THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 803/2020 and 812/2020
In the matter between:
LD

APPELLANT
and
CENTRAL AUTHORITY (REPUBLIC OF SOUTH AFRICA)    FIRST RESPONDENT
PH

SECOND RESPONDENT

Neutral citation:
LD v Central Authority (RSA) and Another (Case no 803/2020 and
812/2020) [2022] ZASCA 6 (18 January 2022)
Coram:
SALDULKER ADP, MOCUMIE, PLASKET, GORVEN and HUGHES JJA
Heard:
10 November 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representative via email, publication on the Supreme Court of Appeal website
and release to SAFLII. The date and time of hand-down is deemed to be 10h00 on
18 January 2022.
Summary:
Hague Convention on the Civil Aspects of International Child Abduction,
1980 – whether a defence to the return of a child to Luxembourg, in terms of art 13(b),
was established – return of the child would have the effect of breaking up her family in
South Africa – the evidence established that there was a grave risk that the child
would, as a result, be exposed to psychological hardship or otherwise be placed in an
intolerable situation – the art 13(b) defence established.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Tuchten, Davis and
Mokose JJ sitting as court of appeal):

The appeal is dismissed.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Plasket and Gorven JJA (Saldulker ADP and Hughes JA concurring)

[1] The material facts in this appeal are all either common cause or have not been
placed in dispute. The only issue for determination is whether, on those facts, the
second respondent, PH, who we shall refer to as ‘the mother’, has successfully raised
a defence in terms of article 13(b) of the Hague Convention on the Civil Aspects of
International Child Abduction, 1980 (the Hague Convention) to the unlawful abduction
by her of her daughter E from Luxembourg to South Africa.

[2] The appellant, LD, is E’s father. We shall refer to him as ‘the father’. He, with
the assistance of the first respondent, the Central Authority (Republic of South Africa)
(the Central Authority), instituted proceedings in the Gauteng Division of the High
Court, Pretoria, in terms of the Hague Convention, for an order directing the mother to
return E to Luxembourg. Collis J ordered the return of E to Luxembourg subject to
various conditions. The mother appealed against this order to a full court. Tuchten J,
with the concurrence of Davis and Mokose JJ, upheld the appeal, set aside Collis J’s
order and replaced it with an order dismissing the application. Leave to appeal was
then granted to the father by this court.

The Hague Convention
[3] Article 3 of the Hague Convention renders the removal of a child wrongful
where:

‘(a)
it is in breach of rights of custody attributed to a person . . . either jointly or alone, under
the law of the State in which the 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.’

[4] It is not disputed that the removal of E from Luxembourg was unlawful and
triggered the operation of article 12 of the Hague Convention. This article provides:
‘Where a child has been wrongfully removed or retained in terms of art 3 and, at the date of
the commencement of the proceedings before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year has elapsed from the date
of the wrongful removal or retention, the authority concerned shall order the return of the child
forthwith.’

[5] It is clear that, absent a valid defence under the Hague Convention, the high
court was obliged to order the return of E. The only substantive issue raised by the
mother was under article 13(b) of the Convention. Article 13 provides in its material
parts:
‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority
of the requesting State is not bound to order the return of the child if the person . . . [who]
opposes its return establishes that –
(a)
the person . . . having the care of the person of the child was not actually exercising
the custody rights at the time of the 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 hardship or otherwise place the child in an intolerable situation.’
It is the second of these two provisions on which the mother relied.

The material facts
[6] E was born on 25 August 2014. On 5 October 2018, in contravention of two
orders by the courts of Luxembourg, the mother abducted E from Luxembourg, which
was her habitual residence, and settled in South Africa. E’s half-brother, S, born from
the mother’s previous marriage, accompanied them to South Africa with the consent
of S’s father.

[7] The mother is a French citizen and the father a citizen of Belgium. They never
married. At the time of E’s birth, they lived in Belgium, together with S. During or about
July 2015, the mother and children moved to Luxembourg and the father followed
some seven months later. The parties subsequently separated, although there is
disagreement as to when that took place. Nothing turns on this.

[8] The Juvenile and Guardianship Court of Luxembourg (the Juvenile Court)
granted an order on 21 December 2016 awarding joint parental authority of E to the
mother and the father. It is common cause that this includes rights of custody which,
under the Hague Convention, includes rights related to the care of the person of E
and, in particular, the right to determine E’s place of residence. At all relevant times,
the primary residence of E was with the mother, while the father had rights of visitation
and accommodation. The rights of the father were increased steadily over time in
terms of further orders of the Juvenile Court granted on 14 June 2017 and 7 March
2018.

[9] The order of 7 March 2018 included one calling for a social enquiry and
appointing Ms Natalie Barthelemy as E’s guardian ad litem. The order provided for
weekly contact between E and the father and postponed the proceedings to 20 June
2018. Prior to that date, however, two important events occurred. In May 2018, the
mother married a South African man, NC (the husband), in France. Secondly, she
applied for leave to relocate E to South Africa with her, as she had been offered
employment there. The father filed a conditional counter-application for E’s habitual
residence to vest with him if the mother wished to relocate without E.

[10] On 20 June 2018, the mother’s application for leave to relocate E was joined
with the existing proceedings and full argument was presented. Judgment was
reserved. On 7 August 2018, the Juvenile Court refused the mother’s application for
leave to relocate to South Africa and ordered that the father’s rights of visitation and
accommodation would increase so that by 16 December 2018, they would include
having E spend alternative weekends with him from Saturdays at 10h00 until Sundays
at 18h00. The matter was postponed to 30 January 2019 for further argument and the
court granted provisional enforcement of the judgment notwithstanding any appeal.
The father’s conditional application was not pronounced upon since that of the mother

was refused. The mother appealed against that refusal but the appeal was dismissed
by an order granted on 3 October 2018. She noted a further appeal to the Court of
Cassation in Luxembourg. This was heard on 17 October 2019 and dismissed by an
order of five judges on 21 November 2019.

[11] In the interim, on or about 4 October 2018, the mother removed E from
Luxembourg and moved to South Africa. The father and the Central Authority
contended that the mother’s actions were premeditated and malicious because she
knew that the father was to have contact with E on 5 October 2018 but told him that
he may not have contact as E had chickenpox, which was not truthful.

