THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 748/11
Reportable
In the matter between:

KG

Appellant

and

CB

First Respondent

ESSEX COUNTY COUNCIL
Second Respondent

CENTRAL AUTHORITY FOR THE
REPUBLIC OF SOUTH AFRICA
Third Respondent

Neutral Citation: KG v CB & others (748/11) [2012] ZASCA 17 (22
March 2012)
Coram:
MTHIYANE DP, VAN HEERDEN & LEACH JJA,
BORUCHOWITZ & PLASKET AJJA
Heard:
22 February 2012
Delivered:
22 March 2012
Summary:
Hague
Convention
on
the
Civil
Aspects
of
International Child Abduction 1980 – child wrongfully
removed to South Africa from the United Kingdom –
application for return of child – meaning of ‘rights of
custody’ in articles 3 and 5 of Convention – defence of
consent to or acquiescence in removal of child in terms
of art 13(1)(a) of Convention – ‘safe harbour’ defence
in terms of art 13(1)(b) of Convention – terms of return
order

ORDER

On appeal from: South Gauteng High Court, Johannesburg (Satchwell J
sitting as a court of first instance):

A  The appeal is dismissed, with no order as to costs.
B   The order of Satchwell J in the South Gauteng High Court dated 14
July 2010 is replaced by the following order:
‘1. It is ordered and directed that the minor child, T, be returned
forthwith, but subject to the terms of this order, to the jurisdiction of the
Central Authority for England and Wales.
2. In the event of KG (the mother) notifying the Office of the Family
Advocate, Johannesburg (the family advocate) within one week of the
date of issue of this order that she intends to accompany T on her return
to the United Kingdom, the provisions of para 3 shall apply.
3. CB (the father) shall within one month of the date of issue of this
order, institute proceedings and pursue them with due diligence to obtain
an order of the appropriate judicial authority in the United Kingdom in
the following terms:
3.1 Any warrant for the arrest of the mother will be withdrawn
and will not be reinstated and the mother will not be subject to
arrest or prosecution by reason of her removal of T from the
United Kingdom on 14 February 2009 or for any past conduct
relating to T. The father will not institute or cause to be instituted
or support any legal proceedings or proceedings of any other
nature in the United Kingdom for the arrest, prosecution or
punishment of the mother or any member of her family, for any
past conduct by the mother relating to T.
3.2 Unless otherwise ordered by the appropriate court in the
United Kingdom:

3.2.1 The father is ordered to arrange, and pay for, suitable
accommodation for the mother and T in the United
Kingdom. The father shall provide proof to the satisfaction
of the family advocate, prior to the departure of the mother
and T from South Africa, of the nature and location of such
accommodation and that such accommodation is available
for the mother and T immediately upon their arrival in the
United Kingdom. The Central Authority for England and
Wales shall decide whether the accommodation thus
arranged by the father is suitable for the needs of the mother
and T, should there be any dispute between the parties in
this regard, and the decision of the Central Authority for
England and Wales shall be binding on the parties.
3.2.2 The father is ordered to pay the mother maintenance
for herself and T from the date of T’s arrival in the United
Kingdom at the rate of £350 per month. The first pro rata
payment shall be made to the mother on the day upon which
she and T arrive in the United Kingdom and thereafter
monthly in advance on the first day of every month. Should
the mother receive state support, then the monthly amount
thereof shall be deducted from the £350 per month payable
by the father.
3.2.3 The father is ordered to pay any medical and dental
expenses reasonably incurred by the mother in respect of T,
such as are not covered by the National Health Service in
the United Kingdom.
3.2.4 The father is ordered to pay for the reasonable costs of
T’s schooling and also the costs of her other reasonable
educational and extra-mural requirements in the United
Kingdom, such as are not provided by the State.

3.2.5 The father is ordered to purchase and pay for economy
class air tickets, and if necessary, pay for rail and other
travel, for the mother and T to travel by the most direct
route from Johannesburg, South Africa, to Harlow, United
Kingdom.
3.2.6 The father and the mother are ordered to co-operate
fully with the family advocate, the Central Authority for
England and Wales, the relevant court or courts in the
United Kingdom, and any professionals who are approved
by the Central Authority for England and Wales to conduct
any assessment to determine what future residence and
contact arrangements will be in the best interest of T.
3.2.7 The father is granted reasonable supervised contact
with T, which contact shall be arranged without the
necessity of direct contact between the father and the
mother.
4. In the event of the mother giving the notice to the family advocate
referred to in para 2 above, the order for the return of T shall be stayed
until the appropriate court in the United Kingdom has made the order
referred to in para 3 and, upon the family advocate being satisfied that
such an order has been made, he or she shall notify the mother
accordingly and ensure that the terms of para 1 are complied with.
5. In the event of the mother failing to notify the family advocate in
terms of para 2 above of her willingness to accompany T on her return to
the United Kingdom, it is to be accepted that the mother is not prepared
to accompany T, in which event the family advocate is authorised to
make such arrangements as may be necessary to ensure that T is safely
returned to the custody of the Central Authority for England and Wales
and to take such steps as are necessary to ensure that such arrangements
are complied with.

6. Pending the return of T to the United Kingdom as provided for in this
order, the mother shall not remove T on a permanent basis from the
Province of Gauteng and, until then, she shall keep the family advocate
informed of her physical address and contact telephone numbers.
7. Pending the return of T to the United Kingdom, the father is to have
reasonable telephone access to T.
8. There is no order as to costs.’
C
The family advocate is directed to seek the assistance of the Central
Authority for England and Wales in order to ensure that the terms of this
order are complied with as soon as possible.
D
In the event of the mother notifying the family advocate, in terms of
para B.2 above, that she is willing to accompany T to the United Kingdom,
the family advocate shall forthwith give notice thereof to the registrar of
the South Gauteng High Court, to the Central Authority for England and
Wales, and to the father.
E
In the event of the appropriate court in the United Kingdom failing or
refusing to make the order referred to in para B.3 above, the family
advocate and/or the father is given leave to approach this court for a
variation of this order.
F    No order as to costs is made in respect of either the mother’s
application to this court for condonation of the late lodging of the record, or
the mother’s application to this court for reinstatement of the appeal.
G  A copy of this order shall forthwith be transmitted by the family
advocate to the Central Authority for England and Wales.

JUDGMENT

VAN HEERDEN JA (MTHIYANE DP, LEACH JA, BORUCHOWITZ &
PLASKET AJJA concurring):
Introduction
[1] At the heart of this appeal is a little girl, T, who is presently five
years and ten months old. On 14 February 2009, T was removed by her
mother, KG, from the United Kingdom, where she had been resident from
birth, and taken to South Africa. This was done without the knowledge or
consent of either the first respondent, T’s father (CB), or the second
respondent, the Essex County Council (the Council).1 Six months later, in
August 2009, an application was brought to the South Gauteng High Court
for the return of T to the United Kingdom under the Hague Convention on
the Civil Aspects of International Child Abduction 1980 (the Convention).
The applicants were CB, the Council and the third respondent, the Chief
Family Advocate of South Africa, in her capacity as the Central Authority
for the Republic of South Africa (the Central Authority). This application
succeeded in the high court, which ordered the immediate return of T to the
United Kingdom. This appeal against that order serves before us with the
leave of the high court. For reasons which I shall set out below, the second
respondent, the Council, played no part either in the court below or before
this court.

