- This appeal concerns a four-year-old girl, who was brought to South Africa
from Canada by her mother in June 2000 and who is still here with her mother.
The question which this Court has to consider is whether the mother is acting
in violation of the provisions of the Hague Convention on the Civil Aspects of
International Child Abduction (the Convention). If so, further questions arise
including the constitutionality of the statute incorporating the Convention
into South African law.
- On 18 October 2000, Jennett J, sitting in the South Eastern Cape High
Court (the High Court), ordered that (S.) forthwith be returned to British
Columbia, Canada. The order was made pursuant to the provisions of the Hague
Convention on the Civil Aspects of International Child Abduction Act (the
Act). This Act gives statutory recognition to the Convention which has been
ratified by many nations including Canada and South Africa. The Act came into
force on 1 October 1997. In terms of section 2, the Convention, which is a
schedule to the Act, applies in South Africa and, in terms of section 231(4)
of the Constitution it has become law. It is the meaning and effect of this
Act which falls to be interpreted in this case.
- There were competing applications in the High Court. L.T.S., the mother of
S. (the mother) claimed an order granting her custody of S. A.T., the father
of S. (the father), sought in a counterclaim to have an order of the Supreme
Court of British Columbia awarding him custody of S. made an order of the High
Court, and to have S. returned forthwith to British Columbia. The Chief Family
Advocate (the Family Advocate), who is designated by section 3 of the Act as
the Central Authority for the Republic, brought her own application for the
return of S. to British Columbia in terms of Article 12 of the Convention. It
was the last-mentioned application that was granted by the High Court.
- On 9 November 2000 the mother sought leave to appeal directly to this
Court in terms of rule 18 of the Rules of the Constitutional Court. In
considering the mother�s application, we came to the conclusion that there is
a constitutional issue to be determined in the appeal and that this Court
therefore has jurisdiction to entertain the matter. We were further of the
view that it is in the interests of justice and of S. that this litigation
should be finalised as soon as possible. The father and the Family Advocate
did not object. Accordingly this appeal was set down for hearing in this Court
on an expedited basis. The father did not appear in this Court and filed a
consent to abide our decision. We are indebted to counsel appearing for the
mother and the Family Advocate for having filed helpful argument in the short
time available to them.
The Background
- The mother was born in South Africa and the father in Italy. They were
married to each other in South Africa on 19 June 1989. They lived for some
years in Italy and in July 1997 they emigrated to Canada. They made their home
at Owl Ridge, Mount Currie in British Columbia. The marriage foundered and
during 1998 they separated.
- On 7 July 1999 a consent paper was made an order of the Supreme Court of
British Columbia. In terms thereof, the mother was granted sole custody of S.
and the father rights of access to her. They were granted joint guardianship
and the father was ordered to pay maintenance for the child. It was further
provided that:
". . . neither the Plaintiff (the father) nor the Defendant
(the mother) shall remove the Child from the Province of British Columbia
without further Court Order or the written agreement of the parties except
that either party will be permitted to travel outside of British Columbia with
the child once per year for a period not to exceed 30 days.
. . . if the Child is taken out of Canada for a period
exceeding 30 days, without further court Order or written consent of both
parties permitting the same, the child will have been wrongfully removed from
the Province of British Columbia, Canada, in contravention of the Convention
[on] the Civil Aspects of International Child Abduction (Convention).
. . . the state of habitual residence of the Child, within
the meaning of the Convention, is the Province of British Columbia,
Canada."
- On 31 May 2000, the mother and the father were divorced in the Supreme
Court of British Columbia. The order of 7 July 1999 was left in place. In June
2000, the father sought an urgent order from the Supreme Court of British
Columbia restraining the mother from removing S. from British Columbia. The
application was settled and by consent it was ordered on 9 June 2000 that an
investigation be conducted into issues of custody of and access to S. and that
they be set for trial at the earliest date. It was further ordered that:
". . . the Defendant (the mother) be allowed to travel to
South Africa with the Child, for a one-month period from June 12, 2000 and
returning July 14, 2000 on the following conditions:
(a) the Plaintiff (the father) will have sole custody of the
Child in the event that the Child is not returned to British Columbia by July
14, 2000;
(b) the Defendant will deposit the sum of $5,000.00 with her
counsel to be held by him or her as security for the return of the Child and
be immediately paid over to the Plaintiff or his counsel if the Child is not
returned to British Columbia on or about July 14, 2000."
- The mother and S. left for South Africa where they moved in with the
mother�s family in Port Elizabeth. When it became clear to the father that
neither S. nor the mother was returning to Canada, he approached the Supreme
Court of British Columbia and on 21 July 2000 obtained an order, without
notice to the mother, to the effect that he was awarded sole custody and
guardianship of S., ordering the mother forthwith to deliver S. to the father
and providing for the arrest of the mother in the event of her breaching the
order.
