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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1)        REPORTABLE: NO

(2)        OF INTEREST TO OTHER JUDGES: NO

(3)        REVISED: NO

Date:    11 October 2021

CASE NO: 43352/21

 

In the matter between:

THE CENTRAL AUTHORITY OF

THE REPUBLIC OF SOUTH AFRICA                                                        1^ST APPLICANT

MARIUS VAN ENGELENHOVEN                                                              2^ND APPLICANT 

and

MICHELLE VAN ENGELENHOVEN                                                         RESPONDENT

ADVOCATE M STEENEKAMP                                                                  INTERVENING PARTY

(In her capacity as the minor children's

Legal representative)

 

JUDGMENT

Van der Schyff J

 

Introduction

 

[1]          The second applicant, the respondent, and their five minor children relocated to Germany during February 2019. The children are C (15 years old), M (13 years old), L (10 years old), Z (7 years old) and R (4 years old). A dispute of fact exists as to whether the second applicant and respondent intended to emigrate to and settle in Germany permanently, or whether they intended to relocate but keep the option open to return if things did not work out in Germany. On 16 October 2020, and in order to visit her ill father for two weeks, the respondent and the five minor children returned to South Africa. It is common cause that return flight tickets were purchased prior to the respondent and the children’s departure from Germany, although it is disputed as to whether the second applicant or the respondent’s father purchased the tickets. On 30 October 2020, the respondent informed the second applicant that she did not intend to return with the children to Germany. After a failed attempt to negotiate the respondent and children's return, the second applicant approached the first applicant to facilitate the children's return to Germany in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 ('the Convention') during May 2020.

 

[2]          The application was issued on 27 August 2021. At the first case management meeting, the parties agreed to Advocate M Steenekamp joining the proceedings as an intervening party in her capacity as the children's appointed legal representative.

 

[3]          Because the children voiced their objection to returning to Germany, and because it was despite attempts by all concerned not practically possible to obtain the services of a clinical psychologist as a matter of urgency, I issued an order on 16 September 2021 requesting the Principal Family Advocate, Gauteng, to nominate and appoint an experienced Family Counsellor who  (i) is registered as a social worker; (ii) would be able to communicate with the minor children in their home language; and (iii) is not employed at the Pretoria Office of the Family Advocate,[1] to investigate the alleged objections raised by the minor children in resisting being returned to Germany. The following directive was issued regarding the scope of the investigation to be conducted by the Family Counsellor:

 

                      i.        The investigation is to be narrowly defined in respect of each individual child and should be focused only on the following-

                    ii.        Whether the minor child is of a sufficient age, maturity, and stage of development to hold an independent and informed view regarding being returned to Germany;

                   iii.        Whether the child objects to return to Germany, and if so:

a.                The basis for the child's objection;

b.                Whether such objection may dissipate once the child returns to Germany;

c.                Whether the objection may dissipate if the respondent returns to Germany with the minor children subject thereto that the second applicant provides suitable alternative accommodation to the respondent and the minor children;

d.                Whether, on the information acquired, the Family Counsellor can express an opinion as to whether there is a grave risk that the minor child will be placed in an intolerable situation if he or she is returned to Germany, and if so, the factual basis for the opinion;

e.                Whether, on the information acquired, the Family Counsellor can express an opinion as to whether there is a grave risk that the child will suffer psychological harm if ordered to return to Germany, and if so, the factual basis for the opinion;

f.                 Whether, on the information acquired, the Family Counsellor can express an opinion as to whether there is a grave risk that the child will suffer physical harm if ordered to return to Germany, and if so, the factual basis for such opinion;

                   iv.        To what extent the child was, in his or her view, integrated into life in general in Germany, and the basis for such view, if any.

The investigation was only to involve the minor children. Neither the second applicant nor the respondent was to be interviewed, and the respondent was not to be present when the children were interviewed. The family counsellor was to be provided only with the Notice of Motion without any affidavits, and the children's legal representative's report. The parties were provided the opportunity to supplement their papers within two court days after receipt of the Family Counsellor's report. Neither of the parties utilised this opportunity.

 

The Hague Convention on the Civil Aspects of International Child Abduction ('the Convention')

 

[4]          The application is premised on article 12 of the Convention. Article 12 provides that:

 

'Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.'

 

[5]          Article 12 can, however, not be read and applied in isolation. From the preamble to the Convention, it is evident that the Convention has its genesis in the signatories' desire to protect children from the harmful effect of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. The states signatories to the Convention resolved to conclude the Convention and have agreed on the provisions of the Convention because they were:

 

'Firmly convinced that the interests of children are of paramount importance in matters relating to their custody.'