1 The local authority of the area in which KG, T and CB were living at that stage

Factual matrix
[2] T was born to KG and CB on 12 May 2006 in Harlow, England.
Her parents have never been married to each other. When T was
approximately one year and four months old, her parents separated. It
would appear that T hereafter resided with CB for a period of time,
although KG, who was living with a certain DC in an apartment in the
same building as CB, continued to care for T. On 5 November 2007, after
CB had moved address without telling KG and allegedly left T in a
stranger’s care, KG collected T from her nursery and T lived with KB from
that date.
[3] Following a number of disputes between the parents, KB refused
contact between T and CB. This led to an application by CB to the Harlow
County Court in November 2007, in which CB claimed residence2 and
defined contact3 orders in respect of T, as well as an order prohibiting KG
from removing T from the jurisdiction of the court. On 12 December 2007,
KG filed a counter-application for a residence order in respect of T.
[4] On 18 December 2007, an interim contact order was made by the
Harlow County Court granting to CB supervised contact with T. This
contact was ultimately exercised at the Freshwaters Contact Centre. KG
had also made allegations that CB had sexually abused his daughter from a
previous marriage, as also his sister, and that he viewed child pornography
on the Internet. The court thus ordered KG to file a witness statement from

2 Under the United Kingdom Children Act 1989, a ‘residence order’ means an order settling the
arrangements to be made as to the person which whom the child is to live (see s 8(1)).
3A ‘contact order’ means ‘an order requiring the person with whom a child lives, or is to live, to allow the
child to visit or stay with the person named in the order, or for that person and the child otherwise to have
contact with each other’ (see s 8(1) of the United Kingdom Children Act). A ‘defined contact order’
contains directions and/or conditions about how it is to be carried into effect (eg, that the contact between
the parent and the child must be supervised) (see s 11(7)).

herself and from CB’s sister, setting out the allegations on which she relied.
The matter was postponed to 31 January 2008 when the court was to
consider whether a fact finding enquiry would be necessary. Meanwhile,
T’s passport was to be lodged with her mother’s solicitors.
[5] On 31 January 2008, KG was granted an interim residence order in
respect of T. On 23 May 2008, the CAFCASS4 officer’s report was filed
with the court, recommending that a fact finding hearing take place.
Thereafter, on 2 June 2008, KG was given permission by the court to take
T out of the jurisdiction of the court to South Africa for a holiday.
[6] In July 2008, DC assaulted KG. He was arrested and remanded in
custody until 8 December 2008. In the meantime, on 31 July 2008, upon it
appearing to the court that the concerns of risk (physical, sexual and
emotional) expressed by KG against CB were not substantiated by any of
the professionals involved in the case or by the court, a fact finding hearing
was scheduled to take place on 11 August 2008. This hearing was
adjourned as KG was in South Africa at the time.
[7] On 31 October 2008, the court ordered a consolidation of CB’s
application for residence and contact and KG’s application (brought on 28
October 2008) for an order permitting her to remove T from the jurisdiction
of the court to reside permanently in South Africa.
[8] On 8 December 2008, a nine months’ suspended jail sentence was
imposed on DC who was also ordered to attend alcohol treatment and a
domestic violence programme. The pre-sentence report assessed him as
posing a medium risk of harm to KG and future partners. The report also

4 CAFCASS stands for Children and Family Court Advisory and Support Service.

stated that, should DC resume his relationship with KG, or reside with a
new partner, then the level of risk would be deemed to increase, especially
if DC continued his pattern of alcohol abuse. Shortly hereafter, KG
resumed her relationship with DC on his release from prison and, it would
seem, was again physically abused by him in February 2009. These events
gave rise to concerns for T’s safety on the part of the Council. Thus, on 10
February 2009, the Chelmsford County Court made an interim care order5
to the effect that T be placed in the care of the Council. This order was to
expire on 7 April 2009. At the same time, KG was ordered to file an
updating position statement dealing with her domestic circumstances and
her proposed move to South Africa, while CB was ordered to file a
statement in relation to his application for a residence order. The return
date of these proceedings was 16 March 2009.
[9] On 14 February 2009, KG took T to South Africa. She did so
without notice to or the consent of either CB or the Council. On 16 March
2009, the Chelmsford County Court noted6 that KG had left the jurisdiction
with T on 14 February 2009, without notifying any of the parties or her
solicitor and also that KG was ‘no longer pursuing the allegation that CB
abused his daughter’ from his previous marriage. The court then ordered
that –
‘[t]he Applicant father and the Local Authority shall jointly make an application
forthwith to the International Child Abduction and Contact Unit for the purposes of the
repatriation as soon as possible of [T]’.

5 In terms of s 33(1) of the United Kingdom Children Act 1989, ‘[w]here a care order is made with
respect to a child it shall be the duty of the local authority designated by the order to receive the child into
their care and to keep him in their care while the order remains in force.’ A court may only make a care
order in terms of s 31(2) if it is satisfied – ‘(a) that the child concerned is suffering, or is likely to suffer,
significant harm; and  (b) that the harm, or likelihood of harm, is attributable to – (i) the care given to the
child, or likely to be given to him if the order were not made, not being what it would be reasonable to
expect a parent to give to him; or (ii) the child’s being beyond parental control.’
6 In the preamble to the order made on that date.

[10] On 17 March and 20 March 2009, respectively, CB and the Council
applied to the International Child Abduction and Contact Unit (ICACU) –
the Central Authority for England and Wales – for the return of T to the
United Kingdom. As stated in para 1 above, the three respondents then
launched a Hague Convention return application on 13 August 2009 in
South Africa (the so-called ‘requested state’, the United Kingdom being the
‘requesting state’). By the time the matter was argued before Satchwell J in
the South Gauteng High Court in March and June 2010, the interim care
order granted to the Council had expired (in April 2009) and the Council
had not sought another such order. The third respondent, the Central
Authority, was informed by its United Kingdom counterpart that the
removal of T from the United Kingdom had obviated the need to protect T
from the dangerous domestic environment that was a cause of concern to
the County Court and the Council and which was the basis for the interim
care order. In the circumstances, the Council had no further interest in the
proceedings for T’s return.7 The Council thus abandoned its prayer for the
relief claimed in the return application.
[11] On 14 July 2010, Satchwell J handed down her judgment in this
matter in the court below, ordering the immediate return of T to the United
Kingdom and directing that –
‘[i]f counsel are unable to agree (within ten days of handing down of this order . . . on
the form of the order to give effect to that immediate return  . . . then the court will
receive further submissions (preferably in writing) to be received on or before 6 August
2010 so that the court can rule thereon without the expense of a further oral hearing.’

7 On 7 April 2009, the Chelmsford County Court noted that the Council had been discharged from its
undertaking, given on 16 March 2009, to issue an application for an interim care order in respect of T by
3 April 2009; that the South African social worker had been requested by the Council to continue to
monitor T’s welfare and T and KG’s whereabouts and to advise the Council forthwith of any change in
T’s whereabouts; and that the Council had assured the court that it would assess T’s welfare forthwith
upon being advised of T’s return to the jurisdiction.

As will be discussed below, counsel for the parties were not able to agree
on the form of the order to give effect to T’s immediate return and no
further submissions were made to the court on or before 6 August 2010.
[12] On 14 October 2010, Satchwell J granted KG leave to appeal to this
court. The Notice of Appeal was lodged on 11 November 2010. KG’s
appeal lapsed on 11 March 2011 due to non-lodging of the appeal record.
Prior to the appeal lapsing, KG did not seek an extension of the period for
the lodging of the record as contemplated in SCA rule 8(2). On 28 March
2011, the Registrar of this court notified the parties that KG’s appeal had
lapsed as a result of her failure to lodge the appeal record. The appellant’s
legal
representatives
hereafter
informed
the
respondents’
legal
representatives that the appellant nevertheless intended to pursue the appeal
and that the reason for the failure to have lodged the appeal record was
their inability to obtain the transcript of proceedings before Satchwell J
from the duly appointed transcribers. On 16 May 2011, the appellant’s
legal representatives wrote to the respondents’ legal representatives
confirming that they were experiencing much difficulty in obtaining the
transcript of the hearing and requesting the respondents’ legal
representatives to ‘consent to the late filing of the transcripts’. This request
was refused.
[13] On 21 September 2011, the respondents applied to the South
Gauteng High Court for an order giving effect to the order made by
Satchwell J.8 As Satchwell J was not available, the matter was heard on 4
October by Meyer J who mero motu raised the issue of legal representation
of T, as contemplated in s 279 of the Children’s Act 38 of 2005 (the

8 See para 11 above.

Children’s Act).9 Meyer J ordered that a curator ad litem be appointed to
represent T’s interests and postponed the matter to 11 October 2011 for the
curator to be appointed. Mr Johan van Schalkwyk from Legal Aid South
Africa was thereafter appointed. In his report dated 17 October 2011, Mr
van Schalkwyk recommended that T not be returned to the United
Kingdom until such time as the appeal be finalised and ‘the cloud
surrounding the allegations of molestation [be] cleared.’ Mr van Schalkwyk
also filed a supplementary report, commenting on the draft terms of T’s
return compiled by respondents’ legal representatives.
[14] On 21 October 2011, following representations to the court that the
condonation application and the appeal record had been lodged with this
court, Meyer J gave a judgment ordering that the proceedings before him
be suspended until final determination of the appeal. This notwithstanding,
the appeal record and the condonation application had not in fact been
properly filed in this court. In the result, the respondents requested Meyer J
on 11 November 2011 to enrol the matter to determine the terms for T’s
return to the United Kingdom.
[15] Before the matter was re-enrolled before Meyer J, the appellant
served on the respondents the application for condonation of the late
lodging of the appeal record and for the reinstatement of the appeal. As far
as I can ascertain, these applications and the appeal record were only
lodged with the Registrar of this court on 15 November 2011.

