The application of The Hague Convention when children are removed from overseas and relocate to South Africa without the consent of one partner - The Family Advocate v R (2004/2012) ZAECPEHC 10
This case centered on Articles 8 and 3 of the Hague Convention. In this application there were two children removed by the respondent from the United Kingdom and taken back to South Africa without the consent of the respondent’s husband. The parties at the time of the launching of the application were still legally married, and the two children involved were a 10 year old boy, J, and his 3 year old sister, G.
In terms of Article 8 of the Convention, any person, institution, or body who claims that a child has been removed in breach of “custody rights” (rights relating to the care of the person of the child and, in particular the right to determine the child’s place of residence, as defined in article 5), may apply either to the Central Authority of the child’s habitual residence or the Central Authority of any Contracting State for assistance in securing the return of the child or children concerned.
Article 3 of the Convention deems the removal or retention of a child unlawful where it is in breach of the custody rights as aforesaid, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 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.
In this present case the husband moved to England in 2004, and found employment there as a stonemason. His wife joined him a year later with their son. In 2008 their daughter was born while they all lived together in England. The wife never found employment in England. She moved back to South Africa when she believed that the marriage had broken down irretrievably and claimed that she had been physically and emotionally abused by her husband. In 2012 the application was then brought by the Family Advocate for the return of the children to the United Kingdom.
The respondent claimed that the children could not be returned to the United Kingdom, as they would be exposed to physical and psychological harm or otherwise be placed in an intolerable situation. She relied on Article 13(b) of the Convention.
The Court found that the respondent had indeed acted wrongfully, but they could not find that there should be a return order. The wife and the children had now been living in South Africa for 11 months and 10 days, and the Court found that a return order would be detrimental towards J’s education. The Court also found that the children had a far better support system in South Africa than they had in the United Kingdom.
The Court always has to act in the best interests of the minor children, particularly in matters involving the Convention on the Civil Aspects of International Child Abduction, adopted on 25 October 1980 at the Hague (“the Hague Convention” or “the Convention”) read with the Children’s Act, No 38 of 2005 (“The Children’s Act”).
A costs order in the end was not ordered in favour of the respondent. She wrongfully removed the children without pursuing lawful solutions. For example she claimed that she had been abused, but never sought help from the British Authorities and welfare institutions in this regard. One can never really successfully use abuse as a factor in this kind of matter if you have not at least tried to apply for a protection order against somebody or report that person to the authorities.
article written by Cape Town divorce attorney, Peter M Baker
Child abduction & International Law
Challenging the Family Advocate Report
Considering views of the minor child