THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
CASE NO:  238/2003

In the matter between

ROBERT SALVATORE PENNELLO                           APPELLANT

and

HAYLEY SARAH-DAWN PENNELLO                     RESPONDENT

THE CHIEF FAMILY ADVOCATE                     AMICUS CURIAE

CORAM:   Mpati DP, Farlam, Brand, Lewis JJA and Van Heerden
AJA

HEARD:        4  NOVEMBER 2003

DELIVERED: 1 DECEMBER 2003

Summary: Minor ─ abduction of ─ Hague Convention on Civil Aspects of
International Child Abduction (1980) ─ defences ─ provision in art 13(b) that
requested State not bound to order return of child if existence of grave risk of
physical or psychological harm, or that child would otherwise be placed in an
intolerable situation.

JUDGMENT

VAN HEERDEN AJA

VAN HEERDEN AJA

Introduction

[1] This appeal concerns a two-and-a-half year old girl, Alyssa Meryl-
Dawn Pennello (Alyssa), who was brought to South Africa by her
mother, the respondent, from New Jersey, United States of America, in
September 2002.  Both mother and daughter are still in this country,
presently living in Knysna (Western Cape).
[2] On 22 November 2002, on the application of the appellant
(Alyssa’s father), the Durban and Coast Local Division (Pillay J) ordered
the summary return of Alyssa to New Jersey, subject to relatively detailed
conditions designed to protect the interests of the child pending the final
adjudication and determination, by the New Jersey courts, of the issues of
custody, care of and access to her.  This order was made pursuant  to the
provisions of the Hague Convention on the Civil Aspects of International
Child Abduction (1980) (the Convention), as incorporated into South
African law by the Hague Convention on the Civil Aspects of

International Child Abduction Act 72 of 1996 (‘the Act’), which came
into operation on 1 October 1997.1
[3] With the leave of Pillay J, the respondent appealed against this
order to the Full Court of the Natal Provincial Division. On 14 February
2003, the Full Court (Hurt, Van der Reyden and Kondile JJ) upheld the
appeal.2  The present appeal is against the judgment and order of the Full
Court, leave to appeal having been granted by this Court, which also
ordered that the Chief Family Advocate be admitted as an amicus curiae.3
Background
[4] The appellant (presently 42 years old) is a citizen of and resident in
the United States of America.  He and the respondent (who is 29 years
old) were married on 2 April 1999 in New Jersey, United States of
America. The parties’ daughter, Alyssa, was born in New Jersey on 9
May 2001.  The family lived together in New Jersey until 25 September

1 Section 2 of the Act provides that the Convention (the full text of which is annexed to the Act as a
Schedule) applies in South Africa.  Thus, in terms of s 231(4) of the Constitution of the Republic of
South Africa Act 108 of 1996, the Convention has the force of law.
2  The judgment of the Full Court is reported as Pennello v Pennello [2003] 1 All SA 716 (N).
3 Article 6 of the Convention requires every Contracting State to designate a Central Authority to
discharge numerous duties imposed on Central Authorities by the Convention.  In terms of s 3 of the
Act, the Chief Family Advocate is designated as the Central Authority for the Republic of South
Africa.

2002, on which date the respondent clandestinely removed Alyssa from
the United States of America without the knowledge or consent of the
appellant.  It is common cause that, at the time of Alyssa’s removal, she
was habitually resident in the United States of America and that both
parents were exercising equal custody rights in respect of their child.
Thus, in terms of art 3 of the Convention, Alyssa’s removal from the
United States of America (also a Contracting State to the Convention)
was wrongful.4
[5] 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

4 The removal (or retention) of a child under the age of 16 years is considered to be ‘wrongful’ for the
purposes of the Convention where it is in breach of custody rights attributed to a person, an institution
or any other body under the law of the state in which the child in question was habitually resident
immediately prior to the removal or retention, provided that those custody rights were actually being
exercised at the time of the removal or retention, or would have been so exercised but for the removal
or retention:  articles 3 and 4 of the Convention (see further Sonderup v Tondelli and Another 2001 (1)
SA 1171 (CC) para [10] at 1178I-1179E, Van Heerden et al (eds) Boberg’s Law of Persons and the
Family (2ed 1999) 578-80, and the other authorities there cited).