9 Section 279 of the Children’s Act, which came into operation on 1 April 2010, provides that ‘[a] legal
representative must represent the child, subject to s 55, in all applications in terms of the Hague
Convention on International Child Abduction.’ In addition, s 278(3) of the Children’s Act provides as
follows: ‘The court must, in considering an application in terms of this Chapter [Chapter 17, headed
‘Child Abduction’] for the return of a child, afford that child the opportunity to raise an objection to being
returned and in so doing must give due weight to that objection, taking into account the age and maturity
of the child.’

[16] At the commencement of the proceedings before this court, counsel
for the respondents indicated that the respondents did not oppose the
appellant’s applications for reinstatement of the appeal and for condonation
of the late lodging of the record. Accordingly, these applications were
granted by this court. Counsel for the appellant submitted that this court
should not order the appellant to pay the costs of these applications. She
pointed out that the legal representatives of the appellant were acting on a
pro bono basis, having been appointed by Satchwell J to assist the appellant
as the latter had no funds to litigate. According to counsel, the lengthy
delay in lodging the record could not be laid at the door of the appellant, as
her legal representatives had believed in good faith that the transcript of
proceedings before the high court was necessary to assist this court in its
deliberations. Counsel for the respondents indicated that she did not seek
the costs of the condonation and reinstatement applications and that she
would leave the matter of these costs in the hands of this court.
[17] The curator ad litem also appeared before this court. I express the
court’s gratitude to him, as well as to the appellant’s attorneys and counsel
who acted pro bono.
The applicability of the Convention
[18] The Convention was incorporated into South African law by the
Hague Convention on the Civil Aspects of International Child Abduction
Act 72 of 1996, which came into operation on 1 October 1997. With effect
from 1 April 2010, this Act was repealed by the Children’s Act, Chapter 17
(ss 274 to 280) of which deals with child abduction. Section 275 provides
that the Convention, the whole of which forms Schedule 2 to the Act, ‘is in
force in the Republic and its provisions are law in the Republic, subject to
the provisions of this Act’.

[19] The primary purpose of the Convention is to secure the prompt
return (usually to the country of their habitual residence) of children
wrongfully removed to or retained in any Contracting State, viz to restore
the status quo ante the wrongful removal or retention as expeditiously as
possible, so that custody and similar issues in respect of the child can be
adjudicated upon by the courts of the state of the child’s habitual residence.
The Convention is predicated on the assumption that the abduction of a
child will generally be prejudicial to his or her welfare and that, in the vast
majority of cases, it will be in the best interests of the child to return him or
her to the state of habitual residence. The underlying premise is that the
authorities best placed to resolve the merits of a custody dispute are the
courts of the child’s habitual residence and not the courts of the state to
which the child has been removed or in which the child is being retained.10
[20] Article 8 of the Convention provides that any person, institution or
other body who claims that a child has been removed ‘in breach of custody
rights’ may apply either to the Central Authority of the child’s habitual
residence or to the Central Authority of any other Contracting State for
assistance in securing the return of the child. In terms of art 7(f), one of the
obligations imposed upon Central Authorities is to ‘initiate or facilitate the
institution of judicial or administrative proceedings with a view to
obtaining the return of the child’.
[21] According to art 3 of the Convention –
‘The removal or the retention of a child is to be considered wrongful where –
(a)
it is in breach of rights of custody attributed to a person, an institution or any
other body, either jointly or alone, under the law of the State in which the

10 See Penello v Penello (Chief Family Advocate as amicus curiae) 2004 (3) SA 117 (SCA) para 25 and
the authorities there cited.

child was habitually resident immediately before the removal or retention;
and
(b)
at the time of removal or retention those rights were actually exercised, either
jointly or alone, or would have been so exercised but for the removal or
retention.
The rights of custody mentioned in subparagraph (a) above, may arise in
particular by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law of
that State.’
[22] ‘Rights of custody’ are defined in art 5 of the Convention as
including ‘rights relating to the care of the person of the child and, in
particular, the right to determine the child’s place of residence’.
[23] It is common cause that T was habitually resident in England at the
time of her removal to South Africa. The appellant contended, however,
that CB did not have ‘rights of custody’ in respect of T within the meaning
of the Convention and that the respondents thus had no locus standi to
bring the return application.
[24] In Re P (abduction: custody rights) 11  Ward LJ set out the
Convention approach to ‘custody rights’ as follows –12
‘(1) [T]he Convention requires the court to give the expression “rights of custody” an
autonomous interpretation;
(2) the reference in art 3 to “rights of custody attributed to a person under the law” of
the child’s habitual residence is not a choice of law rule of that State in the sense that if
the domestic law (still less the conflict-of-laws rule) does not characterise the right as a
right of custody, then it will not be such a right for Hague Convention purposes;

11 [2004] 2 FCR 698 (CA).
12  Para 60.

(3) the task of the court is to establish the rights of the parents under the law of that
State and then to consider whether those rights are rights of custody for Hague
Convention purposes;
(4) in considering whether those rights are rights of custody, the court is entitled and
bound to give a purposive and effective interpretation to the Convention. . . .’
[25] A similar approach was adopted by the Constitutional Court in
Sonderup v Tondelli,13 where the court (per Goldstone J) stated that –
‘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 [ie the definition in art 5] independent of the meaning given
to the concept of “custody” by the domestic law of the child’s habitual residence. As
L’Heureux-Dubé correctly pointed out [in W(V) v S(D) (1996) 134 DLR (4th) 481 at
496]:
“[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.)
[26] Despite some initial uncertainty, there is now much authority from
a number of Contracting State jurisdictions which establishes that, for the
purposes of the Convention, a parent’s (or other person’s) right to prevent
the removal of a child from the relevant jurisdiction, or at least to withhold
consent to such removal, is a right to determine where the child is to live
and hence falls within the ambit of the concept of ‘rights of custody’ in arts
3 and 5 of the Convention. Thus, a custodian parent who removes the child
from the state of the child’s habitual residence or allows a third party to do
so without the consent of the other parent (or the leave of the court)

13 2001 (1) SA 1171 (CC) para 11.

commits a breach of ‘rights of custody’ of the other parent within the
meaning of the Convention and hence a ‘wrongful removal’.14
[27] In terms of s 4(1)(a) of the United Kingdom Children Act 1989, as
amended by the Adoption and Children Act 2003 –
‘(1) Where a child’s father and mother were not married to each other at the time of his
birth the father shall acquire parental responsibility for the child if –
(a)
he becomes registered as the child’s father under any of the enactments
specified in subsection (1A).’
Section 4(1A)(a) provides that the enactments referred to in subsec (1)(a)
include paragraphs (a), (b) and (c) of s 10(1) and of s 10A(1) of the Births
and Deaths Registration Act 1953. In terms of s 4(2A), a person who has
acquired parental responsibility under subsec 4(1) ceases to have that
responsibility only if the court so orders.
[28] Section 10(1)(a) of the 1953 Act, as amended, in turn provides
that  –
‘Notwithstanding anything in the foregoing provisions of this Act, in the case of a child
whose father and mother were not married to each other at the time of his birth, no
person shall as father of the child be required to give information concerning the birth of
the child, and the registrar shall not enter in the register the name of any person as father
of the child except –
(a)
at the joint request of the mother and the person stating himself to be the
father of the child (in which case that person shall sign the register together
with the mother).’15

14 See Van Heerden et al (eds) Boberg’s Law of Persons and the Family 2ed (1999) 580-581 and the other
authorities there cited. See also Carina du Toit ‘The Hague Convention on the Civil Aspects of
International Child Abduction’ in Trynie Boezaart (ed) Child Law in South Africa (2009) 351 at 358-359.
15 See A v H (Registrar General for England and Wales & another intervening) [2009] 4 All ER 641 (FD)
para 26: ‘Thus, for a valid registration, what was required in this instance under s 10(1)(a) [of the 1953
Act], was for the father and mother to attend together at the registry, and for both to ask for the father to
be named as the father of the child. In addition the father had to state that he was the father of the child.
Finally both of them had to sign the register. These details show that the registrar’s task is to record
details of the father on the birth certificate based just on the information that is given.’

