In a case which concerns the global phenomenon of child abduction and involves an application premised on the provisions of the Hague Convention on the Civil Aspects of International Child Abduction, the Supreme Court of Appeal ruled that a boy, now 3, had to be returned to Canada where his father lived.
The father turned to the SCA as he appealed an earlier order by the Gauteng High Court, Pretoria, which ordered that the boy can remain with his mother in Pretoria.
In ruling in favour of the father, the SCA commented that this matter brings to the fore the difficult task faced by courts whenever they are called upon to decide whether to return an abducted or retained child to his or her home country as contemplated in the Hague Convention.
It said the task of a court in deciding such a matter is rendered difficult due to the fact that the convention requires the court on the one hand to make a decision about the interests of a particular child in a specific case in the context of a factual situation that is more often than not charged with emotion and expectation.
On the other hand, a court has a duty to abide by the Hague Convention, to which South Africa is a signatory.
The earlier application in the high court was launched by the Central Authority of the Republic of South Africa, against the child’s mother. The court was told that she had retained the boy in Pretoria during the family’s visit to South Africa in July 2022.
The court at the time found that it was not in the best interest of the child to be returned to Canada, where his father lived. This resulted in the father turning to the SCA.
The now estranged couple were South African citizens who lived and worked here, but who decided in 2014 to relocate to Canada. They have in the meantime obtained citizenship and bought property there. The mother also opened her own dental practice in that country.
Their only child was born in July 2021 and the three of them lived together as a family in Calgary. The wife subsequently suffered from postpartum depression.
They meanwhile made plans to visit their extended family in South Africa. They bought flight tickets for July 2022. However, a day before their departure, the husband said that his wife had packed her orthodontic equipment in her luggage, as well as the couple’s marriage certificate, among others.
On arrival in South Africa the wife told her husband that she no longer intended to go back to Canada and that she intended to keep the child with her in South Africa.
The husband left for Canada, where he approached the Central Authority of Canada and initiated proceedings for the return of the boy in terms of the Hague Convention.
It was argued on behalf of the mother that returning the boy to Canada would expose him to grave physical or psychological harm or otherwise place him in an intolerable situation. The high court appointed a legal representative for the child and a social worker to investigate the mother’s circumstances in South Africa and Canada.
The mother also appointed various experts to testify on her behalf and the high court agreed with her that the child should remain here.
The father meanwhile undertook to provide the mother with housing and an allowance until she found a job in Canada, if the court did agree that the child should return.
The SCA pointed out that the primary purpose of the Hague Convention is to secure the prompt return (usually to the country of their habitual residence) of children wrongfully removed to or retained in any contracting state.
The underlying premise is that the authorities best placed to resolve the merits of a custody dispute are the courts of the state of the child’s habitual residence and not the courts of the state to which the child has been removed or in which the child is being retained, the court said.
The court found that since the accusations and counter-accusations made by the parents against each other regarding alleged flaws in their respective parenting styles are aspects that are directed at the merits of a custody or primary care dispute, the authorities best placed to determine those issues are the Canadian domestic courts.
Pretoria News
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