Factual Matrix: A Mother’s Contested Departure from Denmark to South Africa
The dispute before Adams J in the Gauteng Division of the High Court centred on a six-year-old boy who had been removed from Denmark to South Africa by his mother in early August 2025. The second applicant, a South African civil engineer working in Denmark, and the respondent, a Zimbabwean national, had married in South Africa on 22 May 2018. Their son was born in Denmark on 7 July 2019, and the family had maintained their habitual residence in Fredericia, Denmark, throughout the child’s life.
The factual controversy crystallised around two interrelated disputes. First, whether the second applicant had consented to the respondent’s departure with the minor child. Second, whether the parties had agreed that the respondent would give birth to their second child, conceived through in vitro fertilisation under a South African doctor’s supervision, in South Africa or Denmark. The respondent’s case was that a carefully planned arrangement existed whereby she would travel to South Africa, give birth to the couple’s second child, and return to Denmark with both children within four to five months once she had recovered physically and obtained the necessary travel documentation for the newborn. She relied on an email dated 3 August 2025, purportedly sent from the second applicant’s email address to hers, as evidence of his written consent to this arrangement.
The second applicant’s version stood in stark contradiction. He maintained that the agreement had always been for the respondent to give birth in Denmark, not South Africa. He denied sending the email of 3 August 2025 and characterised the respondent’s departure as an abscondment following marital discord, undertaken under the false pretext of a mutual agreement.
The backdrop to this factual dispute revealed a relationship under severe strain in the weeks preceding the respondent’s departure. On 27 July 2025, the second applicant had summoned the Danish police to the family home, complaining that the respondent was intoxicating him with illegal substances and attempting to kill him. Although the police left after discussing the matter with both parties, they undertook to check on the family the following day. Four days later, on 31 July 2025, the respondent engaged with an official from the Kommune, the local municipal authority in Denmark responsible for domestic issues including domestic violence. During this discussion, she disclosed the problems in the marriage, specifically referencing the second applicant’s psychiatric episodes. Crucially, the respondent informed the Kommune official that the second applicant had told her she could not leave Denmark, to which the official responded by advising that the respondent could not move address without the second applicant’s knowledge.
The situation escalated further on 1 August 2025 when the Familieretsuset, the Family Court in Denmark, issued a notice of guidance against foreign travel and child abduction to both parents at the second applicant’s request, pending the custody proceedings. Despite this formal warning and the ongoing marital strife, the respondent departed Denmark with the minor child on 5 August 2025. The Kommune subsequently advised the second applicant on 11 August 2025 that he had apparently given his consent for the respondent to travel to South Africa with the child, news that came as a complete surprise to him.
The respondent’s departure was characterised by stealth and secrecy. She left Denmark in what the court described as the proverbial middle of the night without arranging for the second applicant to transport her to the airport. This clandestine exit formed a critical element in the court’s assessment of the respondent’s credibility regarding the alleged consent. The respondent ultimately gave birth to the parties’ second child at a clinic in Sandton, South Africa, on 23 September 2025.
Central to the respondent’s opposition to the return application was her assertion that the second applicant, diagnosed with bipolar disorder and employed full-time as a civil engineer with extensive work-related travel commitments, lacked the capacity to care for a six-year-old child. She positioned herself as the minor child’s primary caregiver throughout his life and contended that her son would be completely lost without her maternal care. Against this backdrop, the court was tasked with determining whether the respondent had established either that the second applicant had consented to the removal or that returning the child to Denmark would expose him to grave risk or place him in an intolerable situation.
The Legal Framework: Article 12 and Article 13 Defences Under the Hague Convention
The court grounded its analysis in Article 12(1) of the Hague Convention on the Civil Aspects of International Child Abduction, which mandates that where a child has been wrongfully removed or retained and less than one year has elapsed from the date of wrongful removal or retention at the commencement of proceedings, the judicial authority of the Contracting State where the child is located shall order the child’s return forthwith. This provision establishes the fundamental principle that prompt return constitutes the primary remedy in international child abduction cases.
However, Article 13 of the Hague Convention creates exceptions to this mandatory return obligation. Article 13(a) permits a court to refuse return where the person opposing return establishes that the individual having custody rights was not actually exercising those rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. Article 13(b) provides a separate defence where there exists a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
Adams J drew extensively on the Supreme Court of Appeal’s recent judgment in N M v Central Authority for the Republic of South Africa and Another 2024 JDR 5313 (SCA), which itself relied upon the Constitutional Court’s authoritative pronouncement in Ad Hoc Central Authority, South Africa and Another v Koch NO and Another 2024 (3) SA 249 (CC). Both these decisions reaffirmed principles established two decades earlier in the seminal Constitutional Court judgment of Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC).