[12] The father lodged a further application with the Juvenile Court, which granted
an order on 19 December 2018 to the following effect. First, the competent South
African authorities were requested to order a social enquiry with the objective of
gathering all information regarding the personal situation of the mother and E
(including aspects such as housing, schooling, activities, daily care, medical and
psychological follow-up, and others), E’s relationship with the mother, the mother’s
capacity to take care of E, and any other information to enable the Juvenile Court to
consider the request for habitual residence and rights of access and accommodation
to the other parent. The social enquiry report had to be filed by 15 April 2019.
Secondly, pending receipt of the report, the father was granted rights of access and
accommodation, from 22 January to 10 February 2019 in South Africa, save that
during the first three days he would exercise his right of access from 10h00 to 18h00
from 2 to 16 March 2019 in Luxembourg, with the mother to bring, or have E brought
to Luxembourg and to collect her from the father’s home with the mother paying the
travelling costs. Thirdly, the matter was postponed to 29 April 2019 and the order was
made immediately enforceable notwithstanding the lodging of any appeal. In the
meantime, in South Africa, the Hague Convention application was launched on 7
January 2019 in the Gauteng Division of the High Court, Johannesburg.

[13] The mother failed to adhere to the provisions of the order of the Juvenile Court.
In anticipation of the father’s arrival in South Africa, the mother insisted that Professor
G M Spies, a social worker, be appointed to assess E with a view to preparing a report
on whether or not E’s best interests would be served by the father having sleepover

contact. The father agreed to meet with Professor Spies for an hour on 22 January
2019, for the sole purpose of facilitating and assisting with contact between E and him.
After this meeting, the father was ‘allowed’ contact with E for 30 minutes supervised
by Prof Spies. The latter wrote a letter dated 4 February 2019 saying that the quality
of the short contact session between E and the father on that date ‘was so meaningful
that it had all the potential to form a strong basis to plan subsequent visits’ which could
include ‘possible sleepover visits of which [E] first must be informed in advance’.

[14] On 23 January 2019, the father met with the mother and E, at a mall in Pretoria
after which E and the father spent the day together at his hotel in Johannesburg. She
was returned to the mother at 18h30. On 24 January 2019, E and the father spent the
day at Sun City. As the father was no longer prepared to accede to the mother’s
demands that E should not have overnight contact with him, in terms of the order of
19 December 2018, there was no further contact with E between 25 January and
10 February 2019. The mother ignored the order requiring her to take E to
Luxembourg for the contact in March 2019.

[15] Affidavits having been exchanged by the parties, the Hague Convention
application came before the high court for the first time on 7 February 2019. In this
hearing Ms Lia van der Westhuizen was appointed curator ad litem to E. She reported
to the court on 13 February 2019. In her report, she stated that if the court regarded
the information before it as sufficient, in the absence of a consultation with E, she was
of the view that E ought to be returned to Luxembourg subject to mitigating factors
such as those adopted in the well-known judgment of the Constitutional Court
Sonderup v Tondelli.1 If the court required further information and the participation of
E, Ms van der Westhuizen requested an extension of her powers to allow for the
appointment of a psychologist, Ms Mariaan de Vos, to conduct an emotional
assessment of E. The court granted the further authorisation.

[16] Ms De Vos interviewed E twice, conducted an emotional assessment, and
supplied her report to the curator on 26 February 2019. Her findings were, inter alia,
that E was ‘a happy young girl’ who regarded her mother, grandmother, her mother’s

1 Sonderup v Tondelli and Another [2000] ZACC 26; 2001 (1) SA 1171 (CC); 2001 (2) BCLR 152 (CC).

husband and her half-brother, S, to be her support structure; that she felt emotionally
safe and secure; that she avoided discussing her father because she was angry with
him; that she had largely been sheltered from any adult conflicts; and that she had
adapted to school and made a close friend. She concluded that E did not have the
capacity to fully comprehend the implication of her objecting to a return to Luxembourg
and that if E were to be returned to Luxembourg, this ‘could potentially lead to an
intolerable situation’.

[17] The potential intolerable situation referred to by Ms De Vos could be caused by
having E uprooted again after she had settled at school and socially, together with the
potential threat that her mother could be arrested and criminally prosecuted upon
returning to Luxembourg. As E’s mother was her primary attachment figure, Ms De
Vos, said, this state of affairs could cause psychological harm to E, as well as being a
possible intolerable situation on its own. Ms De Vos said too that E was very close to
her half-brother, S, and the possibility of her being returned with him remaining in
South Africa could also possibly be an intolerable situation. In the light of the fact that
the father only sought visitation rights to E, Ms De Vos questioned whether returning
E to her habitual residence in order to see her father every second weekend was
enough reason to uproot E again.

[18] The application was argued before Collis J on 1 March 2019. Her judgment was
delivered on 15 March 2019. As stated above, she ordered the return of E to
Luxembourg, subject to certain conditions.

[19] Further proceedings took place in the Juvenile Court in Luxembourg on 29 April
2019 with both parties legally represented. E’s guardian also presented argument. On
13 May 2019, the Juvenile Court granted an order that: E’s habitual residence vested
with the father; the mother was fined an amount of €100 per day until she returns E to
the father’s care, subject to a maximum of €5000; unless otherwise agreed between
the father and the mother, the mother was granted rights of visitation during the entirety
of all school holidays except during the father’s annual leave, during each trip the
mother may make to Luxembourg and by video communication on three days per
week.

[20] Pursuant to the order of Collis J, the Central Authority consulted with its
counterpart in Luxembourg which advised that there was no national or international
arrest warrant issued for the mother’s arrest and, as such, she would not face arrest
upon her entering Luxembourg. In addition, although no investigation was being
conducted into the criminal aspects of child abduction, if the mother returned to
Luxembourg, whether voluntarily or by court order, a decision would have to be taken
in this regard. Finally, the Luxembourg Authority advised that the mother would not be
deported to France as she claimed.

[21] In the meantime, the mother pursued her appeal remedies in Luxembourg. She
was uniformly unsuccessful in this regard. She also applied unsuccessfully for leave
to appeal against Collis J’s order. In August 2019, she was, however, granted leave
to appeal to the full court. She enjoyed success in that court, hence this appeal with
special leave from this court.

The issue
[22] As stated above, the sole issue for decision in this appeal is whether the mother
has established a defence in terms of article 13(b) of the Hague Convention to the
effect that ‘there is a grave risk that [E’s] return would expose [her] to physical or
psychological harm or otherwise place [her] in an intolerable situation’. Prior to
addressing that issue on a factual basis, it is first necessary to sketch the legal
framework within which that exercise must be undertaken.

