate weight on (in the case of the first judgment) the evidence of the
support systems available in the UK. While Ms Pettigrew’s evidence may be
uncontroverted, as the first judgment holds, it only tells one side of the story. When all
the evidence, including the evidence concerning the UK support systems, is placed on
the scale, as it should be, the alleged grave risk of harm or intolerable situation averred
by Ms Pettigrew does not meet the threshold of Article 13(b).

The first judgment attributes the risk of the harm to: E’s young age; the
circumstances in which she came to be in the care of the aunt; the length of time that
she has been in the care of the aunt, who has now become her primary attachment figure;
the absence of the formation of any significant bond with the applicant; and the fact that
her return to the UK will take her away from her primary attachment figure and out of
her known family and social environment to a country of which she is unlikely to have
much recollection, and to family members with whom she has not as yet formed any
relationships.117

This summation graphically demonstrates the unbalanced nature of the approach
adopted by the first judgment. It fails t o recognise that these factors do not redound
negatively on E’s father’s position – on the contrary these are factors over which he had
and still does not have any control. This recognition is not a misdirected focus on the
father’s interests, but in fact has a direct bearing on E’s best interests. Most of these
factors (save for E’s young age and the circumstances in which she came to be in the
aunt’s care) are the result of the inordinate delay in finalising this case, primarily in the
Supreme Court of Appeal, an aspect to which I will revert presently.

E’s grief, although deeply tragic, is not uniquely UK specific. She will
experience this grief even if she were to remain in SA. It is not harm of sufficient

117 See the first judgment at [110(d)].
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severity so as to require E to avoid returning to the UK.118 The risk of harm in separating
E from her aunt, to be returned to the UK and placed with her father, results solely from
the wrongful retention and the unfortunate delay in finalising this litigation, particularly
in the Supreme Court of Appeal. Absent the wrongful retention, there would be no need
for E to evade this harm. This is precisely the harm that is expected to follow E’s return
following a court order. It is also the harm that can be created by anyone that wrongfully
retains a child in another country, a scenario that the Convention serves to discourage.
Furthermore, it is not harm that is serious enough that “is not reasonable to expect a
child to tolerate”.119

The collective harm of E’s mother’s death and a separation from the aunt
pursuant to a court -ordered return to the UK does not to my mind meet the high
Article 13(b) threshold. I say this based on my findings here, but also, accepting that
no two cases ar e identical, considering that the potential harm facing the children in
Sonderup120 and KG v CB 121 was of a more serious nature than the potential harm
facing E. Nevertheless, this Court and the Supreme Court of Appeal both ordered the
return of the children to their countries of habitual residence. It bears emphasis that the
correct approach to determining a dispute of this nature is that:

“A South African court seized with an application under the Convention is obliged to
place in the balance the desirability, in the interests of the child, of the appropriate court
retaining its jurisdiction, on the one hand, and the likelihood of undermining the best
interests of the child by ordering her or his return to the jurisdiction of that court.”122

A striking lacun a in the reasoning of the Supreme Court of Appeal and the
first judgment is that there is no consideration at all of the harm that E would likely
suffer from her father’s absence, including having an estranged parent and a sense of

118 Re E above n 41 at para 33.
119 Id at para 34.
120 Sonderup above n 16 at para 39.
121 KG v CB above n 40 at para 44.
122 Sonderup above n 16 at para 35.
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abandonment and trauma s imilar to that experienced by some adopted children. This
harm could conceivably be worse than the harm that Ms Pettigrew envisions E would
suffer if she were to be returned to the UK. No evidence was placed before the courts
in relation to the harm E wo uld likely suffer from the absence of her father. The
first judgment places undue emphasis on the time that E has been away from her father,
ignoring the fact that this is exactly the unenviable position the father finds himself in
due to the failure to return E to the UK after her mother’s death.

The aunt bears the burden of proof to demonstrate the grave risk of harm. It
would then be for the father to refute this. The objective of the Convention enunciated
in Article 1 is to secure the prompt return of a child removed from the country of
habitual residence, and to restore the previous prevailing situation before the unlawful
removal or retention, in order to have issues like custody and others that may underlie
the removal of a child, decided by the c ourts of the country of habitual residence. The
rationale behind this is to preserve whatever custody arrangement existed immediately
before an alleged wrongful removal or retention, thereby deterring a parent from
crossing international borders in search of a more sympathetic court.

