This case is about whether a High Court order directing the return of children to Australia under the Hague Convention may be put into operation under section 18(3) of the Superior Courts Act while the abducting parent’s appeal against that order is still pending. A full bench of the Western Cape Division held, by a majority, that it may not, because the features common to every Hague matter do not on their own amount to exceptional circumstances. The judgment is reportable.

The facts and the road to the full bench

The parties are the parents of three boys, referred to as AH, HH and BH, who at the date of the judgment were 17, 14 and 12 years old. The parents separated permanently in August 2020. The children had been primarily in the mother’s care since birth, but from June 2023 they lived with both parents on a shared, week-about residency basis under a parenting order made in Australia. In March 2026, just before the school holidays, the mother brought the children to South Africa without the father’s knowledge or consent, and they have lived with her here since. The judgment records that the children have all stated clearly and consistently, in a Voice of the Child Report and an Addendum prepared by Ms Bruwer, that they wish to remain in South Africa with their mother, and that they have to some extent maintained a relationship with the father through telephonic contact.

The father launched an urgent application on 9 May 2026. In respect of HH and BH he sought their return to Australia under the Hague Convention on the Civil Aspects of International Child Abduction. AH, who is older than 16, falls outside the Convention by reason of Article 4, and the father’s case in respect of him was brought under the Children’s Act 38 of 2005 on the best interests of the child principle. The mother raised an Article 13(b) defence for the two younger boys and denied that it would be in AH’s best interests to return to live with the father on a full-time basis. She alleged that she personally fears the father, inter alia because of previous assaults and his psychological functioning, and that she cannot for various reasons return to Australia.

On 29 June 2026 the court a quo found that the mother had not established an Article 13(b) defence and ordered the return of all three children, AH on the best interests principle and in compliance with an order granted by Mr Justice Cohen of the Family Court of Western Australia, Perth, on 22 April 2026. The mother applied for leave to appeal. The father countered with an application under section 18(3) of the Superior Courts Act 10 of 2013 for the order to be put into immediate operation. Both were heard on 15 July 2026. On 31 July 2026 leave to appeal was refused and the execution order was granted. The mother then petitioned the Supreme Court of Appeal against the main judgment, and the execution order came before the full bench by way of the automatic appeal conferred by section 18(4).

The full bench heard the matter on 11 September 2026. The court raised with counsel the pending petition and the expedited process for Hague matters in Supreme Court of Appeal Practice Directive 1/2024, and it was agreed that judgment would await the outcome of the petition. On 21 October 2026 the court was given the order of the Supreme Court of Appeal dated 16 October 2026 granting the mother leave to appeal on the merits, and on 22 October 2026 that court’s directives. The merits appeal is to be heard on 8 December 2026. Judgment in the section 18(4) appeal was delivered on 6 November 2026 and is marked reportable. Wille J wrote for the majority, Cloete J concurring, and Kusevitsky J dissented.

Section 18 of the Superior Courts Act: the default, the threshold and the cumulative test

Section 18(1) provides that, unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal is suspended pending the decision of the application or appeal. Section 18(3) provides that a court may only order otherwise if the party who applied for the order in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders. Section 18(4) requires the court that orders execution to record its reasons immediately, gives the aggrieved party an automatic right of appeal to the next highest court, requires that appeal to be dealt with as a matter of extreme urgency, and suspends the execution order pending the outcome of that appeal.

Wille J framed the enquiry at the outset. At paragraph 4 the court held that “The enquiry into exceptional circumstances is always determined on a case-by-case basis. Put another way, there is no general rule for what constitutes exceptional circumstances. They exist where something is rare, unusual or uncommon.” Relying on Tyte Security Services CC v Provincial Government 2024 (6) SA 176, the court held at paragraph 6 that “the absence or presence of irreparable harm becomes subsumed into whether exceptional circumstances exist. The latter cannot exist without irreparable harm. They are close cousins. A mechanical approach is impermissible.” Drawing on Incubeta Holdings (Pty) Ltd and Another v Ellis and Another 2014 (3) SA 189 (GSJ), the court described the section 18(3) test at paragraph 24 as two-fold: the requirements are cumulative and more onerous than the common law, requiring something sufficiently out of the ordinary and a deviation from the norm, and the two irreparable-harm findings do not involve a balancing exercise but must both be established on a balance of probabilities.