facilitate the institution of judicial or administrative proceedings with a
view to obtaining the return of the child’.
[6] In this case, the appellant applied to the United States Central
Authority for its assistance in securing Alyssa’s return and that Central
Authority, in turn, transmitted the appellant’s application to the Chief
Family Advocate of South Africa for further action.5
Unfortunately, the Office of the  Family Advocate of Kwa-Zulu Natal6
(the Durban Family Advocate), although apparently the delegate of the
Chief Family Advocate (as the South African Central Authority) in that
jurisdiction,7 badly (albeit in good faith) misconstrued its role in terms of
the Act.  In a letter dated 31 October 2002, addressed to the appellant’s
Durban attorneys, the Durban Family Advocate purported

5 In terms of art 9 of the Convention, ‘[i]f the Central Authority which receives an application referred
to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and
without delay transmit the application to the Central Authority of that Contracting State and inform the
requesting Central Authority or the applicant, as the case may be.’
6 The province in which the respondent and Alyssa were staying (with the respondent’s parents) at that
time.
7 The Chief Family Advocate, as the Central Authority for South Africa, may delegate or assign any of
her powers or duties under the Convention to any Family Advocate appointed in terms of the
Mediation in Certain Divorce Matters Act 24 of 1987: see s 4 of the Act, read with regulation 3 of the
regulations promulgated under s 5 of the Act in Government Notice R1282 of Government Gazette
No.18322 dated 1 October 1997.

‘... to confirm our telephone conversation this morning during which I informed you
that the Office of The Family Advocate would not be able to finalise the above-
mentioned matter expediently because of the immense bureaucracy that would impede
my functioning in this matter.’
The letter stated further that:

‘I believe that your office would be able to assist Mr Pennello more expeditiously.  I
confirm that I requested you to contact Mr Pennello and inform him of my difficulties, as I do
not have the time to communicate with him today as I am dealing with an urgent application
and will be called upon to give evidence in the High Court.’

[7] As a result of the attitude adopted by the Durban Family Advocate,
the appellant ‘took up the cudgels himself',8 instituting an application on
5 November 2002 for Alyssa’s immediate return.  Needless to say, this
application was vigorously opposed by the respondent and as set out
above,  the matter eventually came to this Court, the appellant being
ordered by the Full Court to pay the costs of the respondent’s appeal to it.

8  See the reported judgment of the Full Court (n 2) at 723a-b. In terms of art 29 of the Convention, a
person claiming that a child has been wrongfully removed or retained may apply directly to the judicial
or administrative authorities of a Contracting State for the return of such child.

I shall deal with the effect of the stance taken by the Durban Family
Advocate later in this judgment.
[8] In opposing the appellant’s application in the Durban and Coast
Local Division, the respondent relied on art 13(b) of the Convention,
contending that there should not be an order for the return of Alyssa to
New Jersey because there was a grave risk that, if the child were returned,
she would be exposed to physical or psychological harm or would
otherwise be placed in an intolerable situation.  In her opposing affidavit
the respondent listed a number of instances of behaviour by the appellant
towards her which (according to the respondent) constituted physical and
mental abuse.  She described the appellant as ‘an extremely volatile
person... incapable of moderating his behaviour’; as ‘obsessive’
(particularly as regards his ‘fanatic’ gym schedule); as ‘extremely
intolerant,’ with a ‘very low level of frustration’, resulting in his resorting
to violence against her ‘on numerous occasions’.  According to the
respondent, her marriage relationship with the appellant had long been a

troubled one, characterised by ‘frequent bitter arguments’ between them
and by ‘continual’ physical and verbal abuse directed against her by the
appellant.  She was allegedly so traumatised by the appellant’s conduct
that she eventually reached the stage where she ‘simply could not
continue’, and felt that she had ‘nowhere to go other than to return to the
safety of [her] family in South Africa’.
[9] The respondent submitted further that her actions in leaving New
Jersey with Alyssa and returning to her parental home in South Africa
were motivated by fear for her safety and ‘an inability to continue in the
intolerable situation’ which had developed between herself and the
appellant.  She went so far as to say that she ‘genuinely believe[d] that if I
return to America, my life will be at risk if I reside with the [appellant]’
and that, even if she were to have separate accommodation, the appellant
would ‘continually harass me and make my life unbearable’. On the
respondent’s version, Alyssa had clearly been traumatised by the
appellant’s behaviour and now displays this in her interaction with other

