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

The applicant mother, a South African citizen, and the second respondent father, a British national, were divorced in Thailand in June 2018. A Thai court made a Compromise Agreement an order of court, providing for joint custody, primary residence with the mother, and visitation rights for the father. The family had been habitually resident in Thailand since 2016. In December 2019, while Thai court proceedings regarding access were pending, the mother unilaterally removed the three minor children from Thailand to South Africa without the father’s knowledge or consent. The removal was conceded to be wrongful under Article 3 of the Hague Convention. The South African Central Authority and the father sought the children’s return under the Convention. The mother resisted return relying on Article 13(b), alleging grave risk of harm based on alleged sexual molestation of one child by the father and prior domestic and economic abuse.

The application for leave to appeal was dismissed. The High Court order directing the return of the children to Thailand remained in force, with a minor amendment substituting the date in paragraph 4 of that order to 20 August 2021. No order as to costs was made.

The case reaffirms South African appellate authority on the strict and narrow application of the Article 13(b) defence under the Hague Convention. It underscores the heavy onus on an abducting parent to prove grave risk, confirms that South African courts will generally defer substantive welfare investigations to the courts of the child’s habitual residence, and illustrates the use of detailed protective conditions to facilitate return while safeguarding children’s best interests.