Factual Background: From Geneva to Gauteng – The Retention of a Minor Child
The factual matrix in this matter presents a textbook illustration of how international child retention disputes arise from the breakdown of cross-border relationships. Ms MV, a dual South African and Italian citizen, and Mr VL, an Italian national who later obtained Swiss citizenship, met in June 2019 in Rovere di Rocca di Mezzo, a small village in L’Aquila, Abruzzo province, Italy. At the time, Mr VL was employed by the city council of Lausanne, Switzerland. The parties became engaged in December 2019 in Cerveteri, Rome.
When the COVID-19 pandemic struck in March 2020, Mr VL obtained permission to travel to Italy where he remained with Ms MV until June 2020. After international borders reopened, Ms MV agreed to leave Rovere and relocated to Lausanne with Mr VL. This move was significant given that Ms MV’s parents, based on their religious beliefs, opposed the couple cohabiting whilst unmarried. During August 2020, the parties returned to Rovere for summer holidays before returning to Lausanne, where Ms MV discovered she was pregnant.
In September 2020, Mr VL joined the United Nations High Commissioner for Refugees in Geneva, working from home whilst residing with Ms MV in Lausanne. Shortly before the child’s birth, they travelled to Roseto degli Abruzzi, Italy, where their son L was born on 14 May 2021. Mr VL bore all costs associated with travel, accommodation, and the birth, as Ms MV was unemployed. After L’s birth, the family returned to Geneva, where Mr VL maintained both Ms MV and the child.
Between June and October 2021, the family travelled between Switzerland, Italy, and France. In October 2021, Mr VL purchased an apartment in Geneva where they moved in together. By January 2022, when L was approximately eight months old, the parties enrolled him at a crèche. Mr VL applied for L to be issued with an official Swiss identity document, and Ms MV signed the authorisation form. L was also listed as a dependent on Mr VL’s travel insurance issued in line with his United Nations passport.
The relationship experienced turbulence in November 2021 when Mr VL, whilst on a work mission in Chad, ended the relationship via text message. Ms MV and L returned to Rovere to stay with her parents. During December 2021, Mr VL travelled to Rovere for the holidays, whereupon the parties reconciled and returned to Geneva with L.
A critical turning point occurred in March 2022 when Mr VL was hospitalised due to what he described as burnout from work-related pressures. His mother and sister travelled to Geneva to assist Ms MV in caring for him. Following his recovery, Ms MV suggested attending her brother’s wedding in South Africa on 14 May 2022, and Mr VL agreed. Ms MV and L arrived in South Africa on 6 May 2022, with Mr VL joining them on 11 May 2022. The family stayed together at a guest house in Waterkloof, Pretoria. Mr VL had booked return tickets for all three to depart on 19 May 2022.
The retention arose when Ms MV tested positive for COVID-19 on 19 May 2022. Mr VL departed for Geneva alone, with the parties agreeing that Ms MV and L would join him once she recovered from the infection. However, after her recovery, Ms MV made several excuses to delay her return to Switzerland. On 18 November 2022, she purchased and sent confirmation of a return flight for herself and L to Geneva, but subsequently cancelled the booking. She decided not to return to Mr VL, opting instead to remain in South Africa where she had a support system. Mr VL informed Ms MV that L should stay with him in Europe, and if she wished, she could visit during holidays or relocate to Europe to live closer to them.
Mr VL then consulted Bollo and Lamberti attorneys in Italy. On 28 November 2022, Ms MV was contacted by Judge Luca Pascali, an Italian judge at the Italian embassy in Pretoria, who enquired into L’s circumstances and advised that he intended to conduct a home visit. Following this meeting, Ms MV attempted to register L as a South African citizen, but the Italian embassy refused to cooperate.
On 6 December 2022, Ms MV approached the Gauteng Division of the High Court, Pretoria in an ex parte application seeking various orders. The high court granted Ms MV full parental responsibilities and rights over L in terms of sections 18 and 19 of the Children’s Act 38 of 2005, awarded Mr VL parental responsibilities and rights in terms of section 21 of the Children’s Act, vested L’s primary care in Ms MV, ordered the Department of Home Affairs to register L as a South African citizen and provide him with a South African identity document, and awarded Mr VL contact rights pending investigations by the Office of the Family Advocate.
On 1 January 2023, Mr VL travelled to South Africa with his mother. He exercised his visitation rights in terms of the court order and opposed the ex parte application. On 12 January 2023, the Swiss authorities submitted an application to the office of the Chief Family Advocate, Central Authority for the Republic of South Africa, relying specifically on the 1980 Hague Convention on the Civil Aspects of International Child Abduction, requesting it to take all necessary steps and measures for the speedy and safe return of L to Switzerland. The matter eventually reached the Supreme Court of Appeal following the high court’s dismissal of the application with costs.
Habitual Residence Under the Hague Convention: Determining the Child’s Jurisdictional Home
The concept of habitual residence lies at the heart of any application under the Hague Convention. It determines which state’s courts have jurisdiction to adjudicate custody matters and whether a removal or retention is wrongful. The Supreme Court of Appeal was required to determine L’s habitual residence immediately prior to his retention in South Africa, a determination that would resolve whether the application fell within the scope of the Convention.
