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Family and Divorce law in South Africa - A Comprehensive Guide
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DOMESTIC VIOLENCE AND THE HAGUE CONVENTION.

Domestic Violence in Hague Applications

​Domestic violence within the context of international child abduction cases governed by the Hague Convention (HC) is an intricate and delicate matter that South African courts have been increasingly attentive to. The Domestic Violence Amendment Act 14 of 2021 has provided a comprehensive definition of domestic violence, encompassing various forms of abuse, such as physical, sexual, verbal, emotional, or psychological abuse. This legislative framework sets the stage for how courts should approach allegations of domestic violence when considering the "grave risk" exception under Article 13(b) of the HC.

Balancing the Best Interests of the Child

In the case of L v Ad Hoc Central Authority for the Republic of SA, the court grappled with allegations of sexual misconduct and wrongful removal under Article 3 of the HC. To mitigate any interim prejudice that may arise from the children's return to Thailand, the High Court implemented a multifaceted set of protective measures. These measures aimed to safeguard the children by addressing their residence, maintenance, and access to occupational therapists and psychologists.

The Supreme Court of Appeal (SCA) lauded these protective measures, acknowledging their tailored approach to meeting the specific needs of the children while aligning with the objectives of the HC. Consequently, the SCA dismissed the appeal, underscoring the court's commitment to balancing the objectives of the HC with the paramount need to protect children from potential harm.
Contrasting this approach, the case of Central Authority for the Republic of SA v SC involved allegations of a nomadic lifestyle causing instability and emotional and physical abuse by the father. Despite the presence of a curator ad litem and psychological evidence, the court found it challenging to shape an order that would sufficiently mitigate the prejudice to the children, particularly due to the father's financial instability1. Ultimately, the court prioritized the children's best interests and dismissed the application for their return.

Acknowledging the Role of Domestic Violence

Justice Goldstone in the case of Sonderup emphasised the crucial role that domestic violence plays in inducing mothers to flee to another jurisdiction. He highlighted that even if the violence is not directly aimed at the child, an established pattern of domestic violence could place the child at grave risk of harm under Article 13. This recognition underscores the necessity for a nuanced approach that takes into account the broader context in which the child is situated.

Thorough Examination of Allegations

The literature suggests that courts should conduct a thorough, limited, and expeditious examination of disputed allegations of domestic violence before proceeding to determine the availability of protective measures. This approach is crucial as there is often a gap between the theory of protective measures and their practical implementation in the returning state.
 
Conclusion

In summary, South African courts are adopting a more comprehensive and nuanced approach when dealing with the intersection of domestic violence and international child abduction cases under the HC. They consider the broader context, including the child's safety and the practicability of protective measures, while adhering to the objectives of the HC. This balanced approach aims to ensure that the child's best interests are not compromised, particularly in cases involving allegations of domestic violence.
By addressing the complexities of domestic violence within the framework of Hague applications, South African courts strive to protect the well-being of children while upholding the principles of international law.

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​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities