This judgment is a useful working illustration of how our courts now approach return applications under the Hague Convention on the Civil Aspects of International Child Abduction, incorporated into our law as Schedule 2 to the Children’s Act 38 of 2005 through Chapter 17. Cloete J ordered the return of a four-year-old boy to Australia, rejected both of the mother’s pleaded defences, and crafted an order heavy with conditions and undertakings. The decision repays close reading for the way it applies the post-Koch evidential approach and the established tests for consent, acquiescence and grave risk.
The facts
The father is Australian and has always lived in that country; the mother is South African. The parties met while travelling in Vietnam in 2018, entered into a committed relationship in November of that year, and the mother thereafter relocated to Melbourne, where she progressed from a holiday visa to a student visa and ultimately to permanent residency by way of a partner visa. Their son, H, was born in Australia on 6 June 2021. The parties separated in October 2023 and implemented an informal, amicable shared-care arrangement for H.
In January 2025 the father gave written consent for the mother to travel with H to South Africa for a period of three months, from 22 January to 22 April 2025. The mother confirmed under oath that it had been her intention to return to Australia as agreed. That intention did not hold. On 21 March 2025 the maternal grandparents informed the father during a video call that the mother would not be returning with H, citing the negative effect that a return would have on her mental health. The father responded immediately and consistently that his consent had been for three months only, and over the weeks that followed he repeatedly insisted on H’s return, at one stage warning that if H were not returned he would “file for abduction”. H was not returned, and his wrongful retention in South Africa is dated from 23 April 2025, the day after the agreed travel period lapsed.
The matter ran the ordinary Convention course thereafter. The father approached the Australian Central Authority, his application was forwarded to the Ad Hoc Central Authority for the Republic of South Africa as the delegated authority under section 277 of the Children’s Act, and the return application was launched in the Western Cape High Court on 16 February 2026 — comfortably within the one-year period contemplated in Article 12 of the Convention.
It was effectively common cause that the jurisdictional requirements of Article 3 were satisfied: the mother’s retention of H breached the father’s rights of custody under Australian law, H was habitually resident in Australia immediately before the retention, and the father was actually exercising those custody rights at the relevant time. The father therefore discharged the onus he would otherwise have borne under Article 3, and the burden shifted to the mother to establish the two defences she had pleaded — ex post facto consent or acquiescence under Article 13(a), and grave risk of harm under Article 13(b).
The post-Koch approach to disputed evidence
The judgment is a useful reminder that the familiar motion-court reflex has no place in Convention proceedings. Before the Constitutional Court intervened, the position was as stated by the Supreme Court of Appeal in Penello v Penello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA), namely that the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) applied to factual disputes, so that a final return order could be granted only if the facts in the respondent’s affidavit, together with the admitted facts in the applicant’s affidavit, justified it — the sole exception being allegations so far-fetched as to be rejected on the papers.
That approach was rejected in Ad Hoc Central Authority v Koch NO 2024 (3) SA 249 (CC), and Cloete J applied the position laid down in the Koch case. The reasoning turns on the distinctive character of Convention proceedings. They are designed for the prompt and expeditious return of an abducted or retained child, as proclaimed in Articles 1 and 11, and the aim is to restore the status quo ante so that the courts of the child’s habitual residence can decide the underlying custody and welfare issues. The Central Authority cannot choose the procedural form of the proceedings, neither the Children’s Act nor the governing Regulations prescribe how evidence is to be received, and the requesting parent is ordinarily at an evidential disadvantage by reason of residing in another country, often on another continent.
These features militate against rigid rules on the adducing of evidence. As the Koch case explains, the material before the court will frequently be a hotchpotch of different types of evidence, which is not conducive to the fact-selection inherent in the Plascon-Evans rule. Article 13 compounds the difficulty: its peremptory language obliges the court to take into account information on the child’s social background supplied by the Central Authority of the habitual residence, and such factual material cannot sit comfortably with a process that resolves disputes by accepting the respondent’s version. The majority in the Koch case also warned against conflating the short-term jurisdictional question — which court is better placed to decide care, custody and guardianship — with the long-term question of the best custodial arrangement, the latter being no part of the return enquiry.
The practical lesson for practitioners is direct. In a return application you cannot assume that your client’s bare denials will be accepted on the Plascon-Evans default, nor that improbable averments will be glossed over. The court will weigh the competing versions, assess the probabilities, and have regard to the full body of material before it. Papers should therefore be built on positive, cogent and properly substantiated evidence, because that is what the post-Koch enquiry demands.
The Article 13(a) defence: consent and acquiescence
The mother’s primary defence was that the father had consented, ex post facto, to H residing permanently with her in South Africa, allegedly from 24 April 2025 and on a number of occasions thereafter. The governing test is that set out by the Supreme Court of Appeal in KG v GB 2012 (4) SA 136 (SCA): consent or acquiescence for the purposes of Article 13(a) involves an informed consent to, or acquiescence in, the breach of the wronged parent’s rights. While it need be proved only on a balance of probabilities, the supporting evidence must be clear and cogent, and the consent must be real, positive and unequivocal. If the court is left uncertain, the defence fails.