In the Sonderup case, the Constitutional Court articulated the delicate balancing exercise required in Hague Convention applications. The court must weigh the desirability of the appropriate court retaining jurisdiction in the child’s interests against the likelihood of undermining those interests by ordering return. Critically, the Sonderup judgment recognised that a court ordering return possesses the power to impose substantial protective conditions designed to mitigate interim prejudice to the child. The ameliorative effect of Article 13, proper application of the Convention, and the ability to craft protective orders ensure that any limitation on rights remains narrowly tailored to achieve the Convention’s important purposes without extending beyond what is necessary.
The Koch decision and the N M judgment extracted key interpretative principles governing Article 13(b) defences. The prompt return of the child constitutes the heart of the Convention’s entire scheme, proceeding on the basis that the best interests of an unlawfully abducted child are ordinarily served by requiring return to the jurisdiction from which removal occurred so that the law can take its proper course there.
The threshold for invoking Article 13(b) stands deliberately high. Demonstrating that the child would face some level of harm or discomfort upon return proves insufficient. The risk must be grave, meaning serious or severe. The Koch judgment emphasised that clear and compelling evidence of grave risk or other intolerability is required, measured as substantial. The harm itself must be grave, and evidence of a child’s attachment to one parent should not be overemphasised, as doing so misapplies the test in Hague Convention proceedings. The attachment factor belongs in custody and care proceedings, not in the Article 13(b) inquiry.
Under Article 13(b), the source of the risk of harm is irrelevant. What matters is the existence of grave risk to the child, regardless of whether this risk arises from circumstances in the country to which the child is to be returned or from the removal process itself. The court must undertake a context-specific analysis, involving careful, fact-specific inquiry into potential harm to the child in the particular case’s circumstances.
The Koch case addressed procedural considerations in determining factual disputes. The application of the Plascon-Evans rule proves unconducive to determining factual disputes in Convention proceedings for several reasons. Applicants in Convention proceedings cannot choose the procedural form, potentially imperilling them through factual disputes irresolvable on paper. Convention proceedings are summary in nature, and the evidentiary body placed before the court may consist of a hotchpotch of different material types. Determination must be based on overall assessment of all evidential material placed before the court. Expert evidence, even if uncontradicted, remains opinion that must be scrutinised by the court to determine its value.
A Hague Convention inquiry involves a two-stage process balancing the child’s long-term and short-term interests. The latter interests, with which the inquiry is primarily concerned, centre on jurisdictional issues. Long-term interests involve custody and care issues best determined by the court having jurisdiction over the child. The Convention’s aim is facilitating the child’s prompt return to that jurisdiction to enable necessary determination regarding long-term custody and care. These two inquiries should not be conflated.
Courts must exercise caution when the abducting parent relies on elapsed time since the child has been in South Africa as a factor in establishing an Article 13(b) defence. Such reliance may undermine the Convention’s primary objective and could become a strategic tool to evade its objectives.
Consent and Grave Risk: Evaluating the Respondent’s Article 13(a) and 13(b) Defences
Adams J addressed the Article 13(a) consent defence by examining the inherent probabilities within the competing versions presented by the parties. The court found the respondent’s version inherently improbable and far-fetched when assessed against the undisputed chronology of events. The central difficulty confronting the respondent was that, on her own narrative, the period during which the second applicant allegedly consented via the 3 August 2025 email coincided precisely with the parties being at loggerheads. The temporal proximity between the police callout on 27 July 2025, the Kommune discussion on 31 July 2025 where the respondent herself reported being told she could not leave Denmark, and the Familieretsuset’s issuance of a notice against foreign travel on 1 August 2025 rendered the proposition of sudden consent on 3 August 2025 implausible.
The court posed a rhetorical question that proved fatal to the respondent’s case on consent. If the second applicant had objectively given his consent to her travelling to South Africa with the child, what necessity existed for all the secrecy and underhandedness that characterised her departure? The clandestine nature of the respondent’s exit, conducted without arranging for the second applicant to drive her to the airport despite their cohabitation, contradicted the existence of genuine consent. A parent who has genuinely consented to a child’s temporary relocation would not be met with stealth and midnight departures.
The court therefore accepted the second applicant’s version as more probable. The respondent had failed to discharge the onus resting upon her to demonstrate that Article 13(a) applied. She had not established that the second applicant had consented to or subsequently acquiesced in the removal or retention of the minor child to and in South Africa. This finding alone would have been sufficient to grant the application, but the court proceeded to examine the Article 13(b) defence concerning grave risk.
