South Africa: Western Cape High Court, Cape Town

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Family Advocate, Cape Town and Another v E.M (15972/2008) [2008] ZAWCHC 80; 2009 (5) SA 420 (WCC) (28 November 2008)

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"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requesting State is not bound to order the return of the child if the person ... |who] opposes its return establishes that -

(a) the person ... having the care of the person of the child was not actually exercising the custody rights at the time of the 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 hard or otherwise place the child in an intolerable situation." (own emphasis)

15. Article 14 provides that

"In ascertaining whether there has been wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of... the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Onus of Proof

16. Our Courts have laid down the following requirements for an applicant who wishes to secure the return of a child in terms of the Act:

(a) That the child was habitually residing in the requesting state immediately before the removal or retention;

(b) That the removal or retention was wrongful in that it constituted a breach of custody rights by operation of law of the requesting State; (own emphasis)

(c) That the applicant was actually exercising those rights at the time of the wrongful removal or retention and would have so exercised such rights but for the removal or retention (art 3(b)). (own emphasis) (See Senior Family Advocate. Cape Town and Another v Houtman 2004 (6) SA 274 (CPD) at paragraph 7)

17. The question of onus was settled in Smith v Smith 2001 (3) SA 845 (SCA) [2001 "I
3 All SA 146 at 850 J where Scott JA held inter alia that

(A) party seeking the return of a child under the Convention is obliged to establish that the child was habitually resident in the country from which it was removed immediately before the removal or retention and that the removal or retention was otherwise wrongful in terms of art 3. Once this has been established the onus is upon the party resisting the order to establish one or other of the defences referred to in arts 13(a) and 13(b) or that the circumstances are such that the refusal would be justified having regard to the provisions of art 20

18. The learned Judge went further and stated that

If the requirements of art 13(a) or (b) are satisfied the judicial or administrative authority in the country to which or in which the child was removed or is being retained may still

in the exercise of its discretion order the return of the child, (at p851 A-B) (own

emphasis)

Matters of common cause

19. It appears from the papers before me that the following issues are not in dispute,
namely that

(a) immediately prior to her removal, Mae's habitual place of residence was the United Kingdom;

(b) both Second Applicant and Respondent jointly have parental responsibilities in respect of M. in terms of section 2(1) of the Childrens Act of 1989;

(c) Second Applicant, at the time of the removal and / or retention of M., Second Applicant exercised his parental responsibilities over Mea

Issues in dispute

20. The following matters are however in dispute

a) whether Mae's removal to or retention in South Africa was wrongful;

b) whether Second Applicant consented or acquiesced to Mea's removal;

c) whether due to the delay in the bringing of the instant application, the application falls outside of the requirements of the Act and falls to be dismissed;

d) Whether there has been compliance with Ruler 63 of the Uniform Rules with regard to the Affidavits of Second Applicant; and

e) Whether Respondent is entitled to costs de bonis propriis against First Applicant.

21. I believe that it is important at this stage to revisit the facts of this case in order to deal effectively with the issues in dispute between the parties. I need to state that there were two in limine points that were raised by Respondent in its papers. 1 must say that after submission by counsel for Applicants, both points were wisely abandoned by Respondent, and correctly so.

22. I now deal with the issues that are in dispute between the parties.

Wrongful removal and or retention

23. The question is whether or not the removal from the United Kingdom or retention in South Africa of M. by Respondent was unlawful. The answer to this question
can be found squarely within the provisions of Article 3 of the Act. 1 repeat here what Article 3 provides for the sake of easy reading. The removal or retention of a
child is wrongful where

a) it is in breach of right of rights of custody attributed to a person..., cither 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.

24. The question that begs to be answered is "was Second Applicant exercising his custody rights over M. either jointly or alone at the time of the removal or the retention or would have been exercising them but for the removal or retention, and secondly, where those rights breached?

