Introduction: A Child’s Journey Between Two Continents
The Supreme Court of Appeal recently delivered a landmark judgment in N M v Central Authority for Republic of South Africa and Another (1078/2024) [2024] ZASCA 178 (19 December 2024) concerning international child abduction between South Africa and Australia. The case centred on NM, a South African mother who retained her two-year-eight-month-old child, NEM, in South Africa after a holiday visit, despite having agreed with the Australian father, MBM, to return.
At the heart of this complex legal battle was NM’s constitutional challenge to Section 275 of the Children’s Act 38 of 2005, which incorporates Articles 12 and 13 of the Hague Convention on the Civil Aspects of International Child Abduction into South African law. NM contended that this section contradicted Section 28(2) of the Constitution of the Republic of South Africa, 1996 by not prioritising the child’s best interests.
The case originated from a holiday arrangement where MBM agreed to NM taking their child to South Africa in September 2022. However, two weeks before their scheduled return, NM informed MBM via WhatsApp that she would not be returning to Australia with NEM. This prompted MBM to initiate Hague Convention proceedings through the Australian Central Authority in December 2022.
The legal proceedings were notably marked by NM’s eleventh-hour constitutional challenge, filed just before the High Court hearing. She relied on Braaf v Fedgen Insurance Ltd 1995 (3) 938 (C) and Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019] ZACC 41; 2020 (1) SA 327 (CC) to argue against the separation of her constitutional challenge from the main application under Uniform Rule 33(4). The High Court, exercising its constitutional discretion to regulate its own processes, separated the matters to prevent undue delay in the urgent Hague Convention proceedings.
The case drew significantly on precedents including Sonderup v Tondelli [2000] ZACC 26; 2001 (1) SA 1171 (CC) and Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another [2023] ZACC 37; 2024 (2) BCLR 147 (CC) in addressing the complex interplay between the Hague Convention’s objectives and constitutional rights. It represents a crucial development in South African jurisprudence on international child abduction matters, emphasizing both the urgency of these cases and the careful consideration required in protecting children’s interests.
The High Court’s Decision: Separating Constitutional Challenges from Urgent Child Return Matters
The Supreme Court of Appeal endorsed the High Court’s decision to separate NM’s constitutional challenge under Uniform Rule 33(4), emphasising the paramount importance of expeditious proceedings in Hague Convention cases. The court’s reasoning hinged on Article 12 of the Convention, which creates a peremptory obligation to return a wrongfully removed child, read with Article 1 which emphasises prompt return, and Article 16 which mandates return without delving into custody merits.
The High Court’s exercise of its powers under Section 173 of the Constitution to regulate its own process was deemed appropriate given the urgency inherent in child abduction cases. The court highlighted that NM’s failure to cite or serve the counterapplication on relevant Ministers, coupled with non-compliance with Uniform Rule 16A(1), would have caused substantial delays contrary to the Convention’s objectives.
Regulation 23 of the regulations under the Children’s Act 38 of 2005 mandates completion of Hague Convention proceedings within six weeks from commencement, barring exceptional circumstances. This aligns with Article 11 of the Convention, emphasising the need for expeditious resolution. Moreover, Regulation 24 provides courts with additional resources for interim orders to prevent delays that could harm the child’s interests.
The court distinguished this case from the principles laid down in Braaf v Fedgen Insurance Ltd 1995 (3) 938 (C) and Ascendis Animal Health (Pty) Ltd v Merck Sharpe Dohme Corporation and Others [2019] ZACC 41; 2020 (1) SA 327 (CC), finding that these precedents on the separation of issues did not apply in the unique context of urgent Hague Convention proceedings where a child’s welfare hangs in the balance.
The judgment reinforces the principle that constitutional challenges, while important, cannot be used as tactical devices to frustrate the primary objective of the Hague Convention – the prompt return of wrongfully removed children. This approach ensures that South Africa upholds its international obligations while maintaining appropriate mechanisms for constitutional review through separate proceedings.
The court’s decision demonstrates a practical balance between constitutional rights and international obligations, ensuring that the mechanism for protecting constitutional rights does not inadvertently become a tool for undermining the very protections the Hague Convention seeks to provide to wrongfully removed children.
Article 13(b) Defence: When is the Risk of Harm Grave Enough?