men.  Were the court to order Alyssa’s return to New Jersey, there
would allegedly be ‘a grave risk to her health, both physically and
psychologically’, should the child have to stay with her father.  Moreover,
even if the respondent were to return with Alyssa to New Jersey, the
relationship between the appellant and the respondent would still expose
Alyssa to serious psychological harm and place the child in intolerable
situation.
[10] Much of the factual matrix upon which the respondent’s reliance
on art 13(b) was based was disputed by the appellant.  Indeed, Pillay J
agreed with the respondent’s contention that there were substantial
disputes of fact between the parties which could not be resolved on the
papers before him.  However, in his view, these factual disputes related
‘in the main to the issue of custody which ... is not an issue before this
Court and which is best resolved in the Court of habitual residence, viz.
New Jersey’.  Relying on the judgment of the Constitutional Court in

Sonderup v Tondelli and Another,9 the judge held that, once the
appellant had established that the removal of the child was wrongful
within the meaning of art 3 of the Convention – which he had done on the
papers before the Court – the onus was then on the respondent to
establish the defence on which she was relying in terms of art 13(b).
[11] Pillay J stated that he was –
‘ ... by no means satisfied that ... a sustained and established pattern of domestic violence10
has been shown to exist.  The physical and verbal abuse, even on the Respondent’s version,
appears to me to arise over apparently trivial disagreements and conduct which one or the
other party finds offensive or unacceptable ... there are insufficient facts before this Court to
justify a finding that the child would be placed in the intolerable situation or exposed to the
grave risk of physical or psychological harm as the Respondent would have the Court find on
the probabilities ... The reasons advanced by Respondent that she and the child would be
exposed to physical and mental trauma if ordered to return to America, appear to arise out of
her own reasons rather than out of fear of harm to the child’.11

9   Above (n 4).
10  In Sonderup above (n 4) para [34] at 1185I-1186C, Goldstone J said that,  in the application of art
13(b) of the Convention, South African courts should not trivialise the impact of domestic violence on
children and families and that ‘recognition must be accorded to the role which domestic violence  plays
in inducing mothers, especially of young children, to seek to protect themselves and their children by
escaping to another jurisdiction ... where there is an established pattern of domestic violence, even
though not directed at the child, it might very well be that return might place the child at grave risk of
harm as contemplated by art 13 of the Convention.’
11 In this regard, Pillay J cited the judgment of the English Court of Appeal in C v C (Minor:
Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 (CA) where (at 471b-c) Butler-Sloss LJ

[12] The judge regarded as ‘crucial’ the undertakings given by the
appellant’s counsel on his behalf during the course of argument that
addressed ‘to an appreciable extent’ the concerns of the respondent and
ameliorating the potential hardships to which Alyssa might be exposed
should the court order her return to New Jersey.  Accordingly, as already
mentioned, the court ordered Alyssa’s return to New Jersey, subject to a
number of protective conditions based on the undertakings given by the
appellant.
[13] After she had been granted leave to appeal to the Full Court and
had delivered a notice of appeal on 13 January 2003, the respondent filed
an application in which she sought to have the matter remitted to the
court a quo for the purpose of adducing further evidence, either orally or
by way of affidavit.  This further evidence concerned the ‘efficacy and

held that, ‘[i]n weighing up the various factors, I must place in the balance and of the greatest
importance the effect of the court refusing the application under the Convention because of the refusal
of the mother to return for her own reasons, not for the sake of the child.  Is a parent to create the
psychological situation, and then rely on it?  If the grave risk of psychological harm to a child is to be
inflicted by the conduct of the parent who abducted him, then it would be relied on by every mother of
a young child who removed him out of the jurisdiction and refused to return.  It would drive a coach
and four  through the 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.  Nor should the mother, by
her own actions, succeed in preventing the return of a child who should be living in his own country
and deny him contact with his other parent.’