 

Against this backdrop the objects of the Convention are:

 

'a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State;

and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.'

 

[6]          In Sonderup v Tondelli and Another,[2] the Constitutional Court explained the purpose of the Convention:

 

'… the Convention seeks to ensure that custody issues are determined by the court in the best position to do so by reason of the relationship between its jurisdiction and the child. That Court will have access to the facts relevant to the determination of custody.'

 

[7]          The recognition of the child's interests as paramount when applications in terms of the Convention are considered, is echoed in the Children’s Act, 38 of 2005 ('the Children's Act' or 'the act'). Chapter 17 of the Children's Act is dedicated to give effect to the Convention and to combat parental child abduction. Section 275 provides that the Convention is in force in the Republic and that its provisions are law in the Republic, subject to the important proviso that the Convention's provisions are subject to the provisions of the Children's Act. The importance and relevance of this proviso are that in determining this application, this court remains statutorily obliged to in terms of s 6 to, amongst others:

 

'(2)(a) respect, protect, promote and fulfil the child's rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;

(b) respect the child's inherent dignity;

(c) treat the child fairly and equitably....'

 

Section 7 of the Children's Act is relevant as it sets out the factors to be considered when a court is required to determine the best interest of the child standard.

 

[8]          The Constitutional Court confirmed in Sonderup, supra[3] that:

 

'The paramountcy of the best interests of the child must inform our understanding of the exemptions without undermining the integrity of the Convention. The absence of a provision such as s 28(2) of the Constitution in other jurisdictions might well require special care to be taken in applying dicta of foreign courts where the provisions of the Convention might have been applied in a narrow and mechanical fashion.'

            Notwithstanding, comity between state parties need to be respected and upheld, and Goldstone J held:

            ‘A South African court seized with an application under the Convention is obliged to place in the balance the desirability, in the interests of the child, of the appropriate court retaining its jurisdiction, on the one hand, and the likelihood of undermining the best interests of the child by ordering her or his return to the jurisdiction of that court. As appears below, the court ordering the return of a child under the Convention would be able to impose substantial conditions designed to mitigate the interim prejudice to such child caused by a court ordered return. The ameliorative effect of art 13, an appropriate application of the Convention by the court, and the ability to shape a protective order, ensure a limitation that is narrowly tailored to achieve the important purposes of the Convention. It goes no further than is necessary to achieve this objective, and the means employed by the Convention are proportional to the ends it seeks to attain.'

 

[9]          When an application for the return of a child is considered in terms of article 12 of the Convention, and in the context of the child's interest in matters relating to their custody being paramount, a court is obliged to keep in mind that:

                      i.        The removal or retention of a child is to be considered wrongful where:

'a)   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

b)   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';[4]

 

                    ii.        The Convention applies only to a child who was habitually resident in a Contracting State immediately before the breach of custody or access rights and ceases to apply when a child attains the age of 16;[5]

 

                   iii.        Despite article 12 providing that a court must 'forthwith' order the return of a child if the proceedings for the child's return is commenced with within one year of the child's wrongful removal or retention, article 13 provides that:

'the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a)     the person, institution, or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or

b)     there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.'

                   iv.        After receiving a notice of wrongful removal or retention, the court is not to decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention,[6] and a decision under this Convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue;[7]

 

                    v.        The child's return may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.[8]

 

[10]       Since the Convention only applies to a child who was habitually resident in a Contracting State immediately before any breach of custody or access rights, the first question to be determined is whether the children were habitually resident at Rosenstrasse 15, Hütschenhausen, Germany, before the alleged breach of custody and access rights occurred. Only if this question is answered affirmatively need the question of whether the children were wrongfully removed from their habitual residence be considered. If the second question is also answered in the affirmative, the final aspects that need to be determined are (i) whether there is a grave risk that the children will be exposed to physical or psychological harm, or (ii) whether the children will otherwise be placed in an intolerable situation if it is ordered that they return.

 

[11]       Having identified the primary issues to be determined, it is significant to note that article 13 provides that when it is found that a child who objects to being returned has attained an age and degree of maturity at which it is appropriate for the court to take account of the child's views, such objection on its own may constitute sufficient grounds to refuse to order the return of the child. Since the age of the five minor children concerned varies broadly between fifteen years and four years, I am of the view that the primary issues need to be addressed first to the extent that the factual findings require each of the three questions to be dealt with, before the aspects contained in article 13 are addressed.