The Supreme Court of Appeal’s analysis of NM’s Article 13(b) defence draws heavily from the Constitutional Court’s guidance in Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another [2023] ZACC 37; 2024 (2) BCLR 147 (CC). The Koch case emphasised that the threshold for establishing grave risk is extraordinarily high, requiring clear and compelling evidence of substantial harm beyond the normal disruption associated with relocation.
The court found fundamental flaws in the social worker Ms Keeve’s report, which formed the cornerstone of NM’s defence. While Ms Keeve highlighted the strong attachment between NM and NEM, the court emphasised that attachment considerations belong in custody proceedings rather than Hague Convention matters. The social worker’s failure to interview MBM or investigate available support services in Australia significantly diminished the report’s evidentiary value.
Following LD v Central Authority [2022] ZASCA 6; [2022] 1 All SA 658 (SCA) and Penello v Penello and Another [2003] ZASCA 147; 2004 (3) SA 117 (SCA), the court reiterated that the onus lies with the abducting parent to prove grave risk on a balance of probabilities. NM’s uncompromising stance against returning to Australia undermined her Article 13(b) defence, as the court found she was effectively creating the very situation of potential harm she claimed to fear.
The judgment addressed NM’s domestic violence allegations with careful consideration, acknowledging the global recognition of domestic violence as a serious concern in Hague Convention cases. However, the court found these allegations fell short of establishing the grave risk threshold required by Article 13(b), noting they were more appropriately addressed in subsequent custody proceedings in Australia.
Drawing from C A R v The Central Authority of the Republic of South Africa and Another [2024] ZASCA 103, the court emphasised that the Article 13(b) inquiry must remain focused on exceptional circumstances of grave risk rather than normal adjustment challenges. The passage of time since the wrongful retention, while creating stronger bonds between NM and NEM, could not be used to bootstrap an Article 13(b) defence, as this would reward the very conduct the Convention seeks to prevent.
The court’s analysis reinforces the distinction between the summary nature of Hague Convention proceedings and the more comprehensive custody determinations that follow, ensuring that the Article 13(b) exception remains a narrow safety valve rather than a backdoor to custody litigation in the requested state.
Protective Measures and Undertakings: Safeguarding Both Mother and Child
The Supreme Court of Appeal significantly amended the High Court’s order to include comprehensive undertakings from MBM, addressing the High Court’s erroneous belief that it could not consider negotiated protective measures. Drawing from Sonderup v Tondelli [2000] ZACC 26; 2001 (1) SA 1171 (CC), the court emphasised that undertakings serve as crucial mechanisms to mitigate potential hardships and expedite return proceedings.
The amended order showcases the sophisticated way courts can craft protective measures for both returning parent and child. MBM’s undertakings included substantial financial support: $1550 AUD monthly for accommodation and maintenance, day-care fees, a personal vehicle with maintenance allowance, and comprehensive healthcare coverage through Medicare and the Australian Defence Force Family Health Program. These measures demonstrate how courts can practically address the economic vulnerabilities often faced by returning parents.
The court structured a two-tier protective framework. First, immediate protections through MBM’s undertakings ensure NM and NEM’s practical needs are met upon return. Second, long-term safeguards through Australian support services, including domestic violence response systems and the Federal Court and Family Court of Australia’s oversight. This approach reflects the guidance in Koch about crafting orders that balance immediate return requirements with longer-term welfare considerations.
Significantly, the court mandated that the Central Authority of Australia would have final say regarding the suitability of accommodation arrangements, establishing an independent oversight mechanism. The undertaking that no criminal charges would be pursued against NM for the retention removes a common barrier to return in these cases. These protective measures are reinforced by the requirement for MBM to initiate formal parenting proceedings within twenty days of the order.
The judgment established a crucial precedent by requiring proof of arranged accommodation before departure from South Africa, ensuring that protective measures are not merely promised but practically implemented. This approach demonstrates how courts can use their powers to create enforceable protective frameworks that transform abstract undertakings into concrete safeguards for returning parents and children.
The court’s detailed attention to protective measures illustrates the evolution of Hague Convention jurisprudence from a purely mechanism-focused approach to one that recognises the practical and emotional complexities of international child returns while maintaining the Convention’s core objectives.