reliability’ of the undertakings given by the appellant (and used by
Pillay J as a basis for formulating his order), and the effect on the
respondent and Alyssa of any failure by the appellant to comply with
these undertakings.  The respondent also sought to place before the court
certain ‘pleadings and documents filed in the proceedings brought by the
[then] Respondent [the current appellant] in the Superior Court of New
Jersey’.  The appellant answered the allegations made by the respondent
in the affidavit deposed to by her in support of this application, and the
respondent, in turn, replied to the appellant’s answering affidavit.
[14]  In the view of the Full Court:

‘Much of the documentary material which the respondent seeks to place before this
Court in the form of “further evidence” post-dates the completion of the parties’ affidavits in
the original application proceedings and reflects a series of moves and counter-moves which
both parties have made for the purpose of furthering their respective aims in the litigation
between them.  Ordinarily, because this is a matter which involves the interests of a very
young child, and because the proceedings have been extremely urgent, we would have been
disposed to allow the application to adduce further evidence by way of affidavit on appeal
(subject, of course, to stipulations aimed at avoiding any prejudice to the applicant [the

present appellant]).  However, on the view which we take of the appeal itself, judged in
isolation from the further evidence which has been tendered, it is not necessary to make any
order in respect of the respondent’s application.’12

As indicated above, the Full Court upheld the respondent’s appeal to it,
with costs, setting aside the order made by Pillay J and dismissing the
appellant’s application for the return of his daughter to New Jersey.
Further applications before this Court
[15] On 10 October 2003, the respondent delivered another application
for leave to adduce further evidence before this Court, both by way of
affidavit and documentary material (including all the documents which
she had previously sought to place before the Full Court) ‘in proof of the
fact that the undertakings given by the appellant to the court of first
instance did not constitute adequate safeguards in the best interests of the
minor child Alyssa and accordingly should not have been accepted as
such by the Court of first instance.’

12  See the reported judgment (n 2) at 722c-f.

[16] The appellant gave notice that he would abide the decision of
this Court in respect of the respondent’s application but that, in the event
of her application being granted, he also sought leave to adduce further
evidence, by way of affidavit and documentary material (including his
affidavit answering the respondent’s previous application to adduce
further evidence, and the annexures thereto).
[17] While courts in foreign jurisdictions, such as England and
Australia, have generally taken the view that applications under the
Convention ‘are intended to be heard expeditiously by a summary form
of procedure to enforce or otherwise the terms of the Convention,’13 this
is not an invariable rule.  Thus, for example, in J (A Minor),14 the English
Court of Appeal held that evidence of events subsequent to the initial
return hearing could be accepted, provided that this ‘fresh’ evidence is
such ‘as substantially to change the basic assumptions on which the court
made the [original] order and ... such that in general it would be an

13  Gsponer v Johnston (1988) 12 Fam LR 755 (Family Court of Australia) at 769. See also Re C
(Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478(CA) at 483 D-F,
Beaumont & McEleavy The Hague Convention on International Child Abduction (1999) 257-9 and the
other authorities there cited.
14  [1997] EWCA Civ 2841 (27 November 1997) (CA).

affront to one’s sense of justice not to admit it’;  evidence ‘which if
given would probably have an important influence on the result of the
case and …which is such as presumably can be believed; in other
words…evidence which is apparently credible, though of course not
necessarily incontrovertible.’15  This is a common-sense approach which
satisfies one’s sense of justice and which, in my view, accords with the
approach adopted by South African courts in determining applications to
adduce further evidence on appeal,16 particularly in cases where the
interests of children are at stake.
[18] The evidence covered by the respondent’s application and the
appellant’s conditional counter-application would seem to satisfy the
above-mentioned criteria, in so far as it may have an effect on the
question as to whether the respondent has established a defence in terms