Cloete J found that the father’s communications did not come close to meeting that standard. Far from being unequivocal, they were conditional throughout — directed at securing a return to Australia for a defined period so that the long-term arrangements for H could be resolved through mediation and, failing agreement, by way of a relocation application in the Australian court. The father repeatedly recorded that the retention was without his consent, that it was “non-negotiable” that H return, and that he would invoke the Convention if H were not returned. Read in context, none of this amounted to acceptance of a permanent relocation.
The mother’s own conduct was, in the court’s assessment, fatal to her case. On her version she had asked the father to confirm his consent to their return to South Africa in writing, had expressed fear that he would not allow her to leave Australia again with H, and had continued to propose mediation on a footing that included H’s long-term country of residence. As the KG v GB case makes plain, consent must be real and unequivocal, yet the mother behaved as a person who knew that no such consent existed. Had the father genuinely consented, she would simply have held him to it rather than advancing fresh reasons for wishing to remain in this country.
The court treated acquiescence as the possibly more accurate label, given that consent in the Convention sense ordinarily precedes the retention. The applicable approach is that in Smith v Smith 2001 (3) SA 845 (SCA), which followed the English authority in looking to the actual subjective intention of the wronged parent, to be inferred from outward and visible conduct rather than from self-serving evidence of undisclosed states of mind. The Smith case recognised one qualification: where the wronged parent did not in fact acquiesce, but his outward conduct led the abducting parent to believe that he would not insist on the summary return of the child, justice will not permit him to resile from that position. On the facts neither limb assisted the mother. The father’s outward conduct never reasonably conveyed that he had gone along with H’s permanent retention, and the Article 13(a) defence accordingly failed.
The Article 13(b) defence and the role of ameliorative measures
The mother’s alternative defence was that a return order would expose H to a grave risk of psychological harm, or otherwise place him in an intolerable situation, because she would be unable to function mentally and emotionally if compelled to live in Australia again, with a consequent deleterious effect on her ability to parent him. Cloete J reaffirmed the high threshold articulated in the Koch case: the risk must be of a serious nature, more than the disruption, uncertainty and anxiety inherent in any unwelcome return, and the word “intolerable” connotes a situation which the particular child in the particular circumstances should not be expected to tolerate. The enquiry is also forward-looking, and — importantly — anxieties on the part of a respondent parent which are not based on objective risk to her can nonetheless found the defence where they are of such intensity as to destabilise her parenting to the point that the child’s situation becomes intolerable.
Decisively, the Koch case confirms that the presence or absence of ameliorative measures forms an integral part of the enquiry, consistent with the balanced approach endorsed in Sonderup v Tondelli 2001 (1) SA 1171 (CC). Put simply, if the child can be sufficiently protected from harm on return, the child does not in fact face a grave risk, because the judicial and welfare authorities of the home country are presumed able to provide the necessary protection.
The mother’s case foundered on the evidence. The only independent professional report was that of her former treating psychiatrist in Melbourne, which was over a year old, unconfirmed on oath, and which on its own terms did not suggest that she would be rendered non-functional by a relatively short return to Australia while a relocation application ran its course. No current South African report was placed before the court, and the mother did not disclose whether she remained on medication or in therapy. Cloete J also drew attention to the mother’s misconception of the enquiry: she had treated her long-term prospects in Australia as the question, when the court was concerned only with the short-term position pending determination by the Australian court. Compounding this, she declined to engage at all with the father’s detailed evidence on the resources, mental-health services, Medicare cover and government benefits available to her — information she plainly possessed, having lived and worked in Australia for some six years — leaving that evidence effectively unanswered.
The father, for his part, tendered an extensive suite of undertakings, which the court built into the safeguards attached to the return order: funded economy flights for the mother and an accompanying adult of her choice, rental accommodation comparable to his own for six months, sole responsibility for H’s maintenance and for the mother’s mental-health care to the extent not covered by the Australian system, the provision of a reliable motor vehicle, referral of care and contact to the Australian Family Court, and an undertaking not to institute or support any civil or criminal proceedings against the mother arising from the retention. Weighed against these protections, and absent compelling current evidence of grave risk, the Article 13(b) defence also failed. The return was ordered but deferred to 13 July 2026 to allow H to be prepared sensitively for the transition, with no order as to costs — the court declining to penalise the Ad Hoc Central Authority for discharging its statutory mandate at the request of the Australian Central Authority.
Questions and Answers
What was the core relief sought in this application, and under which instrument?
The applicants sought the return of the minor child, H, to Australia under Article 12 of the Hague Convention, incorporated into South African law as Schedule 2 to the Children’s Act through Chapter 17. Because less than one year had elapsed between the wrongful retention and the commencement of proceedings, Article 12 obliged the court to order the child’s return forthwith, subject to the Article 13 defences.
