Heidi Nicole Koch N O and Another v The Ad Hoc Central Authority for the Republic of South Africa and Another

The case concerned a four-and-a-half-year-old child born in the United Kingdom to unmarried parents. The mother, a South African and UK citizen, was diagnosed with terminal colorectal cancer and travelled to South Africa with the child and the father in September 2019 to pursue medical treatment. The father returned to the UK shortly thereafter, while the child remained in South Africa with the mother. Initially, there was an understanding that the child would return to the UK once the mother recovered or if treatment failed. As the mother’s condition deteriorated, she expressed a wish that the child remain permanently in South Africa and be raised by the maternal aunt. The father did not agree and initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, alleging wrongful retention. The High Court ordered the child’s return to the UK. The mother died in December 2020, after which the aunt pursued the appeal and sought to adduce further psychological evidence regarding the child’s best interests and risk of harm if returned.

The appeal was upheld. The High Court order directing the return of the child to the UK was set aside and replaced with an order dismissing the Hague Convention application. Costs, including the costs of two counsel, were awarded against the respondents.

The judgment clarifies the application of article 13(b) of the Hague Convention in South African law, particularly where a child’s circumstances materially change after the initial hearing. It affirms that South African courts may admit further evidence on appeal in exceptional circumstances and underscores that the Convention’s objectives are subject to the paramount consideration of preventing grave psychological harm to the child.