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

The first respondent (MV), a South African and Italian citizen, and the second respondent (VL), an Italian national with Swiss citizenship, had an unmarried relationship. Their son (L) was born in Italy on 14 May 2021. The family lived together in Geneva, Switzerland from October 2021. In May 2022, they travelled to South Africa to attend a wedding. MV and L were to return to Switzerland on 19 May 2022, but MV tested positive for COVID-19. After her recovery, MV made excuses to delay her return and ultimately decided to remain in South Africa with L. She obtained an ex parte order from the Gauteng High Court granting her full parental responsibilities and rights. VL applied through the Swiss Central Authority for L's return to Switzerland under the 1980 Hague Convention on International Child Abduction. The High Court dismissed the application, finding that L's habitual residence was not established as Switzerland and that VL had acquiesced to L remaining in South Africa. The Central Authority appealed.

• What was the habitual residence of the minor child L immediately before his retention in South Africa?
• Did VL have custodial rights under Italian and/or Swiss law?
• Was VL exercising those custodial rights at the time of L's retention in South Africa?
• Was the retention of L in South Africa wrongful under Article 3 of the 1980 Hague Convention?
• Did VL consent to or acquiesce in L's retention in South Africa (Article 13(a) defence)?
• Would L's return to Switzerland expose him to grave risk of psychological harm or place him in an intolerable situation (Article 13(b) defence)?
• Should L be returned to Switzerland?

The appeal was upheld with each party bearing their own costs. The High Court order was set aside. The Court ordered L's return to Switzerland forthwith, subject to protective conditions. If MV chooses to accompany L, VL must: not pursue criminal charges against her; assist her in obtaining Swiss citizenship; provide accommodation (the Geneva apartment or equivalent); pay maintenance of 1500 Swiss Francs monthly; cover crèche and medical costs; and provide transport. The order requires VL to institute proceedings in Switzerland within 20 days to obtain interim orders vesting L's residence with MV subject to VL's contact rights, pending determination of custody by Swiss courts. If MV does not accompany L, he is to return in VL's care. The order stays implementation until the Swiss court makes the required protective orders.

The binding principles established are: (1) Parental custodial rights acquired by operation of law under the law of a child's habitual residence at birth (Italy) subsist after a change of habitual residence to another state (Switzerland) pursuant to Article 16(3) of the 1996 Hague Convention and do not require re-registration. (2) The habitual residence of a young child is determined by the dependency model - the child acquires the habitual residence of the custodial parents. (3) "Habitual residence" requires an objective assessment of where the child's actual center of life was located, based on the duration of stay, relationships established, and settled purpose of the parents (particularly employment), not on subjective intentions about permanence or conditional factors like marriage plans. (4) Under Article 3 of the 1980 Hague Convention, retention is wrongful if: (a) it breaches custodial rights under the law of the state of habitual residence; and (b) those rights were being exercised at the time of retention. Both elements were established on these facts. (5) Acquiescence under Article 13(a) requires clear evidence that the requesting parent, with knowledge of rights, consented to or acquiesced in the retention. Merely exercising court-ordered contact rights does not constitute acquiescence. (6) In the absence of expert evidence and where the child has successfully spent time with the requesting parent, allegations of mental health issues do not establish "grave risk of harm" under Article 13(b). (7) Delays in proceedings and the child settling in the new environment cannot reward the wrongful retention or defeat a return order, as this would subvert the Convention's aims. (8) Courts in Hague Convention applications conduct only a summary, short-term best interests inquiry focused on prompt return, not a full merits determination of custody, which is reserved for courts of the habitual residence.

The Court made several notable obiter observations: (1) It expressed concern about the length of time taken to adjudicate the matter, noting that Article 11 of the 1980 Hague Convention requires decisions within six weeks. Courts and litigants must be mindful of these time limits. (2) It cautioned that parties burdened the record with unnecessary evidence not relevant to the narrow Hague Convention inquiry, requiring the Court to review 15 volumes plus 4 core bundles. Parties must exercise restraint in what they place before the court. (3) It emphasized that courts must be "very circumspect" about appointing curators ad litem in Hague cases, as these generate extraordinary costs for the Central Authority and Department of Justice, and a full best interests inquiry is not appropriate in these proceedings. (4) It noted that if criminal charges were pending against MV in Switzerland (which proved unfounded), the Court would add protective measures as in Sonderup requiring VL not to pursue such charges. (5) The Court observed that the curator ad litem's report focused mainly on primary residence and contact issues appropriate for a full best interests inquiry, which was not warranted in this type of application. (6) It noted that the medical expert report did not suggest the child would be at grave risk if returned to Switzerland, and merely recommended primary residence with the mother based on time spent together, which is not the test under the Convention. (7) The Court suggested that both parties had mental health challenges but these would be better addressed by the Swiss courts in the substantive custody proceedings.

This judgment clarifies important principles in South African international child abduction law: (1) It applies the "dependency model" for determining a young child's habitual residence, which follows that of the custodial parents. (2) It confirms that parental rights acquired by operation of law in one jurisdiction (Italy) continue to subsist when the family moves to another jurisdiction (Switzerland) under Article 16(3) of the 1996 Hague Convention. (3) It emphasizes that habitual residence under the Hague Convention requires "some degree of settled purpose" but this must be assessed objectively from the family's actual circumstances, not subjective intentions about permanence or marriage plans. (4) It reinforces that delays in Hague Convention proceedings cannot be used to defeat a return application, as this would reward wrongful retention. (5) It reiterates the Constitutional Court's guidance in Sonderup and Koch that Hague Convention applications involve only a "short-term" best interests inquiry focused on prompt return, not a full merits-based custody determination. (6) It provides guidance on protective "mirror orders" and undertakings to safeguard the left-behind parent's ability to accompany the child and participate in custody proceedings in the country of habitual residence. (7) It cautions courts to be circumspect in appointing curators ad litem in Hague cases given the cost implications and limited scope of inquiry required.