 

[12]       In order to secure the return of a child in terms of the Convention the onus rests on the applicant to prove that the child was habitually resident in the requesting state prior to its wrongful removal or retention. The onus of resisting the return of the children relying on the provisions of article 13 of the Convention rests on the respondent to prove. In both instances the respective parties must prove the relevant elements on a balance of probabilities.[9]

 

Were the children habitually resident in Germany when they returned to South Africa in October 2020?

 

[13]       The term 'habitual residence' is not defined in the Convention. Erasmus J held in Senior Family Advocate, Cape Town and Another v Houtman,[10] that the fact that there is 'no objective temporal baseline' on which to base a definition of habitual residence requires that close attention be paid to subjective intent when evaluating an individual's habitual residence. The learned judge held with reference to the 'Explanatory Report on the 1980 HCCH Child Abduction Convention' by E Pèrez-Vera, 1982, that:

 

‘When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed. The word 'habitual' implies a stable territorial link; this may be achieved through length of stay or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgments have established that a possible prerequisite for 'habitual residence' is some 'degree of settled purpose’ or 'intention'.[11]

 

[14]       Relying on foreign case law, the learned judge explained:

 

‘A settled intention or settled purpose is clearly one which will not be temporary. However, 'it is not something to be searched for under a microscope. If it is there at all it will stand out clearly as a matter of general impression.’ Where there is no written agreement between the parties and where the period of residence fails to indicate incontrovertibly that it is habitual, it is accepted that the Court may look at the intentions of the person concerned. In practice, however, it is often impossible to make a distinction between the habitual residence of a young child and that of its custodians - it cannot reasonably be expected that a young child would have the capacity or intention to acquire a separate habitual residence. In Re F (A Minor) (Child Abduction)  [1992] 1 FLR 548 at 551 Butler-Sloss J stated 'a young child cannot acquire habitual residence in isolation from those who care for him.' Consequently,  

 'although it is the habitual residence of the child that must be determined, the desires and actions of the parents cannot be ignored. . . . The concept of habitual residence must . . . entail some element of voluntariness and purposeful design.'

It then becomes necessary to analyse the parents' shared intentions regarding the child's residence. Where there is contrary expressed parental intent, as in this instance, it then becomes necessary to determine whether the child has a factual connection to the state, and knows something of it, culturally, socially and linguistically.’ (Footnotes omitted).[12]

 

[15]       Opperman J explained in CB v LC that:[13]

 

‘Three basic models of determining habitual residence of a child have developed from judicial interpretation of habitual residence, namely the dependency model, the parental-rights model and the child-centred model. In terms of the dependency model, a child acquires the habitual residence of his or her custodians whether or not the child independently satisfies the criteria for acquisition of habitual residence in that country. The parental-rights model proposes that habitual residence should be determined by the parent who has the right to determine where the child lives, irrespective of where the child actually lives. Where both parents have the right to determine where the child should live, neither may change the child's habitual residence without the consent of the other. In terms of the child-centred model, the habitual residence of a child depends on the child's connections or intentions, and the child's habitual residence is defined as the place where the child has been physically present for an amount of time sufficient to form social, cultural, linguistic and other connections. South African courts have adopted a hybrid of the models in determining habitual residence of children. It appears to be based upon the life experiences of the child and the intentions of the parents of the dependent child. The life experiences of the child include enquiries into whether the child has established a stable territorial link or whether the child has a factual connection to the state and knows something culturally, socially and linguistically. With very young children the habitual residence of the child is usually that of the custodian parent.’ (Footnotes omitted).

 

[16]       A comparative perspective regarding the interpretation of the meaning attributed to, and determination of habitual residence is beneficial. In an informative article by Holley C,[14] reference is made to the fact that the Court of Justice of the European Union (CJEU) established in Mecredi v Chaffe[15] that a child’s habitual residence ‘corresponds to the place which reflects some degree of integration by the child in a social and family environment.’ The Court elaborated:

 

‘An infant necessarily shares the social and family environment of the circle of people on whom he or she is dependent. Consequently, where ... the infant is in fact looked after by her mother, it is necessary to assess the mother's integration in her social and family environment. In that regard, the tests stated in the court's case law, such as the reasons for the move by the child's mother to another member state, the languages known to the mother or again her geographic and family origins may become relevant. (para 55)’

            The Court added:

‘.. in order to distinguish habitual residence from mere temporary presence, the former must as a general rule have a certain duration which reflects an adequate degree of permanence. However, the Regulation does not lay down any minimum duration. Before habitual residence can be transferred to the host state, it is of paramount importance that the person concerned has it in mind to establish there the permanent or habitual centre of his interests, with the intention that it should be of a lasting character. Accordingly, the duration of a stay can serve only as an indicator in the assessment of the permanence of the residence, and that assessment must be carried out in the light of all the circumstances of fact specific to the individual case’

