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

CAR (the father) and YR (the mother) were South African citizens who married in 2011 and relocated to Canada in 2015. They obtained Canadian permanent residency in 2017 and citizenship in 2022. Their son CJ was born in Calgary on 20 July 2021. The family lived together in Calgary where YR worked as an orthodontist and they owned property. YR suffered from postpartum depression after CJ's birth. In July 2022, the family traveled to South Africa for a visit with return tickets for 23 July 2022. Upon arrival on 10 July 2022, YR informed CAR that she would not return to Canada and intended to retain CJ in South Africa. CAR returned to Canada alone on 19 July 2022 and initiated proceedings under the Hague Convention for CJ's return. The Central Authority of South Africa launched an application in the Gauteng High Court on 20 December 2022. YR raised three defenses: (1) CJ's habitual residence was South Africa, not Canada; (2) CAR had acquiesced to CJ's retention; and (3) under Article 13(b), returning CJ would expose him to grave risk of psychological harm or place him in an intolerable situation. The High Court dismissed the application for return, finding that CJ's medical history would expose him to an intolerable situation if returned to Canada.

• Whether CJ's habitual residence immediately before retention was Canada or South Africa
• Whether CAR had acquiesced to CJ's retention in South Africa under Article 13(a) of the Hague Convention
• Whether the Article 13(b) defense was established - namely whether there was a grave risk that CJ's return to Canada would expose him to physical or psychological harm or place him in an intolerable situation
• Whether the High Court properly applied the two-pronged enquiry considering both short-term and long-term best interests of the child
• Whether protective measures and undertakings could ameliorate the alleged risks of harm upon return
• The proper test and evidentiary burden for establishing an Article 13(b) defense

The appeal was upheld. The High Court's order dismissing the application was set aside. The Supreme Court of Appeal ordered CJ's return to Canada subject to detailed protective conditions including: - YR to notify the Central Authority within 5 days if she will accompany CJ to Canada - If YR accompanies CJ, CAR must obtain a Canadian court order within 20 days providing: residence of CJ with YR subject to reasonable contact rights; economy air tickets for YR and CJ; accommodation at CAR's Smith Street home or equivalent; payment of all home-related expenses; monthly maintenance of $1,600 CAD; payment for CJ's crèche and therapy; medical aid coverage; access to a roadworthy vehicle; and cooperation with authorities - The return order stayed until Canadian court makes the protective order - If YR does not accompany CJ, he returns in CAR's care - YR not to remove CJ from Gauteng province pending return - Each party to pay its own costs

The binding legal principles established are: 1. To establish an Article 13(b) defense under the Hague Convention, the abducting parent must prove on a balance of probabilities that there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. 2. Courts must consider whether protective measures, undertakings, and conditions can ameliorate or eliminate the alleged grave risk before refusing a return order. If adequate protective measures are available in the state of habitual residence, the child does not in fact face a grave risk as contemplated by Article 13(b). 3. Even where an Article 13(b) defense is established, the court retains residual discretion whether to order return, and must balance the child's interests with the general purposes of the Hague Convention. 4. The Hague Convention presupposes that a child's best interests are ordinarily served by prompt return to the country of habitual residence, where custody and care matters can be properly adjudicated. The "best interests" enquiry in Hague proceedings is limited and must be evaluated within the framework of Article 13(b) exceptions. 5. Developmental delays, medical issues, or parental conflict do not automatically establish grave risk if there is no evidence that appropriate interventions and protections are unavailable in the country of habitual residence. 6. Courts deciding Hague Convention applications must conduct a two-pronged enquiry considering both short-term and long-term best interests of the child, while giving effect to the Convention's objectives. 7. An abducting parent cannot rely on consequences of the wrongful removal or retention (such as bonds formed during the retention period or delays in proceedings) to create or bolster an Article 13(b) defense, as this would subvert the Convention's aims.

The Court made several important non-binding observations: 1. The Court noted with concern the non-participation of the Central Authority in the appeal proceedings, emphasizing that the Central Authority is key to Hague Convention proceedings and should remain involved until exhaustion of available appeals. Without the Central Authority's participation, the Court could not ascertain whether the Canadian Central Authority would assist in enforcing or applying for a mirror order. 2. The Court suggested that in cases where the designated Central Authority cannot attend court, Family Advocates or the State Attorney could step in to ensure expeditious finalization as envisaged in Article 11 of the Hague Convention. 3. The Court acknowledged that the Article 11 timeline of 6 weeks may prove unrealistic when expert evidence is required, noting the delays in this case due to awaiting expert reports. 4. The Court paid tribute to the impact of postpartum depression, stating: "What should not be taken for granted or watered down is the impact of post-partum depression on any mother. This case is a typical example." The Court acknowledged YR's severe depression in a foreign country without extended family support. 5. The Court acknowledged CAR's role as primary caregiver during YR's postpartum depression, stating this "should not be reduced to nothing now that the parties are locked in a dispute." 6. The Court emphasized the importance of support structures for children but noted this cannot override Convention objectives. 7. The Court referenced the HCCH Guide to Good Practice and Canada's receptiveness to undertakings as strengthening practical application of the Hague Convention. 8. The Court noted that regrettable as delays may be, they cannot be held against the parent applying for return, as doing so would subvert the Convention's aims.

This case provides important guidance on the application of Article 13(b) of the Hague Convention in South African law. It clarifies that: 1. The Article 13(b) defense must be narrowly applied and the burden rests squarely on the abducting parent to prove grave risk on a balance of probabilities. 2. Courts must consider whether protective measures and undertakings can ameliorate alleged risks before refusing a return order. 3. The "best interests of the child" principle in Hague Convention cases is circumscribed by the Convention's objectives - the presumption is that prompt return to the habitual residence serves the child's best interests, with limited exceptions. 4. Delays in reaching developmental milestones or medical issues do not automatically establish grave risk if appropriate medical interventions are available in the country of habitual residence. 5. Post-partum depression and parental conflict, while serious, do not necessarily create an intolerable situation if protective measures can ensure the child's safety and well-being upon return. 6. Courts must conduct a two-pronged enquiry balancing short-term and long-term best interests within the framework of the Hague Convention. 7. The case emphasizes the importance of "mirror orders" with detailed protective conditions to facilitate returns while safeguarding children and abducting parents. 8. It highlights the crucial role of Central Authorities in Hague Convention proceedings and expresses concern about their non-participation in appeal processes. The judgment reinforces South Africa's commitment to the Hague Convention's objectives of combating international child abduction while ensuring children's protection through carefully crafted return orders.