That brings me to the evidence adduced concerning the structures and systems
available for E’s support in the UK upon her return. This evidence was completely
disregarded by the Supreme Court of Appeal and is trivialised by the first judgment.
It is necessary that I set out that evidence in some detail, for a more
balanced perspective. It is of some significance that E’s mother’s own case notes,
which form part of the record, testify to the elaborate support systems availab le to
E in the UK. In those notes, the social workers assigned to E’s mother, Ms
Anna Phillips and Ms Giorgia Chatwin, meticulously recorded her own treatment and
the support services she had received in Herefordshire.

There is a report by Mr Samuel Njin i, a qualified social worker registered with
Social Care Wales and the Health Professionals Council of England, employed as a
social worker at Herefordshire Children’s Services. He had consulted with the father
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and had conducted an inspection of his living quarters. Mr Njini reported that the father
lives in a two-bedroom house and that E’s room has been prepared for her. He described
E’s room as beautifully decorated. According to the report, the father is employed by a
local company, Hut Builders, whi ch builds wooden play huts for children. He earns
£10 an hour and he works 20 to 30 hours a week. The father is entitled to universal
benefits, and will be able to care for E upon her return. He lives in a community with
a network of support from friend s who live in the same village and have children the
same age as E.

In addition to these observations, Mr Njini also recorded that Social Services are
able and will continue to provide support to E and her father. A referral would be made
to the bereavement counselling service to support E. The father had confirmed to him
that E is still registered with a local general practitioner and the National Health Service
will continue to meet her health needs as and when required. E will be allocated to a
health visitor who will visit her at home to ensure that her health needs are met and that
she meets all her developmental milestones. In terms of further checks and balances,
Social Services, the health visitor, the nursery school and the bereavement counsell ing
service will ensure that E’s safety and emotional wellbeing are fully safeguarded.

All this evidence indicates that E would be provided with suitable
accommodation were she to return to the UK; that her father is committed to and has
the ability to ta ke care of her; that he has a network to support him with E’s care and
that the social and medical services under the local authority would be involved in
attending to her needs.

Mr Njini’s report was confirmed by Mr James Twist, who is employed at the
International Child Abduction and Contact Unit (ICACU). He performs the functions
assigned to the UKCA under the Hague Convention. Mr. Twist is the case worker at
ICACU responsible for South African matters. He was contacted by
Ms Shirin Ebrahim, a Family Advocate who deposed to an affidavit in the High Court
in response to questions from that Court during the hearing. Mr Twist confirmed that
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there were social services available for E in Herefordshire, where she would live with
her father, if she were to return to the UK.

There is also a report by Dr Onyoja Momah, a barrister in the UK and an expert
in family law and cross-jurisdictional cases. According to his report, due to the unique
nature of this case, even if a return order was made, the hearing to determine parental
rights and responsibilities would likely be held in SA due to forum conveniens (the most
convenient forum to hear the matter). A report from Dr Ester Scotland, a medical doctor
in Herefordshire, stated that the father had und ergone a health assessment in 2019 and
was prescribed medication which he at that stage had continued to take.

The record of a meeting held on 12 June 2019 between the family (E, her father
and mother) and members of the social services professional team in the UK is
instructive. The team included Ms Georgia Chatwin described as
Care Coordinator/CPN Recovery Mental Health Nurse, Ms Sally Hampton described
as Support Worker Recovery, Mr Tim Williams from the Early Help Team and
Ms Jennie Swain, a Health Visitor. The record states:

“Each member of the family got a chance to express their feelings and needs in a safe
space and as health professionals we agreed our roles in supporting each person
ensuring that each person within the unit receives support going forward. . . . P and E
will receive ongoing support from Jennie and Tim moving forward. ”
(Emphasis added.)

These reports and the case notes referred to earlier demonstrate that the
social and medical services available in the UK can and will respond t o the needs of E
and her father. There are not only strong medical, but also strong social support
systems available. Her father has accommodation available for her and he appears to
have gone to some lengths to create a happy living space for her, according to Mr Njini’s
report.