The high court had placed significant emphasis on the issue of marriage between the parties, making it a central consideration in determining habitual residence. This approach was fundamentally flawed. The high court found that Ms MV had moved to Switzerland with a view to marrying Mr VL, and that as soon as they were settled, Mr VL began making excuses for not marrying her. It concluded that neither L nor Ms MV had settled in the Swiss community, that Ms MV did not intend to remain in Switzerland permanently unless Mr VL married her, and that it was uncertain whether Mr VL regarded Geneva as L’s habitual residence. Consequently, the high court found that the parties did not have the settled purpose of residing in Switzerland, and that L was not habitually resident in Switzerland at the time of his removal to South Africa.
The Supreme Court of Appeal held that the high court misdirected itself by focusing on the marriage issue when determining habitual residence. The sole enquiry was whether the parties and L were habitually resident in Switzerland at the time Ms MV retained L in South Africa without Mr VL’s consent as contemplated in Article 3, read with Articles 5, 12, and 13 of the Hague Convention.
In Senior Family Advocate, Cape Town, and Another v Houtman 2004 (6) SA 274 (C), the court provided guidance on the meaning of habitual residence. The word “habitual” implies a stable territorial link, which may be achieved through length of stay or through evidence of a particularly close tie between the person and the place. A possible prerequisite for habitual residence is some degree of settled purpose or intention. A settled intention or settled purpose is clearly one which will not be temporary, but it is not something to be searched for under a microscope. If it is there at all, it will stand out clearly as a matter of general impression.
The Houtman case further established that in practice, it is often impossible to make a distinction between the habitual residence of a young child and that of its custodians, as it cannot reasonably be expected that a young child would have the capacity or intention to acquire a separate habitual residence. This principle was crucial in the present matter given L’s tender age.
The Supreme Court of Appeal considered the dependency model for determining a child’s habitual residence. In Central Authority for the Central Republic of South Africa and Another v LC 2021 (2) SA 471 (GJ), the court explained that three basic models have developed from judicial interpretation of habitual residence: the dependency model, the parental rights model, and the child-centred model. Under the dependency model, a child acquires the habitual residence of his or her custodians whether or not the child independently satisfies the criteria for acquisition of habitual residence in that country. The LC case also established that an appreciable period of time and a settled intention are necessary to enable a child to become habitually resident, and that habitual residence must be determined by the facts of the matter on a balance of probabilities.
Swiss law provides specific guidance on habitual residence. Article 20 of the Swiss Federal Act on Private International Law of 18 December 1987 (PILA) defines habitual residence as the state where a person lives for a certain period of time, even if this period is of limited duration from the outset. Alternatively, a person has their establishment in the state where the centre of their professional or commercial activities is located. No person may have more than one domicile at the same time, and if a person does not have a domicile anywhere, the habitual residence is the relevant place.
The Swiss interpretation of habitual residence was further illuminated in the Federal Tribunal decision X v Y Federal Tribunal Judgment 5P.367/2005. The Federal Tribunal held that the concept of habitual residence within the meaning of the Hague Convention corresponds to the connecting factor concept used in other Hague Conventions. It refers to the actual centre of the child’s life, which results from the actual duration of the stay and the relationships established thereby, or from the expected duration of the stay and the integration that can be anticipated.
The Supreme Court of Appeal examined the uncontroverted facts demonstrating that Switzerland was L’s habitual residence. There was a settled purpose that brought Mr VL and Ms MV to Switzerland: Mr VL’s employment in Geneva. He had been working in Switzerland long before L was born, and Ms MV had been staying with him even when he was in Lausanne. Ms MV was offered employment to provide English lessons to an Albanian diplomat in Geneva. Although L was born in Italy, the Italian Consulate General in Geneva wrote to Mr VL on 15 December 2022, recognising Switzerland as L’s place of residence before his removal to South Africa and instructing him to submit a repatriation request to Swiss authorities.
The parties had applied for L to be enrolled at a crèche in Switzerland. Mr VL applied and Ms MV consented to L being registered with the Swiss authorities. They moved and stayed in an apartment that Mr VL had purchased. L’s name was displayed on the entrance door and on the letterbox of the apartment. When they left for South Africa on 5 May 2022, they were resident in Switzerland. Both parents and L had return tickets from Geneva to South Africa and back to Geneva on 19 May 2022. Mr VL had applied for Swiss citizenship which he obtained in December 2024, thus entitling L to Swiss citizenship and attendant social benefits. Ms MV returned to the apartment in Switzerland in May 2024 to collect her jewellery and belongings.
All these factors and the conduct of both parties demonstrated that they regarded Switzerland as their home and as L’s home. The Supreme Court of Appeal found that Italy was L’s habitual residence and birth residence until his parents moved to Switzerland, at which point L’s habitual residence and that of his parents became Switzerland.