15 See further in this regard C v C (Minor: Abduction: Rights of Custody Abroad)  above (n 11) at 466j
and 469 g;  Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 (CA) at 1155G-
H;  S (A Child) [2002] EWCA Civ 908 (3 July 2002) (CA) at paras 20, 66, 76, 80-93;  Re B (Children)
Abduction:  New Evidence) (2002) 2 FCR 531 (CA) para [23] at 537g-538a (per Butler-Sloss P) and
para [42] at 542b-c (per Waller LJ). This would include the admission of oral evidence, but only in
exceptional circumstances: see, for example, Re F ( A Minor) ( Child Abduction) [1992] 1 FLR 548
(CA) at 553-4, where Butler-Sloss LJ suggested that oral evidence might be heard where both parties
were present in court and there was irreconcilable affidavit evidence on an issue of crucial importance.
See also Re F ( Child Abduction: Risk of Returned) [1995] 2 FLR 31 (CA) at 37H-38B.
16 See Erasmus et al Superior Court Practice (1993, with loose-leaf updates)  A1-54A – A1-58,
Herbstein and Van Winsen: The Civil Practice of the Supreme Court of South Africa (4ed 1997, by Van
Winsen, Cilliers & Loots) 909-911, and the other authorities cited by these writers.

of art 13(b) of the Convention and, if not, the adequacy of the
‘protective mechanisms’ contained in the order of the court of first
instance. In any event, in the light of the fact that counsel for each party
did not really oppose these applications in respect of such further
evidence, both respondent’s application and appellant’s conditional
counter-application were granted at the outset of the hearing before this
Court. Counsel for the respondent initially sought to amend the
respondent’s notice of motion in this regard so as to provide for three
supplementary affidavits deposed to by the respondent (dated 9 October
2003, 28 October 2003 and 30 October 2003, respectively) to be placed
before us, but ultimately did not persist with this request.
[19] In the main, the ‘new’ evidence which the respondent thus
adduced before this Court related to various orders obtained by the
appellant in the Superior Court of New Jersey after the original judgment
and order by Pillay J on 22 November 2002.  It would appear that, on 27
November 2002, the appellant obtained against the respondent, ex parte,

an ‘order to show cause’ in terms of which, inter alia, the parties would
have ‘temporary joint legal custody of Alyssa’, the respondent would ‘be
designated as primary residential parent’, and the appellant would have
extensive ‘shared parenting time with Alyssa on an alternating week
basis’.  The provisions of this order, the ‘return date’ of which was 20
December 2002, clearly contradicted several of the important conditions
for Alyssa’s return, as contained in the order made by Pillay J,17
notwithstanding the fact that, in terms of Pillay J’s order, the appellant
was required –
‘... within 14 days of the date of delivery of judgment [to] launch proceedings and
pursue them with due diligence to obtain an order from the appropriate judicial or
administrative authority in the State of New Jersey, United States of America’,

which order had to reflect the conditions set by Pillay J (a so-called
‘mirror order’).

17 In terms of the order made by Pillay J, it was envisaged that the respondent would have interim
custody of Alyssa ‘pending final adjudication and determination by a Court in New Jersey on the issues
of care and custody of and access to Alyssa, which adjudication and determination shall be requested
forthwith by the father [the appellant]’, and that the appellant would have ‘reasonable access to Alyssa’
in the interim period.

[20] According to the appellant, he had instructed his attorney in
New Jersey to take the necessary steps to obtain a ‘mirror order’, as
required by Pillay J’s order.  At the same time, he had also instructed the
attorney to commence proceedings against the respondent for divorce and
‘the necessary ancillary relief’.  His attorney had instituted proceedings in
New Jersey ‘with a two-fold purpose: (i) to obtain interlocutory relief in
the divorce proceedings;  (ii) to obtain an Order which would...meet the
requirements of the Order of [the Durban  High Court]’.   However,
allegedly because of differences in the legal systems of New Jersey and
South Africa and a ‘misunderstanding’ by the appellant’s New Jersey
attorney of ‘the exact requirements of the South African court order’, the
‘order to show cause’ made by the New Jersey court on 27 November
2002 was not ‘strictly in accordance with’ Pillay J’s order – something of
an understatement, to put it mildly.  The Durban Family Advocate then
prepared a memorandum dated 10 December 2002, pointing out a number
of respects in which the ‘order to show cause’ was not compatible with