Parental responsibility is defined in s 3(1) of the Children Act as meaning
‘all the rights, duties, powers, responsibilities and authority which by law a
parent of a child has in relation to the child and his property’.
[29] At the time of T’s removal from the United Kingdom, there was an
interim residence order in KG’s favour.  In this regard, s 13(1) of the
Children Act provides that –
‘(1) Where a residence order is in force with respect to a child, no person may –
. . . .
(b)
remove him from the United Kingdom;
without either the written consent of every person who has parental
responsibility for the child or the leave of the court.’
[30] Furthermore, in terms of s 1 of the United Kingdom Child
Abduction Act 1984 –
‘(1) Subject to sections (5) and (8) below, a person connected with a child under the age
of sixteen commits an offence if he takes or sends the child out of the United Kingdom
without the appropriate consent.
(2) A person is connected with a child for the purposes of this section if –
. . . .
(b)
in the case of a child whose parents were not married to each other at the time
of his birth, there are reasonable grounds for believing that he is the father of
the child
. . . .
(3) In this section, “the appropriate consent”, in relation to a child, means –
(a)
the consent of each of the following –
. . . .

(ii) the child’s father, if he had parental responsibility for him.’
[31] T’s birth was registered on 12 June 2006. Attached to CB’s
application to ICACU (which was in turn annexed to the founding
affidavit) was a document purporting to be a certified copy of an entry
pursuant to the Births and Deaths Registration Act 1953, ie a certified copy
of T’s original birth registration. The document is a form with the contents

typed on it. At the bottom of the form appear in typescript the words
‘certified to be a true copy of an entry in a register in my custody’. This is
followed by an original signature of the ‘Deputy Superintendent Registrar’
and the date 17 March 2009 in handwriting.  The form reflects CB as T’s
father and KG as T’s mother. The ‘informant’ is reflected as being the
father and mother of T, and both CB and KG certify under their signatures
that ‘the particulars entered above are true to the best of my knowledge and
belief’. The form reflects that it was also signed by ‘LR Gardner Deputy
Registrar’.
[32] Before us, counsel for the appellant sought to attack the authenticity
of this document, contending that it was not a ‘proper’ certified copy.
There is, however, nothing in the appellant’s affidavits which disputes that
the information contained in the document is correct, viz that CB and KG
did not jointly register T’s birth in the manner reflected in the document.
Thus, like Satchwell J, I am satisfied that the document is indeed a certified
copy of the original entry and that the information contained therein is true
and correct. Even if, as submitted by counsel for the appellant, the latter
only received the ‘birth certificate’ upon receipt of the replying affidavit
deposed to by CB (to which this document was again annexed), there was
no application by the appellant to strike out this document and the
paragraph of the replying affidavit referring to it, nor was there any
application to file a further affidavit dealing with this document.
[33] In light of the legal position set out above, CB has parental
responsibility for T and KG therefore required his written consent to
remove T from the United Kingdom. In addition, by removing T from the
United Kingdom without CB’s consent, KG committed a criminal offence.
In view hereof, CB had ‘rights of custody’ within the meaning of arts 3 and
5 of the Convention. KG’s removal of T from the United Kingdom

constituted a breach of such rights of custody and was therefore wrongful
under the Convention.16
[34] As indicated above, art 3 of the Convention requires that, at the
time of removal or retention, the ‘left-behind’ parent must have actually
been exercising his or her rights of custody or would have exercised them
but for the removal or retention.17 In this case, it is clear that CB satisfied
this provision. Not only was he exercising defined rights of contact in
respect of T, but he had also, in November 2007, applied to the Harlow
County Court for an order prohibiting KG from removing T from the
jurisdiction of the court. In addition, before taking T to South Africa for a
holiday in the second half of 2008, KG had to obtain the permission of the
court to do so. It cannot be doubted that, if CB had been given advance
warning of the removal of T from the United Kingdom, he would not have
consented to such removal and would have exercised his veto right to
prevent KG from removing the child. The same applies to the Council.
Defences raised by the appellant under the Convention
Settlement of the child in her new environment

16 In addition, KG’s removal of T from the United Kingdom was in breach of the interim care order
granted to the Council on 10 February 2009. This order contains, in bold typescript, two ‘warnings’, the
first being that ‘[w]while a Care Order is in force, no person may . . . remove the child from the United
Kingdom without the written consent of every person with parental responsibility for the children or the
leave of the court’ (see, in this regard, s 33(7)(b) of the United Kingdom Children Act). The second
warning was to the effect that ‘[i]t may be a criminal offence under the Child Abduction Act to remove
the child(ren) from the United Kingdom without the leave of the court’. Section 33(3) of the United
Kingdom Children Act provides that – ‘(3) While a care order is in force with respect to a child, the local
authority designated by the order shall – (a) have parental responsibility for the child’. Thus, in
accordance with the law as set out above, the Council also had ‘the right to determine the child’s place of
residence’ in terms of art 5 of the Convention and , accordingly, had rights of custody for the purposes of
art 3 of the Convention. KG’s removal of T from the United Kingdom was therefore not only wrongful in
respect of CB, but also wrongful in relation to the Council.
17 So too, art 13(1)(a) of the Convention stipulates that the judicial or administrative authority of the
requested state is not bound to order the return of the child if the person opposing the child’s return
establishes that the person having the care of the person of the child was not actually exercising his or her
custody rights at the time of removal or retention.

[35] Counsel for the appellant purported to rely on art 12 of the
Convention in contending that T was ‘fully settled’ in South Africa and that
the court was therefore not obliged to order T’s return. This is a misreading
of art 12. Article 12(1) provides that, where the removal or retention of the
child is indeed wrongful and where less than one year has elapsed from the
date of such removal or retention, then, subject to certain exceptions, the
court concerned is obliged to order the return of the child forthwith. It is
only where the proceedings have been commenced after the expiration of
the period of one year that, in terms of art 12(2), the court has a discretion
whether to order the child’s return. In such a case, the court ‘shall also
order the return of the child, unless it is demonstrated that the child is now
settled in its new environment’.18
[36] In this case, CB launched proceedings for the return of T on 13
August 2009, ie six months after T’s removal from the United Kingdom.
Accordingly, art 12(2) does not apply. As will be discussed below, the fact
of T’s settlement in South Africa may play a role in the defence raised by
KG to T’s return in terms of art 13(1)(b) of the Convention, which will be
discussed fully below.
Consent or acquiescence
[37] The appellant also raised the defence of consent or acquiescence
under art 13(1)(a) of the Convention, in terms of which the court is not
bound to order the return of the child (in other words, it has a discretion in
this regard) if the person (or institution or other body) who opposes the
return establishes that –

18 See Van Heerden et al op cit 582-583 and the authorities there cited. See also Carina du Toit op cit 361-
362.

‘(a) the person . . . having the care of the person of the child . . . had consented to or
acquiesced in the removal or retention.’
[38] The burden of proof is on the abducting parent and he or she must
prove the elements of the defence on a preponderance of probabilities.19
The consent or acquiescence referred to in art 13(1)(a) involves an
informed consent to or acquiescence in the breach of the wronged party’s
rights. That does not mean that either consent or acquiescence ‘requires full
knowledge of the precise nature of those rights and every detail of the
guilty party’s conduct . . . What he or she should know is at least that the
removal or retention of the child is unlawful under the Convention and that
he or she is afforded a remedy against such unlawful conduct.’20
[39] As was pointed out by Hale J in Re K (Abduction: Consent),21 ‘the
issue of consent is a very important matter [that] . . . “needs to be proved on
the balance of probabilities, but the evidence in support of it needs to be
clear and cogent [because] . . . (i)f the court is left uncertain, then the
‘defence’ under art 13(a) fails” [and] it is [furthermore] obvious that
consent must be real . . . positive and . . . unequivocal”.’22 In that case, Hale
J expressly approved the following view expressed by Holman J in Re C
(Abduction: Consent) – 23
‘If it is clear, viewing a parent’s words and actions as a whole and his state of
knowledge of what is planned by the other parent, that he does consent to what is
planned, then in my judgement that is sufficient to satisfy the requirements of Art 13. It