Ms MV’s contention that she had no intention of residing in Switzerland permanently was legally flawed. This argument contradicted the definition of habitual residence under Swiss law. Article 20(b) of PILA explicitly states that a person has their habitual residence in the state where they live for a certain period of time, even if this period is of limited duration from the outset. Moreover, if it were accepted that according to the dependency model a child acquires the habitual residence of his or her custodians, it would make no sense to contend that although L was residing with his parents in Switzerland, his habitual residence alone was in Italy.
Such a finding would contravene the intention of the Hague Convention, which distinguishes the habitual residence relevant for Article 3 purposes as being the one prior to the removal or retention of the child. It would also contradict the principles in the Houtman case regarding the impossibility of separating a young child’s habitual residence from that of its custodians.
The Supreme Court of Appeal concluded that the high court misdirected itself when it found that the parties were settled in Switzerland, yet simultaneously found that it did not believe the parties had the settled purpose of residing in Switzerland. On the correct facts, both categories in Article 20 of PILA had been met: the parties lived in Switzerland for a certain period of time, and the centre of their professional activities was located there. The court accordingly found that L’s habitual residence prior to his retention in South Africa was Switzerland.
Custodial Rights of Unmarried Parents: Italian Law, Swiss Law, and Cross-Border Recognition
A central contention in this matter was whether Mr VL possessed custodial rights over L, and if so, whether he was actually exercising those rights at the time of L’s retention in South Africa. This determination was essential for establishing whether the retention was wrongful under Article 3 of the Hague Convention, which requires that the removal or retention be in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention, and that at the time of removal or retention those rights were actually being exercised.
Ms MV mounted her defence primarily on Article 298a of the Swiss Civil Code. This provision stipulates that if parents are not married to each other and the father recognises the child, or the parent-child relationship is established by court judgment but joint parental responsibility was not ordered at the time of the judgment, joint parental responsibility is established based on a joint declaration by the parents. In the declaration, parents must confirm that they are prepared to accept joint responsibility for the child and have agreed on residence, contact or the sharing of parenting duties, and child maintenance. Unless and until such declaration has been made, the mother has sole parental responsibility.
Ms MV contended that because she and Mr VL never signed this joint declaration, Mr VL never acquired custodial rights under Swiss law. She argued that as an unmarried mother, she was L’s sole custodial parent under Swiss law. She further submitted that a distinction must be made between pure parental rights and custodial rights, and that Mr VL had failed to make out a case regarding what rights he possessed over L.
The Supreme Court of Appeal found this reliance on Article 298a to be misplaced and contradictory to Ms MV’s own position before the high court. In her ex parte application of 6 December 2022, Ms MV herself sought an order declaring that Mr VL had full parental responsibilities and rights over L vested in terms of section 21 of the Children’s Act. She sought this relief whilst simultaneously seeking full parental responsibilities and rights for herself. The admitted facts before the high court were that Mr VL had full parental responsibilities over L. These admissions fatally undermined Ms MV’s subsequent reliance on Article 298a.
The critical question became which legal system governed the determination of parental responsibility. Since L was Italian and had been registered as such at birth, his habitual residence was Italy at the time of birth. The founding principles on parental responsibility to be applied were therefore those prescribed by Italian law, as those were the responsibilities that both parents acquired by operation of law on the day L was born.
Article 316 of the Italian Civil Code provides that both parents have parental responsibility, which is exercised by mutual agreement, taking into account the child’s abilities, natural inclinations and aspirations. Crucially, the parents by mutual agreement determine the minor’s habitual residence. In the event of disagreement on matters of particular importance, each parent may refer the matter to the judge without formalities indicating the measures considered most appropriate. Where a parent has recognised the child, that parent exercises parental responsibility over the child. If the recognition of a child born out of wedlock is carried out by both parents, the exercise of parental responsibility belongs to both.
Article 337 ter of the Italian Code further provides that a minor child has the right to maintain a balanced and continuous relationship with each parent, to receive care, education, instruction and moral assistance from each, and to maintain meaningful relationships with relatives of each branch of parenthood. Parental responsibility is exercised by both parents. Decisions of major interest to children concerning education, health and choice of the minor’s habitual residence are taken by mutual agreement, taking into account the capacities, natural inclinations and aspirations of the children.
Ms MV had argued that even if Mr VL obtained rights in terms of Italian law, Article 316 of the Italian Code affords both parents the right to determine the child’s habitual residence by mutual agreement. In the absence of such mutual agreement, Mr VL should have approached the Italian court for judicial intervention in terms of Article 316.2. She contended that the onus rested on Mr VL to establish custodial rights.
The Supreme Court of Appeal examined the body of evidence demonstrating that prior to and after L’s birth, the parties exercised joint parental responsibilities. Prior to L’s birth, Ms MV and Mr VL were living together in Switzerland and were engaged to be married. During the relevant period immediately prior to L’s birth, from 22 January 2021 until 10 April 2021, they resided in Switzerland. They left for Italy in preparation for L’s birth. Mr VL was present and supportive throughout the pregnancy and birthing process. He was responsible for all expenses relating to accommodation and L’s birth. After L’s birth, the parties travelled and stayed together with L on vacation, weekends, or paternity leave in Italy, France, and Switzerland.
