Facts of the matter

E was born on 25 August 2014. On 5 October 2018, in contravention of two orders by the courts of Luxembourg, the mother abducted E from Luxembourg, which was her habitual residence, and settled in South Africa.[1]

The mother and the father never married. At the time of E’s birth, they lived in Belgium. During or about July 2015, the mother and children moved to Luxembourg and the father followed seven months later. The parties subsequently separated.[2]

The Juvenile and Guardianship Court of Luxembourg (the “Juvenile Court”) granted an order awarding joint parental authority of E to the mother and the father. It is common cause that this includes rights of custody which, under the Hague Convention, includes rights related to the care of the person of E and, in particular, the right to determine E’s place of residence. At all relevant times, the primary residence of E was with the mother, while the father had rights of visitation and accommodation. The rights of the father were increased steadily in terms of further orders of the Juvenile Court.[3]

The order included calling for a social enquiry and appointing a guardian ad litem for E. The order provided for weekly contact between E and the father and postponed the proceedings. Two important events occurred. First, the mother married a South African man in France. Secondly, she applied for leave to relocate E to South Africa with her, as she had been offered employment. The father filed a conditional counter-application for E’s habitual residence to vest with him if the mother wished to relocate without E.[4]

The mother removed E from Luxembourg and moved to South Africa. The father and the Central Authority[5] contended that the mother’s actions were premeditated and malicious because she knew that the father was to have contact with E.[6]

There is a Central Authority in each country to facilitate the return of abducted children. If a child has been abducted, the aggrieved party should contact the Central Authority in the Department of Justice immediately to set in motion the procedures required in the country to which the child has been abducted.

The Central Authority assists parents unlawfully deprived of parental rights and responsibilities by collecting documentation and transmitting the application form to the foreign Central Authority, arranging translations of all documentation, monitoring the progress of the application, providing further documentation to the competent authority in the foreign country, providing regular updates to the parent deprived of parental rights and responsibilities, and assisting, where appropriate, with an application for legal aid.

The only question on which this appeal was decided is whether the mother has established a defense under article 13(b) of the Hague Convention that 'there is a grave risk that E's return would expose her to physical or psychological harm or otherwise place her in an unbearable position.’

The father filed a Hague Convention application in the Gauteng Division of the High Court in Pretoria, with the help of the first respondent, the Central Authority (Republic of South Africa), seeking an order requiring the mother to return E to Luxembourg. Collis J ordered E's return to Luxembourg, subject to a number of restrictions. This order was challenged by the mother in front of a full bench. Tuchten J upheld the appeal, overturning Collis J's ruling and replacing it with an order dismissing the application, with the approval of Davis and Mokose JJ. The father was then given leave to appeal by this court.

The Supreme Court of Appeal held that the court of first instance was correct to order that E be returned promptly to Luxembourg. All that the court ought to have done, was to correct the protective measures which the court of first instance did not put in place to ameliorate any harm the first respondent might suffer which could translate into grave risk to E.

The Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction[7] is the main civil law instrument for parents seeking their children's return from treaty partner countries.[8] Countries that have signed the Convention have agreed that a child, who was residing in one Convention country, but was taken to or held in another Convention country; in violation of the custodial rights of the parent deprived of parental rights and responsibilities, that child will be quickly returned by the abductor[9] through the aid of the Central Authority. If required, and once the child has been returned, the custody issue can be settled in the courts of the jurisdiction where the child is habitually residing.[10]

The Hague Convention's main goal is to safeguard children from being relocated to a foreign country where the aim of such relocation is to unlawfully deny the other parent of exercising their parental rights and responsibilities over the child. Children who are wrongly transferred from one country to another are deprived of the secure relationships that the Convention aims to restore as quickly as possible.[11]

Article 2 requires contracting countries, being the countries that have ratified the Hague Abduction Convention, to take all necessary steps to carry out the Convention's goals.[12] It is worth noting that, while these goals have a broad appeal, the Convention does not apply to all children who may be the victims of unjust takings or retentions. A threshold inquiry, therefore, is whether the child who has been abducted or retained is subject to the Convention’s provisions. The administrative and judicial mechanisms of the Convention will only apply if the child falls within the scope of the Convention.[13]