The respondent’s Article 13(b) case rested substantially on the second applicant’s bipolar diagnosis, his full-time employment as a civil engineer requiring extensive travel, and her self-characterisation as the minor child’s primary caregiver throughout his life. She contended that these circumstances rendered the second applicant incapable of caring for a six-year-old boy and that the child would be completely lost without maternal care.
The curator ad litem, Ms Nieuwoudt, provided a report that proved instructive in assessing this defence. Significantly, the curator reported that the respondent herself expressed the opinion that it would be best for the minor child if they returned to Denmark. The child was very unhappy in South Africa and longed for his home in Denmark. This admission by the respondent contradicted her own Article 13(b) case and undermined the foundation of her argument that return would expose the child to grave risk.
The evidence before the court belied the respondent’s claim regarding the second applicant’s incapacity to care for the minor child. The child himself had expressed a preference for returning to Denmark to be with his father. The court rejected the contention that the second applicant’s medical condition posed a threat to the minor child. Evidence relating to the second applicant’s social, occupational, health, and academic status painted a picture of a responsible and trustworthy individual quite capable of nurturing his six-year-old son. The second applicant had already implemented measures for the minor child’s schooling upon return.
The court emphasised that the respondent had not demonstrated clear and compelling evidence of grave risk measured as substantial. The mere existence of bipolar disorder, even coupled with work commitments, did not establish that return would expose the child to physical or psychological harm or place him in an intolerable situation. The court was not presented with evidence suggesting the second applicant’s condition was unmanaged or that it had ever resulted in harm to the child during the six years they had lived together in Denmark.
Adams J concluded that the defences envisaged in Article 13(b) were not available to the respondent. There was no grave risk that the minor child’s return to Denmark would expose him to physical or psychological harm or otherwise place him in an intolerable situation. The minor child would not suffer such harm or be exposed to intolerable conditions should he be returned. The court’s findings on both the Article 13(a) and Article 13(b) defences meant that the application for return must succeed, subject to the imposition of appropriate protective measures.
Protective Measures and Ancillary Relief: Balancing the Child’s Prompt Return with Safeguarding the Abducting Parent
Having determined that the minor child must be returned to Denmark, Adams J exercised the court’s discretion to impose a comprehensive package of protective measures designed to mitigate the interim prejudice to both the respondent and the second minor child born on 23 September 2025. These ancillary orders reflected the court’s recognition that whilst the Convention mandates prompt return, the circumstances of implementation must protect all affected parties, particularly the abducting parent who would face the prospect of separation from her elder child whilst caring for a newborn infant in a foreign jurisdiction.
The court structured the return process with specific timelines and clear responsibilities. Within five days, the Central Authority was directed to collect the minor child’s passport and travel documents from the respondent’s erstwhile attorneys, Van Zyl Hertenberger Incorporated. Within ten days, the Central Authority would facilitate the handover of the minor child from the respondent to the second applicant. Should the respondent fail to cooperate voluntarily, the Sheriff or Deputy, assisted by members of the South African Police Services, was authorised to use whatever measures or means necessary to execute the order. This enforcement mechanism ensured that resistance would not frustrate the Convention’s objectives whilst providing the respondent with opportunity for dignified compliance.
The second applicant bore responsibility for arranging and paying for the minor child’s flight ticket and visa to Denmark upon receiving him. The Central Authority was directed to request assistance from the Central Authority for Denmark to implement further measures ensuring the minor child’s welfare immediately upon arrival at his habitual residence. This coordination between Central Authorities acknowledged that return constitutes merely the first step in securing the child’s wellbeing, with ongoing supervision required in the receiving jurisdiction.
The court crafted extensive protective provisions addressing the respondent’s eventual return to Denmark with the second minor child. Within five months, when the respondent was ready to return, the second applicant would pay all fees associated with her travel and that of the second minor child. This timeframe acknowledged the physical recovery required following childbirth and the administrative processes necessary to obtain travel documentation for a newborn.
Accommodation arrangements formed a critical component of the protective package. The second applicant was required to accommodate the respondent and second minor child during their stay in Denmark or pay for such accommodation. He bore the burden of providing proof to the Central Authority of South Africa, prior to the respondent’s departure, of the nature and location of such accommodation and its immediate availability upon arrival. Should any dispute arise regarding accommodation suitability, the Central Authority for Denmark would make the final and binding determination. This provision prevented the respondent from arriving in Denmark without secure housing whilst ensuring the second applicant could not manipulate accommodation arrangements to create intolerable conditions.