Time is of the Essence: The Court’s Warning on Delays in Hague Convention Cases
The Supreme Court of Appeal delivered a stern critique of the procedural timeline in this case, highlighting serious systemic issues in handling Hague Convention matters. The journey from MBM’s initial application in December 2022 through the Central Authority of Australia, to the South African Central Authority in March 2023, and finally to judgment in May 2024, represented an alarming departure from international obligations.
The court expressed particular concern about the High Court’s six-month delay in delivering judgment without providing any explanation for exceptional circumstances as required by Article 11 of the Hague Convention. This delay directly contravened Regulation 23 of the regulations under the Children’s Act 38 of 2005, which mirrors the Convention’s six-week timeframe for completing return proceedings.
A significant institutional weakness emerged in the Supreme Court of Appeal proceedings – the conspicuous absence of the Central Authority. This issue had previously been highlighted in C A R v The Central Authority of the Republic of South Africa and Another [2024] ZASCA 103, where the court emphasised the Central Authority’s crucial role as “the centre that holds these proceedings together.” The court strongly recommended that when the Central Authority cannot attend proceedings, Family Advocates or the State Attorney should step in to maintain continuity.
The practical implications of the Central Authority’s absence became evident when the court struggled to access crucial documents, including the negotiated undertakings and draft orders. This procedural hurdle necessitated additional steps to obtain these documents, further delaying the process. The court called for urgent clarification from the Director-General and Minister of Justice and Constitutional Development regarding the Central Authority’s role in court proceedings.
The judgment serves as a watershed moment in South African Hague Convention jurisprudence, highlighting that delays not only breach international obligations but can inadvertently reward abducting parents by allowing them to argue that the child has settled in the new environment. The court’s emphasis on expedition reflects a deeper understanding that time itself can become a weapon in international child abduction cases, potentially undermining the Convention’s fundamental purpose of securing prompt returns of wrongfully removed children.
Further Case Law
Smith v Smith [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 (SCA) was referenced regarding the standard of proof in Hague Convention cases, establishing that the onus in Article 13(b) defences must be discharged on a balance of probabilities.
G v D (Article 13b: Absence of Protective Measures) [2020] EWHC 1476 (Fam) was cited to demonstrate international recognition and application of South African Hague Convention jurisprudence, particularly regarding the principles established in the Sonderup case.
Re E (Children) (Wrongful Removal: Exceptions to Return) [2011] UKSC 27 was referenced to emphasize the high threshold required for establishing grave risk under Article 13(b), indicating South African courts’ alignment with international interpretations.
Re C (A Minor) Abduction [1989] 1 FLR 403 was cited regarding the principle that a parent who creates the situation of potential harm through their own actions cannot then rely on that situation to establish an Article 13(b) defence.
G v G [2020] EWCA Civ 1185 was referenced to establish that evidence of grave risk must be clear and compelling, and the harm must be substantial, helping define the threshold for Article 13(b) defences.
These cases collectively demonstrate how South African courts draw on both domestic and international jurisprudence to interpret and apply the Hague Convention, ensuring consistency with global best practices in international child abduction cases.
Questions and Answers
What is the significance of Section 275 of the Children’s Act 38 of 2005 in South African law? Section 275 incorporates the Hague Convention on the Civil Aspects of International Child Abduction into South African domestic law, making its provisions legally binding within our jurisdiction.
How did the Supreme Court of Appeal address the separation of constitutional challenges from Hague Convention proceedings? The court confirmed that high courts have inherent power under Section 173 of the Constitution to separate issues when necessary, convenient and in the interests of justice, particularly to prevent delays in urgent Hague Convention matters.
What is the standard of proof required for an Article 13(b) defence in South African courts? Following Smith v Smith, the abducting parent must prove grave risk on a balance of probabilities, but the threshold for establishing such risk is notably high and requires clear and compelling evidence of substantial harm.
How do South African courts interpret ‘grave risk’ under Article 13(b)? Courts interpret grave risk as harm that extends beyond normal disruption associated with return. The harm must be substantial and severe, not merely the ordinary challenges of relocating or adjusting to a new environment.
What role does expert evidence play in Article 13(b) defences? Expert evidence, even if uncontradicted, remains an opinion that courts must scrutinise to determine its value. The court must assess whether the expert considered all relevant factors and provided a balanced assessment.