19 Penello v Penello (Chief Family Advocate as amicus curiae) 2004 (2) SA 117 (SCA) para 38.
20 Smith v Smith 2001 (3) SA 845 (SCA) paras 16-17.
21 [1997] 2 FLR 212 (FD) at 217.
22 See further Re P (Abduction: Consent) [2004] 2 FLR 1057 (CA) para 33.
23 [1996] 1 FLR 414 (FD) at 419.

is not necessary that there is an express statement that “I consent”. In my judgment it is
possible to infer consent from conduct.’24
[40] As regards acquiescence, this court, in Smith v Smith,25 agreed with
the approach followed by the House of Lords in the case of Re H and
others (Minors) (Abduction: Acquiescence).26 In that case, Lord Brown-
Wilkinson held that –
‘Acquiescence is a question of the actual subjective intention of the wronged parent, not
of the outside world’s perception of his intentions . . . In the process of this fact-finding
operation, the judge, as a matter of ordinary judicial common sense, is likely to attach
more weight to the express words or conduct of the wronged parent than to his
subsequent evidence as to his state of mind. In reaching conclusions of fact, judges
always, and rightly, pay more attention to outward conduct than to possibly self-serving
evidence of undisclosed intentions. But in so doing the judge is finding the actual facts.
He can infer the actual subjective intention from the outward and visible acts of the
wronged parent. That is quite a different matter from imputing to the wronged parent an
intention which he did not, in fact, possess.’27
[41] In my view, KG has not succeeded in proving either consent or
acquiescence on the part of CB. As set out above, after the alleged
wrongful removal of T on 14 February 2009, CB wasted little time in
approaching the Central Authority for England and Wales for its assistance
in securing T’s return to the United Kingdom. It would seem that CB learnt
of T’s removal to South Africa on 16 March 2009. By 17 March 2009, he

24 See Central Authority v H 2008 (1) SA 49 (SCA) paras 16-20, in which case this court found that the
abducting mother had not proved the defence of consent on which she relied. See also Re A (Abduction:
Habitual Residence: Consent) [2006] 2 FLR 1 (FD) paras 70-88.
25 2001 (3) SA 845 (SCA) paras 18-19. In this case, the court found that the abducting mother had indeed
discharged the burden of proving that the ‘left-behind’ father had acquiesced to the wrongful retention of
his children in South Africa. This was also the case in Senior Family Advocate, Cape Town v Houtman
2004 (6) SA 274 (C).
26 [1997] 2 All ER 225 (HL) at 235e-g.
27 See also Senior Family Advocate, Cape Town v Houtman 2004 (6) SA 274 (C) paras 15-17; Family
Advocate, Cape Town v EM 2009 (5) SA 420 (C) paras 36-39.

had completed his application to such Central Authority (ICACU) for T’s
return. Although the return proceedings were launched in South Africa only
on 13 August 2009, there is no indication whatsoever that CB was in any
way responsible for this delay. CB has persisted in opposing KG’s appeal
to this court against the judgment of Satchwell J, notwithstanding the
appellant’s lengthy delay in lodging the appeal record. This conduct is
entirely inconsistent with the notion that CB had consented to or
acquiesced in T’s permanent removal to South Africa.
Grave risk of harm / intolerable position
[42] In terms of art 13(1)(b) of the Convention, the court is not bound to
order the return of the abducted child if the person opposing the return
establishes that –
‘(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.’
[43] The appellant contended that there was indeed a grave risk that T’s
return to the United Kingdom would expose her to physical or
psychological harm or otherwise place her in an intolerable situation. In
support of this contention, the appellant alleged that T is ‘fully settled’ in
South Africa; that she ‘has no recollection, independent or otherwise’ of
living in the United Kingdom; that she is now a ‘fully-fledged’ South
African child, enrolled in school and able to speak English and Afrikaans;
that she is surrounded by family and friends in South Africa, is involved in
activities such as ballet, swimming and ‘monkeynastics’, as well as other
activities at church and at school; that ‘her entire life is in the Republic of
South Africa and [she] has a quality of life that she could never have in the
United Kingdom’.
[44] The appellant pointed to the fact that she has secure accommodation
and a permanent job in South Africa, as opposed to the United Kingdom
where she has no home and no employment and where she and T would be

dependent on state welfare. She contended that there is a chance that,
should she return to the United Kingdom, she will be arrested and
prosecuted for child abduction. The appellant also alleged that, because of
the allegations against CB of sexual abuse and interest in child
pornography, as well as the physical violence to which she had been
subjected by DC, there was a real risk that she and/or T would suffer sexual
and/or physical abuse should they return to the United Kingdom. CB
denied that that there was any risk of T or KG suffering abuse of any kind
upon their return to the United Kingdom, let alone ‘a grave risk’ of
physical or psychological harm. Moreover, CB contended that T would not
be placed in ‘an intolerable situation’ upon such return. According to CB,
KG would not be arrested for child abduction; the English court would be
very loath to separate T from her mother, and the Council would only
intervene if KG decided to reunite with DC. He alleged that there was no
doubt that accommodation would be found for T and KG and stated that he
would not seek to disrupt their relationship in any way.
[45] Relying on s 28(2) of the Constitution28 and s 9 of the Children’s
Act,29 counsel for the appellant submitted that it was in T’s best interests
not to be returned to the United Kingdom and that T’s best interests were of
‘paramount importance’.
[46] In Sonderup v Tondelli,30 the Constitutional Court stated31 that –
‘The Convention itself envisages two different processes – the evaluation of the best
interests of children in determining custody matters, which primarily concerns long-

28Section 28(2) of the Constitution provides that ‘[a] child’s best interests are of paramount importance in
every matter concerning the child’.
29 See fn 38 below.
30 2001 (1) SA 1171 (CC).
31 Paras 28-30.

term best 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 State 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”.  .  . .
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 the
child’s habitual residence, the child’s short-term best 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 s 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 s 36 of the Constitution, which
requires a proportionality analysis and weighing up of the relevant factors.
. . . The purpose of the Convention is important. It is to ensure, save in the exceptional
cases provided for in art 13 (and possibly in art 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.’
[47] In concluding that the Act incorporating the Convention is
consistent with the South African Constitution, Goldstone J pointed out32
that –
‘(T)he 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 art 13, an appropriate

32 Paras 35-36.

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.’
[48] The Supreme Court of the United Kingdom33 has, in a very recent
case, followed an approach similar to that adopted by the Constitutional
Court in Sonderup v Tondelli. In Re E (Children) (Wrongful Removal:
Exceptions to Return) 34 Lady Hale and Lord Wilson SCJJ (giving the
judgment of the court) held35 that –
‘There is no provision expressly requiring the court hearing a Hague Convention case to
make the best interests of the child its primary consideration; still less can we accept the
argument . . . that s 1(1) of the 1989 Act [the United Kingdom Children Act 1989]
applies so as to make them the paramount consideration. These are not proceedings in
which the upbringing of the child is in issue. They are proceedings about where the
child should be when that issue is decided, whether by agreement or in legal
proceedings between the parents or in any other way.
On the other hand, the fact that the best interests of the child are not expressly made a
primary consideration in Hague Convention proceedings, does not mean that they are
not at the forefront of the whole exercise. The preamble to the convention declares that
that the signatory states are “Firmly convinced that the interests of children are of
paramount importance in matters relating to their custody”, and “Desiring to protect
children internationally from the harmful effects of their wrongful removal or
retention”. This objective is, of course, also for the benefit of children generally: the aim
of the convention is as much to deter people from wrongfully abducting children as it is
to serve the best interests of the children who have been abducted. But it also aims to
serve the best interests of the individual child. It does so by making certain rebuttable
assumptions about what will best achieve this . . . .

