C A R v The Central Authority of the Republic of South Africa and Another

The appellant father (CAR) and the second respondent mother (YR) were married and relocated from South Africa to Canada in 2015, where they became permanent residents and later Canadian citizens. Their minor son, CJ, was born in Canada in July 2021 and lived there with both parents. In July 2022, the family travelled to South Africa for a short visit, with return tickets booked. Upon arrival, YR informed CAR that she intended to remain in South Africa permanently with CJ. CAR returned to Canada alone and initiated Hague Convention proceedings through the Canadian Central Authority. The South African Central Authority brought an application in the Gauteng High Court for CJ’s return. YR opposed the application, raising defences under articles 13(a) and 13(b) of the Hague Convention. The High Court dismissed the application, finding that returning CJ would expose him to an intolerable situation due mainly to alleged medical and developmental concerns. CAR appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the High Court was set aside and replaced with an order directing the immediate return of CJ to Canada under the Hague Convention, subject to extensive protective and logistical conditions, including arrangements for accommodation, maintenance, travel costs, medical care, and interim residence with the mother pending determination by a Canadian court. Each party was ordered to pay its own costs.

This judgment reinforces the strict and limited nature of the article 13(b) defence under the Hague Convention in South African law. It underscores that allegations of parental conflict, medical concerns, or developmental issues—without clear proof of grave risk—do not justify refusal of a return order. The case affirms South Africa’s international obligations to ensure the prompt return of abducted children and clarifies that custody and welfare disputes must be determined by courts in the child’s country of habitual residence.