the conditions imposed by Pillay J. The day before, on 9 December
2002, the appellant had applied for and obtained from the Superior Court
of New Jersey a second order, largely ‘mirroring’ the requirements set in
the order made by Pillay J, and this second order was approved by the
Durban Family Advocate. The appellant states that this was done because
his South African legal representatives had advised him that the ‘order to
show cause’ made on 27 November 2002 did not meet the requirements
of the court of first instance.  The appellant’s New Jersey attorney
subsequently confirmed in writing to the appellant’s South African
attorneys, by way of a letter dated 23 January 2003, that he had
‘withdrawn the Order to show Cause, so that the only order in existence
in New Jersey is the mirror Order’.
[21] The appellant’s ‘complaint for divorce’ against the respondent
was filed in the Superior Court of New Jersey on 26 November 2002.
One of the orders sought was that he be awarded ‘legal custody’ of
Alyssa, ‘with reasonable parenting rights’ to the respondent.  It would

appear that, prior to this, the respondent had (on 18 October 2002)18
applied to the Durban and Coast Local Division for leave to institute
proceedings against the appellant by way of edictal citation for a decree
of divorce and an order awarding custody of Alyssa to her.  Leave was
granted on 28 October 2002 and, on 31 October 2002, the respondent
instituted such proceedings which were defended by the appellant.  The
respondent’s plea to the appellant’s conditional claim in reconvention
was served on 11 June 2003 and the matter thereafter placed on the
awaiting trial roll.
[22] Notwithstanding these developments, the appellant went ahead
with the divorce proceedings in the Superior Court of New Jersey and, on
24 July 2003, succeeded in obtaining (by default) a final order of divorce
against the respondent, in terms of which no maintenance is payable by
either party to the other, certain specified debts must be paid by each
party and, upon the return of Alyssa to New Jersey, the appellant is

18  ie about 3 and a half weeks after her arrival in South Africa and before the appellant’s application
under the Convention  for Alyssa’s return was instituted on 5 November 2002.

obliged to pay child support for her in the amount of US $102 per
week.  According to the divorce order, this figure is based on the
appellant and the respondent earning US $40 000 and US $18 000 per
year, respectively, and the appellant ‘having 40% parenting time with the
child’.  Furthermore, the New Jersey order provides that the appellant
must continue to pay medical insurance for Alyssa (even while she is in
South Africa), that the respondent is responsible for the first US $250  per
year in unreimbursed medical expenses for Alyssa and that, ‘in
accordance with the Child Support Guidelines percentages’, the appellant
must pay 65% and the respondent 35% of all  Alyssa’s medical  and like
expenses.  The order does not, however, deal with the issues of custody of
and access to Alyssa.
[23]  By means of the further evidence placed by the respondent before
this Court, she again sought to cast doubt on the adequacy of the
appellant’s undertakings, as incorporated in the order made by the court
of first instance, and on the appellant’s ability and willingness to comply

with such undertakings. In summary, the respondent submitted that, in
all probability, she would not be able to obtain employment should she
return to New Jersey and would hence be unable to support herself
financially. She contended, furthermore, that the appellant’s financial
position was such that he would not be able to comply with the
undertakings made by him, let alone provide her (the respondent) with
any direct financial support (no provision for which was made in Pillay
J’s order, in any event).  She would also not be in a financial position to
take any legal action in New Jersey to enforce or vary the ‘mirror order’
made on 9 December, to defend any proceedings instituted by the
appellant to vary or amend such order, or to procure legal representation
for herself in the envisaged custody and access proceedings in New
Jersey. The appellant, on the other hand, gave details of his financial
position and submitted that he was indeed able and willing to comply
with the undertakings made by him, as slightly amended to take account
of certain changes in his circumstances.