Ms MV and Mr VL resided in Switzerland together with L in the apartment purchased by Mr VL from 16 January 2022 until 5 May 2022 before their departure to South Africa. Both parents intended to return to Switzerland after the wedding, evidenced by their return air tickets. Mr VL was responsible for all expenses and maintenance relating to L and Ms MV in Switzerland, and remained responsible for the child’s expenses and maintenance even after L’s retention in South Africa.
These facts demonstrated that Mr VL had custodial rights to L which were exercised prior to his retention in South Africa. The high court correctly found that Ms MV did not deny that Mr VL enjoyed custodial rights, and that Ms MV admitted the parties both enjoyed full parental rights and responsibilities. The Supreme Court of Appeal held that the contention by Ms MV that Mr VL never had custodial rights and had never exercised them at the time of L’s retention was legally untenable and had to be rejected.
The court found that Mr VL had demonstrated that he acquired full parental responsibilities in respect of L. Once those parental responsibilities, including joint custody, were acquired under Italian laws, they were not relinquished or extinguished when the parties moved to Switzerland. They remained extant.
The continuity of these rights across jurisdictions is governed by Article 16(3) of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. This provision states that parental responsibility which exists under the law of the state of the child’s habitual residence subsists after a change of that habitual residence to another state. This legal position ensures continuity of parental authority without requiring official re-registration in Geneva.
The Supreme Court of Appeal emphasised that the continuity of parental rights where there is a change of habitual residence accords with the best interests of the child principle that the Hague Convention seeks to protect. This framework prevents the arbitrary loss of parental rights merely because a family relocates across international borders.
Switzerland, as a signatory to the 1996 Convention, recognises and enforces these continuing parental responsibilities. Article 85 of PILA provides that in respect of protection of children, the jurisdiction of Swiss judicial or administrative authorities, the applicable law, and the recognition and enforcement of foreign decisions or measures are governed by the 1996 Convention. Measures taken in a state which is not party to the conventions are recognized if they were taken or are recognized in the state of habitual residence of the child.
Article 7 of the 1996 Convention addresses the specific situation of wrongful removal or retention. In case of wrongful removal or retention of a child, the authorities of the contracting state in which the child was habitually resident immediately before the removal or retention keep their jurisdiction until the child has acquired a habitual residence in another state and certain conditions are met. The removal or retention of a child is considered wrongful where it is in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention, and at the time of removal or retention those rights were actually being exercised.
Article 17 of the 1996 Convention further provides that the exercise of parental responsibility is governed by the law of the state of the child’s habitual residence. If the child’s habitual residence changes, it is governed by the law of the state of the new habitual residence. Once Mr VL’s custodial rights were established in terms of Italian laws, they were automatically recognised in Swiss law in terms of Article 85 of PILA.
The Swiss authorities themselves acknowledged this legal position. In their correspondence of 12 January 2023 to the Central Authority for the Republic of South Africa, the Swiss authorities recorded that the parents have joint custody according to Italian Family Law. They specifically noted that according to Article 16(3) of the 1996 Convention, which is in force between Switzerland and Italy, parental responsibility which exists under the law of the state of the child’s habitual residence subsists after a change of that habitual residence to another state.
The Supreme Court of Appeal concluded that the first leg of the Article 3 test had been satisfied. Mr VL possessed custodial rights over L which arose by operation of Italian law and continued to subsist when the family’s habitual residence changed to Switzerland. These rights were actually being exercised by Mr VL immediately prior to L’s retention in South Africa. The retention of L in South Africa was therefore a decision taken by Ms MV alone without the consent of Mr VL, in breach of his custodial rights. Ms MV failed to offer a satisfactory explanation to dispel the presumption of wrongful retention of L. Her unilateral decision to retain the child in South Africa without consulting Mr VL as the father who had custodial rights was wrongful.
The SCA’s Intervention: Correcting Misdirections on Acquiescence, Grave Risk, and the Return Order
Having established that L’s retention in South Africa was wrongful, the Supreme Court of Appeal turned to examine the defences raised by Ms MV under Article 13 of the Hague Convention. These defences, if successfully established, would permit the court to refuse to order L’s return to Switzerland despite the wrongful retention. Ms MV invoked two specific defences: first, that Mr VL had consented to or subsequently acquiesced in the retention under Article 13(a); and second, that there was a grave risk that L’s return would expose him to psychological harm or otherwise place him in an intolerable situation under Article 13(b).
The acquiescence defence required Ms MV to establish that Mr VL, with knowledge of his rights under the Hague Convention, had nonetheless conducted himself in a manner that led her reasonably to believe that he was not insisting on L’s summary return to Switzerland. The Supreme Court of Appeal considered the leading authority on acquiescence in Smith v Smith [2001] ZASCA 19.
In the Smith case, this Court found that the appellant had been aware of the Hague Convention and that the respondent was retaining the children in South Africa unlawfully. He had been aware that the Convention afforded him a remedy. Armed with this knowledge, he had nonetheless instructed his attorney to withdraw his application under the Convention. These facts clearly justified the inference that, with knowledge of his rights, the appellant had in fact acquiesced in the wrongful retention of the children in South Africa. His conduct would certainly have led the respondent reasonably to believe that he was not insisting on their summary return. The respondent succeeded in discharging the onus of establishing acquiescence.