33 Formerly the House of Lords.
34 [2011] 4 All ER 517 (SC).
35 Paras 13-18.

Nowhere does the convention state that its objective is to serve the best interests of the
adult person, institution or other body whose custody rights have been infringed by the
abduction (although this is sometimes how it may appear to the abducting parent). The
premise is that there is a left behind person who also has a legitimate interest in the
future welfare of the child: without the existence of such a person the removal is not
wrongful. The assumption then is that if there is a dispute about any aspect of the future
upbringing of the child the interests of the child should be of paramount importance in
resolving that dispute. Unilateral action should not be permitted to pre-empt or delay
that resolution, Hence the next assumption is that the best interests of the child will be
served by a prompt return to the country where she is habitually resident . . . .
Those assumptions may be rebutted, albeit in a limited range of circumstances, but all
of them inspired by the best interests of the child. Thus the requested state may decline
to order the return of the child if proceedings were begun more than a year after her
removal and she is now settled in her new environment (art 12); or if the person left
behind had consented to or acquiesced in the removal or retention or was not exercising
his rights at the time (art 13(a));36 or if the child objects to being returned and has
exercised an age and maturity at which it is appropriate to take account of her views (art
13); or, of course, if “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’ (art 13(b)). 37  These are all situations in which the general underlying
assumptions about what will best serve the interests of the child may not be valid . . .
We conclude, therefore, that . . . the Hague Convention . . . [has] been devised with the
best interests of children generally, and of the individual children involved in such
proceedings, as a primary consideration.’38
[49] Returning to the question as to whether KG proved the existence of
‘a grave risk that [T’s] return would expose the child to physical or
psychological harm or otherwise place the child in an intolerable

36 I call this art 13(1)(a). Both versions are correct.
37 I refer to this as art 13(1)(b). Again, both versions are correct.
38 The same approach  must be followed in regard to section 9 of the Children’s Act, in terms of which
‘[i]n all matters concerning the care, protection and well-being of a child the standard that the child’s best
interest is of paramount importance, must be applied’. Unlike most of the provisions of the Act (which
took effect from 1 April 2010), this section came into operation on 1 July 2007.

situation,39 it is necessary to consider how courts have approached this so-
called art 13(1)(b) defence. As was discussed in Pennello v Pennello,40
courts in other Contracting States have given a restrictive interpretation to
art 13(1)(b), by and large resisting ‘efforts to convert art 13(1)(b) into a
substitution for a best interests determination’.41 In the words of Ward LJ in
Re C (Abduction: Grave Risk of Psychological Harm) – 42
‘There is, therefore, an established line of authority that the court should require clear
and compelling evidence of the grave risk of harm or other intolerability which must be
measured as substantial, not trivial, and of a severity which is much more than is
inherent in the inevitable disruption, uncertainty and anxiety which follows an
unwelcome return to the jurisdiction of the court of habitual residence.’43
[50] In both Sonderup v Tondelli 44  and Pennello v Pennello 45 the
question whether South African courts should follow the stringent tests set
by courts in other countries was left open. I am of the view that the correct
approach is that adopted by the United Kingdom Supreme Court is Re E
(Children) (Wrongful Removal: Exceptions to Return).46 In that case, the
court held47 that –
‘ . . . [T]here is no need for the article [art 13(1)(b)] to be “narrowly construed’. By its
very terms, it is of restricted application. The words of art 13 are quite plain and need no
further elaboration or “gloss”.

39 See para 44 above.
40 2004 (3) SA 117 (SCA) paras 32-34.
41 Linda Silberman ‘Hague Convention on International Child Abduction: A Brief Overview and Case
Law Analysis’ (1994)  28 Fam LO 9 at 27.
42 [1999] 1 FLR 1145 (CA) at 1154A-B.
43 See further in this regard Van Heerden et al op cit 586-589.
44 2001 (1) SA 1171 (CC) para 44.
45 2004 (3) SA 117 (SCA) para 35.
46 [2011] 4 All ER 517 (SC).
47 Paras 31-34.

First, it is clear that the burden of proof lies with the “person, institution or other body”
which opposes the child’s return. It is for them to produce evidence to substantiate one
of the exceptions. There is nothing to indicate that the standard of proof is other than the
ordinary balance of probabilities . . . .
Second, the risk to the child must be “grave”. It is not enough, as it is in other contexts
such as asylum, that the risk must be “real”. It must have reached such a standard of
seriousness as to be classified as “grave”. Although “grave” characterises the risk rather
than the harm, there is in ordinary language a link between the two. Thus a relatively
low risk of death or really serious injury might properly be qualified as “grave” while a
higher level of risk might be required for other less serious forms of harm.
Third, the words “physical or psychological harm” are not qualified. However, they do
gain colour from the alternative “or otherwise” placed “in an intolerable situation”. As
was said in Re D [2007] 1 All ER 783 at [52], “ ‘Intolerable’ ” is a strong word, but
when applied to a child must mean ‘a situation which this particular child in these
particular circumstances should not be expected to tolerate.’ ” Those words were
carefully considered and can be applied just as sensibly to physical or psychological
harm as to any other situation. Every child had to put up with a certain amount of rough
and tumble, discomfort and distress. It is part of growing up. But there are some things
which it is not reasonable to expect a child to tolerate . . . .’
[51] It must be remembered that a return order under the convention is
an order for the return of the child to the Contracting State from which he
or she was abducted, and not to the ‘left-behind’ parent. The child is not, by
virtue of a return order, removed from the care of one parent, or remanded
to the care of the other parent. The situation which the child will face on
return depends crucially on the protective measures which the court can put
into place to ensure that the child will not have to face a harmful situation
when he or she returns to the country of habitual residence.
[52] The curator ad litem stated that he had been appointed on 11
October 2011 to report on T’s personal circumstances; comment on her
level of maturity and her ability to comprehend the proceedings; comment
on the effect of relocation on T, and on any other factor that should be
taken into account. In his report, he mentioned that, because of time and

logistical restraints, he had been unable to investigate and report on CB’s
circumstances. His report deals with his interview with T, the
circumstances of KG and her immediate family based in Johannesburg, and
his conversation with one of T’s pre-school teachers. In addition, the report
covers his ‘face value evaluation’ of the minor child’s views, her
immediate circumstances and her day to day activities and interactions.
From his conversation with T, he concluded that she was not mentally,
physically or academically advanced and that she was not yet of an age and
maturity that it is appropriate to take accounts of her views. It appeared to
him that T was happy and at peace in her present environment and that she
was at an important stage in her personal development in that (inter alia)
she would be starting school this year. He noted that there was a very
strong bond between T and her mother and that CB had for a number of
years had too little personal contact with T as to have developed a real
relationship with T or to have insights into her needs. CB had also not
contributed in any meaningful way towards T’s maintenance. The curator
was of the view that, while the ongoing litigation was not having a negative
impact on T’s well-being (as she was blissfully unaware of it), it needed to
be brought to finality. Any steps to relocate T would, in his view, ‘carry
two automatic, and most undesirable, consequences’, namely –
‘The minor child will react negatively, possibly retreat and become traumatised and
influence her personal development and/or
[CB] will be bound to be the subject of further litigation, when [KG] refuses to abide by
the order.’
[53] The curator ad litem’s report concluded as follows:
‘Having regard to the substantial lapse of time since [CB] has had a meaningful
relationship with the child, as well as the fact that [CB] has little or no insight into the
child’s emotional and physical needs, it is submitted that execution of the order for
relocation would be contrary to the best interests of the child.’

[54] The allegations of sexual impropriety made by KG against CB were
found to have been unsubstantiated. In any event, the social welfare
authorities and courts of the United Kingdom will certainly be able to deal
with such allegations effectively, as the Harlow County Court did before
the removal of the child by ordering that CB’s contact with T should be
supervised. Moreover, the fact finding hearing ordered by the Chelmsford
County Court is still pending and will no doubt take place should T be
returned to the United Kingdom. Moreover, as indicated above, on 7 April
2009, the Council assured the Chelmsford County Court that it would
assess T’s welfare forthwith upon being advised of T’s return to the
jurisdiction. T still has a guardian ad litem in the United Kingdom whose
task it is to protect her interests. The Central Authority and the curator ad
litem can liaise with T’s guardian ad litem and with the former’s
counterpart in the United Kingdom to ensure that the court proceedings
pending there (ie CB’s application for residence and contact and KG’s
application for an order permitting her to remove T from the United
Kingdom to reside permanently in South Africa) are finalised as soon as
possible. The curator ad litem acknowledged that, should this court order
T’s return to the United Kingdom, one of his principal obligations would be
to play a role in determining what the appropriate conditions for such
return should be.
[55] As regards the alleged threat of physical violence posed by DC, KG
herself states that this violence was never directed against T. Moreover, KG
can avoid any risk of harm from DC to herself or T by not resuming a
relationship of any kind with him. On KG’s own evidence, she has parted
ways with DC and has no intention of returning to him.
[56] As indicated above, KG stated that, should she and T have to return
to the United Kingdom, she would have no home and no employment
there, as opposed to South Africa where she and T have secure