The law
[23] The preamble to the Hague Convention states that it was promulgated in a
desire ‘to protect children internationally from the harmful effects of the wrongful
removal or retention and to establish procedures to ensure their prompt return to the
State of their habitual residence, as well as to secure protection for rights of access.’
South Africa and Luxembourg are both signatories to the Hague Convention. They are
therefore known as Contracting States.

[24] It is clear that the onus is on the person resisting return to establish the defence
relied upon and that it is a full onus.2 In Pennello v Pennello (Chief Family Advocate
as Amicus Curiae)3 Van Heerden AJA described it as follows:
‘There is nothing in the wording of art 13 of the Convention or in the analysis of this wording
by either the Constitutional Court in Sonderup or this Court in Smith to suggest that the person
resisting an order for the return of a child under the Convention by relying on the art 13(b)
defence does not bear the usual civil onus of proof, as it is understood in our law, in that
regard, viz that he or she is required to prove the various elements of the particular art 13(b)
defence on a preponderance of probabilities.’

[25] She proceeded to explain the underlying reasoning for this position:4
‘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 thus that the authorities best placed to resolve the merits of a custody dispute are
the courts of the state 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.’

[26] In Sonderup,5 Goldstone J made the point that 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’. Article
19 of the Hague Convention makes that clear in express terms. It provides that a
‘decision under this Convention concerning the return of a child shall not be taken to
be a determination on the merits of any custody issue’. He then proceeded to consider
the question of the harm that an abducted child may suffer as a result of an order that
they be returned to the jurisdiction of their habitual residence. He held:6
‘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

2 Smith v Smith [2001] ZASCA 19; 2001 (3) SA 845 (SCA) para 11.
3 Pennello v Pennello (Chief Family Advocate as Amicus Curiae) [2003] ZASCA 147; 2004 (3) SA 117
(SCA) para 38.
4 Paragraph 25.
5 Footnote 1 para 30.
6 Paragraphs 43-44.

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 art 13 for exceptional cases where this will not be the case.
An art 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.’

[27] Also in the context of the question of harm, in Pennello,7 this court cited with
apparent approval a dictum of Ward LJ in Re C (Abduction: Grave Risk of
Psychological Harm):8
‘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.’

[28] It also commented on the approach adopted by the Constitutional Court to the
question of harm in Sonderup, stating:9
‘Despite the litany of alleged incidents of physical and mental abuse of the mother by the ‘left-
behind’ father on which counsel for the former relied in argument before the Constitutional
Court in the Sonderup case, as well as the report of a South African clinical psychologist to
the effect (inter alia) that the continuation of the status quo in Canada would have a “severely
compromising effect on the healthy psychological development” of the child in question, the
Court held that the harm to which the child would allegedly be subjected by a court-ordered
return was not harm of the serious nature contemplated by art 13, but rather –

7 Footnote 3 para 34.
8 Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 (CA) at 1154A-B.
9 Footnote 3 para 30.

“. . . 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”.’

[29] From the cases cited above, the position, when an art 13(b) defence is raised
to an application for the return of a child to their habitual residence, may be
summarised thus: (a) the party who raises the defence bears the onus to prove it
because the Hague Convention’s default position is the return of abducted children to
their habitual residences; (b) a certain degree of harm is inherent in the court ordered
return of a child to their habitual residence, but that is not harm or intolerability
envisaged by art 13(b); (c) that harm or intolerability extends beyond the inherent harm
referred to above and is required to be both substantial and severe.

The application of these principles to the facts
[30] It is necessary at the outset to say something of the conduct of the mother. Her
behaviour has been deplorable. She engaged with the legal process in Luxembourg
to the extent that it suited her. When it did not suit her any longer, she simply took the
law into her own hands and abducted E. In considering the facts relevant to the art
13(b) defence, the focus is on the best interests of E. If giving effect to the paramountcy
of her best interests has the effect of ‘rewarding’ the mother for her bad behaviour,
that is an unfortunate but unavoidable result.

[31] When E was abducted in early October 2018, she was four years and two
months old. Some five months earlier, the mother married her new husband. The
mother, E and her half-brother, S, have, since coming to South Africa, lived with the
husband as a family. They have done so now for more than three years.

[32] The mother has always been E’s primary caregiver. As a result, not surprisingly,
there is a strong bond between them. There is also a strong bond between E and S;
between E and the husband, who she referred to when interviewed by Ms De Vos as
her father; and, it would appear, between E and the husband’s daughter, R.

[33] Given E’s close bonds with the mother, as primary caregiver, it would,
according to Professor Spies, cause E ‘extreme trauma’ if E was returned to
Luxembourg without her mother. Professor Spies was also of the view that if E had to
return to Luxembourg, the family unit would disintegrate, with traumatising
consequences for E.

[34] These views were confirmed by Ms De Vos. From her report, it was clear that
E regarded her mother, the husband and S to form a family unit within which she felt
safe and secure. Ms De Vos confirmed that E was ‘securely attached to her mother’,
that she saw the husband as ‘an integral part of her home structure’ and that it was
evident that they, along with S were the most important figures in E’s life. She
commented specifically on the ‘close bond’ between E and S.

[35] Ms De Vos was of the view that in the light of these circumstances, if E was to
be returned to Luxembourg, this ‘could potentially lead to an intolerable situation’;
and that would have been caused by ‘having [E] uprooted again after she has now
been settled at school and socially’. In respect of E’s relationship with S, Ms De Vos
was of the opinion that ‘the possibility of her being returned with him staying behind in
South Africa could also possibly become an intolerable situation’.

[36] The views of both Professor Spies and Ms De Vos were endorsed by Ms Van
der Westhuizen, the curator ad litem for E. In her supplementary report, she stated:
‘In the event that [E’s] return to Luxembourg might result at all in a separation from her mother
or her brother [S], then [E] should not be ordered to return to Luxembourg. As detailed in the
report of Ms De Vos, this might result in possible trauma to be experienced by [E] considering
her attachment to her biological mother and her brother.’

