Smith v Smith

The parties, both South African citizens, were married in Cape Town and later relocated to the United Kingdom where they lived as a family and where their two minor children were born. The marriage broke down, and by agreement the respondent mother travelled to South Africa with the children in January 1999 for what was intended to be a temporary visit. In March 1999 she informed the appellant father that she would not return to the UK and commenced divorce proceedings in Cape Town. The father initially invoked the Hague Convention procedures for the children’s return but later, after receiving legal advice in South Africa, instructed his attorney to withdraw the Convention application and entered into settlement negotiations. Several weeks later he revived the Hague Convention proceedings and applied for the children’s return. The High Court dismissed the application, and the father appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs; the order refusing the return of the children to the United Kingdom was confirmed.

The case is a leading South African authority on acquiescence under article 13(a) of the Hague Convention. It clarifies that acquiescence depends on the subjective intention of the wronged parent, assessed primarily through conduct, and that withdrawal of Convention proceedings may constitute acquiescence. The judgment aligns South African law with English House of Lords authority and underscores the importance of prompt action in Hague Convention cases.