- Thereafter, the Family Advocate received a request, in terms of the
Convention, from the Central Authority of British Columbia, for steps to be
taken to ensure the prompt return of S. to British Columbia.
The Convention
- According to its preamble, the purpose of the Convention is 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. I
agree with L�Heureux-Dub� J�s comments in Thomson v Thomson that:
". . . the necessity of international agreements with regard
to the abduction of children has been abundantly demonstrated particularly in
recent years. The increase in rapid international transportation, the freer
crossing of international boundaries, the continued decrease in documentation
requirements when entering foreign jurisdictions, the increase in
�international families�, where parents are of different countries of origin,
and the escalation of family breakups worldwide, all serve to multiply the
number of international abductions."
- The Convention provides for a mandatory return procedure whenever a child
has been removed or retained in breach of the rights of custody of any person
or institution "under the law of the State in which the child was habitually
resident immediately before the removal or retention" and where those rights
were actually being exercised or would have been but for the removal or
retention. These rights, according to the Convention may arise by operation of
law, by judicial or administrative decision or by an agreement having legal
effect. The Convention defines "rights of custody" to "include rights relating
to the care of the person of the child and, in particular, the right to
determine the child�s place of residence." In applying the Convention "rights
of custody" must be determined according to this definition independent of the
meaning given to the concept of "custody" by the domestic law of any state
party. Whether a person, an institution or any other body has the right to
determine a child�s habitual residence must, however, be established by the
domestic law of the child�s habitual residence. As L�Heureux-Dub� J correctly
points out:
"[h]owever, although the Convention adopts an original
definition of �rights of custody�, the question of who holds the . . .
�right to determine the child�s place of residence� within the meaning of the
Convention is in principle determined in accordance with the law of the state
of the child�s habitual place of residence . . ." (Emphasis added)
At all material times S.�s habitual place of residence was
British Columbia, and the law of that province prohibited her from residing in
any other place without the authority of an order of court or written
agreement between the mother and the father.
- Where a child has been wrongfully removed or retained in terms of Article
3, and a period of less than a year after the wrongful removal or retention
has elapsed, the judicial or administrative authorities of the requested state
"shall order the return of the child forthwith." Such judicial or
administrative authority is granted a discretion to refuse to order such
return by the provisions of Article 13. It reads as follows:
"Notwithstanding the provisions of the preceding Article, the
judicial or administrative authority of the requested State is not bound to
order the return of the child if the person, institution or other body which
opposes its return establishes that�
a the person, institution or other body having the care of
the person of the child was not actually exercising the custody rights at the
time of removal or retention, or had consented to or subsequently acquiesced
in the removal or retention; or
b there is a grave risk that his or her return would expose
the child to physical or psychological harm or otherwise place the child in an
intolerable situation.
The judicial or administrative authority may also refuse to
order the return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it is
appropriate to take account of its views.
In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into account the
information relating to the social background of the child provided by the
Central Authority or other competent authority of the child�s habitual
residence."
A further ground for refusing to return a child is to be
found in Article 20. It provides that:
"The return of the child under the provisions of Article 12
may be refused if this would not be permitted by the fundamental principles of
the requested State relating to the protection of human rights and fundamental
freedoms."
- Article 6 requires states parties to designate a Central Authority to
discharge the duties imposed by the Convention. As already indicated, in South
Africa the Act designates the Family Advocate for this purpose. In British
Columbia, according to the papers before the Court, the Attorney-General has
been so designated.
- Under Article 7 the Central Authorities are to co-operate with each other
and promote co-operation amongst the competent authorities in their respective
states to secure the prompt return of children to achieve the objects of the
Convention. Thus, under the Convention, the Family Advocate must act on behalf
of the Central Authority of the requesting state to facilitate the return of
children. Contrary to the neutral role that the Family Advocate takes in
domestic matters, the Family Advocate may be obliged to adopt an adversarial
role and oppose the wishes of the parent opposing such return.
- In addition, Article 7 requires the Central Authorities, directly or
through an intermediary, amongst other things, "to exchange, where desirable,
information relating to the social background of the child". This requirement
for co-operation between Central Authorities suggests that the Family Advocate
ought, where possible, to liaise with the Central Authority of the requesting
state, here the Attorney-General of British Columbia, to obtain any reports
with relevant information. Reports containing the objective assessment of
facts that are in issue would greatly assist the courts. Under the Convention,
it is reasonable to expect the Family Advocate to initiate the exchange of
information and provide the results of those inquiries to the courts. It would
also be most helpful for the Central Authority of the requesting state to
furnish a court considering an Article 13 exemption with any relevant
information relating to the circumstances of the child. This is envisaged by
Article 13 itself, which states:
" . . .