The central passage for Hague practitioners is at paragraph 8. The court observed that “Parliament incorporated the Hague Convention into South African law via the Children’s Act 38 of 2005, yet deliberately subjected all High Court orders to the uniform appeal framework of the Superior Courts Act without creating an exemption for Hague proceedings. Normal appellate delay is an unavoidable incident of the constitutional right to appeal and cannot in itself constitute an exceptional circumstance.” The father’s implicit contention was that because the Convention requires the expeditious return of children to restore the status quo ante, the delay occasioned by appellate procedures inherently creates exceptional circumstances. The majority rejected this at paragraph 42 because every Convention application involves allegations of wrongful removal, a statutory objective of summary return and the reality that appellate proceedings consume time. At paragraph 43 the court put it this way: “If the general objective of expeditious return under Article 11 of the Convention were sufficient to satisfy Section 18(1), the default rule of suspension would be rendered entirely nugatory in every international child abduction matter. An underlying international treaty objective cannot override the express statutory safeguards enacted in Section 18.” The prompt return mandate, the court held at paragraph 44, informs the adjudication of the merits of the Convention application but “cannot serve as a jurisdictional lever to strip an aggrieved litigant of the automatic statutory stay, pending appellate review.”

The majority was equally clear that section 18(3) is not an exercise of discretion in the interests of justice. At paragraph 48 the court held that because the section 18(3) requirements are strict jurisdictional facts, judicial discretion cannot bypass them or subsume them into a free-floating enquiry into the general interests of justice, and that “Where the applicant establishes no personal irreparable harm, the court lacks the statutory competence to order execution under Section 18(3).” The court also dealt with the father’s reliance on the court a quo’s view that the mother had no prospects of success. By the time judgment was delivered the Supreme Court of Appeal had granted leave, and at paragraph 53 the court held that in any event “the prospects of success cannot be determined solely by a self-affirming conclusion. To treat a court’s refusal of leave to appeal as conclusive would render every simultaneous Section 18(3) application an automatic rubber-stamp, destroying the purpose of the Section 17(2)(b) petition process.”

Why the father failed: AH, protective measures, mirror orders and the second relocation

The father’s grounds for execution were that the mother was merely seeking delay, that she was manipulating the children so that their stated wishes were not their own, and that the children’s emotional and psychological well-being were at risk in South Africa because they had not settled and needed to return urgently to their schools, friends and routine in Australia. The majority held that the first two complaints raised disputed questions on the merits that were beyond the remit of a section 18(4) court, and noted that the children are not young and are, on the expert reports, acutely aware of the toxic relationship between their parents. On the third, the court found at paragraph 33 that it was evident from the expert report that the children are coping in their existing environment, are not in any imminent danger and are not suffering psychological harm while they remain here. At paragraph 34 the court added that the children have been in South Africa for over six months and have, on the independent evidence of the school, adjusted to their school.

The position of AH proved decisive. He deposed to an affidavit stating that it was his choice to remain in South Africa with his mother, that his views had not been heard and that he would not return to Australia regardless. The expert reported that at his developmental stage autonomy and self-determination are central to identity formation, that an enforced return without his mother would constitute a significant relational loss, and that distress experienced by AH may reasonably be expected to affect his brothers given the close sibling bond. The majority observed at paragraph 37 that although the father conceded that the Convention does not apply to a child aged 16 or older, he appeared in truth to seek to apply summary Convention return principles to AH, and that this may be a good ground of appeal. At paragraph 38 the court held that “once a child reaches sixteen (16) years, summary restoration of the status quo ante without a plenary inquiry is legally impermissible. The position of AH had to be assessed strictly, and independently, under section 7 and section 9 of the Children’s Act.” The court also drew attention to section 10 of the Children’s Act, which requires that the views of a child of sufficient age, maturity and stage of development be given due consideration.

The court then dismantled the “small window of opportunity” argument. At paragraph 45 Wille J pointed out that the children had previously lived under a shared, week-about regime, whereas under the execution order “the children would not return to a shared parenting structure. Rather, they would be placed into the sole, exclusive daily care of the first respondent. This constitutes an untested change in their custodial environment, not the preservation of an existing routine.” The assertion that a temporary delay during an expedited appeal would permanently extinguish the children’s capacity to reintegrate in Australia was held at paragraph 47 to be speculative and unsupported by empirical expert evidence. At paragraph 46 the court recorded its concern that the court a quo had put no protective measures in place for the children following their return and that the Central Authority, although duty-bound to do so, did not appear to have made the necessary enquiries with its Australian counterpart, adding that “Protective measures are not limited to domestic violence risks, something which is regrettably often misunderstood and thus overlooked.”