[37] It appears to us that there is merit in the views expressed by Professor Spies,
Ms De Vos and Ms Van der Westhuizen. The consequences were, in our view,
correctly described by Tuchten J in the court below when he said of the effect of the
order of the court of first instance:
‘The order contemplates that a functioning family unit must be disrupted and its members
dispersed. Relationships which [E] values must be severed or, at the very least, placed under
grave strain. [E] must be deprived of the company and comfort of her brother [S], with whom

she shares a bedroom. This would be in conflict with [E’s] right under s 28(1)(b) of the
Constitution, which I take to include the nurturing and support a child receives from its
immediate family group.’

[38] Tuchten J continued to point out that the order of the court below presented the
mother with ‘agonising choices’: she had to oversee the ‘dismemberment of her family’
because its effect was that she either had to leave her husband and her son, or her
daughter. There was, he held, a grave risk that ‘the emotional stress under which the
mother will inevitably be placed by the terms of the order of the court below will have
a harsh and negative impact on [E’s] sense of security and well-being’.

[39] The impact on E of her being returned to Luxembourg goes far beyond the
normal hardship and dislocation that is associated with cases of this sort. In all
likelihood, it cannot but have a profound, adverse effect on E for the reasons cited
above. In our view, the mother has established that there is a grave risk that E’s return
to Luxembourg would expose her to psychological harm or otherwise place her in an
intolerable situation.

Conclusion
[40] In the result, the appeal cannot succeed. For the same reason given by
Tuchten J in the court below, we make no costs order: the mother’s unlawful conduct
was the cause of the litigation, which the father was entitled to take part in. We
accordingly make the following order:
The appeal is dismissed.

____________________
C PLASKET
JUDGE OF APPEAL

____________________
T R GORVEN
JUDGE OF APPEAL

Mocumie JA (dissenting)

[41] I have had the benefit of reading the judgment of my colleagues Plasket and
Gorven JJA with which other colleagues agree. They found in favour of the first
respondent in respect of the main issue on appeal ie, whether the first respondent had
discharged the onus resting on her under article 13(b) of The Hague Convention on
the Civil Aspects of International Child Abduction, 1980 (the Convention). I hold a
different view.

[42] There are essentially two issues raised by this appeal: First, the interpretation
of the provisions of article 13(b) of the Convention as incorporated into South Africa’s
national legislation, the Children’s Act of 2008 (the Children’s Act). Second, whether
the first respondent discharged the onus resting on her in terms of article 13(b).

[43] I endorse the findings of the court of first instance that the provisions of the
Convention’s main purpose is for the prompt return of the ‘abducted’ child to their
habitual place of residence without any enquiry into issues of custody (parental
responsibilities), access (contact) including guardianship, which are better left in the
domain of the domestic courts of the State of habitual residence of the abducted child.
Also, that article 13(b) is triggered by the unlawful removal of the minor child out of
their State of habitual residence without the consent of the other parent who has
parental authority over the abducted child. I also endorse the finding of the court of
first instance that the first respondent unlawfully relocated to South Africa despite her
application for relocation being refused by the Court of Cassation, and on appeal. By
so doing, she resorted to self-help against two court orders ordering her not to remove
E from the jurisdiction of Luxembourg, Europe. And lastly that the finding that the first
respondent ‘has failed [on a balance of probability10] to allege facts sufficient to either
point to potential harm or grave risk referred to in article 13’. For the reasons that follow
I would uphold the appeal.

10 It must be kept in mind that in Hague Convention proceedings to discharge the onus resting on her,
the first respondent must discharge the onus on a balance of probability.

[44] South Africa is a signatory to the Convention and thus a Contracting State as
defined in the Convention.11 As such it has an international and legal duty to ensure
that the applications under the Convention are dealt with expeditiously,12 a task also
entrusted to South African courts.13

[45] The first respondent raised the defence of article 13(b). The article provides:
‘(1)
Notwithstanding the provisions of the preceding Article 12, 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 –
…
(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.’ (Emphasis added.)

[46] In Pennello v Pennello,14 this Court left open the level of ‘grave risk’ which an
applicant who raises the exception under article 13(b) must show or what qualifies as
‘grave risk’ or ‘intolerable situation’. Years later, in KG v CB15 it stated:
‘In both Sonderup v Tondelli16 and Pennello v Pennello17 the question whether South African
courts should follow the stringent test 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 in
Re E (Children) (Wrongful Removal: Exceptions to Return). In that case the court held18 that:
“[T]here is no need for the article [art 13(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. 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

11 Article 2(1)(f) of the Vienna Convention on the Law of Treaties, 23 May 1969, defines a Contracting
State as follows:
‘“contracting State” means a State which has consented to be bound by the treaty, whether or not the
treaty has entered into force.’
12 Article 11.
13 Articles 2 and 11.
14   Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA).
15 KG v CB and Others [2012] ZASCA 17; 2012 (4) SA 136 (SCA) para 50.
16 Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC) para 44.
17 Ibid para 35.
18 Ibid paras 31-34.

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 . . .
[10] I agree that by its very terms article 13(b) is of restricted application. What is abundantly
clear is that the ‘grave risk’ is with reference to the child; not the abducting or the left behind
parent. That without being restrictive or prescriptive on what grave risk should mean and
slavishly following how other jurisdiction interpret ‘grave risk’, each case must obviously be
determined on its own peculiar facts”.’

[47] Section 39 of the Constitution of South Africa empowers courts in South Africa
to interpret the law in line with international and foreign law where there is no definite
answer or where solutions can be imported, which are not readily available in their
jurisdiction, from other jurisdictions, to dispense with Hague Convention applications
in a justiciable manner. It is apposite therefore to look at a few relevant cases of foreign
jurisdictions.

[48] In Re C (a minor) (abduction) [1989] FCR; sub nom C v C19 a mother refused
to accompany a young child back to Australia and asserted that the child would suffer
harm if he returned without her. Butler-Sloss LJ, stated as follows in this respect:
‘The grave risk of harm arises not from the return of the child, but the refusal of the mother to
accompany him . . . Is a parent to create a psychological situation and then rely upon it? If the
grave risk of psychological harm to the child is to be inflicted by the conduct of the parent who
abducted him, then it would be relied upon by every mother of a young child who removed
him out of his jurisdiction and refused to return. It would drive a coach and four through the

19 Re C (a minor) (abduction) [1989] FCR 197 at 205, [1989] 2 All ER 465 at 471; reported sub nom C
v C.

Convention at least in respect of applications relating to young children. I, for my part, cannot
believe that this is in the interests of international relations.’