25. I have no hesitation in finding that Second Applicant's joint right(s) of custody were breached under the laws of the country where M. was habitually resident before her removal or retention as well as that Second Applicant, at the time of the removal or retention was actually exercising those rights jointly with Respondent, What is paramount, in my view, is the intention of the removing and or retention spouse. What is equally of importance is the state of mind of the Second Applicant.

26. The Respondent's state of mind in this regard is not disputed. She communicated same to Second Applicant in October of 2007 when she said she would not be coining back to the United Kingdom. It is Second Applicant's state of mind that is examined with relation to the removal and or retention of M.. It is the Second-

Applicant's Article 3 rights that were breached when Respondent communicated to him that she would not be coming back to the United Kingdom, but intends settling permanently in South Africa with M.. That was the defining moment. Second Applicant had not given his consent

27. There is no doubt that the removal and retention is unlawful. The fact that Respondent has allowed M. to travel to the United Kingdom to visit Second Applicant and in turn the fact that Second Applicant has allowed M. to return to Respondent during the period November and December 2007 respectively should not distract us from the fact that Respondent's intention is to permanently remove M. from the United Kingdom and or to permanently retain Mac in South Africa.

Consent and or acquiescence

28. Respondent bases her opposition to this application broadly on two grounds, namely that Second Applicant consented to both the removal, alternatively that by his subsequent conduct, acquiesced thereto and thereby causing Respondent to reasonably believe that Second Applicant consented to Mae's retention. Respondent relies inter alia, on the letter of 4 December 2007 in his regard. In her heads of argument filed before this court, her legal representative submitted that

"The Second Applicant's letter dated 4 December 2007, the contents of which he personally formulated and signed, not only states his express consent to Mae's return, but puts his blessing on her safe return to the RSA. This express consent was given before commencing with this application".

29. Respondent's legal representative went further and submitted that there could be no better proof of Second Applicant's consent to Mae's retention in the RSA than from said letter of 4 December 2007. It was further argued that had Second Applicant intended otherwise, he could have inserted wording in the letter that qualified his consent or otherwise noted certain conditions to giving his consent.

30. Counsel for Applicants for her part, contended that the letter of 4 December 2007 says no more than it states, namely, the facilitation of easy passage for M. and grandmother.

31. I have gone over the letter of 4 December 2007 several times. I can find nothing which suggests that the letter was intended to grant consent for M. to be permanently removed from the United Kingdom or for her permanent retention in South Africa by Respondent. What I have found is a letter that facilitates easy passage for an adult traveling with a minor child who bears a different surname to the adult. I am neither surprised at the difficulties that Mae's grandmother allegedly encountered when going through customs nor at the request by Mae's grandmother that Second Applicant provide them with such letter of comfort or of easy passage. This is because such problems are common, what with child trafficking and indeed abductions specifically catered for by the Act. It is also telling that the letter is addressed to no one in particular, but to anyone who cared to know the circumstances of the two travelers.

32. Respondent further submitted through her legal representative that Second Applicant's actions, or lack thereof, and more especially Second Applicant's general behaviour regarding this matter, also clearly indicates his consent to or acquiescence in Mae's retention.

33. Second Applicant, according to the submissions, instituted no action immediately after being informed by Respondent that she would not be coming back to the United Kingdom, to secure the return of M.. He did not object unequivocally or protest to Respondent. He made arrangements with Respondent for Mae's visit to the UK. He took no action during Mae's visit to secure her continued presence in UK between November and December 2007. He did not object or protest to his mother-in-law when she visited with M.. Heavy reliance was placed on what was allegedly not done by Second Applicant between the periods October 2007 to February 2008.

34. Second Applicant submitted through his counsel that he had indeed consented to M. travelling to South Africa with Respondent in September of 2007 for a visit. Both M. and Respondent would be coming back to the United Kingdom at the end of their holiday. Both M. and Respondent had purchased return tickets. Second Applicant was shocked when a month later in October 2007, Respondent informed him that she would not be returning to the United Kingdom but would be remaining permanently in South Africa with M..