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The father’s position as the only surviving parent receives very little attention in
the judgment of the Supreme Court of Appeal and the first judgment. There is no
recognition of him having been involved in E’s life right from the outset.
He is no stranger to E. Their relationship was established before E travelled to SA.
What underpins the attachment theory advanced by both P rofessor Berg and
Ms Pettigrew, and relied upon by the aunt, amounts to a dismissal of the
father’s existence and his role in E’s life. It fails to acknowledge and give due weight
to the relationship between father and child. On this approach, E’s attach ment to
the aunt effectively discourages all involvement of the father. There is a diminution of
the presence of the father, resulting in E being deprived of the love, affection and care
of her father, to which she is entitled. This deprivation is exacerbated by the tragic loss
of her mother.

There is some passing acknowledgment in the first judgment of some
shortcomings in Ms Pettigrew’s evidence. It says that she “did not pertinently address
the impact, if any, of the natural relationship of father and daughter that exists between
E and the applicant, and the father’s familial support system in the UK on the likelihood
of the postulated poor outcome of E’s return to the UK materialising”. 123 But it then
immediately criticises the AHCA and the father for not placing expert evidence of their
own before the Supreme Court of Appeal, thus leaving Ms Pettigrew’s evidence
uncontroverted. As the first judgment itself accepts, even if uncontradicted,
expert evidence remains opinion that must be scrutinised by a court to determine its
value. For the reasons enunciated, I do not accept that Ms Pettigrew’s evidence
establishes an Article 13(b) defence.

I must not be misunderstood. I do not take the view that Ms Pettigrew’s evidence
is unreliable or that it should be disputed or rejected as the first judgment appears to
interpret my approach.124 The point is rather that, even though her evidence is accurate,

123 See the first judgment at [111].
124 See the first judgment at [112] and [116].
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the harm Ms Pettigrew describes is not grave enough to meet the Article 13(b) threshold.
The first judgment holds that it is grave enough I hold the contrary view that it is not.
The situation that E finds herself in naturally evokes much empathy, but it is not grave
enough to warrant E staying in SA. As stated, the harm that will arise is of the exact
nature associated with an order of return contemplated by the Convention.

To illustrate, if E had stayed in the UK with her father while her mother came to
SA for treatment, she would not face the harm of separating from her aunt or returning
to her father, now a “stranger”. She would face the grief of losing her mother only and,
as I have attempted to explain, this harm is not one that E faces all of a sudden by
returning to the UK.

Every child that is removed from their country of habitual residence and
left-behind parent, and instead stays in another country for some time with only one
attachment figure would face the dual harm of separating from the sole attachment
figure, and returning to their now left-behind parent, a “stranger”.

The first judgment points out that E’s return to her father is effectively her being
“placed with a person who is a stranger to her”.125 This is problematic, as it completely
discounts the father’s parental rights and, again, is a consequence arising solely from
the retention (as would be the case for any left-behind parent from whom there has been
some distance). E’s attachment to her aunt effectively discourages all involvement of
the second applicant as the father. This latter relationship is being totally obliterated by
the attachment to her aunt. Ms Pettigrew alludes to the fact that E’s aunt made links
between herself and E, her mother and the domestic helper during the time spent
together from the time of their arrival in SA until the mother’s death. The presence of
the father hardly gets any mention and is being diminished. The result is that for E, the
unfortunate loss of her mother in the circumstances in which she lost her – after her

125 See the first judgment at [98].
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mother wrongfully retained E in SA – means that she is being deprived of the love,
affection and care of her father, to which she is entitled.

It bears emphasis that the need to afford a balanced assessment in this enquiry to
the father’s position is not merely out of maudlin sympathy. His situation bears directly
on E’s well -being, a s she is being deprived of her only surviving parent’s care and
affection, through the improper and unbalanced approach to the matter advanced by the
first judgment.

Reliance is placed in the first judgment on Ms Pettigrew’s view that therapy
would not ameliorate E’s harm. 126 But, to my understanding, effective therapy is not
what is required to mitigate potential harm. The requirement of effective therapy sets a
higher standard than what is actually required. Instead, what is required is a court
system i n the country of habitual residence that can deal with the harm. 127
The Convention’s purpose is to determine which jurisdiction is effectively responsible
for the child, and this includes addressing the harm the child would face. In other words,
if a child was returning to a jurisdiction with a failed court system or no child protection
laws or enforcement of such laws, then there is no way of mitigating the harm.

