The applicant (South African mother) and second respondent (British father) were married in the USA in 2007 and had three children (aged 12 and twins aged 9). The family resided in Thailand from 2016. The parties divorced in Thailand in June 2018, with a Compromise Agreement granting them joint custody, with children residing with the mother and the father having visitation rights. In July 2018, the mother relocated to a remote area in Thailand and made contact with the children problematic for the father. Despite court orders compelling compliance with visitation rights, the mother remained obdurate. In November 2019, while litigation regarding visitation was pending in Thai courts, the mother unilaterally removed the children from Thailand to South Africa in December 2019 without the father's knowledge or consent. At the time of removal, the children were habitually resident in Thailand and both parents were exercising joint custody rights, making the removal wrongful under Article 3 of the Hague Convention.
1. The application for leave to appeal is dismissed. 2. The date in paragraph 4 of the order of the Western Cape Division of the High Court is substituted by the date 20 August 2021. 3. No order as to costs (each party to bear their own costs).
Under the Hague Convention on the Civil Aspects of International Child Abduction (incorporated into South African law through Chapter 17 of the Children's Act 38 of 2005), once wrongful removal under Article 3 is established, the burden rests on the party resisting return to prove the Article 13(b) defence on a balance of probabilities - namely that there is a grave risk that return would expose the children to physical or psychological harm or place them in an intolerable situation. Vague and unsubstantiated allegations of harm are insufficient to discharge this burden. Courts have the power to impose comprehensive protective conditions on return orders to mitigate potential risks and ensure children's welfare, including requiring the abducting parent to accompany the children, financial support, therapeutic services, involvement of central authorities and child protection services, and continuation of existing custody arrangements. Where such protective measures adequately address concerns and the state of habitual residence is competent to investigate allegations and determine custody matters, the Article 13(b) defence will not succeed and children must be returned to allow the appropriate forum to address the substantive issues.
The Court made several important observations: (1) The best interests of wrongfully removed children are ordinarily served by requiring return to the jurisdiction from which they were removed so that the law can take its course in the appropriate forum. (2) Parents have a responsibility to allow the law to take its course and not resort to self-help through wrongful removal, as this inevitably increases tension and adds to children's suffering. (3) In Hague Convention matters, there are no winners or losers, both are concerned parents, and the most equitable outcome regarding costs is often that each party bears their own costs. (4) The Court noted it could consider recording an undertaking by the requesting parent not to institute proceedings for arrest, prosecution or punishment of the abducting parent relating to the removal, as a further protective measure to allay fears. (5) The Court observed that children's views opposing return may be influenced by the abducting parent and based on a wish to remain with that parent rather than genuine objections.
This case reinforces the application of the Hague Convention on International Child Abduction in South African law and clarifies the requirements for successfully invoking the Article 13(b) defence. It demonstrates the stringent burden of proof required to resist return of wrongfully removed children and illustrates how courts can craft comprehensive protective orders to address concerns about children's welfare while still respecting the objectives of the Convention. The judgment emphasizes that the state of habitual residence is ordinarily best placed to investigate allegations of abuse and determine custody arrangements, and that self-help remedies through wrongful removal are not in children's best interests. It also demonstrates the court's willingness to impose detailed conditions to protect returning children and their primary caregiver, and affirms that in Convention cases, the best interests of children are ordinarily served by requiring return to the jurisdiction from which they were wrongfully removed so that the law can take its course in the appropriate forum.