[24]  With particular emphasis on the New Jersey divorce order
obtained by the appellant, counsel for the respondent argued that the
appellant had by his own actions rendered the appeal to this Court
nugatory and robbed it of all practical import. In his submission, we
should dismiss the appellant’s appeal on this ground alone. There is, in
my view, no merit in this argument. Despite the granting of the divorce
order, the courts of Alyssa’s habitual residence under the Convention
(New Jersey) have not finally adjudicated upon and determined the key
issues of custody of and access to Alyssa. The main issue to be addressed
in this appeal is whether, as was found by the Full Court, this is indeed a
case in which art 13(b) applies and should bar the return of Alyssa under
the Convention to the state of habitual residence. If these questions are
answered in the negative by the court of the requested State, then any
conditions imposed by such court to govern the return of the child, which
conditions are often (but not invariably) based on undertakings given by
the applicant, are designed ‘to smooth the return of [the child] to the

country of …habitual residence19, and to give the child ‘the maximum
possible protection until the courts of the other country…can resume their
normal role in relation to the child.’20
The purpose of the Convention and the proper approach to the
article 13(b) ‘defence’

[25]  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.21 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

19 Per Butler-Sloss P in Re H (Children) [2003] EWCA Civ 355 (20 March 2003) (CA) para 36.
20 Per Lord Donaldson of Lymington MR in C v C (Minor: Abduction: Rights of Custody Abroad)
above (n 11) at 473e-f. See further, in this regard, Beaumont & McEleavy op cit (n 13) 156 et seq and
the other authorities there cited.
21 Article 1(a), read with the preamble to the Convention.

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.22
[26]  Where the removal or retention of the child in question is indeed
wrongful within the meaning of art 3,23 and a period of less than a year
after the wrongful removal or retention has elapsed – as is the case with
Alyssa – then the appropriate judicial or administrative authority of the
requested State is obliged to order the immediate return of the child.24
There are, however, certain limited exceptions to the mandatory return of
the child, one of which is contained in art 13(b), which provides as
follows:
‘Notwithstanding the provisions of the preceding article, the judicial or administrative
authority of the requested State is not bound to order the return of the child [in other words, it

22 See, for example, Anton ‘The Hague Convention on International Child Abduction’ (1981) 30 ICLQ
537 at 543-545 (this writer was the chairperson of the Commission of the Hague Conference on Private
International Law which drafted the Convention); Reddaway & Keating ‘Child Abduction: Would
Protecting Vulnerable Children Drive a Coach and Four through the Principles of the Hague
Convention?’ (1997) 5 Int J of Children’s Rights 77 at 78-9, 86-7 and 94.
23 See n 4 above.
24 Article 12 of the Convention. See further in this regard Sonderup v Tondelli and Another above (n 4)
para [12] at 1179F – 1180B and Smith v Smith 2001 (3) SA 845 (SCA) para [8] at 850 B-C.

has a discretion in this regard] if the person, institution or other body which opposes its
return establishes that –
(a)…
(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.’

[27]  An attack on the constitutionality of the Act incorporating the
provisions of the Convention into South African law, based on the
argument that this Act obliges South African courts to act in a manner
which does not recognise the paramountcy of the best interests of the
child,25  was rejected by the Constitutional Court in Sonderup v Tondelli
and Another.26  Writing for the Court, Goldstone J emphasised the
purposes of the Convention and stated 27 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. Indeed, art 19 provides that:

25 Section 28(2) of the Constitution provides what has been called ‘an expansive guarantee that a
child’s best interests are paramount in every matter concerning the child’: Sonderup v Tondelli and
Another above (n 4) para [29] at 1184F-G.
26 Above (n 4).
27 Op cit para [30] at 1185A-C.

“ 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.”

Rather, the Convention seeks to ensure that custody issues are determined by the court
in the best position to do so by reason of the relationship between its jurisdiction and
the child. That Court will have access to the facts relevant to the determination of
custody.’28
[28]  In concluding that the Act incorporating the Convention is
consistent with the Constitution, the Constitutional Court pointed out29
that:
‘…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 These objectives of the Convention were reiterated by this Court in Smith v Smith above (n 24) para
[6] at 849E-F.
29 Sonderup above (n 4) paras [35] – [36] at 1186D-F.