The first judgment relies on the evidence that “there are no measures that would
serve to mitigate the anticipated harm”.128 As I have attempted to show, this is not the
case.

The absence of culpability on the part of E’s aunt alluded to in the first judgment
bears no relevance to this enquiry. 129 It loses sight of the requirements of

126 See the first judgment at [94].
127 TMS v AMS [2023] EWFC 1620 (TMS v AMS) at para 21.
128 See the first judgment at [121].
129 See the first judgment at [127]:
“I do not believe that an order refusing her return to the UK will send the wrong message or
undermine the integrity of the Convention, particularly when weighed against the lack of
culpability on the part of the aunt and what are the best interests of E in the circumstances.”
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the Convention. The question is simply whether, on a balance of probabilities, in the
event that E is ordered to be returned to her state of habitual residence, she would be
faced with the risk of grave psychological and physical harm or that she may otherwise
be placed in an intolerable situation.

A recent judgment of the Family Division of the High Court in England provides
insight into how an Article 13(b) defence is to be approached in these circumstances.
TMS v AMS 130 concerned an application under the Convention in respect of
two children, AS and VS. Their parents were Russian and the mother lived in Moscow
and the father in London. 131 AS and VS went to London for a two -week holiday with
the father, as agreed between the parents. At the end of the two weeks, the father did
not reunite them with the mother as planned and emailed the mother saying that he had
decided that AS and VS will remain with him in London.

The mother instituted Hague Convention proceedings in London
within a few days of the children’s retent ion. The father conceded that the children
were habitually resident in Russia up until that point and that his retaining them in
London constituted a wrongful retention within the meaning of the Convention. He
also conceded that there was no question of an exception being raised under either
acquiescence or consent. Thus, the issues for determination by the Family Court were
whether a return of the children, or either of them, would give rise to a grave risk of
physical or psychological harm or place them in an intolerable situation if they were to
be returned to Russia.

The father’s defence in terms of Article 13(b) of grave risk of harm included
allegations that a return against AS’ wishes would expose him to a deterioration in his

130 TMS v AMS above n 127.
131 The father was born in the Russia Federation (Russia) and holds Russian citizenship. He acquired UK
citizenship after working in London in the early 2000s before he then returned to Russia, where he was the chief
executive of a business dealing with senior care. The mother also was born in Russia. She holds Russian and
Canadian citizenship, arising from a per iod when she and her parents lived in Canada. She returned to Russia
many years ago and the parties met and married in Russia in April 2008, following which they made their lives in
Moscow.
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psychiatric state such that he may become suicidal again. The father contended that this
would meet the Article 13(b) threshold. He also alleged that there was a real risk of the
children being exposed to physical and emotional harm from their mother, both in terms
of physi cal beatings and threats from her to kill herself or to kill AS, and that the
maternal grandfather posed a physical risk of abuse to them as well. The impact on AS
of returning to Russia to his school was also relied upon, he having been unhappy at
that school. Furthermore, the father relied upon the risk of the Ukraine/Russia war
extending into Russia with the attendant risks of harm, and also, in particular, an alleged
risk to the children of dissidents being targeted by the State and either removed fro m
their family’s care or being subjected to other forms of physical abuse at the hands of
the State.

In following Re E, Williams J approached the enquiry as follows:

“[T]he court takes the allegations at the highest and asks the question: would, taken at
their highest, the allegation or the allegations cross the Article 13(b) threshold. If the
answer to that is no, taken at their highest they would not, then the Article 13(b)
exception cannot be established. If the allegations taken at their highest wou ld cross
the Article 13(b) threshold, then the second stage is to ask whether the protective
measures could be effective rather than theoretically reduce a risk but could be
effective, in practice, to reduce the risk to the children to a level below the
Article 13(b) threshold.”132

