Ad Hoc Central Authority for the Republic of South Africa and Another v DM

The father (German) and mother (South African) are unmarried parents of two minor sons, aged 10 and 8. They lived in Cape Town for about 15 years before relocating to Germany in March 2020 during the COVID-19 pandemic, taking advantage of German repatriation flights. After their relationship ended in August 2022, they shared care of the children in Germany. In February 2023, the mother went to South Africa to visit her ill father. The children later joined her with the father's accompaniment, arriving 30 March 2023 with return tickets to Germany for 20 April 2023. On 19 April 2023, the mother informed the father she intended to remain in South Africa and refused to return the children to Germany. The father immediately sought assistance, and the applicants launched proceedings under the Hague Convention for the children's return to Germany.

• Whether the children were habitually resident in Germany immediately before their retention in South Africa, as required by Article 3 of the Hague Convention.
• Whether the applicants discharged the onus of establishing habitual residence as a jurisdictional fact.
• Whether the mother's belated Article 13(b) defence of grave risk of harm could be sustained.

The application was dismissed. Pending determination by a South African court on long-term care and contact, interim contact arrangements as recommended by the children's legal representative apply, and children's passports remain retained by the Central Authority, released only for holiday contact in Germany or another agreed destination. Each party to pay their own costs.

To establish habitual residence of children in a particular country for purposes of Article 3 of the Hague Convention, there must be a 'settled intention' or 'settled purpose' based on both the life experiences of the children and the intentions of the parents. Where there is a genuine factual dispute about mutual parental intention to relocate permanently, and the surrounding circumstances (such as retention of fixed property in the original country, lack of steps to secure permanent residence for the non-citizen parent, and the hiding of passports) do not incontrovertibly establish habitual residence, the applicant fails to discharge the onus of proving this jurisdictional fact, and the Convention does not apply.

The court observed that the mother's approach of obtaining fixed-term employment and making the best of uncertain circumstances does not necessarily imply a shift of intention to one of habitual residence. The court also noted that neither the father nor mother were fully frank with the court, which influenced the costs order. Further, the court commented that the children displayed maturity beyond their years and expressed no preference for either South Africa or Germany, wishing only that their parents live in the same country to resume shared care.

This case reinforces the hybrid model for determining habitual residence under the Hague Convention in South African law, emphasizing the importance of mutual parental intention and 'settled purpose'. It illustrates that registered addresses, school attendance, and length of stay are not determinative without clear evidence of intention to abandon the previous habitual residence. It confirms the high threshold for Article 13(b) defences and reinforces the Plascon-Evans rule in Convention applications where factual disputes exist about jurisdictional facts.