In considering the circumstances referred to in this Article,
the judicial and administrative authorities shall take into account the
information relating to the social background of the child provided by the
Central Authority . . . of the child�s habitual residence".
The Proceedings in the High Court
- By agreement, the High Court considered only the urgent application
brought by the Family Advocate, in which she sought an order for the return of
S. to British Columbia in terms of Article 12 of the Convention. It was
accepted that if the Family Advocate�s application was granted, the mother�s
application and the father�s counter-application would fall to be dismissed.
- The mother challenged the application of the Family Advocate, arguing that
to order S. back to Canada under the Convention would amount to making an
order in conflict with section 28(2) of the Constitution because such a return
would be against the child�s best interests. Jennett J held that there is no
conflict between the Convention and section 28(2) of the Constitution, since
under both instruments, the interests of children are of paramount importance
in determining custody. He recognised, however, that the central issue of the
case before the court was not to decide who should have custody but rather to
decide which court should consider the merits of custody. Jennett J determined
that the best interests of the child would be to allow the court that could
best dispose of the case to do so. He held that the Convention is reconcilable
with section 28(2) of the Constitution.
- Jennett J also decided that, given the evidence before him, it was not
inconsistent with S.�s best interests that issues relating to the father�s
access and custody be considered by the Supreme Court of British Columbia.
Accordingly, he concluded it was in her best interests to grant the Family
Advocate�s application and order the return of S. to British Columbia. In his
order, he recorded the terms of a number of undertakings given by the father.
The Issues
- The issues before this Court are the following:
- Whether the provisions of the Convention apply in the present case;
- If so, whether, as incorporated by the Act, they are consistent with the
Constitution;
- Whether these provisions require the return of S.
The Applicability of the Convention
- The mother denies that the father possesses any "rights of custody"
as defined in the Convention and thus asserts that neither the removal of
S. from British Columbia nor her retention in South Africa are wrongful.
Consequently, so she claims, the Convention has no application in this matter.
- As stated above, the Convention defines "rights of custody" to include, in
particular, "the right to determine the child�s place of residence". In this
case there was a non-removal ("ne exeat") provision in the order of the
Supreme Court of British Columbia of 7 July 1999. It has been held by courts
in several jurisdictions that such a non-removal provision can, depending on
the circumstances, confer a right of custody within the meaning of the
Convention.
- In urging this Court to find that the Convention does not apply, the
mother relies on the recent case of Croll v Croll in which the United
States Court of Appeals for the Second Circuit held, contrary to the weight of
authority, that a non-removal provision does not found a right of custody.
- In the court a quo, Jennett J dismissed this argument, preferring to
follow the approach taken in the dissent of Sotomayor J. In his judgment,
Sotomayor J said that:
"rights arising under a ne exeat clause include the
�right to determine the child�s place of residence� . . . A parent�s ne
exeat rights fit comfortably within the category of rights the Convention
seeks to protect".
This followed, according to Sotomayor J, because when a
parent takes a child abroad in violation of ne exeat rights, that parent
effectively nullifies the custody order of the country of habitual residence �
exactly the mischief the Convention seeks to avoid.
- In any event, the facts in Croll are not identical to those in the
present case. Here, we are not dealing only with a non-removal provision in a
final custody agreement. In this case we have an interim agreement between the
parties that S. would be returned to her country of habitual residence by a
particular date, and that "the issues of custody and access be set for trial
at the earliest dates . . . available for counsel and the court registry".
That agreement was made an order of the Supreme Court of British Columbia.
- The "rights of custody" as defined in the Convention may, according to
Article 3, arise either by court order or by agreement having a legal effect
under the law of the requesting state. It is not in dispute in this case that
both the agreement and the order incorporating it constituted the basis upon
which the mother was to retain custody of S. and upon which the father was
entitled to exercise rights of access to her. In effect the mother was
entitled to exercise her rights of custody (in the sense of caring for the
daily needs of S.) only in British Columbia, save for the period from 12 June
2000 to 14 July 2000. Her failure to return to British Columbia with the child
on the latter date was a breach of the conditions upon which she was entitled
to exercise her rights of custody and a concomitant breach of the father�s
rights under the agreement and order. It therefore constituted a wrongful
retention by her of S. outside British Columbia as contemplated by Article 3
of the Convention. I conclude therefore that the Convention is applicable.
The Constitutionality of the Act and the Effect of Section
28(2)
- It is now necessary to consider the submission on behalf of the mother
that the Act is inconsistent with the Constitution. The only basis upon which
this submission was made was that the Act obliges our courts to act in a
manner which does not recognise the paramountcy of the best interests of the
child.
- That the Constitution is our supreme law is made clear from section 2
which provides that:
"This Constitution is the supreme law of the Republic; law or
conduct inconsistent with it is invalid, and the obligations imposed by it
must be fulfilled."
