Sherrie Harris v Mark Harris

The parties were married in the United Kingdom in 2004 and had a minor child, Brett Morris (born 21 October 2004). Although still married, the parties were separated. On 24 June 2007, the parties entered into an agreement in terms of the Children Act 1989 of the United Kingdom regarding their minor child. The agreement permitted the respondent (father) to take the child to Harare, Zimbabwe, pending the applicant's (mother's) fulfillment of certain conditions: obtaining tax credits, finding a nursery place, securing a two-bedroom property, and finding employment in the local area. The agreement stipulated that the child would not return before 1 September 2007. Both parties had parental responsibility and joint custody under English law. The applicant claimed she fulfilled all conditions and provided documentary evidence (nursery letter, lease agreement, proof of employment and earnings), but the respondent refused to return the child, continuing to retain the child in Zimbabwe.

• Whether the continued retention of the minor child in Zimbabwe by the respondent constitutes wrongful retention under the Child Abduction Act [Cap 5:05] and Article 3 of the Convention on the Civil Aspects of International Child Abduction
• Whether Zimbabwe was the habitual residence of the child or whether it remained the United Kingdom
• Whether the applicant had fulfilled the conditions stipulated in the agreement between the parties
• Whether foreign law (the Children Act 1989 of the United Kingdom) could be relied upon without proper authentication
• Whether the court should consider the best interests of the child in proceedings under the Convention or focus solely on the prompt return of the child

The application was granted in terms of the draft order. The court declared the continued retention of the minor child by the respondent unlawful and ordered that the minor child be returned to the custody of the applicant within seven days of the granting of the order, plus costs of suit.

The binding legal principles established are: (1) Under the Convention on the Civil Aspects of International Child Abduction, incorporated in the Child Abduction Act [Cap 5:05], retention of a child is wrongful where it breaches custody rights under the law of the state where the child was habitually resident immediately before removal, and those rights were actually being exercised or would have been exercised but for the retention (Article 3); (2) The purpose of Convention proceedings is to secure the prompt return of wrongfully retained children to the country of habitual residence, not to determine custody rights or the best interests of the child - those matters are for the jurisdiction of the country of habitual residence; (3) 'Habitual residence' bears its ordinary meaning and temporary removal to another jurisdiction does not automatically change a child's habitual residence; (4) Where parties had joint parental responsibility and custody under the law of the habitual residence, and one party retains the child in another jurisdiction in breach of an agreement, this constitutes wrongful retention under Article 3; (5) Courts must give maximum force to the purposes of the Convention in dealing with wrongful removal or retention of children.

The court made non-binding observations that: (1) while an uncertified copy of foreign legislation cannot be relied upon without proper authentication under the Child Abduction Act, the court may take judicial notice under section 24 of the Civil Evidence Act of matters not subject to reasonable dispute, and may refer to authoritative sources such as Halsbury's Laws of England; (2) Article 14 of the Convention, which concerns expeditious resolution of disputes concerning children, should be read in conjunction with domestic evidential rules; (3) Article 13 provides exceptions where return may be refused (lack of actual exercise of custody, consent/acquiescence, grave risk of harm, or where a mature child objects), but such exceptions must be specifically invoked and established by the party opposing return; (4) issues such as whether shared accommodation is appropriate or whether employment location is suitable are matters for determination by the court adjudicating custody, not for Convention return proceedings; (5) the Convention reflects a modern approach to parent-child relations founded on assumption of responsibilities rather than control.

This case is significant in Zimbabwean family law as it demonstrates the application of the Child Abduction Act [Cap 5:05] and the Convention on the Civil Aspects of International Child Abduction. It clarifies that: (1) the purpose of Convention proceedings is not to determine custody or the best interests of the child, but to secure the prompt return of wrongfully retained children to their country of habitual residence where custody disputes can be properly adjudicated; (2) the concept of 'habitual residence' does not automatically change simply because a child is taken to another country; (3) the court will give maximum force to the purposes of the Convention to provide mechanisms for dealing with wrongful removal or retention of children; (4) parties cannot defeat Convention obligations by imposing conditions on return that have been substantially fulfilled; and (5) Article 29 allows direct application to judicial authorities of Contracting States for alleged breaches of custody rights.