 

[17]       The UK Supreme Court held in AR v RN[16] that parental intention is relevant but not determinative in establishing habitual residence. The Court held in para [17] of its judgment:

 

‘As Lady Hale observed at para 54 of A v A, habitual residence is therefore a question of fact. It requires an evaluation of all relevant circumstances. It focuses upon the situation of the child, with the purposes and intentions of the parents being merely among the relevant factors. It is necessary to assess the degree of integration of the child into a social and family environment in the country in question. The social and family environment of an infant or young child is shared with those (whether parents or others) on whom she is dependent. Hence it is necessary, in such a case, to assess the integration of that person or persons in the social and family environment of the country concerned. The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce. ‘

 

[18]       The Supreme Court of the United States referred to AR v RN when it held in 2019 in Monasky v Taglieri.[17] important principles confirmed in this case are that:

 

                      i.        The Convention does not define ‘habitual residence’, but, as the Convention’s text and explanatory report indicate, a child habitually resides where she is at home. This fact-driven inquiry must be ‘sensitive to the unique circumstances of the case and informed by common sense.’

                    ii.        Acclimation of older children and the intentions and circumstances of caregiving parents are relevant considerations, but no single fact is dispositive across all cases. The treaty’s ‘negotiation and drafting history’ corroborates that habitual residence depends on the specific circumstances of the particular case.

                   iii.        Where a caregiving parent is coerced into remaining in a certain country, this should be taken into consideration in the determination of a child’s habitual residence.

 

[19]       National and foreign case law emphasise that a child’s habitual residence is determined by reference to the circumstances of each case.[18] It is a question of fact and depends on the totality of the circumstances specific to the case. It focuses on the situation of the child, with the purposes and intentions of the parents among the relevant factors for consideration. The physical presence of the child in a geographical area, the duration of the stay, the reasons therefore, the parents’ intention to settle with the child where that intention is manifested by tangible steps, and the degree of integration or acclimatization to the new environment are collectively to be considered when a child’s habitual residence is determined. Where a dispute of facts exists, the well-known Plascon Evans rule is to be applied.[19]

 

A facts-based analysis

[20]       If the duration of a child’s presence in a contracting state was the sole determinant factor for determining habitual residence, this would have been the end of the enquiry regarding the children’s habitual residence. It is common cause that the respondent and the children were resident in Germany for a period of one year and 8 months before they left to visit her parents in South Africa. This is a substantial period of time and affords substance to the second applicant’s case that the children were habitually resident in Germany.  

 

[21]       The respondent, however, maintains that she and the minor children did not reside in Germany out of their own free will and would have relocated if they were afforded the opportunity to do so. The High Court of England held in B v H (Habitual Residence: Wardship) [2002] 1 FLR 388, that where a mother and minor children were coerced under false pretences to leave England and travel to Bangladesh, and then prevented to return because, inter alia, their traveling documentation was confiscated by the father, the father’s unilateral decision did not cause the children’s habitual residence in England to be lost. The principle set in this judgment is sound. It is indicative that the duration of the stay in the contracting state is not the sole determinant factor in determining habitual residence and necessitates a detailed analysis of the facts with which this court is presented in the present application.

 

[22]       The respondent’s denial that she and the minor children were habitually resident in Germany needs to be evaluated in the factual matrix provided by the evidence before the court, as contained in the parties’ affidavits.

 

[23]       It is common cause that the parties agreed that the second applicant seek employment abroad. He unsuccessfully applied to various English-speaking countries and expanded his search. He eventually obtained employment in Germany. The parties sold their household furniture and items in South Africa (the evidence does not indicate that the parties owned any immovable assets).

 

[24]       The second applicant stated that:

 

                      i.        The emigration process’ appeared to have been conducted inter alia by virtue of the fact that he and the children had Dutch passports;

                    ii.        The family emigrated during February 2019, the second applicant refers in a letter to the respondent the parties ‘registered as residents’ when they moved to Germany (although no formal documentation confirming the as much, or shedding any light on the emigration process, were attached);

                   iii.        The children C, M, L and Z were registered at a school;

                   iv.        The second applicant and the respondent had a ‘clear intention’ to be habitually resident in Germany.

