Hague Convention case law

A summary of cases

Office of the Central Authority for International Child Abduction
CASE LAW
This is an application brought by the South African Central Authority, represented by the office of the Family Advocate, under the Hague Convention on the Civil Aspects of International Child Abduction, Act 72 of 1996 (the Act) (the Hague Convention). An order is sought that the particular minor child, LS (“l”) be returned forthwith to the jurisdiction of Los Angeles, in the United States of America, and into the care of ‘her father, Mr GG Speeckaert (“the father).
This is an application in terms of the Hague Convention on the Civil Aspects of International Child Abduction (1980) (“the Convention”), as incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (“the Act”), for an order directing the immediate return of the minor child, CI, to the jurisdiction of the Central Authority in Ireland…
Application for return of four year old child under the Hague Convention on the Civil Aspects of International Child Abduction(1980)incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996. Application brought after expiry of one year period provided for in art 12 – delays in bringing the application – whether relevant to calculation of the one year period…
Minor – Abduction – International abduction – Application for return of unlawfully removed or retained child – Defences – Acquiescence – Delay in launching process – Process for return of child launched four months after C removal, after taking legal advice – Delay not inordinate and not amounting to acquiescence – Court obliged to order return of child – Hague Convention on Civil Aspects of International Child Abduction (1980) as incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996, art 13 (a).
Minor – wrongful retention of – Hague Convention on the Civil Aspects of International Child Abduction (1980) – defences – article 13(a) – consent to retention – onus on parent raising the defence – no real or genuine dispute of fact raised on consent issue – expeditiousness essential at all stages of the Convention process, including appeals
Children – International child abduction – Application for return of child – In terms of – Hague Convention on the Civil Aspects of International Child Abduction – Article 13(a) –The court may in the exercise of its discretion, order the return of the child unless the person who opposes its return establishes that the person who seeks the return was not actually exercising custody rights at the time of the removal or retention or had consented to or acquiesced in the removal or retention.
Children – Abduction – Hague Convention on the Civil Aspects if International Child Abduction Act 72 of 1996 – Application by Family Advocate for retun of child to habitual place of residence from whence the child had been unlaufully removed – Court refusing application on ground that there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
A married couple, who were South African citizens, had gone to live in the Netherlands. When the couple became estranged the mother returned to South Africa with their child of three who had been born there but who they had registered as a South African citizen. In this application a Family Advocate, who was joined by the father as the second applicant, sought an order for the return of the child to the Netherlands in terms of the provisions of the Hague Convention on the Civil Aspect of International Child Abduction 1980, which received statutory recognition in the Hague Convention on the International Child Abduction Act 72 of 1996…
The family advocate brought an application against the respondent in terms of the powers and authority conferred upon it in terms of sections 3 and 4 of the Civil Aspects of International Child Abduction Act 72 of 1996, for the return of a minor child to the United Kingdom in terms of article 12 of the Hague Convention on the Civil Aspects of International Child Abduction 1980. The child was that of the second applicant and the respondent. It was common cause that the respondent did not have the second applicant’s consent to remove the child from the United Kingdom where the second applicant had temporary residency status…
Jurisdiction – interim custody order inextricably linked to order that child be returned to South Africa – court not able to enforce return order – no jurisdiction to grant such order
Minor – abduction of – Hague Convention on Civil Aspects of International Child Abduction (1980) – defences – provision in art 13(b) that requested State not bound to order return of child if existence of grave risk of physical or psychological harm, or that child would otherwise be placed in an intolerable situation.
Summary….
This appeal concerns a child, Sofia, who was brought to South Africa from Canada by her mother and kept here in violation of an order of the Supreme Court of British Columbia and against the wishes of her father.  In the High Court, the Family Advocate brought an urgent application seeking an order for the return of Sofia to British Columbia in terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention)
The South Eastern Cape High Court had ordered that ST, a child, be returned to British Columbia, Canada. The order was made pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996, which gives statutory recognition to the Hague Convention on the Civil Aspects of International Child Abduction.
An appeal to the Constitutional Court raised the issues…
Hague Convention on the Civil Aspects of International Child Abduction 1980 – acquiescence by wronged parent
Husband and wife – Divorce – Custody of children – Hague Convention on Civil Aspects of International Child Abduction (1980) – Application of – Application for return of unlawfully removed or retained child in terms of art 13 of Convention as incorporated into South African law in terms of Schedule to Hague Convention on Civil Aspects of International Child Abduction Act 72 of 1996 – Article 13 providing that requested State not bound to return child if opposing party establishing that ‘grave risk’ existed that return of child would expose it ‘to physical or psychological harm or otherwise place the child in an intolerable situation’…
The parties had been divorced in the United States and custody of the parties’ minor son had been awarded to the respondent, the mother, with liberal visitation (access) provisions in favour of the applicant, B the father. Following an incident of alleged abuse during one of the access periods, the respondent had suspended the applicant’s visitation with his son. The applicant had approached the York County Family Court for relief but the respondent had not attended the hearing, having left the state and then the country with the minor child. The applicant finally traced the respondent and the minor child to Cape Town and instituted proceedings for the return of C the child to the United States and into the applicant’s care….
Smith v Smith 1999 JOL 5397 (C)
In this case the father of two very young boys born in the UK brought an application in terms of the Act for the handing over by his estranged wife, the respondent, of the children for the purpose of their returning with him to the UK.
The parties, both South African citizens, travelled to the UK in 1997, ostensibly to settle there and to acquire British citizenship. Two children were born to the respondent in England. Domestic difficulties resulted in the respondent leaving England for South Africa in January 1999, the arrangement being that the respondent and the children would return to the UK after a two month holiday.
Once in South Africa the respondent reneged on the arrangement and, after informing the applicant of her intention not to return to the UK, instituted an action for divorce.  The result was the aforementioned application before the court, which was opposed on the grounds, inter alia, that there was a grave risk of harm to the children if they were returned.
Foxcroft J considered the very narrow issue of the applicability or otherwise of Article  13 of The Hague Convention, relating to a child being subjected to grave risk or exposed to physical or psychological harm or otherwise being placed in an intolerable position if returned to the state of his “habitual residence”.
It was accepted by the court that the parties as well as their children were habitually resident in England, the rationale being that the word “habitual” suggested the passage of a reasonable period of time spent at a particular place and acclimatising, thereto.

The court was concerned about the trauma associated with the relocation of the children, especially if the respondent refused to accompany them.  The court held that it was clearly intolerable for a child under the age of one year to be parted from his mother and that, notwithstanding undertakings from the applicant to alleviate the concerns expressed by the court and the respondent in connection therewith, it was unthinkable to separate them from their mother. The application was accordingly dismissed.

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