Heidi Nicole Koch N O and Another v The Ad hoc Central Authority for the Republic of South Africa and Another

The mother, a South African national with UK citizenship, and the father, a British national, had a child born in the UK on 6 July 2017. In September 2019, the mother, father and child traveled to South Africa for the mother to pursue cancer treatment after diagnosis. The father returned to the UK in October 2019 with the understanding the mother and child would return once treatment concluded or if nothing more could be done. The mother's cancer proved terminal. In November 2019 she informed the father she wished the child to remain in South Africa with her maternal aunt after her death. The father opposed this and sought the child's return to the UK under the Hague Convention. The mother opposed the return on grounds of consent/acquiescence under article 13(a) and grave risk under article 13(b). The mother died on 8 December 2020. The High Court (Saldanha J) ordered the child's return to the UK, rejecting both defences. The aunt appealed with leave granted.

• Whether the father consented to or acquiesced in the child's retention in South Africa under article 13(a) of the Hague Convention
• Whether there was a grave risk that the child's return to the UK would expose her to psychological harm or place her in an intolerable situation under article 13(b)
• Whether further evidence (expert psychological report post-dating the mother's death) should be admitted on appeal
• Whether the protective measures available in the UK were sufficient to mitigate the risks identified

1. The application to adduce further evidence is granted with costs. 2. The appeal succeeds with costs including costs of two counsel. 3. The order of the Western Cape Division of the High Court is set aside and replaced with: 'The application for the return of the child in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 is dismissed with costs including costs of two counsel.'

Under article 13(a) of the Hague Convention, consent to retention must be established by clear and cogent evidence; conditional consent to retention during medical treatment does not constitute consent to permanent retention beyond that period. Under article 13(b), where expert evidence establishes that a young child has formed a primary secure attachment to a new caregiver following the death of the original primary caregiver, and removal from that attachment figure and known environment would expose the child to grave risk of psychological harm that available protective measures in the requesting state cannot adequately mitigate, the court is not bound to order return. Post-facto remedial measures (such as bereavement counselling and social services monitoring) are insufficient to prevent grave psychological harm where the harm is inherent in the removal itself from the primary attachment figure.

The Court observed that the facts were 'complex and exceptional' given the death of the parent who effected the removal. The Court noted with apparent approval Professor Berg's characterization that bereavement counselling in these circumstances would be 'the equivalent of putting a small plaster on an open wound... [which] could have been prevented by allowing her to remain with the mother's family.' The Court also commented that 'some psychological harm to the child is inherent whether the child is or is not returned' in Convention cases, affirming the principle from C v C (minor: abduction: rights of custody abroad). The Court emphasized that 'intolerable situation' must be interpreted to mean 'a situation which this particular child in these particular circumstances should not be expected to tolerate', endorsing Baroness Hale's formulation in Re D (A child) (Abduction: Rights of custody).

This case provides important guidance on the application of the Hague Convention defences in South African law, particularly in exceptional circumstances involving death of the abducting parent. It clarifies the standard for consent under article 13(a) - evidence must be clear and cogent, and conditional consent does not extend beyond its express terms. The judgment emphasizes the rigorous assessment required for article 13(b) grave risk defences, particularly regarding psychological harm to young children. It demonstrates that where a child has formed primary attachment to a new caregiver following death of the original primary caregiver, and expert evidence establishes that removal would cause grave psychological harm that available protective measures cannot adequately mitigate, return should not be ordered despite the Convention's general preference for return. The case also clarifies when appellate courts will admit new evidence in Convention proceedings - where the evidence relates to changed circumstances (death of parent) that could not have been addressed at trial and is material to the article 13(b) assessment.