 

[25]       The aspect of the family’s alleged inability to integrate into the German community is addressed in the founding affidavit, and the second applicant attributes it to the fact that the respondent stopped taking her anti-depression medication in June 2019. He states that the respondent became more depressed and anxious as a result hereof and he arranged for her to consult with a psychiatrist in Germany. Shortly before attending the appointment the respondent indicated that she was not prepared to attend the appointment. The respondent, in answer, confirms that she stopped taking the depression medication during May 2019. However, she denies that she was depressed as a result of ‘tapering down on medication.’ She is silent, however, on the issue as to whether the second applicant arranged for her to see a psychiatrist and her subsequent refusal, and in applying the Plascon Evans rule the second applicant’s version in this regard must be accepted.

 

[26]       In the answering affidavit, the respondent alleges that:

 

                      i.        She initially supported the second applicant in seeking employment abroad and that the aim for relocating was to attempt to create a better life, specifically for the children;

                    ii.        The parties first wanted to relocate to Canada because it was an English- speaking country, but an opportunity arose for the second applicant to obtain employment in Germany;

                   iii.        She voiced her concerns about moving to a country where neither she, nor the second applicant nor the children could speak the language;

                   iv.        She accepted the fact that the second applicant did not find employment in an English-speaking country reluctantly, but was willing to see how Germany treated the family;

                    v.        The children did not particularly want to move to Germany and the eldest child, C, ‘was not happy with the move at all’;

                   vi.        She ‘resided in Germany with the intention of determining if the family could adapt or not, and at all times reserved the right to relocate’ if they could not adapt;

                  vii.        She (and the children) believed that it was the understanding of everyone that they as a family would ‘try out’ Germany and see how it goes. ‘It was most definitely not set in stone that the family had to reside in Germany forever’;

                 viii.        When she arrived in South Africa with the children and saw the positive change in her children, she made the ‘final decision’ not to send the children back to Germany;

                   ix.         All the children except the youngest attended school in Germany.

                    x.        Within three months of the family moving to Germany, C, started complaining that she was struggling to adapt and pleaded with the second applicant to consider having the family return to South Africa;

                   xi.        The living conditions were difficult. After an initial stay in a bed-and-breakfast facility, the family rented a two-bedroom apartment with one bathroom and a living area in the same building. One bedroom was temporarily closed for about a month to be renovated. Until their departure their sons slept in the living area;

                  xii.        The family lived solitary lives and rarely left the house for day trips or outings or to travel around Germany.

 

[27]       The respondent further states that she was emotionally bullied and abused by the second applicant. He adopted a ‘totalitarian’ stance and insisted that the children and she always obtain his permission to go anywhere even a play park. When she wanted to take the car keys, she had to explain to the second applicant why she was leaving the house. She provided an example where the second applicant refused the family to visit Paris because they ‘misbehaved’ while visiting his brother in the Netherlands during a visit.  In reply, the second applicant does not specifically deal with this averment except for denying that he controlled, bullied and abused the respondent and minor children and adding that the respondent had a bank card linked to the parties joint’ account.

 

[28]       The respondent denies that the children successfully integrated into the German lifestyle. She explains that C, then 14, presented with signs of depression as early on as three months after moving to Germany. The second applicant informed C that if the family could not adapt, they could always sell their belongings and return to South Africa and requested C to put some effort into adapting. From the 6^th month in Germany C expressed suicidal intentions to the second applicant who was dismissive thereof. Although the second applicant denies in reply that C showed signs of depression or that she had a discussion with him where he assured her that she could return to South Africa if the family could not adapt, he states that the respondent made no effort to encourage the minor children to accept their home life and conditions in Germany but attempted to ‘align the minor children with her personal desire to return.’ The second applicant avers that he encouraged the minor children to adjust to their life in Germany, but it needs to be mentioned that there is no inkling on the papers as to how he attempted to assist them to adapt, or to integrate into the German environment. He conceded the respondent’s requests to return to South Africa and that (at least some) of the children wanted to return to South Africa. However, he attributes the children’s request to return to the respondent’s expressed desire to return and her manipulation of the children. Although the second applicant denies in reply that he forbade the minors to pray, the averment to which he replied was that he forbade them to ‘pray for South Africa or to pray for their return to South Africa’.

 

[29]       I do not consider it necessary to traverse all the factual issues in dispute. The second applicant portrays a picture of a family having moved from South Africa with the intention to settle permanently in Germany. On the respondent’s version the family decided to ‘give it a go’ but to keep the backdoor open, in the event that the family could not adapt. Although the evidence does not indicate that the parties expressly agreed to the duration of a trial period, the facts that they sold their belongings in South Africa, enrolled the eldest four children in school and the eldest three for German-language classes, opened a joint bank account, obtained the necessary authorisation to drive a vehicle, and registered as residents, do not only support a finding that they had the intention to settle permanently. These facts and circumstances with equal force, allow for a finding that it all amounted to nothing more than to ‘give it a go’.