As was stated by Mohamed CJ:
"This inquiry must crucially rest on the Constitution of the
Republic of South Africa Act . . . It is supreme�not Parliament. It is
the ultimate source of all lawful authority in the country." (Emphasis in the
original)
It follows that if the Act or any of its provisions are
inconsistent with a provision of the Constitution, such inconsistency would
have to be justifiable under the provisions of section 36 of the Constitution
in order for the Act to be constitutionally valid.
- The Convention itself envisages two different processes � the evaluation
of the best interests of children in determining custody matters, which
primarily concerns long-term interests, and the interplay of the long-term and
short-term best interests of children in jurisdictional matters. The
Convention clearly recognises and safeguards the paramountcy of the best
interests of children in resolving custody matters. It is so recorded in the
preamble which affirms that the states parties who are signatories to it, and
by implication those who subsequently ratify it, are "[f]irmly convinced that
the interests of children are of paramount importance in matters relating to
their custody." As was stated by Donaldson MR in Re F:
"I agree with Balcombe LJ�s view expressed in Giraudo v
Giraudo . . . that in enacting the 1985 Act [giving effect to the
Convention], Parliament was not departing from the fundamental principle that
the welfare of the child is paramount. Rather it was giving effect to a
belief�
�that in normal circumstances it is in the interests of
children that parents or others shall not abduct them from one jurisdiction to
another, but that any decision relating to the custody of the children is best
decided in the jurisdiction in which they have hitherto been habitually
resident.� "
- What, then, of the short-term best interests of children in jurisdictional
proceedings under the Convention? One can envisage cases where,
notwithstanding that a child�s long-term interests will be protected by the
custody procedures in the country of that child�s habitual residence, the
child�s short-term interests may not be met by immediate return. In such
cases, the Convention might require those short-term best interests to be
overridden. I shall assume, without deciding, that this argument is valid. To
that extent, therefore, the Act might be inconsistent with the provisions of
section 28(2) of the Constitution which provide an expansive guarantee that a
child�s best interests are paramount in every matter concerning the child. I
shall proceed therefore to consider whether such an inconsistency is
justifiable under section 36 of the Constitution, which requires a
proportionality analysis and weighing up of the relevant factors.
- In conducting this proportionality analysis, section 36 enjoins this Court
to consider the importance of the purpose of the limitation, and the
relationship between the limitation and its purpose. The purpose of the
Convention is important. It is to ensure, save in the exceptional cases
provided for in Article 13 (and possibly in Article 20), that the best
interests of a child whose custody is in dispute should be considered by the
appropriate court. It would be quite contrary to the intention and terms of
the Convention were a court hearing an application under the Convention to
allow the proceedings to be converted into a custody application. Indeed,
Article 19 provides that:
"A decision under this Convention concerning the return of
the child shall not be taken to be a determination on the merits of any
custody issue."
Rather, the Convention seeks to ensure that custody issues
are determined by the court in the best position to do so by reason of the
relationship between its jurisdiction and the child. That Court will have
access to the facts relevant to the determination of custody.
- Given the appropriateness of a specific forum, the Convention also aims to
prevent the wrongful circumvention of that forum by the unilateral action of
one parent. In addition, the Convention is intended to encourage comity
between states parties to facilitate co-operation in cases of child abduction
across international borders. These purposes are important, and are consistent
with the values endorsed by any open and democratic society.
- There is also a close relationship between the purpose of the Convention
and the means sought to achieve that purpose. The Convention is carefully
tailored, and the extent of the assumed limitation is substantially mitigated
by the exemptions provided by Articles 13 and 20. They cater for those cases
where the specific circumstances might dictate that a child should not be
returned to the State of the child�s habitual residence. They are intended to
provide exceptions, in extreme circumstances, to protect the welfare of
children. Any person or body with an interest may oppose the return of the
child on the specified grounds.
- The nature and extent of the limitation are also mitigated by taking into
account section 28(2) of our Constitution when applying Article 13. The
paramountcy of the best interests of the child must inform our understanding
of the exemptions without undermining the integrity of the Convention. The
absence of a provision such as section 28(2) of the Constitution in other
jurisdictions might well require special care to be taken in applying dicta of
foreign courts where the provisions of the Convention might have been applied
in a narrow and mechanical fashion.
- Moreover, in the application of Article 13, recognition must be accorded
to the role which domestic violence plays in inducing mothers, especially of
young children, to seek to protect themselves and their children by escaping
to another jurisdiction. Our courts should not trivialise the impact on
children and families of violence against women. In S v Baloyi this
Court quoted the following statement with approval:
"Domestic and family violence is a pervasive and frequently
lethal problem that challenges society at every level. Violence in families is
often hidden from view and devastates its victims physically, emotionally,
spiritually and financially. It threatens the stability of the family and
negatively impacts on all family members, especially the children who learn
from it that violence is an acceptable way to cope with stress or problems or
to gain control over another person."