35. Counsel for Applicants submitted that the marriage between Second Applicant and Respondent was undergoing challenges and that they had been to a marriage counsellor. Second Applicant always was hopeful that their marriage could be salvaged somehow. That is the reason Second Applicant allowed M. to go to South Africa I September 2007 and again in December 2007 accompanied by her grandmother. It was also submitted that Respondent had also made an undertaking that she would never take M. away from him.

36. It is this conduct between the parties that Respondent now relies on as acquiescence that led her to believe that Second Applicant had now consented to the removal and or retention of M.. The courts have held that for a parent to acquiesce in the unlawful removal or retention of a child, within Article 13, the evidence of the acquiescence "must be clear and unqualified" (See Police Commissioner of South Australia v Temple (No.l) (1993) PLC 92-365, quoted from Jeremy D Morley. Acquiescence or Consent, Hague Convention on International Child Abduction. Acquiescence and Consent).

37. Referring further to the concept of acquiescence, other courts in foreign jurisdictions held that

"Acquiescence under the Convention requires either an act or statement with the requisite formalities such as testimony iu a judicial proceeding, a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time" (See Friedrich v Friedrich, 78 F.3d 1060 (6th Cir 1996), quoted from Jeremy D Morley, Acquiescence or Consent, Hague Convention on International Child Abduction, Acquiescence and Consent).

38. In the United Kingdom, the House of Lords held that the burden is strongly on the parent who has removed a child to establish consent by the other parent. The Law Lords held that

"Where the words or actions of the wronged parent clearly and unequivocally show and have led the other parent to believe That the wronged parent is not asserting or going to assert his right to the summary return of the child and are inconsistent with such return, justice requires that the wronged parent be held to have acquiesced" (quoted from Jeremy D Morley, Acquiescence or Consent, Hague Convention on International Child Abduction, Acquiescence and Consent)

1. In re H and Others (Minors) (Abduction: Acquiescence) [1997] 2 All ER 225 (HL), Lord Browne-Wilkinson considered that article 13 looked to the subjective state of mind of the wronged parent, and that accordingly the true inquiry was simply whether he had in fact consented to the continued presence of the child in the jurisdiction to which the child had been removed or had been retained. The Law Lord went on and said:

"In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions."

"In the process of this fact-finding operation, the Judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind, In reaching conclusions of fact, Judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the Judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wrong pareut. That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess."

"Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged party to effect reconciliation or to reach an agreed voluntary return of the abducted child... Attempts to produce a resolution of problems by negotiation or through religious or other advisers do not, to my mind normally connote an intention to accept the status quo if those attempts fail."

39. The Law Lord concluded that

'the issue of consent is a very important matter that]..."needs to be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent [because]...(i)f the court is left uncertain, then the 'defence' under art 13 (a) fails" land] it is furthermore obvious that consent must be real[,]...positive and ...unequivocal.

Delay in instituting proceedings and acquiescence

40. I now examine Second Applicant's conduct between the period October 2007 and February 2008. Respondent seems to suggest that Second Applicant did not do much or anything after she had told him that she was not coming back to the United Kingdom an intended to settle permanently in South Africa with M.. Submissions were made that Second Applicant was shocked at the realisation thathis wife was indeed leaving him and that his daughter was also to resettle in South Africa.

41. Second Applicant submitted through his counsel that he consulted a solicitor and barrister between October 2007 and February 2008, and once he had been given legal advice on the matter, the instant process and proceedings were launched. I must say that I find nothing that suggests any slackness on Second Applicant's part in this regard that can be interpreted as acquiescence to the removal and retention of M.. 1 do not find the delay inordinate. On the contrary I am impressed that Second Applicant was able to bring these proceedings inside a period of four months since he was informed that by Respondent of her intention to permanently remove M. from the United Kingdom and to retain her in South Africa.

42. I have also come to appreciate the time that it takes to get urgent matters such as the instant proceedings on the roll of our court system. I find it is reasonable in the circumstance for a person in Second Applicant's position to seek and obtain legal advice in the manner he did with its concomitant challenges. I therefore find that the slackness attributed to Second Applicant by Respondent lacks merit, and consequently Second Applicant did not unequivocally consent or acquiescence to Mae's removal and or retention by his conduct.