 

[30]       Opperman J referred in CB v LC to the work of Brigitte Clark in which it is explained that habitual residence may be lost when a person leaves a country with a settled intention not to return, but that there is a significant difference between ceasing to be habitually resident in a country and acquiring habitual residence in a new country. The intention to give Germany ‘a chance’ does not establish an intention to settle. The second applicant, however, was habitually resident in Germany.

 

[31]       Since article 4 provides that the Convention shall apply ‘to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights’ occurred, the finding relating to the parties’ respective intention to relocate to Germany with an intention to settle permanently or ‘to give it a go’, is not the only factor to consider in determining whether the children were habitually resident in Germany. As alluded to above, it is a factor to be considered. With the exception of M, there is no evidence to support a finding that the children established any additional territorial link with Germany, save for the fact that their parents were resident in Germany, and their enrolment in a school. Despite being resident in Germany for a period of 19 months the children were not yet in command of the German language, which had a profound and prejudicial impact on their ability to socialise and integrate into society. Except for the strained relationship between the children and the second applicant and their relationship with the respondent there is no evidence of social connections or interaction with any other people, visits to friends, excursions exploring the new environment, or participation in communal or religious activities, except for M referencing that he had two friends. In addition to laying the blame for the lack of integration at the respondent’s door, the second applicant attributes the lack of integration to the restrictive conditions inevitably brought about by the global COVID pandemic. Counsel for the respondent submitted that the effect of COVID should be ignored when the children’s lack of integration in the German environment is considered. I disagree. COVID created a barrier to human interaction. The profound effect it would have had on the children’s ability to integrate cannot be laid at the second applicant’s door, but the factual reality that it negatively affected and even prevented the children’s integration into society, cannot be ignored.

 

[32]       The present matter is unique in that the application relates to five children of markedly different ages. The evidence indicates that C objected to moving to Germany even before the family left South Africa. This objection, her age when the family relocated, her undisputed continued insistence to return to South Africa and the fact that the evidence does not prove that she acclimated to her surrounding, are indicative that although she had no choice but to live in Germany, Germany cannot be regarded to be her habitual residence. C did not cut emotional ties with South Africa.

 

[33]       It seems as if M is the only child who started to find his feet, despite his struggle with the German language and being subjected to being bullied. He succeeded in making two friends, American, whom he visited frequently in an attempt to escape the toxic atmosphere at home. There is also no indication that he experienced the same anxiety as his brother, L, regarding integration into the school, or that he like C did, objected to moving to Germany like C. Considering the duration of his stay in Germany, the fact that he ordinarily resided there and started to develop ties within the community, M is regarded to have established habitual residence in Germany.

 

[34]       The evidence does not indicate that L integrated in or acclimated to the new environment. Considering, however, that L was barely 8 years of age when the family left South Africa, and in the absence of any continued ties with South Africa, the only logical deduction is that his habitual residence was linked to his parents’ habitual residence. Although the evidence does not indicate that the respondent acquired habitual residence in Germany after leaving South Africa, her intention to leave South Africa was sufficiently permanent to lose habitual residence in South Africa. The second applicant acquired habitual residence in Germany. A child cannot be regarded to be without a habitual residence. Due to their young ages, and in light of the fact that the respondent lost her habitual residence in South Africa due to the intention to relocate but has not since acquired a subsequent habitual residence before leaving Germany with the children, L, Z and R are considered to have followed the habitual residence of their father, the second applicant.

 

[35]       It is the respondent’s evidence that she decided to remain in South Africa only after she arrived in the country when she and the children visited her parents. Counsel for the respondent argued, that when she decided to remain in South Africa, she acquired habitual residence in South Africa. This might be so, but a change in habitual residence that coincides with the removal or retention of children is of no concern in applications of this nature.

 

[36]       It is accordingly my finding that M, L, Z and R were habitually resident in Germany at the time they left Germany with their mother to visit family in South Africa.

 

Were the minor children wrongfully removed or retained in South Africa?

 

[37]       It is common cause that when the respondent and the children left Germany, the second applicant was under the impression that they would return after two weeks.  It is likewise common cause that the respondent unilaterally, and without having regard to the second applicant’s parental rights, decided not to return to Germany with the children. There is no merit in the contention that the second applicant was not exercising his parental rights and responsibilities or custodial rights at the time that the respondent left Germany. He provided for the family, the family lived in one residence, they shared meals, he participated in transporting the children to school, and based on the video clip attached to the papers by the respondent, he shared a bed with the respondent.

