The respondent married Mr “A” on 19 July 1997, and a child was born of the marriage on 2 June 2009. On 26 November 2013, the respondent and the child left Australia with the consent of Mr “A” to visit the respondent’s ailing father in South Africa. The respondent was due to go back to Australia with the child on 7 January 2014. Nevertheless, on being informed by her husband that he no longer desired to be married to her, the respondent made the decision to stay in South Africa with her child. Mr “A” then authorised the Central Authority of Australia to request the applicant (the Central Authority for the Republic of South Africa) to initiate the present proceedings. The applicant applied for an order against the respondent, for the return of her child to Australia. The order sought is in terms of Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
The respondent raised both defenses permitted in article 13. In terms of 13(a) of the Convention she contended that her husband had consented or acquiesced expressly, alternatively tacitly to her removing and keeping the child in South Africa. In terms of 13(b), she stated that it would be a grave risk to expose the child to physical and psychological harm or place her in an excruciating situation if the order were to be granted for her return to Australia.
Held that the aim of the Convention is to protect children internationally from the damaging effects of their unlawful removal or retention and to guarantee their quick return to the state of their habitual residence out of deference for the integrity of the laws of that state. It is also premised on the concept that the best interest of the child is to be returned to their habitual residence. It is then up to the authority in the state of habitual residence to decide access and custody. Article 12 provides for the application to be brought not more than a year after the child has been removed from its habitual residence. If it is brought more than a year later the judicial authority may not order the return of the child if it is shown that the child is settled in its new environment. The rationale underpinning this provision is that it would be disruptive to return a child who has settled in its residence.
In this case, the child had now lived in South Africa for more than a year. Consequently she had settled well at school and in the home she shared with the respondent and her parents. A social worker engaged to report on her circumstances and the curator who represented her in the proceedings confirmed that she was well adjusted to her life in South Africa. Although that was dispositive of the matter, the Court also considered the respondent’s defences, and found them to have merit.
The application was dismissed.
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Bertus Preller is a Family Law and Divorce Law Attorney in Cape Town.