The Court summarised the present approach of the UK courts as being an
emerging difference in the cases in the Court of Appeal and the Family Court since Re E
from the relatively straightforward approach that the UK Supreme Court adopted in the
latter case. According to Williams J, the courts now consider,
based on the Good Practice Guide,133 whether the allegations made by the respondent
are of such a nature an d of sufficient detail and substance, in terms of evidence, that

132 TMS v AMS above n 127 at para 22.
133 The Hague Conference on Private International Law Part VI of the Guide to Good Practice under the
Convention of 25 October 1980 on the Civil Aspects of International Child A bduction: Article 13(1)(b) (2020).
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they could constitute a grave risk. In addition, the question is asked whether the
maximum level of risk is supported by “reasoned and reasonable assumptions”.
This, said Williams J, is a rather more nuanced and detailed exercise than the pragmatic
solution suggested in Re E.

The Court noted that, in addressing the question whether a respondent has
established that there is a grave risk that the child’s return would expose the child to
physical or psychological harm or otherwise place the child in an intolerable situation,
the range of approaches and outcomes include the following:
The evidence on the papers satisfies the judge on a balance of
probabilities that the grave risk exists. The c ourt then determines, in the
light of its findings on the level and nature of risk, what protective
measures are available and whether or not they would be effective to
ameliorate that determined risk.
The evidence on the papers satisfies the judge on a ba lance of
probabilities that there is no grave risk. This may be because the nature
of the allegation taken at its highest simply could not establish a grave
risk of harm or other intolerable situation or because the evidence in
relation to the alleged ris k is sufficiently clear on paper that a clear
adverse conclusion can be reached. No Article 13(b) protective measures
are then required.
The judge can on the papers confidently discount the allegation that there
is a grave risk of harm. Forensically this would suggest that the evidence
is insufficient to determine on balance that the grave risk does not in fact
exist but is sufficiently weak (lacking in substance and detail, based on
unreasoned and unreasonable assumptions perhaps) that it is not
established. No Article 13(b) protective measures are then required.
The court cannot confidently discount the allegations, as the evidence is
of such substance and detail, or the allegations are based on reasoned or
reasonable assumptions such that it should tak e the allegations at their
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highest and determine that the grave risk of harm threshold is passed.
This approach is consistent with the legal burden which lies on a
respondent to establish the defence. In these cases, the court’s evaluation
of the protective measures will encompass more flexibility in terms of the
range of protective measures required and the way in which the court
approaches how effective they need to be.134

According to Williams J, in the event that an exception is established,
the approach to the exercise of the resulting discretion is set out in
Re M (Abduction: Zimbabwe),135 where the House of Lords confirmed that the
discretion is at large. In that case, policy considerations which accompany the
Convention will be weighed in the balance , along with any factors relating to the
exception which has been established, and any welfare considerations which go to
support either a non -return or a return. It has been recognised that in cases where the
grave risk of harm exception has been establi shed, it is quite difficult to envisage a
situation where the court would in the exercise of its discretion order a return,
nonetheless. So, the discretion on an Article 13(b) defence of this sort is more notional
or more theoretical than real.

Ultimately, the Court held that the risk to the child, AS, was limited and there
were advantages to AS in welfare terms in being reunited with his family unit and
extended family. Taking those factors into account and the weight to be given to the
Convention considerations in the case, the Court held that AS had to be returned to
Russia to allow the Russian courts to determine his future in a considered and holistic
fashion.


134 Id at para 30.
135 Re M (Abduction: Zimbabwe) [2007] UKHL 55.
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In Friedrich, the mother made no allegations of abuse, but instead raised
concerns that the child would have adjustment problems if forced to return to Germany.
The Sixth Circuit held that this was not enough to invoke the grave risk exception
because grave risk implies much more than “serious risk”.136

The first judgment lists three primary co nsiderations in respect of E’s best
interests that lead it to the conclusion that it is best for her to remain in SA and for a
court here to decide what would be in her best long-term interests. These considerations
are:
the length of time that has elapse d since E’s initial retention in this
country;
the fact that E was only two years and two months old when she came to
SA with her parents and that it is therefore unlikely that she had formed
any meaningful relationships with anyone in the UK or that she w ould
have any recollection of that country; and
the finding of the likelihood of a grave risk of psychological harm should
E be returned to the UK. The first judgment holds that “[t]he implication
of this finding, the nature of the anticipated harm, and the absence of there
being any protective measures to reduce the risk or the seriousness
thereof, mean that an order for the return to the UK is likely not to be in
her best interests.” 137 It adds: “[t]his conclusion is strengthened by the
absence of any evidence of meaningful undertakings by the authorities in