The high court had found that Mr VL acquiesced to L residing in South Africa based primarily on temporal considerations. It noted that Mr VL only brought his application to the Swiss authorities on 13 January 2023, some eight months after Ms MV travelled to South Africa, and five weeks after Ms MV had obtained an ex parte order in respect of parental rights. The high court considered this a belated application and concluded that Mr VL had acquiesced to L residing in South Africa.
The Supreme Court of Appeal held that this finding constituted a misdirection on the facts. The high court failed to take into account crucial uncontroverted facts. Mr VL had made it clear to Ms MV that he intended to take L to Europe. He reported L’s retention in South Africa to the Italian authorities immediately upon realising that Ms MV was set on retaining L when he was issued with the interim court order of 6 December 2024. Mr VL approached the Swiss Central Authority to process L’s return to Switzerland. Critically, the Swiss Central Authority took action within one year of L’s wrongful retention in South Africa as provided for in Article 12 of the Hague Convention.
Article 12 provides that where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of commencement of proceedings before the judicial or administrative authority of the contracting state where the child is, a period of less than one year has elapsed from the date of wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where proceedings have been commenced after the expiration of one year, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
The fact that Mr VL visited his son in South Africa after the ex parte order did not amount to consent or acquiescence because there was a court order which gave him rights of access to the child, and he was obliged to comply therewith or challenge it as he did. By relying solely on the temporal aspect, the high court failed to properly assess whether Mr VL had acquiesced. By so doing, it reached a decision which, in the result, could not reasonably have been made by a court properly directing itself to all the relevant facts and principles. The Supreme Court of Appeal was accordingly at large to interfere with the decision of the high court, applying the principles in Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and Another [2015] ZACC 22 and Media Workers Association of South Africa and Others v Press Corporation of South Africa Limited [1992] ZASCA 149.
On the correct facts, Mr VL did not acquiesce to L’s retention in South Africa. Ms MV failed to discharge the onus resting on her and that defence accordingly failed.
The second defence invoked Article 13(b), which provides that the judicial or administrative authority of the requested state is not bound to order the return of the child if the person opposing return establishes that there is 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. Ms MV raised concerns about Mr VL’s mental and psychological state posing a grave risk of harm to L.
Ms MV referred to two incidents when Mr VL was admitted to hospital due to his mental state. Mr VL explained that he suffered from burnout due to work-related pressures. Ms MV also mentioned an incident where, when L was still very young, Mr VL fell asleep in the bath whilst holding him. Before the Supreme Court of Appeal, it was confirmed that from July until August 2025, Ms MV and L visited Mr VL in Switzerland. During that visit, L spent twenty-one nights with Mr VL. This fact had been communicated to the Registrar of the Court in an email sent by Ms MV advising of L’s visit to Switzerland for the school holidays.
The high court had found that there was no evidence to suggest that if L was returned to Europe with Ms MV, he would be at grave risk of harm. It also found that removing L from Ms MV’s care would cause him serious emotional harm. The high court noted that if L were to be returned to Switzerland, Ms MV would have to be placed in a position to return with him. However, the high court then found that Ms MV could not return to Switzerland because she did not have permanent rights of residence there.
The Supreme Court of Appeal found that the lack of expert evidence that Mr VL posed any danger at all to L did not assist Ms MV’s case. A report from Dr Giada Del Fabbro suggested that L’s primary residence should remain with Ms MV, with Mr VL exercising contact rights. This recommendation was based on the time that L had spent with Ms MV. However, Dr Del Fabbro did not suggest that L would be at grave risk of harm if returned to Switzerland.
The court noted that both Ms MV and Mr VL had experienced some mental health challenges. Those challenges would be better addressed by the Swiss Court, which would be deciding the merits on parental and custody rights and the measures to be taken to assist the parties with parental skills if needed. Those were not factors for decision by the Supreme Court of Appeal or any South African court. The presence of mental health challenges does not translate to the grave risk of harm contemplated in Article 13(b). It was apparent from the record that L’s retention in South Africa also contributed to Mr VL’s mental state. There was accordingly no reason to disturb the findings of the high court that there was no grave risk of harm.
The Supreme Court of Appeal then addressed whether L should be returned to Switzerland. It was common cause that there were delays in finalising the application. These delays ranged from the curator ad litem taking almost a year to file her report to various supplementary affidavits filed by the parties, including processes relating to appeals. Whilst all that was happening, L was growing up, attending crèche in South Africa, and inevitably becoming accustomed to Ms MV’s family only.
In C.A.R v The Central Authority of the Republic of South Africa and Another [2024] ZASCA 103, this Court, relying on Ad Hoc Central Authority, South Africa and Another v Koch N.O. and Another 2023 ZACC 37, cited with approval LD v Central Authority RSA and Another [2022] ZASCA 6. The principle established was that regrettable as they may be, inordinate delays cannot be held against the parent applying for the child’s return, because to do so would subvert the Hague Convention’s aims.