Who is the Ad Hoc Central Authority and what was its standing in the matter?
The Ad Hoc Central Authority for the Republic of South Africa is the body delegated to discharge the functions of the Central Authority under section 277 of the Children’s Act. It acted at the request of the Australian Central Authority and made common cause with the father in the relief sought, fulfilling its statutory mandate rather than acting as a private litigant.
What had to be established for the retention to be “wrongful” under the Convention?
Article 3 requires that the retention breached the rights of custody of the wronged parent under the law of the State of habitual residence, and that those rights were actually being exercised at the time of the retention. Here it was effectively common cause that the mother’s retention breached the father’s Australian custody rights, that H was habitually resident in Australia immediately beforehand, and that the father was exercising those rights, so the jurisdictional requirements were met.
On whom did the onus rest, and how was it distributed?
The father would ordinarily have borne the onus to establish the Article 3 requirements, but as these were not seriously disputed that burden was discharged. The onus then rested squarely on the mother to prove the defences she raised under Article 13(a) and Article 13(b).
How does the court now approach disputed facts in Convention proceedings?
Following the Koch case, the Plascon-Evans rule no longer governs. The court held that the expeditious, summary character of Convention proceedings, the peremptory direction in Article 13 to take account of social-background evidence, and the evidential disadvantage of the requesting parent all militate against the fact-selection inherent in the Plascon-Evans approach. The court must instead weigh the competing versions and assess the probabilities.
What was the position before the change of approach?
The earlier position, as stated in the Penello case, applied the Plascon-Evans rule, so that a final order followed only where the respondent’s version together with the admitted facts justified it, save for far-fetched allegations rejectable on the papers. On this point the Penello case has been overtaken by the Koch case.
What is the test for consent or acquiescence under Article 13(a)?
As set out in the KG v GB case, the consent or acquiescence must be an informed consent to the breach of the wronged parent’s rights. It is proved on a balance of probabilities, but the supporting evidence must be clear and cogent, and the consent itself must be real, positive and unequivocal; if the court is left uncertain, the defence fails.
Why did the mother’s ex post facto consent defence fail on the facts?
The father’s communications were conditional throughout, aimed at a defined return to Australia to resolve long-term arrangements, and he repeatedly recorded that the retention was without his consent. The mother’s own conduct contradicted her case, since she sought written confirmation of consent to return, feared she would not be allowed to leave Australia again, and continued to propose mediation on H’s long-term residence — behaviour inconsistent with a belief that consent had been given.
How does acquiescence differ from consent, and which test applies?
Acquiescence was treated as the possibly more accurate characterisation, because consent in the Convention sense ordinarily precedes the retention. The applicable approach is that in the Smith case, which looks to the actual subjective intention of the wronged parent, inferred from outward and visible conduct rather than self-serving evidence of undisclosed intentions.
Is there any qualification to the subjective-intention approach to acquiescence?
Yes. The Smith case recognised that where the wronged parent did not in fact acquiesce, but his outward conduct led the abducting parent to believe that he would not insist on the summary return of the child, justice will not permit him to resile from that stance. On the facts neither the primary test nor this qualification assisted the mother.
What is the threshold for the grave-risk defence under Article 13(b)?
The Koch case confirms a high threshold. The risk must be serious, exceeding the disruption, uncertainty and anxiety inherent in any unwelcome return, and “intolerable” denotes a situation which the particular child in the particular circumstances should not be expected to tolerate. The enquiry looks to the future and is not satisfied by the ordinary upheaval of relocation.
Can a parent’s subjective anxieties, without objective risk, ever found an Article 13(b) defence?
Yes, in principle. The Koch case accepts that anxieties not based on objective risk to the parent can found the defence where they are of such intensity that, on return, they would destabilise her parenting to the point that the child’s situation becomes intolerable. The difficulty for the mother was evidential rather than conceptual.
What role do ameliorative measures play in the Article 13(b) enquiry?
They are integral to it. Consistent with the balanced approach endorsed in the Sonderup case and applied in the Koch case, if the child can be sufficiently protected from harm on return, there is in fact no grave risk, because the authorities of the home country are presumed able to provide the necessary protection.
Why did the Article 13(b) defence fail despite the mother’s mental-health history?
The only independent report was over a year old, unconfirmed on oath, and did not suggest she would be rendered non-functional by a relatively short return while a relocation application ran in Australia. She produced no current South African report, did not disclose her ongoing treatment, and declined to engage with the father’s detailed evidence on the support, services and benefits available to her — leaving the court to weigh substantial ameliorative measures against insufficient evidence of grave risk.
Why was there no order as to costs against the Central Authority?
The court declined to mulct the Ad Hoc Central Authority in costs because it was discharging its statutory mandate at the request of the Australian Central Authority, and a costs order of that nature, even had the mother succeeded, would have a chilling and deterrent effect on the Authority in future Convention matters.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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