136 Id at para 15:
“[A] grave risk of harm for purposes of the Convention can exist only in two situations.
First, there is a grave risk of harm when return of the child puts the child in imminent danger
prior to the resolution of the custody dispute– e.g., returning the child to a zone of war, famine,
or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or
extraordinary emotional dependence, when the court in the country of habitual residence, for
whatever reason, may be incapable or unwilling to give the child adequate protection .”
137 See the first judgment at para [130].
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the UK to provide reasonable protection against the harm postulated by
Ms Pettigrew in her evidence.”138

I have already advanced reasons why I disagree with the consideration in (c).
It is necessary to observe, though, that the last sentence quoted, vividly illustrates why
I say that the first judgment largely ignores the evidence adduced relating to the support
services available to E in the UK (and, of course, the Supreme Court of Appeal ignored
that evidence altogether). This is not a balanced approach and it improperly elevates
Ms Pettigrew’s expert opinion.

The first judgment impermissibly overemphasises E’s attachment to the aunt,
as outlined in Ms Pettigrew’s report. This factor has a double dimension, according to
Ms Pettigrew. First, there is the fact that E’s mother’s primary attachment role has been
taken over by the aunt. And, secondly, Ms Pettigrew alludes to the fact that, since E is
no longer in the attachment formation phase, there would be no transition for her from
the aunt’s care into that of her father, and that she would not form an attachment with
him if placed in his care. This attachment factor appears to me to be the overriding
consideration advanced as motivat ion for Ms Pettigrew’s conclusions and
recommendations. It also seems to hold great sway with the first judgment. But that
misapplies the test in Hague Convention proceedings. As stated, the test is whether
there is grave harm of the nature envisaged in Article 13(b) by the words “ place the
child in an intolerable situation”. 139 The attachment factor does not belong in that
enquiry; it is a test utilised for custody and care proceedings. 140 In the course of
discussing the constitutionality of the Hague Con vention Act, this Court in Sonderup
held:

“A South African court seized with an application under the Convention is obliged to
place in the balance the desirability, in the interests of the child, of the appropriate court

138 Id.
139 Sonderup above n 16 at para 44.
140 Davel “General principles” in Davel and Skelton Commentary on the Children's Act (Juta & Co Ltd, 2022) at 9.
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retaining its jurisdiction, on the one hand, and the likelihood of undermining the
best interests of the child by ordering her or his return to the jurisdiction of that court.
As appears below, the court ordering the return of a child under the Convention would
be able to impose substantial conditions designed to mitigate the interim prejudice to
such child caused by a court ordered return. The ameliorative effect of Article 13, an
appropriate application of the Convention by the court, and the ability to shape a
protective order, ensure a limitation that is narrowly tailored to achieve the important
purposes of the Convention . It goes no further than is necessary to achieve this
objective, and the means employed by the Convention are proportional to the ends it
seeks to attain.”141 (Emphasis added and footnotes omitted.)

It is convenient to address considerations (a) and (b) together. This approach
seriously undermines the primary objective of the Convention, to ensure an expeditious
restoration of the status quo ante in cases of unlawful retention or removal. To hold the
inordinate delay in this case against the AHCA and the father is to subvert
the Convention’s aims. The first judgment invokes Article 12 for its stance.
But that Article envisages that the child be returned forthwith. The prompt return of the
child lies at the heart of the Convention’s entire scheme. The history of this case is that
it proceeded fairly rapidly to and through the High Court.142 Not so in the
Supreme Court of Appeal.143 In this Court too, it has taken some time for the matter to
be finalised. But, by the time the matter arrived in this Court, the damage was done
insofar as inordinate delay is concerned, primarily in the Supreme Court of Appeal.