[49] In TB v JB20 (abduction: grave risk of harm) (2001) the court held:
‘Hence the courts in this country have always adopted a strict view of art 13(b). The risk must
be grave and the harm must be serious. As Lord Donaldson of Lymington MR said in Re C (a
minor) (abduction) [1989] FCR 197 at 208, [1989] 2 All ER 465 at 473: “the words ‘or otherwise
place the child in an intolerable situation’ . . . cast considerable light on the severe degree of
psychological harm which the Convention has in mind.” The courts are also anxious that the
wrongdoer should not benefit from the wrong: that is, that the person removing the children
should not be able to rely on the consequences of that removal to create a risk of harm or an
intolerable situation on return. This is summed up, after a review of the authorities, in the words
of Ward LJ in Re C (abduction) (grave risk of psychological harm) [1999] 2 FCR 507 at 517,
quoted by the judge in the present case:
“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.”
Thorpe LJ has taken matters a step further in the now oft-cited passage from another Re C(B)
(child abduction: risk of harm) [1999] 3 FCR 510 at 520, also quoted by the judge:
“In testing the validity of an art 13(b) defence trial judges should usefully ask themselves what
were the intolerable features of the child's family life immediately prior to the wrongful
abduction? If the answer be scant or non-existent then the circumstances in which an art 13(b)
defence would be upheld are difficult to hypothesise. In my opinion art 13(b) is given its proper
construction if ordinarily confined to meet the case where the mother's motivation for flight is
to remove the child from a family situation that is damaging the child's development.”
. . . on the basis that the abducting parent will take all reasonable steps to protect herself and
her children and that she cannot rely on her unwillingness to do so as a factor relevant to risk.’

[50] In Sabogal v Velarde21 the United States District Court of Maryland concluded
that it would order the return of the children to the left behind father if he were to
arrange for the criminal charges or investigation against the mother to be dismissed
or closed, and to have the temporary custody order in his favour vacated (in order for

20 T.B. v. J.B. (Abduction: Grave Risk of Harm) [2001] 2 FLR 515 paras 40, 41 and 97.
21 Sabogal v. Velarde, 106 F. Supp. 3d 689 (2015) at 711.

the underlying temporary custody order in favour of the mother to effectively be
reinstated). Under such conditions, the court would be prepared to order the children's
return to Peru. If the father could not meet these ‘pre-conditions’ (ie undertakings),
however, the children's return would be refused in accordance with article 13(b) of the
Convention. However, as the Constitutional Court held in Pennello,22 ‘[t]he absence of
a provision such as s 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’. I consider
the facts of this matter hereafter conscious of this warning by the Constitutional Court.

[51] In her pleaded case, the first respondent conceded that she left Luxembourg
against two orders and that she did not have the consent of the second respondent to
emigrate permanently to South Africa to get married and start a new life with E in South
Africa; and that she chose to marry in South Africa far from everyone else including
her own mother in France. She undertook to return to Luxembourg without any fear of
facing prosecution. She accepted the offer that the second respondent had made,
undertaking to pay for all her expenses including accommodation for as long as the
dispute remained unresolved in Luxembourg. A tender that was repeated before this
Court. To this the first respondent had even made a counter proposal for the second
respondent to increase her living expenses during her stay in Luxembourg. The full
court noted that the second respondent’s conduct during the dispute was impeccable.

[52] What assertions did the first respondent make in order to prove on a balance of
probabilities that ‘grave risk’ to E would result? In her answering affidavit,
supplemented later in a supplementary affidavit, the first respondent alleged that she
feared being arrested upon her return to Luxembourg, hence she could not return
thereto. She would further be at risk of being deported to France once her visa expired
before the custody dispute could be resolved. E’s separation from the first respondent
as her primary care giver and from her sibling brother would expose her to
psychological harm. A proper bond between E and the second respondent was lacking
since they have never lived together and have been apart since she relocated to South
Africa. The second respondent’s habitual residence was Belgium and not

22 Footnotes 18.

Luxembourg. E’s return to Luxembourg would also separate her from her step-father
and step-sister. Lastly, E had fully integrated into her new environment and settled in
South Africa.

[53] In my view the first respondent’s assertions are general, and they relate to her
risk and not the risk of the minor child. In the light thereof these assertions should not
be considered as ‘grave risk’. What puts this case out of the ‘grave risk’ category of
other cases where the defence was upheld is the following. The first respondent
removed E from Luxembourg when she was younger than she is currently (four years
and two months old). The appellant initiated a voluntary return engagement with the
first respondent hardly four months after E’s unlawful removal from Luxembourg as
reported by the second respondent to the CA for Luxembourg. During these
interactions, the first respondent confirmed during the interview with the appellant on
31 October 2018, that she would return to Luxembourg with both E and S which she
confirmed in her answering affidavit of on 22 January 2019. She only made a volte
face in February 2019 after the court appointed Re E (Children) (Wrongful Removal:
Exceptions to Return) curator ad litem, where she asserted that a return order should
not separate E from her siblings namely, S and her step-sister born of the husband
and someone else in his previous relationship. The first respondent in a veiled threat
then stated that she would leave S behind in South Africa. This meant a separation of
the siblings.

[54] It is indisputable that during all the court applications in Luxembourg the first
respondent did not raise the fact that E and the second respondent were not staying
together. During the intervention by the appellant less than three months after she had
arrived in South Africa and a case had been opened against her, the first respondent
made no such allegation nor did she raise any concern. Instead, she admitted that she
removed E unlawfully from her the State of habitual residence. Thereafter all that was
discussed was when could E be returned to the State of habitual residence. As part of
the intervention by the appellant in co-operation with her counterpart, the CA for
Luxembourg, upon the directive of the court of first instance, E and the second
respondent met several times on their own and also as the court of instance directed
under the supervision of a social worker to observe how the two interacted. They fared

well under the circumstances as reported by Prof Spies although the second
respondent did not feel comfortable with her.

