N M v The Central Authority for the Republic of South Africa and Another

NM, a South African citizen, and MBM, an Australian citizen, married and lived together in Brisbane, Australia, where their child, NEM, was born and habitually resident. In September 2022, NM travelled with NEM to South Africa with MBM’s consent for a holiday, with agreed return tickets. Before the return date, NM informed MBM that she would not return to Australia and retained NEM in South Africa. MBM, with the assistance of the Central Authority of South Africa, instituted Hague Convention proceedings for NEM’s return. NM opposed the application, raising a defence under Article 13(b) (grave risk of harm) and, shortly before the hearing, launched a counterapplication challenging the constitutionality of s 275 of the Children’s Act 38 of 2005. The High Court ordered NEM’s return to Australia, separated the constitutional challenge from the main application, and rejected the Article 13(b) defence. NM appealed to the Supreme Court of Appeal.

The appeal was upheld in part. The order of the High Court directing the return of NEM to Australia was confirmed, subject to amended and detailed protective conditions regulating accommodation, financial support, healthcare, travel arrangements, and undertakings by MBM. Save for these amendments, the appeal was dismissed, with each party ordered to pay their own costs.

This judgment reaffirms South African courts’ strict approach to the Hague Convention, particularly the mandatory nature of Article 12 and the high threshold for the Article 13(b) defence. It confirms alignment with Constitutional Court jurisprudence in Koch and Sonderup, clarifies the limited role of best-interests arguments at the return stage, and endorses the use of protective measures rather than refusal of return. It also confirms the courts’ power to separate constitutional challenges that would frustrate the Convention’s requirement of expedition.