Two further considerations completed the picture. The first is the loss of effective appellate relief. Counsel for the father conceded at the hearing that should the Supreme Court of Appeal set aside the return order after the children had left, that order may well have no practical effect, irrespective of the father’s undertaking to comply. At paragraph 51 the court held that the purpose of the default suspension is to prevent the creation of irreversible factual situations pending appeal, and that once the children are physically removed to a foreign jurisdiction the appellate court’s ability to provide effective relief is compromised and may be compromised forever. At paragraph 52 the court noted that neither the father nor the Central Authority had addressed how an Australian court would be persuaded to give effect to a later order of the Supreme Court of Appeal, a matter the court described as often arising in connection with “the myth of ‘mirror orders'”. The second consideration is the harm of a double relocation. In the court’s words at paragraph 52, “exposing children to multiple international dislocations within months creates acute psychological harm, defeating the negative jurisdictional requirement of Section 18(3) that the children will not suffer irreparable harm.” Finally, the court found at paragraphs 57 and 58 that the appeal may enjoy good prospects, because any different finding on AH will affect the Article 13(b) enquiry for the younger boys, who would otherwise be in their father’s sole care, without their mother and older brother and against their wishes, which the court described as an intolerable situation. The father had accordingly failed to prove exceptional circumstances, irreparable harm to himself or the absence of irreparable harm to the mother and the children. The appeal was upheld, the execution order was set aside, the children are to remain in South Africa pending the decision of the Supreme Court of Appeal, and the costs were made costs in the appeal.

The majority judgment repays attention for its method as much as its result. Wille J and Cloete J confined themselves strictly to the narrow remit of a section 18(4) appeal, declining at every turn to decide the disputed questions that belong to the merits, whether the reasons for the removal, the allegation of manipulation or the authenticity of the children’s wishes, while still engaging closely with the expert evidence on how the children were actually faring. Rather than deliver judgment on a petition whose outcome was unknown, the court raised the pending petition and the Supreme Court of Appeal’s expedited Hague process with counsel at the hearing and waited for that court’s decision, so that the section 18(4) appeal was decided on the true state of the appellate record. The court identified for itself the difficulty of applying Convention return mechanics to a 17-year-old outside Article 4, noticed the absence of any protective measures or Central Authority enquiries on return, and extracted from the father’s own counsel the concession that a later order of the Supreme Court of Appeal might have no practical effect once the children had left. The result is a judgment that treats section 18(3) as the strict jurisdictional enquiry the statute makes it, while keeping the children, and not the procedural contest between their parents, at its centre.

The dissent, the parallel appeals and what remains for the Supreme Court of Appeal

Kusevitsky J’s dissent proceeds from a different premise. Drawing on the summation of “exceptional circumstances” in MV Ais Mamas Seatrans Maritime v Owners, MV Ais Mamas 2002 (6) SA 150 (C), and on the line of section 18 authority in Minister of Social Development Western Cape v Justice Alliance of South Africa (unreported, WCC Case No 20806/2013, 1 April 2016), University of the Free State v Afriforum 2018 (3) SA 428 (SCA), Ntlemeza v Helen Suzman Foundation and Another 2017 (5) SA 402 (SCA), Knoop and Another NNO v Gupta (No 1) [2020] ZASCA 149 and Road Accident Fund v Schuurman Van Den Heever & Slabbert Inc and Others [2025] ZAGPPHC 530, the learned Judge reasoned at paragraph 108 that “where Hague matters are concerned, this should be considered exceptional for purposes of the provision”, because the very nature of a Hague matter contemplates exceptional, extraordinary and drastic relief. On that footing the dissent held at paragraph 110 that once a return has been ordered “all that a party then has to prove, on a balance of probabilities, is the remaining requirement to convince a court that the other party will not suffer irreparable harm if the court were to so order.” The dissent also relied on Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA), Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) and LD v Central Authority (RSA) and Another 2022 (3) SA 96 (SCA) for the proposition that a parent who removes a child should not be able to rely on the consequences of that removal to establish harm, and on the decision of the United States Supreme Court in Chafin v Chafin, 568 U.S. 165 (2013) for the proposition that the return of a child to a foreign country does not render an appeal moot. At paragraph 142 the dissent found that “There is no doubt that any delay in the return of the abducted children to their home will cause the father and more especially the children irreparable harm”, and that “The rights of the father have been expunged by the self-help actions of the mother”, and at paragraph 146 that if the appeal is upheld “a parent’s inherent parental rights are mero motu removed.” The dissent would nevertheless not have ordered the children’s return before 8 December 2026. At paragraph 148 Kusevitsky J concluded that, given that the merits appeal was four weeks away, the interests of justice and the welfare of the children demanded that “despite my finding that the first respondent has met his burden, that the order cannot be effected until the ventilation and adjudication of the merits appeal in the SCA.”