In terms of Article 4 of the Convention, only children under the age of sixteen are protected. Even though a child is under the age of sixteen at the time of wrongful removal or retention and when the Convention is invoked, the Convention ceases to apply once the child reaches the age of sixteen.[14] Furthermore, the child must have been "habitually resident in a Contracting country prior to any breakdown of custody or access rights" for the Convention to apply.[15]

Judicial proceedings for the return of children

When a person's parental rights have been infringed upon due to another's improper removal or retention of the child, the aggrieved person can seek the child's return under the Convention. The Convention establishes two means by which the child may be returned. The first is through Articles 12 and 29, which refer to the aggrieved person's direct application to a court in the contracting country where the child was taken or is being held. The other is through Article 8, which refers to each contracting country's submission of an application to the Central Authority. It is worth noting that these remedies aren't mutually exclusive; the aggrieved party can use one or both.

A person opposing the return must show that the applicant's custody rights were not actually exercised at the time of removal or retention, or that the applicant consented to, or acquiesced to the removal or retention. The applicant seeking return, on the other hand, needs to only allege that he/she was actually exercising custody rights conferred by the law of the country in which the child was habitually resident immediately before the removal or retention.

The Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, and without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. Unless the return poses a substantial danger of harm to the child or another person, the child must be quickly returned to his or her habitual residence.

By Fasken Partner and Pro Bono practice group Head Sushila Dhever and Candidate Attorney Thabang Nthatisi

[1] LD v Central Authority (RSA) and Another: Para 6.

[2] LD v Central Authority (RSA) and Another: Para 7.

[3] LD v Central Authority (RSA) and Another: Para 8.

[4] LD v Central Authority (RSA) and Another: Para 9.

[5] An agency designated by a government to facilitate support enforcement with a foreign reciprocating country. Article 6 requires each Contracting Country to designate a Central Authority to discharge the duties enumerated in Articles 7, 9, 10, 11, 15, 21, 26, 27, and 28.

[6] LD v Central Authority (RSA) and Another: Para 11.

[7] The term "abduction" as employed in the Convention is not meant to be taken in a criminal connotation. That term is shorthand for the phrase “wrongful removal or retention”. Wrongful removal, in general, refers to the removal of a child from the person who was legitimately in charge of the child. Wrongful retention, on the other hand, is when a child is kept without the approval of the person who is truly in charge of the child.

[8] The Hague Convention on the Civil Aspects of International Child Abduction: Legal Analysis (extension://elhekieabhbkpmcefcoobjddigjcaadp/viewer.html?pdfurl=https%3A%2F%2Ftravel.state.gov%2Fcontent%2Fdam%2Fchildabduction%2FLegal_Analysis_of_the_Convention.pdf&clen=780135&chunk=true).

[9] The term "abductor" as used in this analysis refers to the person alleged to have wrongfully removed or retained a child.  This person is also referred to as the "alleged wrongdoer" or the "respondent."

[10] The Hague Convention on the Civil Aspects of International Child Abduction: Legal Analysis (extension://elhekieabhbkpmcefcoobjddigjcaadp/viewer.html?pdfurl=https%3A%2F%2Ftravel.state.gov%2Fcontent%2Fdam%2Fchildabduction%2FLegal_Analysis_of_the_Convention.pdf&clen=780135&chunk=true).

[11] Todd JA 1995 (2) “The Hague Convention on the Civil Aspects of International Child Abduction: Are the Convention’s goals being achieved?”: pages 554-555.

[12] The Hague Convention: Articles 1(1) and (2).

[13] The Hague Convention on the Civil Aspects of International Child Abduction: Legal Analysis (extension://elhekieabhbkpmcefcoobjddigjcaadp/viewer.html?pdfurl=https%3A%2F%2Ftravel.state.gov%2Fcontent%2Fdam%2Fchildabduction%2FLegal_Analysis_of_the_Convention.pdf&clen=780135&chunk=true).

[14] The Hague Convention on the Civil Aspects of International Child Abduction: Legal Analysis (extension://elhekieabhbkpmcefcoobjddigjcaadp/viewer.html?pdfurl=https%3A%2F%2Ftravel.state.gov%2Fcontent%2Fdam%2Fchildabduction%2FLegal_Analysis_of_the_Convention.pdf&clen=780135&chunk=true).

[15] The Hague Convention: Article 4.