Why can’t attachment to the abducting parent be the primary basis for an Article 13(b) defence? Attachment considerations belong in custody proceedings rather than Hague Convention matters, as allowing such arguments would reward unlawful retention and undermine the Convention’s objectives.
What is the significance of undertakings in Hague Convention cases? Undertakings serve as crucial protective measures to ameliorate potential hardships of return orders and expedite proceedings, forming part of the court’s power to ensure safe and sustainable returns.
How should courts handle allegations of domestic violence in Hague Convention cases? Courts must consider domestic violence allegations seriously but within the Article 13(b) framework, assessing whether the alleged violence creates a grave risk of harm to the child rather than treating them as custody considerations.
What time frame applies to Hague Convention proceedings in South Africa? According to Regulation 23 and Article 11 of the Convention, proceedings should be completed within six weeks from commencement, unless exceptional circumstances exist.
What is the role of the Central Authority in Hague Convention proceedings? The Central Authority is crucial throughout proceedings, including appeals, serving as the centre that holds these proceedings together and facilitating international cooperation.
Can a parent’s refusal to return with the child establish an Article 13(b) defence? No, a parent’s unilateral decision not to return cannot create the basis for an Article 13(b) defence, as this would allow them to benefit from their own obstructive conduct.
What approach should courts take to factual disputes in Hague Convention cases? Courts should make an overall assessment of all evidential material rather than applying the Plascon-Evans rule, given the summary nature of Convention proceedings.
How should courts balance constitutional rights with Hague Convention obligations? Courts must ensure constitutional challenges don’t frustrate the Convention’s objectives while maintaining appropriate mechanisms for constitutional review through separate proceedings.
What is the relationship between custody determinations and Hague Convention proceedings? Hague Convention proceedings focus on jurisdiction and return, leaving custody determinations to the courts of the child’s habitual residence to prevent forum shopping.
What remedies are available if undertakings offered in South African courts are not honoured in the requesting state? The judgment allows parties to approach the South African courts for variation of the order if Australian courts fail or refuse to mirror the undertakings, ensuring continued protection.
Conclusion
The SCA affirmed several key legal principles relating to the Hague Convention in the judgment of N M v The Central Authority for the Republic of South Africa and Another. These include:
(a) The primary objective of the Hague Convention is to ensure the prompt return of children who have been wrongfully removed or retained.
(b) The court that orders the return of a child under the Convention may impose conditions designed to mitigate any prejudice to the child.
(c) Article 13(b) of the Convention provides a defence to a return application where there is a grave risk that the child’s return would expose them to harm or place them in an intolerable situation.
(d) The threshold for establishing a defence under Article 13(b) is high. The risk must be “grave”, meaning serious and severe.
(e) The source of the risk of harm is irrelevant.
Evidence of a child’s attachment to the abducting parent should not be overemphasised, as attachment is a factor to be considered in custody and care proceedings, not in a Hague Convention application.
The Plascon Evans rule, which is used to determine factual disputes in motion proceedings, does not apply in Hague Convention cases. Even uncontradicted expert evidence must be carefully scrutinised by the court to determine its probative value.
Applying these principles to the facts of the case, the SCA found that NM had not established a grave risk of harm to NEM if he was returned to Australia. The SCA was critical of the social worker’s report, finding that it did not provide a balanced assessment of the situation. The SCA also noted that NM had been uncompromising in her refusal to return to Australia and that her recalcitrance could not be a basis for establishing a defence under Article 13(b). The court said NM should not be allowed to rely on the consequences of her unlawful removal of NEM as a basis for preventing his return to Australia.
The SCA also made it clear that South African courts must give effect to the objectives of the Hague Convention by acting expeditiously to decide return applications. The court was critical of the delay in the High Court, pointing out that regulations require Hague Convention applications to be decided within six weeks unless exceptional circumstances prevent this. The court also stressed the important role of the Central Authority in Hague Convention proceedings.
Ultimately, it seems the SCA was guided by the principles of the Hague Convention and sought to ensure that the Convention’s objective of securing the prompt return of a child to their country of habitual residence was achieved. The SCA also highlighted the importance of the role played by the Central Authority in ensuring that this objective is met and that the process is fair and just for both parents. The SCA made it clear that while the best interests of the child are paramount, the court must carefully scrutinise any allegations of harm to ensure that the high threshold for establishing a defence under Article 13(b) is met.
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.
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