Medical coverage represented another essential safeguard. The second applicant would ensure that the respondent’s and second minor child’s medical expenses were covered by him or his Medical Aid. Access to healthcare without financial barrier protected the respondent’s physical wellbeing and that of the infant during a vulnerable period. The court further directed that the respondent have access to a range of financial and other support services available in Denmark, recognising that reintegration into Danish society after an adversarial legal process would require practical assistance beyond mere accommodation and medical care.
The court addressed the respondent’s legitimate fear of criminal prosecution. The order recorded that to the second applicant’s knowledge, no relevant criminal charges were pending in Denmark for which the respondent could be prosecuted in relation to her conduct in retaining the minor child in South Africa. The second applicant undertook not to pursue any criminal proceedings or assist in procuring prosecution proceedings against the respondent regarding this conduct. This undertaking eliminated the spectre of the respondent’s return to Denmark resulting in her imprisonment and consequent separation from both children, which would have undermined the protective purpose of the ancillary orders.
Care arrangements for the minor child post-return received explicit treatment. The second applicant confirmed that when the respondent arrived in Denmark, the minor child would live with her and spend reasonable time with him until the Family Court in Denmark made parenting orders regarding care arrangements. This provision ensured that despite the court ordering return to the second applicant’s jurisdiction, the mother-child relationship would continue as the primary care arrangement pending proper custody determination by the appropriate court. This structure embodied the Sonderup principle that Convention proceedings determine jurisdictional questions whilst leaving custody and care issues to the court having proper jurisdiction over the child.
The court preserved flexibility through provisions permitting either party to approach the family courts in Denmark to vary the order’s terms or to make the order a mirror order in Denmark. Should the appropriate court in Denmark fail or refuse to make such an order, the Central Authority or respondent could approach the South African court for variation. This mechanism acknowledged that circumstances might evolve and that the Danish courts, as the forum having jurisdiction over the child, possessed the authority to modify arrangements in the child’s best interests. The Republic of South Africa Central Authority was directed to transmit a copy of the order forthwith to the Central Authority for Denmark, ensuring that the receiving jurisdiction possessed full information regarding the return conditions.
The court ordered that each party pay their own costs. This departure from the usual costs-follow-the-result principle reflected the sensitive nature of Hague Convention proceedings and recognised that penalising the respondent with an adverse costs order would undermine the protective measures designed to facilitate her eventual return to Denmark. The costs order prevented the creation of financial barriers to family reunification whilst acknowledging that the second applicant had been compelled to institute proceedings to secure his child’s return.
Questions and Answers
What is the primary obligation imposed on a court under Article 12 of the Hague Convention when a child has been wrongfully removed or retained for less than one year?
Where a child has been wrongfully removed or retained and less than one year has elapsed from the date of wrongful removal at the commencement of proceedings, the judicial authority of the Contracting State where the child is located must order the child’s return forthwith. This mandatory obligation reflects the Convention’s core principle that prompt return serves the best interests of abducted children by ensuring that custody disputes are resolved in the jurisdiction having proper authority over the child.
What defences are available under Article 13(a) to resist an application for return of a child under the Hague Convention?
Article 13(a) permits a court to refuse return where the person opposing return establishes that the individual having custody rights was not actually exercising those rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention. The burden of proving these defences rests on the party resisting return.
What constitutes the Article 13(b) defence and what threshold must be met to invoke it successfully?
Article 13(b) provides that return may be refused where there exists a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The threshold for invoking this defence is deliberately high, requiring clear and compelling evidence of grave risk measured as substantial. It is insufficient to demonstrate that the child would face some level of harm or discomfort; the risk must be serious or severe.
What principle did the Constitutional Court establish in the Sonderup case regarding the balancing exercise required in Hague Convention applications?
The Sonderup judgment established that a court must weigh the desirability of the appropriate court retaining jurisdiction in the child’s interests against the likelihood of undermining those interests by ordering return. The court recognised that a court ordering return possesses power to impose substantial protective conditions designed to mitigate interim prejudice to the child, and that the ameliorative effect of Article 13, proper application of the Convention, and the ability to craft protective orders ensure any limitation on rights remains narrowly tailored to achieve the Convention’s purposes.
Is the source of harm relevant when assessing an Article 13(b) defence?
The source of the risk of harm is irrelevant under Article 13(b). What matters is the existence of grave risk to the child, regardless of whether this risk arises from circumstances in the country to which the child is to be returned or from the removal process itself. The focus remains on the gravity and substantiality of the risk rather than its origin.
What is the significance of the Constitutional Court’s statement in the Koch case that prompt return lies at the heart of the Convention’s entire scheme?