accommodation and she has a permanent job. In this regard, CB is prepared
to undertake that he will procure accommodation for KG and T and to pay
for such accommodation ‘if necessary’. This court can ensure that this
‘undertaking’ forms part of any return order made by it and that the
obligation to pay for accommodation is not conditional. CB is also
prepared to pay maintenance for T upon her return to the United Kingdom.
While there is quite a significant difference between the amount of
maintenance which CB is prepared to pay and that which KG regards as
appropriate, any return order can be formulated so as to ensure the best
possible protection of T’s needs, whilst not subjecting CB to excessive
financial demands. Furthermore, as T would be going to school, KG should
be able to secure part-time employment which would enable her to
contribute towards her own and T’s financial needs. There is also State
support for T which KG was receiving prior to her departure for South
Africa.
[57] What makes this case so difficult is the lapse of time since T’s
removal to South Africa. There is nothing before us to explain the delay of
five months between the completion by CB of the application to ICACU
(the Central Authority for the United Kingdom and Wales) in March 2009
and the institution of the return application in August 2009. There is also
nothing to explain why it took seven months before the matter was heard in
the South Gauteng High Court (in March 2010, thereafter in June 2010),
nor why there was a further delay of three months between the delivery of
the judgment of the high court (July 2010) and the granting of leave to
appeal to this court (October 2010). As pointed out above, although the
Notice of Appeal to this court was lodged on 11 November 2010, the
appeal record was not lodged until 15 November 2011 – more than eight
months after the appeal had lapsed and more than a year after the lodging
of the Notice of Appeal. This last-mentioned delay is attributable to the
inability of the appellant’s attorneys to obtain a transcript of the

proceedings before Satchwell J. As these were motion proceedings, it is
difficult to see why this transcript was required. As pointed out by Meyer J,
‘[i]nsofar as parts of the recorded proceedings48 ought to be included in the
record of the proceedings to be lodged with the Registrar of the Supreme
Court of Appeal, no attempts have been made to reconstruct the record and
to reach agreement thereon. The rest of the record is in the form of an
application and the judgment of Satchwell J is a written one that she
handed down.’
[58] These delays are totally unacceptable, especially in the context of
proceedings under the Convention. The primary object of the Convention is
to secure the speedy return of children removed to or retained in any
Contracting State, to restore the status quo ante the wrongful removal or
retention as expeditiously as possible so that custody and similar issues in
respect of the child can be adjudicated on by the courts of the country from
which the child was removed. Not only is this explicitly stated in art 1 of
the Convention, but art 11 expressly enjoins the relevant authorities to ‘act
expeditiously in proceedings for the return of children’ and provides that –
‘If the judicial or administrative authority concerned has not reached a decision within
six weeks from the date of commencement of the proceedings, the applicant or the
Central Authority of the requested State, on its own initiative or if asked by the Central
Authority of the requesting State, shall have the right to request a statement of the
reasons for the delay.’
[59] So too, in the Regulations relating to children’s courts and
international child abduction, 2010, published under s 280 of the
Children’s Act,49 reg 23 stipulates that ‘[p]roceedings for the return of a

48 If any.
49 GN R250 in GG 33067 of 31 March 2010, with effect from 1 April 2010.

child under the Hague Convention must be completed within six weeks
from the date on which judicial proceedings were instituted in a High
Court, except where exceptional circumstances make this impossible’.
Several of the high courts have issued practice directions to the same effect.
[60] As a result of these highly regrettable delays, T is now five years
and ten months old and has spent more than half of her young life in South
Africa. As indicated above, according to the report of the curator ad litem,
T has not attained an age and maturity at which it is appropriate for the
court to take account of her views. She is totally unaware of this litigation,
for which credit must be given to KG. As is borne out by the report of the
curator ad litem, T has become settled in this country. She has little
recollection of her father and of living in the United Kingdom. She is in
Grade 0 at school, involved in extra-curricular activities and surrounded by
family and friends. It will be difficult for her to have to return to the United
Kingdom. That said, I do not think that KG has succeeded in showing that
such return will expose T to a grave risk of physical or psychological harm
or otherwise place her in an intolerable situation. It is clear from the report
of the curator ad litem that KG is a loving and competent mother and that T
is more attached to her than she is to any place or other person. There is no
doubt that KG will return to the United Kingdom with T should the court
order T’s return. This, coupled with the protective measures which we will
put in place to govern T’s return, should serve to insulate T against harm.
To refuse the return application in these circumstances will, in my view,
undermine the objects of the Convention and create an unfortunate
precedent. It follows that the appeal must fail.

Costs
[61] In the words of King J in McCall v McCall,50 in this case ‘both
parties have, contesting this case, acted in what they believe to be the best
interests of their child. There is no winner and loser. There are two
concerned parents.’ In my view, the fairest course would be to make no
order as to costs, including the costs of the applications for condonation
and reinstatement of the appeal.
Order
[62] The following order is made:
A   The appeal is dismissed, with no order as to costs.
B   The order of Satchwell J in the South Gauteng High Court dated 14
July 2010 is replaced by the following order:
‘1. It is ordered and directed that the minor child, T, be returned
forthwith, but subject to the terms of this order, to the jurisdiction of the
Central Authority for England and Wales.
2. In the event of KG (the mother) notifying the Office of the Family
Advocate, Johannesburg (the family advocate) within one week of the
date of issue of this order that she intends to accompany T on her return
to the United Kingdom, the provisions of para 3 shall apply.
3. CB (the father) shall within one month of the date of issue of this
order, institute proceedings and pursue them with due diligence to obtain
an order of the appropriate judicial authority in the United Kingdom in
the following terms:
3.1 Any warrant for the arrest of the mother will be withdrawn
and will not be reinstated and the mother will not be subject to

50 1994 (3) SA 201 (C) at 209C.

arrest or prosecution by reason of her removal of T from the
United Kingdom on 14 February 2009 or for any past conduct
relating to T. The father will not institute or cause to be instituted
or support any legal proceedings or proceedings of any other
nature in the United Kingdom for the arrest, prosecution or
punishment of the mother or any member of her family, for any
past conduct by the mother relating to T.
3.2 Unless otherwise ordered by the appropriate court in the
United Kingdom:
3.2.1 The father is ordered to arrange, and pay for, suitable
accommodation for the mother and T in the United
Kingdom. The father shall provide proof to the satisfaction
of the family advocate, prior to the departure of the mother
and T from South Africa, of the nature and location of such
accommodation and that such accommodation is available
for the mother and T immediately upon their arrival in the
United Kingdom. The Central Authority for England and
Wales shall decide whether the accommodation thus
arranged by the father is suitable for the needs of the mother
and T, should there be any dispute between the parties in
this regard, and the decision of the Central Authority for
England and Wales shall be binding on the parties.
3.2.2 The father is ordered to pay the mother maintenance
for herself and T from the date of T’s arrival in the United
Kingdom at the rate of £350 per month. The first pro rata
payment shall be made to the mother on the day upon which
she and T arrive in the United Kingdom and thereafter
monthly in advance on the first day of every month. Should
the mother receive state support, then the monthly amount
thereof shall be deducted from the £350 per month payable
by the father.

3.2.3 The father is ordered to pay any medical and dental
expenses reasonably incurred by the mother in respect of T,
such as are not covered by the National Health Service in
the United Kingdom.
3.2.4 The father is ordered to pay for the reasonable costs of
T’s schooling and also the costs of her other reasonable
educational and extra-mural requirements in the United
Kingdom, such as are not provided by the State.
3.2.5 The father is ordered to purchase and pay for economy
class air tickets, and if necessary, pay for rail and other
travel, for the mother and T to travel by the most direct
route from Johannesburg, South Africa, to Harlow, United
Kingdom.
3.2.6 The father and the mother are ordered to co-operate
fully with the family advocate, the Central Authority for
England and Wales, the relevant court or courts in the
United Kingdom, and any professionals who are approved
by the Central Authority for England and Wales to conduct
any assessment to determine what future residence and
contact arrangements will be in the best interest of T.
3.2.7 The father is granted reasonable supervised contact
with T, which contact shall be arranged without the
necessity of direct contact between the father and the
mother.
4. In the event of the mother giving the notice to the family advocate
referred to in para 2 above, the order for the return of T shall be stayed
until the appropriate court in the United Kingdom has made the order
referred to in para 3 and, upon the family advocate being satisfied that
such an order has been made, he or she shall notify the mother
accordingly and ensure that the terms of para 1 are complied with.