Where there is an established pattern of domestic violence,
even though not directed at the child, it may very well be that return might
place the child at grave risk of harm as contemplated by Article 13 of the
Convention.
- A South African court seized with an application under the Convention is
obliged to place in the balance the desirability, in the interests of the
child, of the appropriate court retaining its jurisdiction, on the one hand,
and the likelihood of undermining the best interests of the child by ordering
her or his return to the jurisdiction of that court. As appears below, the
court ordering the return of a child under the Convention would be able to
impose substantial conditions designed to mitigate the interim prejudice to
such child caused by a court ordered return. The ameliorative effect of
Article 13, an appropriate application of the Convention by the court, and the
ability to shape a protective order, ensure a limitation that is narrowly
tailored to achieve the important purposes of the Convention. It goes no
further than is necessary to achieve this objective, and the means employed by
the Convention are proportional to the ends it seeks to attain.
- For the above reasons I am satisfied that the limitation is manifestly
reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom. Therefore, I conclude that the Act
incorporating the Convention is consistent with the Constitution.
- It was argued on behalf of the mother that the provisions of Article 20
require the provisions of section 28(2) of the Constitution to be applied as a
further exception to the obligation to return the child to the state of
habitual residence. In the light of the above analysis the argument based on
Article 20 takes the matter no further.
The Reliance on Article 13
- Within the parameters of the Convention, the mother submitted that there
should not be an order for the return of S. because she would be at grave risk
of psychological harm and would be placed in an intolerable situation should
she be returned. The factual matrix upon which the mother�s claim is based is
to be found in the affidavits and documentary material placed before the High
Court. Much of it is disputed by the father and none of it has been tested by
viva voce evidence.
- Counsel for the mother, in argument in this Court, relied upon the
following allegations of the mother:
- A physical assault upon her by the father on one occasion during June
1998. (An allegation by the mother of an earlier assault was not relied upon
by counsel. It occurred soon after the T.s took up residence in British
Columbia, and resulted in the mother having a bruised thigh.) The June 1998
incident resulted in a peace bond being placed upon the father. It was
issued on 30 July 1998 and was the consequence of the father, during an
argument, having "grabbed my arm and [thrown] me onto the kitchen counter";
- A second peace bond was issued on 11 May 2000 and was the consequence of
alleged threatening behaviour on the part of the father. In her affidavit in
the High Court, the mother alleged that the peace bond was granted in the
light of the following conduct by the father (who is referred to as the
First Respondent):
"23.1 Over the period 1 November 1999 to 25 March 2000 [he]
verbally and psychologically abused and intimidated me. Explanations thereof
are the following:
23.1.1 First Respondent informed me that if I wouldn�t live
with him, I would not live with any other man.
23.1.2 He informed me that there wouldn�t be a divorce
until I did things the way he wanted me to do them.
23.1.3 First Respondent followed and watched me and phoned
me incessantly. He once queried me where my car was and who was driving it,
and stated that he saw my car outside my home.
23.1.4 First Respondent�s tone of voice and body language
towards me was often threatening and intimidating. On occasion he did not
want to leave my shop and I was compelled to call in the assistance of the
police to do so.
23.2 [He] was inclined to insult hunters, whom he never
liked. First Respondent informed me that he on occasion sabotaged a hunter�s
summer house by sealing all the locks and bolts of the door with super glue,
so that the hunters had to break the door down to get into the house.
23.3 [He] informed me that he had thrown light bulbs filled
with brake fluid on hunters� cars that were parked near our property. He
told me that he threw the light bulbs on the cars because the brake fluid
would eat the paint on the cars. First Respondent used a syringe and
injected the brake fluid into the bulbs.";
- During the proceedings for the second peace bond, the judge who heard
the matter commented adversely on the father�s conduct in court. She said:
"Mr. T., unfortunately, appears to have no insight into the
effect his actions have on others. Today in the courtroom he clearly
displayed anger, frustration and hostility. I understand he is upset at the
present state of his access to his daughter, but at times he appeared to be
barely in control.";
- In her replying affidavit the mother refers to incidents where the
father allegedly lost control of himself and broke a kitchen tap, threw
framed photographs on the floor and broke them and hit his fist through the
top of a washing machine;
- While watching a movie, the father made a remark approving of the
physical and verbal abuse of a woman;
- The father cut the telephone lines of a woman with whom he had had an
argument;
- Statements allegedly made by the father to a newspaper journalist during
the proceedings in the High Court to the effect that "I don�t care if she
[the mother] gets arrested [on her return to Canada] or not although it will
be to the detriment of little S. I will fight this matter to the bitter
end.";
- The mother�s strong objection to returning to Canada where she was
desperately unhappy, alone and isolated. She has "no real friends and family
there" and no support system;
- The father "has been telling all those concerned that [the mother] was
either paranoid or schizophrenic and that [she has] a great mental
instability. . .";
- S. is a special needs child who requires constant supervision and
treatment. She is receiving such treatment in Port Elizabeth. In Owl Ridge,
on the other hand, there are no comparable facilities;
- S.�s condition improved after she came to Port Elizabeth and has again
deteriorated after the father�s arrival there to contest the High Court
proceedings;
- If she is forced to return with S. to Canada, she will be completely
dependent upon the father for the financial needs of herself and S.