Three points of difference deserve attention. The first is categorical. The dissent treats every Hague return order as exceptional for purposes of section 18(1), which is the very proposition the majority rejected at paragraphs 29, 42 and 43 and which the headnote distils into the sentence that a Hague Convention matter is not per se exceptional. The dissent’s own authority points the other way, since the second and third propositions in MV Ais Mamas require that the circumstances arise out of or be incidental to the particular case and that their existence is a matter of fact rather than category. The second is structural. By reducing the applicant’s burden to proof that the other party will not suffer irreparable harm, the dissent dispenses with the applicant’s own irreparable harm, which Afriforum and Knoop treat as a separate and cumulative requirement and which the majority at paragraph 48 described as a jurisdictional fact without which the court lacks competence to order execution. The third concerns the characterisation of the father’s rights. A wrongful removal infringes rights of custody; it does not extinguish them, and a suspension of execution under section 18(1) alters nothing in the father’s legal position. Articles 16 and 19 of the Convention, which the dissent itself invokes at paragraphs 107 and 113, make plain that a return order is not a determination of custody and allocates only the forum in which the merits will be decided. Whether the children wait in South Africa or in Australia for the Supreme Court of Appeal’s judgment does not remove any parental right.

The dissent is nonetheless valuable for the procedural problem it identifies. Kusevitsky J observed at paragraph 65 that a section 18(4) appeal to a full bench running alongside a petition to the Supreme Court of Appeal on the merits creates two parallel appeal processes before different appellate courts, with potential for uncertainty and delay. The dissent canvassed Appolus and Others v Naledi Local Municipality and Others [2024] ZANWHC 79 and City of Tshwane Metropolitan Municipality v Vresthena (Pty) Ltd and Others 2023 (6) SA 434 (SCA) on whether a litigant may have more than one automatic appeal, and Jai Hind Emcc CC t/a Emmarentia Convenience Centre v Engen Petroleum Ltd South Africa 2023 (2) SA 252 (GJ) on deciding a section 18(4) appeal even where the point has become moot, and noted the observation in Knoop that a court hearing an urgent section 18(4) appeal will not always have the record and may be unable to assess prospects of success. For practitioners the practical lesson is that the expedited process under the Supreme Court of Appeal’s Practice Directive is the mechanism that answers delay in Hague matters, and that an application under section 18(3) must be built on evidence specific to the case: proof of irreparable harm to the left-behind parent personally, proof that neither the abducting parent nor the children will suffer irreparable harm if the order is implemented, evidence of the protective measures that will operate on return, and an explanation of how any later appellate order will be given effect in the requesting State. The merits of the Article 13(b) defence, the correctness of the order in respect of AH and the treatment of the children’s views now fall to be decided by the Supreme Court of Appeal on 8 December 2026.

Questions and Answers

What was the full bench asked to decide?

Whether the court a quo was correct to order, under section 18(3) of the Superior Courts Act, that its Hague Convention return order be put into immediate operation notwithstanding the mother’s pending appeal. The full bench was not asked to decide the merits of the return order itself, which are before the Supreme Court of Appeal.

What is the default position when a High Court order is taken on appeal?

Under section 18(1) of the Superior Courts Act the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal is suspended pending the outcome, unless the court under exceptional circumstances orders otherwise. The majority described this as a default position from which execution is an extraordinary deviation.

What must an applicant prove to obtain an execution order under section 18(3)?