The Koch case at the Constitutional Court expressed disquiet about the length of time that had lapsed in adjudicating the application under the Convention. Article 11 of the Hague Convention enjoins contracting states to act expeditiously in proceedings for the return of children. If there is no decision reached within six weeks from the date of commencement of proceedings, the Central Authority of the requesting state has the right to request a statement of the reasons for the delay. These time limits must be borne in mind by litigants and courts whenever there is litigation of this nature.
The Supreme Court of Appeal found that the fact that L had stayed longer in South Africa was largely due to Ms MV’s actions in retaining him, including the delays occasioned by the curator ad litem. The fact that there had been these developments did not mean that L’s return to Switzerland was not in his best interests. To refuse an order for L’s return to Switzerland would reward unlawful conduct. The central authorities of Switzerland and South Africa had cooperated with one another. The fact that L spent twenty-one nights with Mr VL dispelled any alleged fears of harm. It could not be in L’s best interests, in the circumstances, to consider the period that he had been in South Africa in favour of the party who retained him unlawfully in the first place. That would render the application of the Hague Convention nugatory and would leave aggrieved parents without the protection that the Convention affords them.
Unlike in the Koch case, no evidence evinced a grave risk of harm if L was returned to Switzerland. The Supreme Court of Appeal found that the high court erred in not ordering the prompt return of L to Switzerland once it had found that there was no grave risk of harm. On the facts of this case, it would be in L’s best interests to be returned to Switzerland.
The court endorsed the principle articulated in Carlson v Switzerland (Application no. 49492/06), a judgment of the European Court of Human Rights. That court held that it is a matter, once the conditions for the application of the Hague Convention have been met, of restoring as soon as possible the status quo ante in order to avoid the legal consolidation of de facto situations that were brought about wrongfully, and of leaving the issues of custody and parental responsibility to be determined by the courts that have jurisdiction in the place of the child’s habitual residence, in accordance with Article 19 of the Convention.
Article 19 provides that a decision under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 16 stipulates that after receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the contracting state to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be retained under the Convention or unless an application under the Convention is not lodged within a reasonable time following receipt of the notice.
The Supreme Court of Appeal was satisfied that if Ms MV chose to accompany L, the Swiss courts would make provision for her stay in Switzerland in such a way that, in exercising her parental rights, she would not be prejudiced. The court crafted a detailed order with protective measures to address Ms MV’s concerns about returning to Switzerland.
These protective measures included undertakings by Mr VL that he would not institute or support any proceedings, whether criminal or contempt of court proceedings, for the arrest or punishment of Ms MV or any member of her family for any matter arising out of L’s retention in South Africa. He undertook to take all steps reasonably within his power for the withdrawal of any criminal charges pending against Ms MV. This protective measure mirrored the approach taken by the Constitutional Court in Sonderup v Tondelli and Another [2000] ZACC 26, where the court added a protective measure that the father must not pursue any criminal charges or assist in the same. This was necessary even though Ms MV had already travelled to Switzerland during May 2024 and remained there for six days without incident, dispelling her allegations that she would be arrested upon return.
The order required Mr VL to obtain an order from the appropriate judicial authority in Switzerland providing that on the date of departure from South Africa to Switzerland, the residence of L shall vest with Ms MV, subject to Mr VL’s reasonable rights of contact. L would remain in the de facto custody of Ms MV pending final adjudication and determination of proceedings in Switzerland on custody, care and access, which adjudication the Central Authority and Mr VL must request forthwith.
Mr VL was ordered to purchase and pay for economy-class air tickets for Ms MV and L to travel by the most direct route from South Africa to Geneva. He was ordered to make his current home in Geneva, or equivalent accommodation, available to Ms MV and L as their residence, leaving all furniture, appliances, cutlery, crockery and linen in the home, and to vacate such home before their departure from South Africa. He was ordered to pay all costs and expenses associated with L and Ms MV’s occupation of the home, including rates, levies, electricity, refuse, water, heating, and internet.
Mr VL was ordered to pay Ms MV one thousand five hundred Swiss Francs per month in advance as cash maintenance for her and L, with the first pro rata payment to be made three days prior to their arrival in Switzerland. He was ordered to pay the costs of the agreed-upon crèche that L may attend in Switzerland, to continue to pay for medical aid on which he had registered L, and to cover any further reasonable and necessary medical costs. He was ordered to provide Ms MV with access to a roadworthy motor vehicle upon her arrival in Geneva, or alternatively to provide reasonable transport expenses. Both parents were ordered to cooperate fully with the Central Authorities, the relevant Swiss courts, and any professionals appointed to conduct assessments to determine future residence and contact arrangements in L’s best interests.
The order for L’s return was stayed until an appropriate court in Switzerland made the order referred to above. Upon the Central Authority being satisfied that such an order had been made, it would notify Ms MV accordingly and ensure compliance with the terms. In the event of Ms MV failing to notify the Central Authority of her willingness to accompany L, or electing not to return to Switzerland with him, the Central Authority was authorised to make arrangements to ensure L’s safe return to the custody of the Central Authority for Switzerland, and in such event L would return to Switzerland in the care of Mr VL.