Accepting this delay as a valid cause of E becoming settled in SA, as the first
judgment holds, would mean that anyone with an interest in wrongfully retaining a child
in another country can draw out litigation proceedings to enable the child to settle and
so escape the reach of t he Convention. Delay would become a strategic tool to evade
the Convention’s objectives, not only to protect children from the harmful effects of

141 Sonderup above n 16 at para 35.
142 In the High Court, the Convention proceedings were instituted on 21 July 2020, the matter was heard on
28 October 2020 and judgment was delivered on 11 December 2020. The High Court granted leave to appeal to
the Supreme Court of Appeal on 9 February 2021.
143 In the Supreme Court of Appeal, the appeal was instituted on 4 March 2021, the matter was only heard on
28 February 2022 and judgment was delivered on 26 April 2022.
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international child abduction and retention by a parent, but importantly also to secure
the prompt return of the abducted or retained children to their state of habitual
residence. Promptitude is an indispensable part of the process. Article 12 requires that
where a child has been wrongfully removed or retained, and a period of less than a
year after the wrongf ul removal or retention has elapsed, the judicial or
administrative authorities of the requested state “shall order the return of the child
forthwith.” That is precisely what the High Court did – order E’s return to the UK
within a year of her retention in SA. The subsequent delays of the appeal in the
Supreme Court of Appeal and application for leave to appeal in this Court cannot
subvert the Convention’s aims and the provisions of Article 12.

The first judgment correctly enumerates the flaws in the judgment of the
Supreme Court of Appeal. To recap, they are:
First, that Court erred in its approach to the correct application of
Article 13(b) by applying the principles in Plascon-Evans to its
evaluation of the evidence. 144 In doing so, the Court impermissibly
decided the matter solely on the evidence adduced by the aunt. It
completely disregarded the evidence of the applicant on crucial matters.
That aspect has been addressed in some detail in this judgment.
Secondly, as a corollary of the first mistake, the Supreme Court of Appeal
decided, solely on the evidence of E’s mother, that the father would not
be able to raise E and provide her with the necessary emotional and
financial security. That evidence was premised on factors like the father’s
history of mental health issues, abuse of alcohol and other substances, and
his unstable employment history. These factors were claimed to create
the risk of exposing E to harm and an intolerable si tuation envisaged in
Article 13(b), a claim which the Supreme Court of Appeal accepted in
applying Plascon-Evans.

144 As to the assessment of evidence on the papers in Hague Convention matters, see: Re C (Children) (Abduction
Article 13(b)) [2018] EWCA Civ 2834 and Re A (Children) (Abduction: Article 13(b) Court of Appeal [2021];
EWCA Civ 939 [2021] 4 WLR 99.
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And, thirdly, the Supreme Court of Appeal, once it found that the
Article 13(b) defence was established, had to exercise its discretion and
was duty bound to consider whether E should be returned to the UK.
This it did not do. As is correctly pointed out by the first judgment, that
Court’s judgment has no reference at all to it exercising such a discretion.
Absent any statement to that effect , one must accept that if failed to
exercise that discretion. But, even if it did, the Supreme Court of Appeal
plainly failed to balance both the interests of the child and the general
purposes of the Convention, as it must do.145

To these I would add that the Supreme Court of Appeal appears to have erred in
its conflation of the two inquiries of what was referred to in Sonderup as the long-term
interests of the child, including the determination of custody matters, and the short-term
interests of the child, which concern jurisdictional matters. That Court seems to me to
have conflated the assessment of the short -term jurisdictional question of which court
is best placed to deliberate on issues of care, custody and guardianship and the
longer-term question that concerns an assessment of the best custodial arrangement for
the child. That is why it regarded Ms Pettigrew’s report as determinative and held that
E’s father’s care would be unsuitable. That was not an assessment for the
Supreme Court of Appeal to make, or, for that matter, for this Court to make now. What
is required is a determination of whether the Article 13(b) defence holds good in the
face of an Article 12 mandatory return. Once E has been returned to the UK under the
auspices of the UKCA, a full enquiry into her father’s competency as a carer will follow
by way of a custody hearing. This is precisely what the Convention envisages.