[55] Furthermore, the second respondent initiated proceeding under the Convention
for E’s prompt return hardly three months upon the discovery of the abduction through
E’s school in Luxembourg. E, was at that stage, not yet integrated into her new
environment at all. The first respondent married her husband some five months before
the abduction, it seems that the first respondent married a South African to secure her
roots in South Africa and then chose to rely on this as a factor that will cause
psychological harm to E who was uprooted from her own family, the second
respondent, her school and her friends. It is ironic that the first respondent should call
E’s return to her State of habitual residence as uprooting her from her established
environment which would cause psychological harm. A thorough and careful reading
of her affidavits does not deal with nor point out any psychological difficulties that E
suffered as a result of being uprooted from a familiar environment when the first
respondent abducted her. Thereafter she cut off any communication between E and
the second respondent including the video calls that she had initially agreed to. The
first respondent makes no mention of the fact that E had a good relationship not only
with the second respondent but her paternal aunt, the second respondent’s sister too.
The two are E’s only blood relatives. That relationship is certainly stronger than that of
step-parents or step-siblings. More significantly E is the only child of the second
respondent. This definitely had a psychological impact on E.

[56] The wording of article 13(b) makes it clear that the issue is whether there is a
grave risk that the return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation. The word ‘child’ is mentioned twice
in the aforementioned article, which clearly indicates that it does not refer to a parent.
More glaringly, the abducting parent is not mentioned at all. However, I am alive to the
fact that there may be instances where there is sufficient evidence that because of a
risk of harm directed at a removing parent there may be a grave risk to the child. The
question that arises is, what evidence has the first respondent produced which falls
within this category? The first respondent did not and could not make any allegations
of direct grave risk on E as she and the second respondent were not staying together
at any point according to their living arrangement before and after they moved to

Luxembourg which she also stated. Her case is and has always been that because of
her unlawful removal of E from the State of habitual residence, a warrant of arrest was
issued against her by the prosecuting authority in Luxembourg. Thus, if she were
arrested, E would be psychologically harmed by being separated from her. The court
of first instance, although not sympathetic to the first respondent and regarding her as
the author of her own misfortunate, nonetheless in an endeavour to ameliorate any
harsh consequences that might ensue, directed the appellant to contact her
counterpart, the Central Authority (CA) for Luxembourg, which it did. Apart from the
confirmation that there was a warrant of arrest pending, the CA for Luxembourg, in
writing, committed her office to ensure that the prosecuting authority would not pursue
the first respondent upon her return. The second respondent gave an undertaking not
to press charges (so to speak) which would lead to the arrest of the first respondent.

[57] In my view, although it is correct that the undertaking by the second respondent
does not remove the risk that the first respondent could be arrested, many member
States promote co-operation among them. If the respectful, cordial and helpful
relationship between the two CAs can be used as a barometer, which it should, it is
highly unlikely that Luxembourg would jeopardise its relations with South Africa and
other signatories to the Convention over one dispute between parents of an abducted
child. The likelihood is greater that the two States will continue to assist each other
without prejudicing E in any way because both know that if the abducting parent is
arrested the likelihood of that affecting E would have adverse psychological effects.
As she grows up and learns about this; she would blame the second respondent for
the first respondent’s incarceration.

[58] Furthermore, it must be accepted that investigations have commenced in
respect of the criminal aspects of child abduction. However, that in itself cannot be
used as defence as it occurs by operation of the law. It must be considered with other
factors including the conduct of the first respondent who acted in blatant disregard of
the two court orders; leaving E’s State of habitual residence whilst proceedings were
pending and the alleged acts of grave risk and or intolerable situation which E will be
placed in if returned. It cannot be taken as a factor which justifies the first respondent’s
refusal to return E to Luxembourg. Without the second respondent’s co-operation and
in the light of his undertakings made a number of times, the likelihood of the criminal

investigation proceedings translating to the first respondent’s arrest in Luxembourg
are non-existent.

[59] Having said that, this brings into focus the voice of the child in these
proceedings. The Convention and the Children’s Act provide for the child’s voice to be
heard. They provide in broad that every child who may be affected by any decision
must be legally represented by a professional, distinct from the parents, who in the
warring fight over the child will may be biased and even influence the child against
each other. The appointment of a curator ad litem to represent the child to ensure the
child’s voice is heard is an important part of the Convention. As was stated in Central
Authority of the Republic of South Africa v B:23
‘The provisions of the Hague Convention are, in terms of s 275 of the Children's Act, subject
to those of the Children's Act. A legal representative must, in terms of s 279 of the Children's
Act, represent the child involved in all applications in terms of the Hague Convention. I have
in the as yet unreported judgment of B and Others v G 2012 (2) SA 329 (GSJ) accepted the
correctness of the submission by CJ Davel & AM Skelton Commentary on the Children's Act at
17 – 21 that —
“in cases where very young children are involved, the role of the legal representative would
be more akin to that of a curator ad litem, while with older children, the legal representative
would take instructions from the child, act in accordance with those instructions and represent
the views of the child.” (In para [12]).’ (Emphasis added.)
In line with this prerequisite, the court of first instance appointed a curator ad litem who
interviewed E and all who lived with her including her step-father and filed a report.
The same curator ad litem recommended the appointment of an education
psychologist who also submitted a report. Both reports were taken into account by the
court of instance.

[60] It is evident in the report by the curator ad litem that E could not voice an opinion
on her own due to her age at that stage. Nonetheless, no adverse remarks were made
except (beyond the scope of her mandate by the court of first instance) that the
separation of the siblings. ie separating E from S and the first respondent’s husband
and his daughter to whom she had grown close to in less than a year, would cause

23 Central Authority of the Republic of South Africa and Another v B 2012 (2) SA 296 (GSJ); [2012] 3
All SA 95 (GSJ) para 2.

her emotional trauma. In the context of these facts and as correctly noted by the court
of first instance, the first respondent caused all this to the children and in particular E.
Whatever estrangement that has been caused between the second respondent and E
is of the first respondent’s deliberate wrongdoing as she acted in contempt of the
orders of the courts of Luxembourg, irrespective that she was legally represented. She
terminated the mandate of her legal representatives and has not provided any reasons
for doing so. The courts should draw an inference from such conduct that she did not
want to abide by the terms of the court order. It must be accepted that she deliberately
disobeyed the court processes and now expects protection from the courts. This is a
classic case of abduction which cannot be countenanced by any Contracting State.

[61] The allegations by the first respondent, which became even stronger during the
argument before this Court as a last resort when all others clearly failed, that E will be
separated from her new family, her step-father, Mr Carelsen, and his daughter, R, are
ironic and opportunistic to say the least. It is even more difficult to explain how E’s
return to her habitual residence with the first respondent and the second respondent
as her biological parents (all three European Union citizens) can equate to ‘grave risk
of harm’ to E. This is so in the light of the first respondent’s initial willingness to go
back with E which only changed much later after the possibility was raised by the
educational psychologist in her supplementary affidavit.