43. I now deal with the disputed issue of delay in launching the proceedings. Article 12 of the Act makes provision that

"Where a child has been wrongfully removed or retained in terms of art 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."

44. The Article goes on and condones such non-compliance and states that judicial or administrative authorities shall still order the return of the child, unless it is determined that the child is now settled in its new environment.

45. In the recent case of Central Authority v H 2008 (1) SA 49 SCA, the SCA ordered the return of a five year old boy who had been wrongfully retained by his mother in the RSA since he was two years old. Some three and a half years had elapsed since the wrongful retention of the child in the RSA. The child was now 5 years old, and had spent most of his young life in the RSA. The court found that in the circumstances, the retention of the child in the RSA was wrongful, there was no evidence that the delay had been such that the return of the child to the Netherlands would place him in an intolerable position. The court stated further that it was also significant that the present circumstances were caused by the mother's unlawful conduct in retaining the child in the RSA and systemic delays which cannot be attributed to the father.

46. There is no doubt that the delay envisaged by Article 12 is not applicable in this case before me. Respondent removed and retained M. on 26 October 2007. This application was launched on 2 October 2008. The matter therefore falls within the mandatory provisions of article 12, which provides that where a period of less than one year has elapsed from the date of the wrongful retention to dale of the commencement of the proceedings before the judicial or administrative authority of the Contracting State, the authority concerned shall order the return of the child forthwith.

47. In the circumstances I find that Applicant was not late with his application and that M. was wrongfully removed and retained by Respondent. It is for the above reasons that the application must succeed.

Costs

48. I am faced with a situation where the marriage between Second Applicant and Respondent still subsists and I am loath to make a cost order as its effect would be akin to a cost order against oneself. The fact that divorce proceedings arc pending between the parties is important and I have taken cognisance of the fact that they are still husband and wife. In these circumstances, I think it is fair that I make no order as to cost.

49. In the result I make the following order:

50. That M. be returned forthwith, subject to the terms of this order, to the jurisdiction of the United Kingdom ("the UK") in accordance with the provisions of Article 12 of the schedule to the Hague Convention on the Civil Aspects of International Child Abduction Act, No. 72 of 1996 ("the Hague Convention Act").

51. Second Applicant, or his appointee, be granted leave and authorisation insofar as same may be necessary, to remove the child from the Republic of South Africa ("the RSA") and to accompany her back to the UK, being the minor child's country of habitual residence, together with the Respondent in the event of her electing to return to t he UK.

52. Second Applicant shall, within 14 days of the date of this order, launch proceedings and pursue them with diligence to obtain, of the appropriate judicial authority in the UK, an order that, until otherwise ordered by the appropriate court in the UK:

a. The Second Applicant is ordered to arrange and to pay for suitable accommodation for the minor child and the Respondent, should she elect to return to the UK with the minor child. The Second Applicant shall

provide proof to the satisfaction of Respondent prior to the departure of the minor child and the Respondent, should she elect to return to the UK with the minor child, of the nature and location of such accommodation and that such accommodation is available to the minor child and the Respondent immediately upon their arrival in the UK.

b. The Second Applicant is ordered to pay, for the minor child and the Respondent should she elect to return to the UK with the child, maintenance in such amount as may reasonably be required for their maintenance and upkeep, and failing agreement between them in this regard, such amount as may be ordered by the appropriate authority responsible for such matters in the UK.

c. The Second Applicant is ordered to pay any medical expenses reasonably
incurred by the Respondent in respect of the minor child.

d. The Second Applicant is granted reasonable access to the minor child.

53. First Applicant is directed to seek the assistance of the UK Central Authority in order to ensure that the terms of this order are complied with as soon as possible.

54. A copy of this order shall forthwith be transmitted by the First Applicant to the UK Central Authority.

55. There shall be no order as to cost.

MADIMA, AJ