In conclusion, I hold that, on a consideration of the totality of the evidence,
including the evidence adduce d by the father and the AHCA, the aunt has not proved
the Article 13(b) defence. I am not satisfied on a balance of probabilities that, in the
event that E is ordered to be returned to her state of habitual residence, she would be

145 Sonderup above n 16 at para 28.
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faced with the risk of grave psychological and physical harm or that she may otherwise
be placed in an intolerable situation. Moreover, the aunt failed to establish that the UK
is not able to mitigate any of the risks that she has raised or alluded to by Professor Berg
and Ms Pettigrew should E be returned to the UK. On the evidence, there are adequate
support services and systems in place in the UK. These would mitigate the impact of
E’s return to the UK. The delay occasioned by the litigation cannot be permitted to
impede the objectives of the Convention.

The Order
The following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The orders of the Supreme Court of Appeal and the High Court are set
aside.
4. E (the minor child) shall be returned to the jurisdiction of the
Central Authority for England and Wales (CAEW) in the
United Kingdom (UK) by the end of February 2024.
5. Pending the return of E to the UK as provided in this order, the
second respondent (the aunt) shall not, without the prior written consent
of the Central Authority for the RSA (CASA), remove E from the
province of the Western Cape in the Republic of South Africa (RSA) and
shall keep CASA informed of her and E’s physical address and
contact details.
6. In the event of th e second respo ndent intending to accompany E on her
return to the UK, she shall notify CASA and the second applicant
(the father) in writing, within one week of the date of issue of this order ,
and in that event she is granted leave and authorisation, insofar as it may
be necessary, to remove E from the RSA and accompany E on her return
to the UK.
MAJIEDT J
97
7. In the event of the second respondent failing to notify CASA in terms of
para 6 and the second applicant intending to accompany E on her return
to the UK, he shall notify CA SA and the second respondent in writing,
within one week of such failure, and he is granted leave and authorisation,
insofar as it may be necessary, to remove E from the RSA and accompany
E on her return to the UK.
8. In the event of the second respondent and the second applicant failing to
notify CASA in terms of paras 6 and 7, CASA is authorised to make such
arrangements as may be necessary to ensure that E is safely returned to
the custody of the CAEW and to take such steps as are necessary to ensure
that such arrangements are complied with.
9. Pending the return of E to the UK and for as long as the second applicant
is in the UK, contact between E and the second applicant shall take place
in accordance with the High Court’s Order of 10 September 2020.
10. In the event of the second applicant being present in the RSA for the
purpose provided in para 7, CASA shall liaise with the respondents’ legal
representatives to establish a schedule for contact between E and the
second applicant. Such schedule shall provide for the second applicant’s
enjoyment of contact with E on a daily basis, taking into account E’s daily
activities and any other factors relevant to E’s well-being at the time.
11. Upon E’s arrival in the UK, the second applicant must procure all
appropriate social and medical services to ameliorate E’s return to the UK
and cooperate with any assessment that the Department of Health and
Social Care in the UK may wish to undertake in relation to him and the
welfare of E.
12. Proceedings regarding the determination of parental rights are stayed
pending E’s return to the UK.
13. In the event of either the second respondent or second applicant notifying
CASA, in terms of para 6 or para 7 , CASA shall forthwith give notice
MAJIEDT J
98
thereof to the Registrar of this C ourt, to the CAEW and to the second
respondent and the second applicant. In the event of either the second
respondent or the second applicant making the election provided for in
para 6 or 7 of this order respectively, then the second respondent or the
second applicant, as the case may be, shall provide the Central Authority
with regular information in writing of all logistical and other
arrangements made for the return of E to the UK. This information shall
include, but not be limited, to information rega rding flight dates and
times, and compliance with any passport, visa or health requirements, if
applicable. CASA shall also be entitled to request from either the second
respondent or the second applicant, as the case may be, details of the
arrangements made for the return of E to the UK. Any such request shall
promptly be responded to.
14. A copy of this order shall be transmitted forthwith by the first applicant
to the CAEW.
15. Each party is to bear their own costs in this Court, the Supreme Court
of Appeal and the High Court.





For the First and Second Applicants Ncumisa Mayosi and Khanyisa Ngqata
Instructed by State Attorney, Cape
Town

For the First Respondent Janet L McCurdie SC and Lana C
Bezuidenhout
Instructed by Ross McGarrick
Attorneys, Cape Town