- The mother�s counsel relied also on the report of Mr Ian Meyer, a clinical
psychologist practising in Port Elizabeth. Based upon the information
furnished to him by the mother and her parents, he expresses the view that the
evidence is overwhelmingly in favour of the mother remaining the sole
custodial parent. He states further that the continuation of the status quo in
Canada would have a severely compromising effect on the healthy psychological
development of S.
- Finally, counsel referred to the likelihood of the mother being arrested
upon her return to Canada for being in contempt of the order granted by the
Supreme Court of British Columbia on 9 June 2000. He also drew attention to
the ex parte order made by the Supreme Court of British Columbia on 21 July
which took away her rights of custody and co-guardianship of S. He submitted
that it would be unfair and unjust to expect the mother to return to live in
Canada.
- The question we have to decide is whether, on her allegations, the mother
has established, under Article 13 of the Convention, that there is a grave
risk that S.�s return to Canada will expose her to psychological harm or
otherwise place her in an intolerable situation.
- A matrimonial dispute almost always has an adverse effect on children of
the marriage. Where a dispute includes a contest over custody, that harm is
likely to be aggravated. The law seeks to provide a means of resolving such
disputes through decisions premised on the best interests of the child.
Parents have a responsibility to their children to allow the law to take its
course and not to attempt to resolve the dispute by resorting to self-help.
Any attempt to do that inevitably increases the tension between the parents
and that ordinarily adds to the suffering of the children. The Convention
recognises this. It proceeds on the basis that the best interests of a child
who has been removed from the jurisdiction of a court in the circumstances
contemplated by the Convention are ordinarily served by requiring the child to
be returned to that jurisdiction so that the law can take its course. It makes
provision, however, in Article 13 for exceptional cases where this will not be
the case.
- An Article 13 enquiry is directed to the risk that the child may be harmed
by a court ordered return. The risk must be a grave one. It must expose the
child to "physical or psychological harm or otherwise place the child in an
intolerable situation." The words "otherwise place the child in an intolerable
situation" indicate that the harm that is contemplated by the section is harm
of a serious nature. I do not consider it appropriate in the present case to
attempt any further definition of the harm, nor to consider whether in the
light of the provisions of our Constitution, our courts should follow the
stringent tests set by courts in other countries.
- I accept that the mother finds herself in a most difficult situation. The
relationship between her and the father is clearly hostile. In addition the
mother�s difficulties are exacerbated by the absence of a family or support
system in British Columbia. On her allegations, her reasons for leaving
British Columbia are not difficult to understand. That, however, is not the
issue. The question is whether the mother has established the elements for
exemption under Article 13.
- There is no suggestion that S. will suffer physical harm if she is
returned to British Columbia. The psychological harm which it is said that S.
will suffer if she is returned to Canada is not harm of the serious nature
contemplated by Article 13. It is in the main harm which is the natural
consequence of her removal from the jurisdiction of the courts of British
Columbia, a court ordered return, and a contested custody dispute in which the
temperature has been raised by the mother�s unlawful action. That is harm
which all children who are subject to abduction and court ordered return are
likely to suffer, and which the Convention contemplates and takes into account
in the remedy that it provides.
- I have thus come to the conclusion that the facts are insufficient to
support a finding that the return of the child to British Columbia involves
the grave risk of the harm referred to in Article 13. I base this view upon
the following specific considerations:
- There are no allegations at all which suggest that the father has abused
S. either physically or psychologically. Mr Meyer refers in his report to
the father having "taken a more involved role with his daughter, albeit
predominantly subsequent to the parties separating. He clearly has a keen
love for his daughter and interest in her progress." The return of S. to the
proximity of her father does not in itself pose a grave risk of harm to her;
- The problems which S. may experience are the consequence of the tension
and trauma which is associated with the relationship between her mother and
father. There is nothing to suggest that if S. and her mother return to
British Columbia the mother and father need associate with one another;
- The mother nowhere suggests that she fears for her physical safety when
she is not in physical proximity with the father;
- The child�s special needs can adequately be catered for in British
Columbia;
- This Court can make an appropriate order to address some of the concerns
of the mother with regard to her possible arrest on her return to British
Columbia, her needs and those of S. pending a determination of the custody
and guardianship of S. by the Supreme Court of British Columbia, and
ensuring that finality with regard thereto should be reached expeditiously;
- The order which I propose we should make will render enforceable the
undertakings of the father which were recorded in the order of the High
Court;
- Although there is evidence that S. is adversely affected by the
interaction between her parents, it has not been established that if
returned to British Columbia, S. will suffer psychological harm of a serious
nature or that she will otherwise be placed in an intolerable situation. I
have come to this conclusion on the basis of accepting at face value the
relevant allegations made by the mother.