Pending L’s return to Switzerland, Ms MV was ordered not to remove L permanently from the province of Gauteng and to keep the Central Authority informed of her physical address and contact telephone numbers. In the event of the appropriate court in Switzerland failing or refusing to make the order referred to, the Central Authority and Mr VL were given leave to approach the Supreme Court of Appeal for a variation of the order.
On the question of costs, the Supreme Court of Appeal exercised its discretion to order that each party pay their own costs. Ms MV had been afforded an opportunity to agree to L’s voluntary return to Switzerland but declined. However, Mr VL had burdened the court record with unnecessary evidence displaying all sorts of problems between him and Ms MV, matters that were not relevant to the adjudication of the issues, including translated versions of Italian and Swiss laws which the court only had to consider on a very narrow issue. Both parties failed to reflect on this course and failed to take steps to keep irrelevant parts out of the record. As a result, the court had to trawl through a record consisting of fifteen volumes plus four extra core bundles. Even the successful party was deprived of costs.
Mr VL sought all costs and disbursements that he paid to the curator ad litem. The Supreme Court of Appeal found no basis for such an order because the curator ad litem was appointed by the high court and no appeal was served in respect of those costs. The court cautioned that courts of first instance in applications under the Hague Convention should be very circumspect on when and why they order the appointment of a curator ad litem, conscious that it is the Central Authority and thus the Department of Justice that must bear these extraordinary costs. When the court of first instance considers the best interests of a minor child in circumstances such as in this case, it does not hold a full-blown best interests inquiry, as the Constitutional Court has reiterated since the Sonderup case, followed up in the Koch case and in judgments of the Supreme Court of Appeal.
The curator ad litem’s report had focused mainly on L’s contact and primary residence for purposes of a full best interests inquiry, which ought not to have been conducted. The approach espoused by the Constitutional Court in the Koch case was that the court should only consider short-term best interests in an application of this nature, not conduct a comprehensive best interests inquiry which is reserved for the courts of the child’s habitual residence.
Questions and Answers
What is the primary purpose of the 1980 Hague Convention on the Civil Aspects of International Child Abduction?
The objects of the Hague Convention are to secure the prompt return of children wrongfully removed or retained in any contracting state, and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting state. It also entrenches the interests of children as being of paramount importance in matters relating to their custody. The Convention seeks to protect children from the harmful effects of their wrongful removal or retention and to ensure their prompt return to the state of their habitual residence.
How is habitual residence determined for purposes of Article 3 of the Hague Convention?
Habitual residence is determined by examining the actual facts of the matter on a balance of probabilities. The word “habitual” implies a stable territorial link, which may be achieved through length of stay or through evidence of a particularly close tie between the person and the place. A possible prerequisite for habitual residence is some degree of settled purpose or intention. A settled intention or settled purpose is clearly one which will not be temporary, but it is not something to be searched for under a microscope. If it is there at all, it will stand out clearly as a matter of general impression. Under Swiss law, habitual residence refers to the state where a person lives for a certain period of time, even if this period is of limited duration from the outset, or the state where the centre of their professional or commercial activities is located.
What are the two requirements under Article 3 that must be satisfied to establish wrongful retention?
Article 3 requires that the removal or retention be in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before the removal or retention. Additionally, at the time of removal or retention, those rights must have been actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody may arise by operation of law, by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that state.
Do unmarried fathers automatically acquire parental rights and responsibilities under Italian law when a child is born?
Yes. Under Articles 316 and 337 ter of the Italian Civil Code, if the recognition of a child born out of wedlock is carried out by both parents, the exercise of parental responsibility belongs to both parents. Both parents have parental responsibility which is exercised by mutual agreement. The parents by mutual agreement determine the minor’s habitual residence. Parental responsibility is exercised by both parents, and decisions of major interest to children concerning education, health and choice of the minor’s habitual residence are taken by mutual agreement. These rights arise automatically by operation of law upon recognition of the child.
What happens to parental rights acquired in one jurisdiction when the family moves to another jurisdiction?
Article 16(3) of the 1996 Hague Convention provides that parental responsibility which exists under the law of the state of the child’s habitual residence subsists after a change of that habitual residence to another state. This means that once parental responsibilities, including joint custody, are acquired under the laws of one jurisdiction, they are not relinquished or extinguished when the parties move to another jurisdiction. They remain extant. This legal position exists to ensure continuity of parental authority without requiring official re-registration in the new jurisdiction. The continuity of parental rights where there is a change of habitual residence accords with the best interests of the child principle that the Hague Convention seeks to protect.
What must be established to prove that a parent acquiesced to the wrongful retention of a child?
To establish acquiescence under Article 13(a) of the Hague Convention, the person opposing return must prove that the parent seeking return, with knowledge of his or her rights under the Convention, had nonetheless conducted himself or herself in a manner that would lead the other party reasonably to believe that he or she was not insisting on the child’s summary return. As established in the Smith case, the applicant must have been aware of the Convention, aware that the retention was unlawful, and aware that the Convention afforded him a remedy. Armed with this knowledge, the applicant must have acted in a way that clearly demonstrated acquiescence, such as withdrawing an application or taking steps inconsistent with seeking the child’s return.