This statement emphasises that the Convention proceeds on the basis that the best interests of a child who has been unlawfully abducted from one jurisdiction are ordinarily served by requiring return to that jurisdiction so that the law can take its proper course. This principle undergirds the high threshold for Article 13(b) defences and the Convention’s summary procedural nature, ensuring that jurisdictional questions are resolved swiftly in favour of return unless grave risk is clearly established.
Why should courts exercise caution when an abducting parent relies on time elapsed since the child has been in South Africa as a factor in establishing an Article 13(b) defence?
Reliance on elapsed time may undermine the Convention’s primary objective and could become a strategic tool to evade its objectives. Allowing the mere passage of time to constitute a defence would reward delay and encourage abducting parents to prolong proceedings in the hope that the child’s integration into the new environment would prevent return, thereby frustrating the Convention’s purpose of ensuring prompt return.
What did the Koch judgment establish regarding the application of the Plascon-Evans rule in Convention proceedings?
The Koch case held that application of the Plascon-Evans rule is unconducive to determining factual disputes in Convention proceedings for several reasons. Applicants cannot choose the procedural form, potentially imperilling them through factual disputes irresolvable on paper. Convention proceedings are summary in nature, and determination must be based on overall assessment of all evidential material placed before the court, which may consist of a hotchpotch of different material types.
What is the significance of the two-stage process identified in Hague Convention inquiries?
The inquiry involves balancing the child’s long-term and short-term interests. Short-term interests, with which the inquiry is primarily concerned, centre on jurisdictional issues. Long-term interests involve custody and care issues best determined by the court having jurisdiction over the child. The Convention’s aim is facilitating prompt return to enable that jurisdiction to make necessary determinations regarding long-term custody and care. These two inquiries should not be conflated, as doing so would transform jurisdictional proceedings into full custody hearings.
Why should evidence of a child’s attachment to one parent not be overemphasised in Article 13(b) assessments?
Overemphasising attachment evidence misapplies the test in Hague Convention proceedings. The attachment factor belongs in custody and care proceedings, not in the Article 13(b) inquiry. Convention proceedings determine jurisdictional questions and whether grave risk exists, not which parent should have custody. Focusing excessively on attachment would conflate the two-stage process and undermine the Convention’s purpose of ensuring the appropriate court determines custody.
What status does uncontradicted expert evidence hold in Convention proceedings according to the Koch judgment?
Expert evidence, even if uncontradicted, remains opinion that must be scrutinised by the court to determine its value. Courts are not bound to accept expert opinions uncritically but must assess their persuasiveness, reasoning, and compatibility with other evidence. This principle ensures that expert evidence does not automatically establish an Article 13(b) defence without proper judicial evaluation.
How did the court in this case assess the inherent probability of the respondent’s version regarding consent?
The court examined the temporal relationship between undisputed events and the alleged consent. The police callout on 27 July 2025, the Kommune discussion on 31 July 2025 where the respondent reported being told she could not leave Denmark, and the Family Court’s notice against foreign travel on 1 August 2025 rendered the proposition of sudden consent on 3 August 2025 inherently improbable. The clandestine nature of the departure, conducted without the second applicant’s assistance, further contradicted genuine consent.
What role do protective measures play in Hague Convention proceedings and what is their legal foundation?
Protective measures serve to mitigate interim prejudice to the child and abducting parent caused by court-ordered return, ensuring that any limitation on rights remains narrowly tailored to achieve the Convention’s purposes. The Sonderup case established that courts possess power to impose substantial protective conditions, and the ameliorative effect of these measures, combined with proper application of the Convention, ensures proportionality between the means employed and the ends sought. These measures allow courts to balance prompt return with safeguarding vulnerable parties.
What significance did the curator ad litem’s report hold in the court’s assessment of the Article 13(b) defence?
The curator’s report proved instructive because it recorded the respondent’s own opinion that it would be best for the minor child if they returned to Denmark, that the child was very unhappy in South Africa, and that he longed for his home in Denmark. This admission contradicted the respondent’s Article 13(b) case and undermined her argument that return would expose the child to grave risk, as her own assessment acknowledged that the child’s interests favoured return.
Why did the court order each party to pay their own costs despite the application succeeding?
The court departed from the usual costs-follow-the-result principle, recognising the sensitive nature of Hague Convention proceedings. Penalising the respondent with an adverse costs order would undermine the protective measures designed to facilitate her eventual return to Denmark by creating financial barriers to family reunification. The costs order acknowledged that whilst the second applicant had been compelled to institute proceedings, the broader interests of the family unit and the Convention’s objectives were better served by avoiding punitive financial consequences.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline 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 Calculatorand Accrual Calculator.
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