 

[38]       The respondent, undoubtedly aggrieved by the second applicant’s failure to share her view that they ought to return, and desperate due to her failed attempt to engage the chancellor of Germany in her plight, resorted to self-help when the opportune moment arose. The Convention is primarily aimed at deterring self-help and provides for the immediate return of children in such circumstances. The remedy against self-help, although intended to have a deterrent effect, is subject to several exceptions for reasons that are self-evident, if regard is had to the question as to ‘what sacrifices society can morally expect from an individual child for purposes of benefitting the greater good, e.g. generally deterring abduction’.[20]

 

 Exceptions to the remedy of immediate return.

[39]       Article 13(b) of the Convention provides that a court need not return a child if the return would pose ‘a grave risk that … would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’. In considering the defences a court should guard against forcing a child to endure enormous distress and hardship as the process plays out.

 

[40]       It is significant to note that the phrase ‘intolerable situation’ was added to the 1980 Convention to deal with exceptional cases where a court could not find a grave risk of harm to the child, but where returning the child would have been ‘absurd as a procedural matter’. [21] Weiner,[22] quoted the notes of the drafting session where it is recorded:

‘[I]t was necessary to add the words “or otherwise place the child in an intolerable situation” since there were many situations not covered by the concept of “physical and psychological harm.” For example, where one spouse was subject to threats and violence at the hands of the other and forced to flee the matrimonial home, it could be argued that the child suffered no physical or psychological harm, although it was clearly exposed to an intolerable situation.’

[41]       Weiner highlights that at the Fifth Meeting of the ‘Special Commission to Review the Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and the Practical Implementation of the Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children’, in a report summarising the proceedings it is noted that experts-

 

‘emphasised that the concept ‘intolerable situation’ which was included in article 13 of the Convention to address those situations where the return of a child would not necessarily create a grave risk, but where it would still be inappropriate to order the return.’

 

[42]       The ‘intolerable situation’ defence is thus to be regarded as a separate defence to the Convention’s remedy of return. It is not to be assumed to be coextensive with the ‘grave risk of harm’ - defence.

 

[43]       It is common cause that four of the children (C, M, L, Z) raised objections to be returned to Germany. The children’s legal representative filed a report with this court at the first case management meeting where the intervention application was granted by agreement between all the parties. A family counsellor was subsequently appointed to consult with the children to determine whether the respective children have attained ‘an age and degree of maturity at which it is appropriate to take account of their views’. This court is enjoined to obtain and consider the children’s views and their motivation in support thereof.

 

 

(i)           The children’s legal representative’s report

 

[44]       Advocate Steenekamp reports that the children did not identify with Germany as their country of habitual residence. Their experience was that of a hostile country which was exasperated by the language problems I have referred to, which inevitably resulted in isolation. The children experienced difficulties in making friends, L was bullied, and he felt like an outcast. They struggled to adjust at school. They experienced feelings of helplessness and resentment. During her discussion with the children, C and M raised concerning, and alarming remarks pertaining to suicide. Where C already experienced feelings of suicide whilst in Germany, L voiced that should he be returned, they might as well bury him in a shallow grave and throw sand over him until he suffocates. C, M, L, and Z raised incidents of assault by the second applicant, either experienced or witnessed by them respectively. It should be noted at this point that the incidents referred to related to the second applicant slapping C through the face on two occasions, pinning her to the bed with his knee, pushing M against the wall with his hands around M’s throat, and administered corporeal punishment to the boys. C, M and L also indicated that they have now settled in South Africa and do not want to move back to Germany.

 

[45]       The second applicant denies that he assaulted his children but readily concedes that he resorted to corporeal punishment. It has already been held by the courts of this country that corporeal punishment has no place in a constitutional state, and I will not elaborate further on this aspect, save to deal with the averment by C, substantiated by the respondent, that the second applicant struck C through the face on more than one occasion. When a child, and specifically a girl child, is struck through the face by an adult male, it is abuse. The second applicant, in reply denied that he struck C, but he explained: ‘C would literally scream in the Second Applicant’s face, with the Respondent standing behind C and encouraging her to persist with her tirades. The Second Applicant attempted to remove C from his personal space, which could have resulted in it being perceived as him striking her.’ I have no doubt that the family’s living environment was at times, at least, severely stressed and I am also of the view that both the second applicant and the respondent contributed to the tension.

