N M v The Central Authority for the Republic of South Africa and Another

The appellant, NM (a South African citizen), and the second respondent, MBM (an Australian citizen and Defence Force employee), met in Mauritius in 2019, married in South Africa in December 2020, and thereafter lived together in Australia. Their minor child, NEM, was born in Australia. In September 2022, NM travelled to South Africa with NEM to visit her parents, with return tickets for 29 October 2022. Two weeks before the scheduled return, NM informed MBM by WhatsApp that she would not be returning to Australia and intended to remain in South Africa permanently with NEM. MBM, with the assistance of the Central Authorities of Australia and South Africa (the first respondent), instituted Hague Convention return proceedings in the Gauteng Division of the High Court, Johannesburg in March 2023. NM opposed the application, raising a defence under Article 13(b) of the Hague Convention (grave risk of physical or psychological harm or intolerable situation) and relying on a social worker’s report. At the eleventh hour before the hearing in November 2023, NM filed a counterapplication seeking a declaration that section 275 of the Children’s Act 38 of 2005 was unconstitutional to the extent that it incorporated the Hague Convention. The High Court separated the constitutional challenge under Uniform Rule 33(4), found that the Article 12 jurisdictional requirements were satisfied and that NM had failed to discharge the onus under Article 13(b), and ordered NEM’s return to Australia. NM unsuccessfully sought leave to appeal the High Court and subsequently appealed to the Supreme Court of Appeal. During the appeal hearing in December 2024, NM indicated that she had changed her position and was willing to accompany NEM to Australia. MBM confirmed various undertakings designed to ameliorate the consequences of the return order.

• Whether the High Court erred in separating the constitutional challenge to section 275 of the Children’s Act 38 of 2005 from the main Hague Convention application and postponing it sine die.
• Whether the appellant established a defence under Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction by proving that there was a grave risk that NEM’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation.
• Whether the High Court erred in refusing to consider and incorporate protective undertakings offered by MBM as mitigatory measures in the return order.

The appeal was upheld in part. Paragraphs 1, 2 and 3 of the High Court order (separating the counterapplication, granting leave to pursue it, and ordering the child’s return under Article 12) remained unaffected. The remainder of the High Court order was amended to include detailed protective undertakings and logistical arrangements for NM and NEM’s return to Australia, covering accommodation, maintenance, a motor vehicle, medical and childcare expenses, airfares, an undertaking not to pursue criminal proceedings against NM, and a direction that MBM commence custody proceedings in Australia within 20 days. Save for this amendment, the appeal was dismissed. Each party was ordered to pay their own costs.

Where the jurisdictional requirements of Article 12 of the Hague Convention are established, a court has no option but to order the prompt return of the child. The Article 13(b) defence requires clear and compelling evidence of a grave risk of substantial and severe physical or psychological harm, extending beyond the inherent harm that flows from a court-ordered return; an abducting parent cannot rely on the consequences of her own unlawful conduct (such as attachment formed during the wrongful retention or her refusal to accompany the child) to establish that defence. Expert evidence in Hague Convention proceedings must be balanced and consider all relevant circumstances, including the position of the left-behind parent and available protective measures in the requesting state. A High Court possesses the inherent power under section 173 of the Constitution, as well as under Uniform Rule 33(4), to separate a collateral constitutional challenge from the main Hague Convention application where this is necessary to ensure an expeditious determination in the best interests of the child. A court seized with a Hague Convention return application has a duty to consider protective undertakings offered by the left-behind parent and may incorporate such mitigatory measures into its order to ameliorate any perceived harshness and to protect the child and any accompanying parent.

The Court expressed concern at the non-participation of the Central Authority in the appeal proceedings, noting that the Central Authority is key to the initiation and coherence of Hague Convention proceedings, and suggested that if the designated Central Authority cannot attend, Family Advocates or State Attorneys should step in to ensure matters are finalised expeditiously. The Court criticised the High Court’s delay of almost six months in delivering judgment, which was contrary to Article 11 of the Hague Convention and regulation 23 of the Children’s Act requiring such proceedings to be completed within six weeks, and observed that such delays risk allowing abducting parents to benefit from their unlawful conduct and undermine South Africa’s international obligations. The Court also noted that, while domestic violence is a grave societal ill, allegations of controlling behaviour and related conduct are generally factors for the custody court in the country of habitual residence rather than for the Article 13(b) inquiry, unless they clearly meet the grave-risk threshold.

The judgment reaffirms the mandatory and expeditious nature of Article 12 return orders under the Hague Convention and the very high threshold for Article 13(b) defences. It reinforces that an abducting parent cannot rely on attachments formed during the period of unlawful retention, or on her own refusal to accompany the child, to resist return. The decision also clarifies that expert evidence in Convention proceedings must be balanced and is subject to rigorous scrutiny even when uncontradicted. Importantly, it establishes that South African courts have a duty to consider and may incorporate protective undertakings and mitigatory measures into return orders to safeguard the child and any accompanying parent, and that High Courts have the inherent power to separate collateral constitutional challenges that would undermine the Convention’s urgency. Finally, the judgment criticises systemic delays in Hague Convention litigation and underscores the necessity of Central Authority participation throughout all appeal processes.