5. In the event of the mother failing to notify the family advocate in
terms of para 2 above of her willingness to accompany T on her return to
the United Kingdom, it is to be accepted that the mother is not prepared
to accompany T, in which event the family advocate is authorised to
make such arrangements as may be necessary to ensure that T is safely
returned to the custody of the Central Authority for England and Wales
and to take such steps as are necessary to ensure that such arrangements
are complied with.
6. Pending the return of T to the United Kingdom as provided for in this
order, the mother shall not remove T on a permanent basis from the
Province of Gauteng and, until then, she shall keep the family advocate
informed of her physical address and contact telephone numbers.
7. Pending the return of T to the United Kingdom, the father is to have
reasonable telephone access to T.
8. There is no order as to costs.’
C
The family advocate is directed to seek the assistance of the Central
Authority for England and Wales in order to ensure that the terms of this
order are complied with as soon as possible.
D
In the event of the mother notifying the family advocate, in terms of
para B.2 above, that she is willing to accompany T to the United Kingdom,
the family advocate shall forthwith give notice thereof to the registrar of
the South Gauteng High Court, to the Central Authority for England and
Wales, and to the father.
E   In the event of the appropriate court in the United Kingdom failing or
refusing to make the order referred to in para B.3 above, the family
advocate and/or the father is given leave to approach this court for a
variation of this order.
F    No order as to costs is made in respect of either the mother’s
application to this court for condonation of the late lodging of the record, or
the mother’s application to this court for reinstatement of the appeal.

G  A copy of this order shall forthwith be transmitted by the family
advocate to the Central Authority for England and Wales.

______________________
B J VAN HEERDEN
JUDGE OF APPEAL

APPEARANCES:
APPELLANT:
A WILLCOCK
Instructed by Schumann Van den Heever &
Slabbert Inc, Kempton Park
AP Pretorius & Partners, Bloemfontein

RESPONDENTS:
M S BALOYI

Instructed by The State Attorney,
Johannesburg

CURATOR AD LITEM:
J VAN SCHALKWYK

Instructed by Johannesburg Justice Centre

Bloemfontein Justice Centre

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

22 March 2012

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

KG v CB
(748/11) [2012] ZASCA 17 (22 March 2012)

Media Statement

Today the Supreme Court of Appeal (SCA) delivered judgment dismissing an appeal against
a judgment of the South Gauteng High Court, Johannesburg (Satchwell J) which ordered the
immediate return of T, the minor child of KG (the mother) and CB (the father), to the United
Kingdom (UK). The SCA however replaced the order of the court below by amending it to
include specific requirements and arrangements to be made in order to facilitate the safe
return of T to the UK.

The facts and history of this matter can be summarised as follows:

T was born to KG and CB on 12 May 2006 in England. Her parents had never been married
to each other and soon after her birth they separated. Following a number of disputes
between the parents, KB refused contact between T and CB. This led to an application by CB
to the English court in November 2007, in which CB claimed residence and defined contact
orders in respect of T, as well as an order prohibiting KG from removing T from the jurisdiction
of the court. On 12 December 2007, KG filed a counter-application for a residence order in
respect of T. Under the UK Children Act 1989, a ‘residence order’ means an order settling the
arrangements to be made as to the person which whom the child is to live and a 'contact
order' means ‘an order requiring the person with whom a child lives, or is to live, to allow the
child to visit or stay with the person named in the order, or for that person and the child
otherwise to have contact with each other’. A ‘defined contact order’ contains directions
and/or conditions about how it is to be carried into effect (eg, that the contact between the
parent and the child must be supervised). A defined contact order was granted in favour of
CB and an interim residence order in favour of KG. In October 2008, the English court
ordered a consolidation of CB’s application for residence and contact and KG’s application
(brought in October 2008) for an order permitting her to remove T from the jurisdiction of the
court to reside permanently in South Africa.

On 14 February 2009, T was removed by her mother from the UK, and taken to South Africa.
This was done without the knowledge or consent of CB. Six months later, in August 2009, an
application was brought to the South Gauteng High Court for the return of T to the UK under
the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the

Convention). The order granted by Satchwell J ordering the return of T to the UK is the order
appealed against.

The primary purpose of the Convention is to secure the prompt return (usually to the country
of their habitual residence) of children wrongfully removed to or retained in any Contracting
State, viz to restore the status quo ante the wrongful removal or retention as expeditiously as
possible, so that custody and similar issues in respect of the child can be adjudicated upon by
the courts of the state of the child’s habitual residence. T was habitually resident in England at
the time of her removal to South Africa. The appellant contended, however, that CB did not
have ‘rights of custody’ in respect of T within the meaning of the Convention and that the
respondents thus had no locus standi to bring the return application.

The SCA held that despite some initial uncertainty, there is now much authority from a
number of Contracting State jurisdictions which establishes that, for the purposes of the
Convention, a parent’s right to prevent the removal of a child from the relevant jurisdiction, or
at least to withhold consent to such removal, is a right to determine where the child is to live
and hence falls within the ambit of the concept of ‘rights of custody’ in arts 3 and 5 of the
Convention. Thus, a custodian parent who removes the child from the state of the child’s
habitual residence or allows a third party to do so without the consent of such other parent (or
the leave of the court) commits a breach of ‘rights of custody’ of the other parent within the
meaning of the Convention and hence a ‘wrongful removal’. CB has parental responsibility for
T as he had been registered as the father of T and was indicated as such on T’s birth
certificate. KG therefore required his written consent to remove T from the UK. In addition, by
removing T from the UK without CB’s consent, KG committed a criminal offence. In view
hereof, CB had ‘rights of custody’ within the meaning of arts 3 and 5 of the Convention. KG’s
removal of T from the UK constituted a breach of such rights of custody and was therefore
wrongful under the Convention.

In terms of the Convention, a court is not bound to order the return of the abducted child if the
person opposing the return establishes that 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.’

KG contended that there was indeed a grave risk that T’s return to the UK would expose her
to physical or psychological harm or otherwise place her in an intolerable situation. In support
of this contention, the appellant alleged that T is ‘fully settled’ in South Africa; that she ‘has no
recollection, independent or otherwise’ of living in the UK; that she is now a ‘fully-fledged’
South African child, enrolled in school and able to speak English and Afrikaans; that she is
surrounded by family and friends in South Africa; that ‘her entire life is in the Republic of
South Africa and she has a quality of life that she could never have in the UK’. KG pointed to
the fact that she has secure accommodation and a permanent job in South Africa, as
opposed to the UK where she has no home and no employment and where she and T would
be dependent on state welfare. She contended that there was a chance that, should she
return to the UK, she would be arrested and prosecuted for child abduction. CB denied that
that there was any risk of T or KG suffering abuse of any kind upon their return to the UK, let
alone ‘a grave risk’ of physical or psychological harm. Moreover, CB contended that T would
not be placed in ‘an intolerable situation’ upon such return. According to CB, KG would not be
arrested for child abduction; and that the English court would be very loath to separate T from
her mother. He alleged that there was no doubt that accommodation would be found for T and
KG and stated that he would not seek to disrupt their relationship in any way.

It must be remembered that a return order under the convention is an order for the return of
the child to the Contracting State from which he or she was abducted, and not to the ‘left-
behind’ parent. The child is not, by virtue of a return order, removed from the care of one
parent, or remanded to the care of the other parent. The situation which the child will face on
return depends crucially on the protective measures which the court can put into place to
ensure that the child will not have to face a harmful situation when he or she returns to the
country of habitual residence.

The SCA held that KG had not succeeded in showing that return to the UK would expose T to
a grave risk of physical or psychological harm or otherwise place her in an intolerable
situation. It was clear from the report of the curator ad litem that KG is a loving and competent
mother and that T is more attached to her than she is to any place or other person. The court
held that there could be no doubt that KG would return to the UK with T should the court order
T’s return. This, coupled with the protective measures which the SCA put in place to govern
T’s return, would serve to insulate T against harm. The SCA finally held that to refuse the
return application under these circumstances would undermine the objects of the Convention
and create an unfortunate precedent.

The appeal was dismissed. The order of the court below was amended to include
arrangements and requirements to facilitate T’s safe return to the UK. The court held that both
parties had contested the matter in what they believed to be the best interests of their child as
concerned parents and as a result no costs order was made.

--- ends ---