- Accordingly, I am of the opinion that the mother has not satisfied the
grave risk requirement and that it is in the best interests of S. that the
Supreme Court of British Columbia should determine questions relating to her
future custody and guardianship. That court is already seized of the matter,
and the relevant incidents took place within its jurisdiction. It is clearly
in a better position than a South African court to resolve the serious
disputes of fact between the mother and the father. It could also consider an
application by the mother for the permanent removal of S. to South Africa.
The Form of the Order
- The following order was made by Jennett J in the High Court:
"1. It is ordered and directed that the minor child, S., be
forthwith returned to the jurisdiction of the Central Authority, British
Columbia, Canada.
2. In the event of applicant being willing to accompany the
minor child S. on her return to British Columbia, which willingness applicant
must communicate to both first and second respondents on or before Wednesday
25 October 2000 it is ordered that the minor child S. will remain in the de
facto custody of applicant pending the final adjudication and determination of
the Supreme Court of British Columbia, Canada of the issues of custody and
care of and access to the said child which adjudication and determination
applicant and first respondent, or either of them, must request forthwith.
3. In the event of 2 above i.e. Applicant being willing to
accompany the minor child S. on her return to British Columbia, the following
undertakings given by First respondent are recorded: -
(a) He will not seek to enforce against respondent the Order
of the Supreme Court of British Columbia dated 21 July 2000 in terms of which
he was granted custody of S. and he will not seek to remove S. from the day to
day care of applicant save for the purpose of exercising his rights of
reasonable access to S.
(b) He will not institute or support any proceedings, whether
criminal or contempt of court proceedings, for the punishment of applicant or
any member of her family, whether by imprisonment or otherwise, for any matter
arising out of the removal by applicant of S. from British Columbia and her
retention therefrom on or after 14 July 2000. In particular he will not
proceed with any charges against applicant in respect of her breach of any of
the previous Orders of the Supreme Court of British Columbia and he will take
all steps that he reasonably can for the withdrawal of any criminal charges
pending against her in this regard.
(c) He will arrange separate accommodation for applicant and
S. in British Columbia, close to an appropriate school for S. and he shall
contribute 500 Canadian dollars per month to applicant�s expenses pertaining
to such accommodation. He will also pay maintenance for S. from the date of
her arrival in British Columbia until the final adjudication of the issue of
the custody and care of S. by the Supreme Court of British Columbia at the
rate of 500 Canadian dollars per month and he will contribute towards the cost
of schooling for S. and also the cost of all her reasonable educational and
extramural requirements.
(d) He will provide for the use by applicant of a roadworthy
motor vehicle from the date of applicant's arrival in British Columbia for a
period of 2 months or until the adjudication of the custody issue, whichever
may be the later, and he will share the expense of running such vehicle
equally with applicant.
(e) He will pay for any medical expenses reasonably incurred
by applicant in respect of S. and in the event of her receiving therapy he
will bear the costs of such therapy.
(f) He will co-operate fully with the Ministry of Children,
British Columbia and with any professionals who conduct an assessment in order
to determine what future custody, care and access arrangement will be in the
best interests of S.
(g) He will contribute, if so required and so notified as
provided in paragraph 2 hereof, towards the cost of air tickets and if
necessary, also rail and road tickets for the return of applicant and S. from
Port Elizabeth to British Columbia. Details of the travel arrangements in this
regard will be made by first respondent and specified to applicant's attorneys
no later than 3 working days before the date of departure of the flight upon
which applicant and S. are to depart from Port Elizabeth.
(h) He will upon receipt of this Court Order, at his own
expense, take all steps necessary to cause this order to be made an order of
the Supreme Court of British Columbia, Canada, insofar as that is possible,
and he will take such other steps as are necessary to ensure that this order
is enforced in the Province of British Columbia, Canada and to provide proof
thereof to applicant's attorneys and to this Court as soon as such Order of
the said Canadian Court has been granted, that such necessary steps have been
taken.
4. In the event of Applicant requiring first respondent to
implement his undertaking in paragraph 3(g) above applicant is ordered to
return the minor child S. to British Columbia, Canada on the tickets provided
and the flights and other means of transport specified.
