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International Law - the Hague Convention (Civil Aspects of International Child Abduction 1980) - as applied in instances of the removal of a minor child without consent - N F v M C (17845/2012) [2012] ZAWCHC 198

The case of NF v MC was recently heard in the Cape High Court on 15 and 19 November 2012 before Judge JI Cloete. The applicant was a US citizen. The respondent was a South African citizen who resided in Camps Bay, Cape Town. The parties wished to move to the USA permanently, and consulted a US immigration lawyer.

A child, M, was born in the USA on 10 May 2012. She developed symptoms and was diagnosed in the first week of her life with Gastro-Oesophageal Reflux Disease (“GORD”), an extremely rare condition that includes severe projectile vomiting episodes through the nose and mouth, inability to breathe, inability to lie flat, a hoarse voice from oesophagitis and back pain. The respondent's application states that M was returned to South Africa because of her medical condition.

The father brought an application against the mother in terms of the Hague Convention of the Civil Aspects of International Child Abduction 1980 for the return of the child, M, who was then 6 months, to Atlanta in the United States of America. The applicant also sought an order that he or an appointee be granted leave to remove M from the respondent’s care and to return her to the USA.

The applicant’s case was based on the allegation that he did not consent to M residing in South Africa beyond 29 December 2012 and that M had been wrongfully retained by the respondent if she was not returned to the USA by that date within the meaning of articles 3 and 12 of the Hague Convention.

Article 3 provides that:

“The removal or the retention of a child is to be considered wrongful where-

  1. 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
  1. At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph (a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”

Article 12 provides inter alia that where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of the proceedings for this child’s return, a period of less than one year has elapsed from the date of the wrongful removal or retention, the judicial or administrative authority of the contracting State concerned shall order the return of the child forthwith.

The Court in the end found that the applicant’s argument that there was an express agreement that M would return to the USA on 29 December 2012 was without merit. The Court found that more weight should have been attached to the express communications and conduct of the applicant in order to infer consent than to his subsequent evidence as to what he now claims was his state of mind.

The end result was that the application brought by the father was dismissed with costs, and such costs were to be paid on the scale as between party and party as taxed or agreed.

In the case the respondent’s counsel submitted that the applicant’s assertions of abduction were patently false. The Court agreed with the respondent’s counsel that the allegations made had far-reaching consequences for the respondent. This case is another interesting case involving international law and removal of the minor child. These cases are happening quite often these days as the world is becoming a smaller place where people move from country to country.

article written by Cape Town divorce attorney, Peter M Baker

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