What constitutes a grave risk of harm under Article 13(b) that would justify refusing to order a child’s return?
Article 13(b) provides that the judicial or administrative authority of the requested state is not bound to order the return of the child if the person opposing return establishes that there is 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 presence of mental health challenges experienced by a parent does not automatically translate to the grave risk of harm contemplated in Article 13(b). Expert evidence is typically required to establish that a parent poses a danger to the child. The threshold is high, and vague concerns without substantiation will not suffice.
Can South African courts conduct a comprehensive best interests inquiry when adjudicating Hague Convention applications?
No. When a court of first instance considers the best interests of a minor child in Hague Convention applications, it does not hold a full-blown best interests inquiry. As the Constitutional Court reiterated in the Sonderup case and followed up in the Koch case, the court should only consider short-term best interests in an application of this nature, not conduct a comprehensive best interests inquiry. The comprehensive best interests inquiry is reserved for the courts of the child’s habitual residence. The purpose is to restore the status quo ante as soon as possible and leave the issues of custody and parental responsibility to be determined by the courts that have jurisdiction in the place of the child’s habitual residence.
What is the dependency model for determining a child’s habitual residence?
Under the dependency model, as explained in the LC case, a child acquires the habitual residence of his or her custodians whether or not the child independently satisfies the criteria for acquisition of habitual residence in that country. This model recognises that in practice, it is often impossible to make a distinction between the habitual residence of a young child and that of its custodians. It cannot reasonably be expected that a young child would have the capacity or intention to acquire a separate habitual residence. This principle is particularly important for very young children and infants who cannot form independent intentions about where they wish to reside.
Is the issue of marriage between parents relevant to determining a child’s habitual residence under the Hague Convention?
No. The Supreme Court of Appeal held that the high court misdirected itself by placing too much emphasis on the issue of marriage and making it a central issue in the case. The sole enquiry is whether or not the parties and the child were habitually resident in a particular jurisdiction at the time the child was retained without the other parent’s consent as contemplated in Article 3 of the Hague Convention. Marriage is not a prerequisite for establishing habitual residence. The focus must be on the actual centre of the child’s life, the duration of stay, the relationships established, and whether there was a settled purpose for residing in that jurisdiction.
What protective measures can a court impose when ordering the return of a child under the Hague Convention?
Courts have wide discretion to impose protective measures to address the concerns of the parent who must return with the child. As demonstrated in this case, such measures can include undertakings that the requesting parent will not institute criminal or contempt proceedings against the other parent, that the requesting parent will provide accommodation, pay maintenance, cover medical expenses, provide transportation, and assist with obtaining residency permits or citizenship. The court can also order that custody vest with the returning parent pending final adjudication in the courts of habitual residence. These measures ensure that the returning parent is not prejudiced in exercising their parental rights and that the child’s welfare is protected during the transition.
Can delays in bringing a Hague Convention application be held against the parent seeking the child’s return?
No. As established in the CAR case, which relied on the Koch case and the LD case, regrettable as they may be, inordinate delays cannot be held against the parent applying for the child’s return, because to do so would subvert the Hague Convention’s aims. The fact that a child has stayed longer in the wrongful jurisdiction and has become settled there cannot be considered in favour of the party who retained the child unlawfully in the first place. To do so would render the application of the Convention nugatory and would leave aggrieved parents without the protection that the Convention affords them. It would also reward unlawful conduct.
What is the significance of Article 19 of the Hague Convention?
Article 19 provides that a decision under the Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. This means that when a court orders a child’s return under the Convention, it is not making a final decision about which parent should have custody or what the long-term care arrangements should be. The court is simply restoring the status quo ante and returning jurisdiction to the courts of the child’s habitual residence, which are the proper forum to determine custody and parental responsibility on the merits. This preserves the separation between the summary return mechanism and substantive custody determinations.
What role does Article 16 play in preventing premature custody determinations?
Article 16 stipulates that after receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the contracting state to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be retained under the Convention or unless an application under the Convention is not lodged within a reasonable time. This provision prevents courts in the requested state from making substantive custody determinations that would pre-empt the jurisdiction of the courts in the state of habitual residence. It ensures that the summary return mechanism is not undermined by parallel custody proceedings.
When should courts of first instance appoint a curator ad litem in Hague Convention applications?
Courts of first instance in applications under the Hague Convention should be very circumspect about when and why they order the appointment of a curator ad litem. The Supreme Court of Appeal cautioned that courts must be conscious that it is the Central Authority and thus the Department of Justice that must bear these extraordinary costs. A curator ad litem should not be appointed to conduct a full best interests inquiry, as this is not the purpose of Hague Convention proceedings. The appointment should only be made where it is genuinely necessary to investigate specific matters relevant to the limited inquiry required under the Convention, such as whether there is a grave risk of harm or whether the child has become settled in the new environment.
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 Calculatorand Accrual Calculator.
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