5. In the event of applicant failing to notify first and
second respondents of her willingness to accompany the minor child S. on her
return to British Columbia, Canada, it is to be accepted that applicant is not
prepared to so accompany the said minor child in which event second respondent
is authorised to make such arrangements as are necessary to ensure that the
minor child, S. , is safely returned to the custody of the Central Authority,
British Columbia, Canada and to take such steps as are necessary to ensure
that such arrangements are complied with.
6. Pending the return of the minor child S. to British
Columbia, Canada as provided for in this Order, applicant shall not remove S.
from the district of Port Elizabeth and she shall until then keep first
respondent's attorney informed of her physical address and contact telephone
numbers in Port Elizabeth.
7. Pending the return of the minor child S. to British
Columbia, Canada first respondent is to have reasonable access to the said
minor child, such access to be under the supervision of a suitably independent
person nominated by Ian Meyer, Clinical Psychologist, which access will be
exercised in accordance with such person's reasonable requirements.
8. The costs of second respondent in this counter-application
are to be paid by applicant.
9. No order is made on applicant's application or on first
respondent's counter-application but applicant is ordered to pay the costs of
both first respondent and second respondents in opposing applicant's
application, which cost in the case of first respondent are to include the
costs of employing two counsel."
- I agree that there should be an order for the return of S. to British
Columbia. However, as the mother appears to be intent on accompanying S., it
is in S.�s interests that her mother be given greater protection than that
provided by the order of the High Court. On the evidence before this Court, I
cannot find that the mother is acting unreasonably in not being content to
rely upon the undertakings of the father.
- Section 38 of the Constitution provides that, where anyone approaches a
court alleging that a right in the Bill of Rights has been infringed, that
court may grant appropriate relief. Pursuant to section 38, read with section
28(2), this Court is entitled to impose conditions in the best interests of S.
Such conditions should be consistent with, and not hamper, the objectives of
the Convention, and in particular, should not unnecessarily delay the return
of the child to the proper jurisdiction.
- The order should ensure that the mother can return to British Columbia
without the risk of arrest. If she accompanies S., she and S. should not be
required to leave South Africa before there is an appropriate order of the
Supreme Court of British Columbia to the effect that criminal proceedings are
no longer pending against the mother for her failure to comply with the order
of that court dated 9 June 2000. Such an order is consistent with the
undertakings given by the father in the High Court. In the implementation of
this order, the father will no doubt be able to rely on the co-operation of
the Family Advocate who, in turn, can obtain the assistance of the Central
Authority in British Columbia.
- On the information before this Court, it seems likely that sole custody of
S. will be awarded by the Supreme Court of British Columbia to the mother. I
refer specifically in this regard to the age of S. and the fact that she has
been in the constant daily care of her mother all of her young life. Whether
it is in the best interests of S. that she should be allowed to live
permanently with her mother in South Africa is a matter on which it is
unnecessary for me to comment. It appears on the information before this Court
that the best interests of S. dictate that she should remain in the sole
custody of her mother subject, of course, to reasonable rights of access for
her father until this matter has been finally adjudicated by the courts of
British Columbia. The order of this Court should be formulated to achieve
this.
- It is clearly also in the interests of S. that certainty as to her custody
and guardianship be settled at the earliest possible time. It was primarily
for this reason that the appeal before this Court was expedited. For this
reason this Court requested the Family Advocate to make inquiries from the
Central Authority in British Columbia as to the time it would take to have the
custody and guardianship proceedings commence in the Supreme Court of British
Columbia and the time which any appeal from such a decision would require. In
response, the Attorney-General of British Columbia has assured the Family
Advocate that an urgent interim custody application could be heard within two
days of a request therefor and that a full expedited trial could be heard in
four to five months. An appeal would take a further two months. The mother�s
attorneys have informed the Court that their inquiries indicate that a trial
and appeal would take from eleven to thirteen months. Having regard to the
fact that S. is to be returned to British Columbia under the Convention, it
can be assumed that the judicial and administrative authorities there will
ensure that custody and associated matters regarding S. are determined on an
expedited basis.
Costs
- The mother has had limited but significant success in this Court with
regard to the order which is made. To that extent the order of the High Court
will have to be set aside and replaced with the order which appears below. In
these circumstances I am of the view that we are at large to consider the
costs in the High Court. The father was substantially successful in that court
in obtaining an order for the return of S. and there is no reason he should
not have been awarded his costs in that court. However, I can find no warrant
for the order that the mother should pay the costs of the Family Advocate. The
latter is a state official acting in terms of an international Convention
which provides in Article 26 that each Central Authority should bear its own
costs in applying the Convention. In this Court the Family Advocate has not
sought an order for costs.
The Order
- The following order is made:
Chaskalson P, Langa DP, Ackermann J, Kriegler J, Mokgoro J,
Ngcobo J, O�Regan J, Sachs J, Yacoob J and Madlanga AJ concur in the judgment of
Goldstone J.