[62] From the discussion in the preceding paragraphs, it is clear that the approach
the full court adopted goes against the precedents of this Court24 and the
Constitutional Court.25 This approach is also erroneous as by so doing the full court
stepped into the arena of the merits of the rights of custody of the parents, comparing
the favourability of the different jurisdictions of Luxembourg and South Africa. The full
court also erred in dealing with ‘what harms might flow’ from an order refusing the
return. This question was irrelevant for the test to be applied. The finding that ‘despite
the language of the Convention, the question is whether the return of E to Luxembourg
is in E’s best interests. . .’, should not have been posed by the full court at all. As the
Constitutional Court stated in Sonderup,26 ‘. . . [t]he paramountcy of the best interests

24 Footnote 18.
25 Footnote 20.
26 Ibid para 32.

of the child must inform our understanding of the exemptions without undermining the
integrity of the Convention. . .’.

[63] It is pivotal to reiterate what the Constitutional Court stated in Sonderup27, to
underscore the import of the Convention where a court is faced with a balancing
exercise between the best interests of the child and the exemption in [a]rticle 13. It
states:
‘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 arts 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.
[33] The nature and extent of the limitation are also mitigated by taking into account s 28(2) of
our Constitution when applying art 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 s 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.’
Furthermore, at para 35, that:
‘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 art 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.’28

27 Ibid para 33.
28 Ibid para 35.

[64] In my view, there is no likelihood of undermining the best interests of E by
ordering her return to Luxembourg. This is not a case where extreme circumstances
exist in which E’s welfare is truly endangered. This Court has recently in L v Ad Hoc
Central Authority for the Republic of South Africa and Others29 ordered the return of
abducted children on the simple basis that the Convention applied and the prompt
return was the correct approach the high court adopted.

[65] In conclusion, the court of first instance was correct to order that E be returned
promptly to Luxembourg. All that the full court ought to have done, was to correct the
protective measures which the court of first instance did not put in place to ameliorate
any harm the first respondent might suffer which could translate into grave risk to E.
Added to the protective measurements, particularly in respect of the possibility of an
arrest upon her return to Luxembourg (not that there should be any doubt in the
undertakings made by the second respondent and the commitment of the CA for
Luxembourg in ensuring that the criminal processes should not cause more delay in
the finalisation of the matter between the first and second respondent); precedents are
replete of mirror orders which the second respondent can pursue in Luxembourg on
the basis of the order granted in this Court, before E can finally be returned to
Luxembourg. That way, the first respondent’s only fear will be addressed. This was
done in Pennello v Pennello, KC v CB and so too in Sonderup. This in my view would
be in compliance with the Convention, taking into account E’s interim best interests
until the courts of the State of habitual residence have finally decided the custody
issues, having given the first respondent the right to present her side of the story
through that State’s system of appeals and reviews without any interference by the
courts of South Africa.

[66] For the conclusion I have reached, it is unnecessary to consider a peripheral
issue which the appellant raised; the applicability of s 275 of the Children’s Act in the
context of the application of the best interests of the child under s 28 of the Constitution
which both counsel addressed in the Heads of Argument and before this Court.

29 L v Ad Hoc Central Authority for the Republic of South Africa and Others [2021] ZASCA 107.

[67]  For the reasons set out in the preceding paragraphs, I would have granted the
following order:
A
The appeal is upheld, with no order as to costs.
B
The order of the full court is set aside and substituted with the following order:
‘1
It is ordered and directed that the minor child, E, is to be returned forthwith, but
subject to the terms of this order, to the jurisdiction of the Central Authority for
Luxembourg.
In the event of the first respondent (the mother) notifying the Office of the
Central Authority, Pretoria within one week of the date of issue of this order that she
intends to accompany E on her return to Luxembourg, the provisions of para 3 shall
apply.
The second appellant (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 Luxembourg in the following terms:
3.1
Any warrant for the arrest of the first respondent (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 E from Luxembourg on 14 October 2018 or for any past
conduct relating to E. The father will not institute or cause to be instituted or support
any legal proceedings or proceedings of any other nature in Luxembourg for the arrest,
prosecution or punishment of the mother, for any past conduct by the mother relating
to E.
3.2
Unless otherwise ordered by the appropriate court in Luxembourg:
3.2.1 The second respondent (the father) is ordered to arrange, and pay for, suitable
accommodation for the mother and E in Luxembourg. The father shall provide proof
to the satisfaction of the Central Authority, prior to the departure of the mother and E
from South Africa, of the nature and location of such accommodation and that such
accommodation is available for the mother and E immediately upon their arrival in
Luxembourg. The Central Authority for Luxembourg shall decide whether the
accommodation thus arranged by the father is suitable for the needs of the mother
and E, should there be any dispute between the parties in this regard, and the decision
of the Central Authority for Luxembourg shall be binding on the parties.
3.2.2  The second respondent (the father) is ordered to pay the mother maintenance
for herself and E from the date of E’s arrival in Luxembourg at the rate of 355,44 euros
per month. The first pro rata payment shall be made to the mother on the day upon

which she and E arrive in Luxembourg 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 355,44 euros per month payable by the
father.
3.2.3  The second respondent (the father) is ordered to pay any medical and dental
expenses reasonably incurred by the mother in respect of E, such as are not covered
by the National Health Service in Luxembourg.
3.2.4  The second respondent (the father) is ordered to pay for the reasonable costs
of E’s schooling and also the costs of her other reasonable educational and extra-
mural requirements in Luxembourg, such as are not provided by the State.
3.2.5  The second respondent (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 E to travel by the most direct route from Johannesburg, South Africa, to
Luxembourg.
3.2.6  The second respondent (the father) and the (first respondent) the mother are
ordered to co-operate fully with the Central Authority for Luxembourg, the relevant
court or courts in Luxembourg, and any professionals who are approved by the Central
Authority for Luxembourg to conduct any assessment to determine what future
residence and contact arrangements will be in the best interests of E.
3.2.7  The second respondent (the father) is granted reasonable supervised contact
with E, which contact shall be arranged through the Central Authority for Luxembourg
and South Africa without the necessity of direct contact between the father and the
mother.
In the event of the first respondent (the mother) giving notice to the Central
Authority referred to in para 2 above, the order for the return of E shall be stayed until
the appropriate court in Luxembourg has made the order referred to in para 3 and,
upon the Central Authority being satisfied that such an order has been made, they
shall notify the first respondent (the mother) accordingly and ensure that the terms of
para 1 are complied with.
In the event of the first respondent (the mother) failing to notify the Central
Authority in terms of para 2 above of her willingness to accompany E on her return to
Luxembourg, it is to be accepted that the first respondent (the mother) is not prepared
to accompany E, in which event the Central Authority for South Africa is authorised to
make such arrangements as may be necessary to ensure that E is safely returned to