Three cumulative requirements: exceptional circumstances under section 18(1), proof on a balance of probabilities that the applicant will suffer irreparable harm if execution is not ordered, and proof on a balance of probabilities that the other party will not suffer irreparable harm if it is. The majority held, following Incubeta and Tyte, that the two harm findings do not involve a balancing exercise and that the requirements are jurisdictional facts, not matters of discretion.

Does the urgency inherent in Hague Convention proceedings itself constitute exceptional circumstances?

No. The majority held that every Convention application involves allegations of wrongful removal, an objective of summary return and the reality of appellate delay, so that if those features sufficed the default suspension would be rendered nugatory in every abduction case. A Hague Convention matter is not per se exceptional.

What did the court say about the relationship between the Convention and the Superior Courts Act?

That Parliament incorporated the Convention into South African law through the Children’s Act but subjected all High Court orders to the uniform appeal framework of the Superior Courts Act without creating an exemption for Hague proceedings. An international treaty objective cannot override the express statutory safeguards in section 18.

How does the requirement of irreparable harm relate to exceptional circumstances?

The majority, relying on Tyte, held that the presence or absence of irreparable harm is subsumed into whether exceptional circumstances exist, that exceptional circumstances cannot exist without irreparable harm, and that the two are close cousins which cannot be approached mechanically or as a tick-box exercise.

Why was the father unable to show irreparable harm to himself?

His grounds were that the mother was delaying, that she was manipulating the children and that the children’s well-being was at risk in South Africa. The first two were disputed merits issues beyond the remit of a section 18(4) court, and on the third the expert evidence showed that the children were coping, not in imminent danger and not suffering psychological harm. The court held that where no personal irreparable harm is established the court lacks the statutory competence to order execution.

Why did AH’s position matter so much?

AH was 17 and, by reason of Article 4, outside the Convention. The majority held that once a child reaches 16 a summary restoration of the status quo ante without a plenary inquiry is legally impermissible and that his position had to be assessed independently under sections 7 and 9 of the Children’s Act, with due consideration of his views under section 10. The court also found that any different outcome for AH would bear directly on the Article 13(b) enquiry for his younger brothers.

Did the execution order preserve the children’s routine in Australia?

No. The children had lived under a shared, week-about residency regime, whereas the execution order would have placed them in the father’s sole daily care. The majority described that as an untested change in their custodial environment, not the preservation of an existing routine.

What did the court say about protective measures on return?

That the court a quo had put no protective measures in place, that the Central Authority did not appear to have made the necessary enquiries with its Australian counterpart, and that protective measures are not limited to domestic violence risks, a point the court said is often misunderstood and overlooked.

Why does removing the children before the appeal is decided threaten the appeal itself?

Because once the children leave the jurisdiction any order made in South Africa will not bind the Australian courts. Counsel for the father conceded that an order of the Supreme Court of Appeal setting aside the return might have no practical effect, and the majority held that the purpose of the default suspension is to prevent the creation of irreversible factual situations pending appeal.

How did the majority treat the children’s own interests under section 18(3)?

The court held that even if child-centred harm is imported into section 18(3), one cannot ignore the potentially irreversible psychological trauma of a forcible removal to Australia followed, if the appeal succeeds, by a second cross-continental relocation back to South Africa within months, which defeats the requirement that the other party will not suffer irreparable harm.

Is a court’s refusal of leave to appeal conclusive of the prospects of success for section 18(3) purposes?

No. The majority held that prospects cannot be determined solely by a self-affirming conclusion and that treating the refusal of leave as conclusive would turn every simultaneous section 18(3) application into a rubber stamp and destroy the purpose of the petition process under section 17(2)(b). In this case the Supreme Court of Appeal subsequently granted leave.

On what basis did the dissent differ?

Kusevitsky J reasoned that Hague matters are by their nature exceptional for purposes of section 18(1), that the applicant need then only prove that the other party will not suffer irreparable harm, and that the harm relied on by the mother was self-created by her removal of the children. The dissent nonetheless accepted that, with the merits appeal four weeks away, the return order could not be effected until the Supreme Court of Appeal had decided the appeal.

What costs order was made and what happens next?

The costs of the section 18(4) appeal were made costs in the appeal before the Supreme Court of Appeal, which will hear the merits of the return order on 8 December 2026. Until then the children remain in South Africa.

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, Court Day Calculator and Accrual Calculator.

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