 

[46]       Advocate Steenekamp indicated in her report that C, M and L requested her pertinently to raise their objection and their reasons for taking this stance. Z, although not cognisant of the nature of the proceedings also raised objections. Z indicated that his father drank a lot of alcohol and hit him. R is very young, but Advocate Steenekamp mentions that she enjoys a relaxed and spontaneous relationship with her siblings.

 

(ii)          The family counsellor’s report

 

[47]       The family counsellor consulted twice with the children. I found her report clear, frank and well substantiated. I must convey my gratitude for the assistance she rendered in very limited time. The most important contribution of the family counsellor’s report is that she confirms that C, M and L were assessed to be of sufficient age, maturity and stage of development to hold an independent and informed view regarding being returned to Germany.

 

[48]       The family counsellor’s report confirmed the objections the children raised to their legal representative, but she also elicited some additional information from the children regarding their integration, or lack thereof, in Germany. Although the family counsellor was not in a position to verify the allegations of abuse made by the children, she stated that the mere facts that they perceived the second applicant’s behaviour as abusive and experienced the second applicant as aggressive, are in themselves sufficient to create an intolerable situation for them, were they be ordered to return to Germany. She also pointed out that the facts indicate that the children established strong cultural, social and linguistic ties in South Africa since their return. She raised serious concerns regarding C’s expressed suicidal tendencies, although she conceded that opinions regarding C’s mental health fall outside her field of expertise. Treats of suicide must never be outrightly rejected but parties should also understand that courts will not be held at ransom by adolescents’ threats. Those threats, when they are uttered, will be considered in the context of all the evidence and if need be, subjected to expert scrutiny. Although the second applicant denies that C ever expressed such notions to him, her undisputed frustration with the circumstances she found herself in underscores the probability of her fostering suicidal thoughts.

 

[49]       The family counsellor is of the view that Z and R have not yet reached the level of maturity and stage of development to hold independent views regarding their well-being. Objectively seen, however, she opined that an intolerable situation would arise if Z and R are separated from their siblings, not only because sibling relationships are generally important because it helps children achieve developmental milestones and provide emotional support, companionship, and comfort in times of change, but because she observed that the siblings share a close bond with each other.

 

[50]       I am of the view that the cumulative effect of the children’s past experience in Germany, the absence of integration into the German community, the language barrier, their respective ages and stages of development, their fear of the second applicant’s aggressive behaviour, and their successful integration back into the South African community since their return in October 2020, will render it unbearable and thus intolerable for C, M and L to return. I will not even consider the separation of the siblings, as being separated from their siblings will by itself create an intolerable situation for all the children, including Z and R. This finding disposes of the issue and I accordingly deem it unnecessary to deal any further with article 13(b) of the Convention.

 

Miscellaneous

 

[51]       I am of the view that both the second applicant and the respondent sometimes ‘stretched the truth’ in their affidavits, but due to the reasons for arriving at my conclusion I do not propose to make any credibility findings. I am aware that applications of this nature are extremely emotive and that parties will go to great lengths to obtain or retain their children in their care.

 

[52]       I accepted that both the second applicant and the respondent’s actions are dictated by what they perceive to be in their children’s best interest, and that it is justified to order that each party pays its own legal costs.

 

[53]       Neither party addressed the court on structuring the second applicant’s interim rights of access to the children in the event that the application is dismissed. It is, however, in the children’s best interest that their right to have contact with their father, and his parental right to have contact with them, be formally structured. In order to facilitate the structuring of contact rights at this stage, the parties are authorised, should they wish, to approach the Deputy Judge President of this Division to appoint a case manager.

 

ORDER

In the result, the following order is made:

1.    The application is dismissed.

2.    Each party is to pay its own costs.

3.    The parties may approach the Deputy Judge President of this Division for the appointment of a case manager.

 

E van der Schyff

Judge of the High Court, Gauteng, Pretoria

 

Delivered:  This judgement is handed down electronically by uploading it to the electronic file of this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal representatives by email. The date for hand-down is deemed to be 11 October 2021.

 

Counsel for the applicants:                           Adv. R. Ferreira

Instructed by:                                                State Attorney, Pretoria

Counsel for the respondent:                          Adv. P. J. Nieman

Instructed by:                                                Dreyer & Dreyer Attorneys

Counsel for the children:                              Adv. M Steenekamp

Instructed by:                                                Legal Aid South Africa

Date of the hearing:                                      8 October 2021         

Date of judgment:                                         11 October 2021       

                                                                           

 

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