the custody of the Central Authority for Luxembourg and to take such steps as are
necessary to ensure that such arrangements are complied with.
Pending the return of E to Luxembourg as provided for in this order, the first
respondent (the mother) shall not remove E on a permanent basis from the Province
of Gauteng and, until then, she shall keep the Central Authority for South Africa
informed of her physical address and contact telephone numbers.
Pending the return of E to Luxembourg, the second respondent (the father) is
to have reasonable telephone contact with E including Skype and or video calls.
There is no order as to costs.’
C
The Central Authority for South Africa is directed to seek the assistance of the
Central Authority for Luxembourg in order to ensure that the terms of this order are
complied with as soon as possible.
D
In the event of the first respondent (the mother) notifying the Central Authority
for South Africa, in terms of para B.2 above, that she is willing to accompany E to
Luxembourg, the Central Authority for South Africa shall forthwith give notice thereof
to the registrar of the Gauteng Division of the High Court, Johannesburg to the Central
Authority for Luxembourg, and to the second respondent (the father).
E
In the event of the appropriate court in Luxembourg failing or refusing to make
the order referred to in para B.3 above, the Central Authority and/or the second
respondent (the father) is given leave to approach this Court for a variation of this
order.
F
A copy of this order shall forthwith be transmitted by the Central Authority for
South Africa to the Central Authority for Luxembourg.

___________________
B C MOCUMIE
JUDGE OF APPEAL

Appearances

For appellant:

S Liebenberg
Instructed by:

Du Toit Attorneys, Randburg

Symington De Kok, Bloemfontein

For first respondent:

C Woodrow and N Thokoane
Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein

For second respondent:

M L Haskins SC
Instructed by:

Couzyn Hertzog Horak Inc, Pretoria

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
18 January 2022
Status:
Immediate

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

LD v Central Authority, Republic of South Africa and Another [2022] ZASCA 6

Today the Supreme Court of Appeal, by a majority of four to one, dismissed an
appeal from the judgment of the Gauteng Division of the High Court, Pretoria
(Tuchten, Davis and Mokose JJ sitting as court of appeal). That court had upheld an
appeal against an order by Collis J to return a minor child, E, to Luxembourg subject
to various conditions. The order was granted under the Hague Convention on the
Civil Aspects of International Child Abduction, 1980 (the Hague Convention). It
followed the unlawful abduction of E from Luxembourg to South Africa by her mother.
This unlawful act required E to be returned to Luxembourg unless the mother could
establish a legal basis to avoid it. The mother relied on article 13(b) of the Hague
Convention. This required her to prove that ‘there is a grave risk that . . . her return
would expose the child to physical or psychological hardship or otherwise place the
child in an intolerable situation.’

E was born on 25 August 2014. Luxembourg became the habitual residence of the
mother and father, who subsequently separated, and E. In May 2018, the mother
married a South African man. She applied in Luxembourg for leave to take E with
her to South Africa since she had been offered employment there. Her application

was refused and an appeal dismissed on 3 October 2018. On 4 October she
removed E to South Africa, along with E’s half-brother, S, born from the mother’s
previous marriage. A further appeal to the Court of Cassation in Luxembourg was
dismissed on 21 November 2019.

The father visited South Africa to have contact with E as ordered by the Luxembourg
court. The mother insisted that Professor Spies, a social worker, assess E
concerning whether E’s best interests would be served by the father having
sleepover contact. She indicated that the 30 minute contact session ‘had all the
potential to form a strong basis to plan subsequent visits’ which could include
‘possible sleepover visits of which [E] first must be informed in advance’. According
to her, though, given E’s close bonds with the mother, as primary caregiver, it would
cause E ‘extreme trauma’ if E was returned to Luxembourg without her mother.
Professor Spies was also of the view that if E had to return to Luxembourg, the family
unit would disintegrate, with traumatising consequences for E.

Proceedings were launched in South Africa by the Central Authority at the instance
of the father. A curator ad litem to E who moved for appointment of Ms De Vos, a
psychologist, to conduct an emotional assessment of E. She found that E was ‘a
happy young girl’ who regarded her mother, grandmother, her mother’s new
husband and her half-brother, S, to be her support structure; that she felt emotionally
safe and secure; that she avoided discussing her father because she was angry with
him; that she had largely been sheltered from any adult conflicts; and that she had
adapted to school and made a close friend. She concluded that if E were to be
returned to Luxembourg, this ‘could potentially lead to an intolerable situation’. She
concurred in the observation of Prof. Spies concerning the potential ‘extreme trauma’
E would suffer if returned to Luxembourg without her mother. As E’s mother was her
primary attachment figure this could cause psychological harm to E, as well as being
a possible intolerable situation on its own. E was also very close to her half-brother,
S, and if she returned with him remaining in South Africa, this could also be an
intolerable situation. In the light of the fact that the father only sought visitation rights
to E, Ms De Vos questioned whether returning E to her habitual residence in order

to see her father every second weekend was enough reason to uproot E again.

The majority deplored the behaviour of the mother. However the focus is on the best
interests of E. If the best interests of E has the effect of ‘rewarding’ the mother for
her bad behaviour, that is an unfortunate but unavoidable result. It held that the
mother had discharged the onus on her.

The minority judgment took a different view. It held that the assertions of the mother
were general, and related to her risk and not the risk of E. They should not be
considered as ‘grave risk’. In contrast to that of the mother, the father’s conduct had
been impeccable. Whatever estrangement that has been caused between the father
and E is of the mother’s deliberate wrongdoing as she acted in contempt of the
orders of the courts of Luxembourg. It concluded that there is no likelihood of
undermining the best interests of E by ordering her return to Luxembourg.