KG v CB & others

T, a child born in May 2006 in Harlow, England, to unmarried parents KG (mother) and CB (father). Parents separated when T was approximately one year and four months old. CB registered as T's father under the Births and Deaths Registration Act 1953, thereby acquiring parental responsibility. After disputes arose, CB applied to the Harlow County Court in November 2007 for residence and contact orders. KG was granted an interim residence order in January 2008. In February 2009, KG's domestic partner DC assaulted her, leading the Chelmsford County Court to make an interim care order placing T in the care of Essex County Council on 10 February 2009. On 14 February 2009, KG removed T from the United Kingdom to South Africa without notice or consent of CB or the Council. In August 2009, CB, the Council, and the Central Authority for South Africa brought an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 for T's return to the United Kingdom.

• Whether CB had 'rights of custody' under articles 3 and 5 of the Hague Convention
• Whether T was wrongfully removed from the United Kingdom within the meaning of the Convention
• Whether KG proved the defence of consent or acquiescence under article 13(1)(a) of the Convention
• Whether KG established the 'grave risk of harm' or 'intolerable situation' defence under article 13(1)(b) of the Convention
• Whether the child's best interests as required by section 28(2) of the Constitution override the Convention's requirement for return
• What protective conditions should be imposed in a return order

Appeal dismissed with no order as to costs. Order of the South Gauteng High Court replaced with a detailed return order containing protective conditions: (1) T to be returned forthwith to the jurisdiction of the Central Authority for England and Wales; (2) If mother notifies Family Advocate within one week that she intends to accompany T, father must within one month institute proceedings in UK court to obtain order that: (a) any arrest warrant against mother be withdrawn and she not be prosecuted for the removal; (b) father arrange and pay for suitable accommodation; (c) father pay maintenance of £350 per month (less state support); (d) father pay medical/dental expenses not covered by NHS; (e) father pay reasonable schooling and educational costs not provided by State; (f) father purchase economy air tickets for return journey; (g) parties cooperate with authorities and assessments; (h) father granted reasonable supervised contact without necessity of direct contact with mother; (3) Return order stayed until UK court makes the protective order; (4) If mother fails to notify willingness to accompany T, Family Advocate authorized to arrange T's safe return to Central Authority for England and Wales; (5) Pending return, mother not to remove T from Gauteng Province; (6) Father to have reasonable telephone access pending return; (7) No order as to costs in high court or on appeal, including condonation and reinstatement applications. Family Advocate to seek assistance of Central Authority for England and Wales to ensure compliance.

The binding legal principles established are: (1) For purposes of the Hague Convention, 'rights of custody' under articles 3 and 5 must be given an autonomous interpretation independent of domestic law characterizations. A parent's right under the law of the child's habitual residence to prevent removal of the child or withhold consent to such removal constitutes a right to determine where the child lives and thus falls within 'rights of custody'. In the UK context, an unmarried father who is registered as the father under the Births and Deaths Registration Act 1953 acquires parental responsibility under section 4(1)(a) of the Children Act 1989, which includes custody rights for Convention purposes. (2) Removal of a child by the custodial parent without the consent of the non-custodial parent who has such custody rights (or without leave of the court) constitutes a 'wrongful removal' under article 3 of the Convention. (3) The defences under article 13 of the Convention must be proved by the person opposing return on a balance of probabilities with clear and cogent evidence. Consent or acquiescence under article 13(1)(a) requires proof of informed consent to or acquiescence in the breach of rights, based on the actual subjective intention of the wronged parent. Prompt action to secure return is inconsistent with consent or acquiescence. (4) The 'grave risk of harm' or 'intolerable situation' defence in article 13(1)(b) requires that: (a) the burden lies on the person opposing return; (b) the standard of proof is balance of probabilities; (c) the risk must be 'grave' - a serious standard that may be satisfied by relatively low risk of death or serious injury but requires higher risk for less serious harm; (d) 'intolerable' means a situation which this particular child in these particular circumstances should not be expected to tolerate; (e) the words require no 'gloss' or narrow construction but should be applied according to their ordinary meaning. Settlement of the child in the new environment, while relevant, does not automatically satisfy this defence. (5) The Hague Convention is consistent with section 28(2) of the Constitution (child's best interests paramount). The Convention is designed to serve children's best interests through rebuttable assumptions, particularly that prompt return to the country of habitual residence serves the child's best interests. South African courts must apply the Convention but can impose substantial protective conditions in return orders to ensure the child's constitutional rights are protected and interim prejudice mitigated. (6) Proceedings under the Hague Convention must be conducted expeditiously. Article 11 of the Convention and regulation 23 of the Children's Act Regulations require completion within six weeks except in exceptional circumstances. Delays undermine the Convention's objectives and are unacceptable.

The court made several non-binding observations: (1) While expressing concern about the significant delays in this case (over 2.5 years from removal to final appeal judgment), which resulted in T spending more than half her young life in South Africa and becoming settled here, the court observed that refusing return in these circumstances would undermine the Convention's objects and create an unfortunate precedent. (2) The court noted with approval that the curator ad litem reported T was totally unaware of the litigation, crediting KG for this. (3) The court observed that T had not attained an age and maturity (being 5 years 10 months at judgment) at which it would be appropriate to take account of her views under article 13 of the Convention and section 278(3) of the Children's Act. (4) The court commented that there was nothing in the record to explain the various delays: five months between CB's application to ICACU and institution of return proceedings; seven months before the high court hearing; three months between high court judgment and grant of leave to appeal; and over eight months after the appeal lapsed before the record was lodged. The court noted that, as these were motion proceedings, it was difficult to see why a transcript was required, and that attempts should have been made to reconstruct the record by agreement. (5) The court expressed gratitude to the curator ad litem and to the appellant's attorneys and counsel who acted pro bono. (6) On costs, the court observed that both parents had acted in what they believed to be their child's best interests, that there was no winner or loser but two concerned parents, and that the fairest course was no order as to costs. (7) The court noted that several high courts have issued practice directions requiring completion of Convention proceedings within six weeks, consistent with the Convention and the Children's Act Regulations. (8) The court observed that the protective measures built into the return order, combined with KG's evident competence as a loving mother and the fact T is more attached to her than to any place or person, should serve to insulate T against harm upon return to the UK.

This judgment is a leading South African authority on the application of the Hague Convention on International Child Abduction. It clarifies several important principles: (1) The meaning of 'rights of custody' under articles 3 and 5 of the Convention, confirming that a parent's right to prevent removal or withhold consent to removal constitutes a custody right, even without a formal custody order. This follows the autonomous interpretation required by the Convention. (2) The relationship between the Convention and the constitutional principle that a child's best interests are paramount (section 28(2) of the Constitution). Following Sonderup v Tondelli, the court held that the Convention itself is designed to serve children's best interests through rebuttable assumptions, and that South African courts can impose substantial protective conditions to ensure compliance with constitutional requirements. (3) The restrictive interpretation of the article 13(1)(b) 'grave risk of harm' or 'intolerable situation' defence, adopting the approach of the UK Supreme Court in Re E that the words need no 'gloss' but must be applied according to their ordinary meaning, with 'grave' indicating a serious standard and 'intolerable' meaning a situation this particular child should not be expected to tolerate. (4) The critical importance of expedition in Convention cases, with the court severely criticizing delays and emphasizing that the primary object is speedy return. The judgment also provides a template for detailed protective return orders that balance the Convention's objectives with the need to protect the child and abducting parent from harm upon return. It demonstrates how South African courts can fulfill Convention obligations while ensuring constitutional protections for children's rights.