[29]  Addressing the question whether the ‘abducting’ mother of the
child concerned (a four year old girl) had established, under art 13(b) of
the Convention, that there was a grave risk that the child’s return to the
state of her former habitual residence (British Columbia, Canada) would
expose her to psychological harm or otherwise place her in an intolerable
situation, the Constitutional Court made the following statements:30
‘A matrimonial dispute almost always has an adverse effect on children of the
marriage. Where a dispute includes a contest over custody, that harm is likely to be
aggravated. The law seeks to provide a means of resolving such disputes through
decisions premised on the best interests of the child. Parents have a responsibility to
their children to allow the law to take its course and not to attempt to resolve the
dispute by resorting to self-help. Any attempt to do that inevitably increases the
tension between the parents and that ordinarily adds to the suffering of the children.
The Convention recognises this. It proceeds on the basis that the best interests of a
child who has been removed from the jurisdiction of a Court in the circumstances
contemplated by the Convention are ordinarily served by requiring the child to be

30 Above paras [43] – [44] at 1189 B-E.

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.’
[30]  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,31 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

31 Above para [39] at 1187B-1188F.

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 –
‘…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.’32
The Constitutional Court thus confirmed the order made by the court a
quo for the return of the child, subject to detailed conditions which were
very similar to those imposed by Pillay J in the present matter.33
[31]  As was canvassed in considerable detail by counsel for the
appellant in her heads of argument before this Court, courts in other
Contracting States have given art 13(b) a restrictive interpretation and, by
and large, ‘have resisted efforts to convert Article 13(b) into a

32 Above para [46] at 1189H-1190A.
33 Above para [56] at 1195B-1197D.

substitution for a best interests  determination’,34 on the basis that ‘the
Convention’s drafters … did not intend for this exception to be used by
defendants as a vehicle for the litigation or relitigation of the abducted
child’s best interests.’35
[32]  Thus, for example, it has been held that the ‘grave risk’ required to
establish an art 13(b) defence to return must be –
‘…more than an ordinary risk, or something greater than would normally be expected
on taking a child away from one parent and passing him to another…not only must
the risk be a weighty one, but…it must be one of substantial, and not trivial,
psychological harm. That, as it seems to me, is the effect of the words “or otherwise
place the child in an intolerable situation”.’36
[33]  Courts in (inter alia) England, Canada, Australia and the United
States of America have emphasised that:
‘...the threshold to be crossed when an article 13(b) is raised is a high one and difficult to
surmount…The risk must be grave and the harm must be serious. The courts are also anxious

34 Silberman ‘Hague Convention on International Child Abduction: A Brief Overview and Case Law
Analysis’ (1994) 28 Fam LQ 9 at 27.
35 LeGette ‘International Child Abduction and the Hague Convention: Emerging Practice and
Interpretation of the Discretionary Exception’ (1990) 25 Texas Int LJ 287 at 297.
36 Per Nourse LJ in Re A (A Minor) (Abduction) [1988] 1 FLR 365 (CA) at 372, cited with approval in
a number of subsequent cases, including Thomson v Thomson (1994) 119 DLR (4th) 253 (Supreme
Court of Canada) at 286-287 (per La Forest J), Re C (Abduction: Grave Risk of Psychological Harm)
above (n 15) at 1152G-1153B (per Ward LJ), Gsponer v Johnstone above (n 13) at 766.

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.’37
[34]  In the words of Ward LJ in Re C (Abduction: Grave Risk of
Psychological Harm):38
‘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.’39
[35]  Referring to several of the more recent English cases cited above,
counsel for the respondent argued that, in England, more is required (in
an evidentiary sense) from a party seeking to establish a defence under art
13(b) of the Convention that would be the case in a normal civil matter.

37 Re H (Children) above (n 19) para 30 (per Butler-Sloss P). See also Director-General, Department of
Families, Youth and Community Care v Bennett [2000] Fam CA 253(16 March 2000) (Full Court of
the Family Court of Australia) paras 25-35, Sonderup v Tondelli and Another above (n 4) 1189 n 41,
and the other cases there cited.
38 Above (n 15) at 1154A-B.
39 As was pointed out by Lord Donaldson of Lymington MR in C v C (Minor: Abduction: Rights of
Custody Abroad) above ( n 11) at 473 e-f: ‘… in a situation in which it is necessary to consider
operating the machinery of the Convention, some psychological harm to the child is inherent, whether
the child is or is not returned. This is, I think, recognised by the words “or otherwise place the child in
an intolerable situation”, which cast considerable light on the severe degree of psychological harm
which the Convention has in mind.’ This approach is very much along the same lines at that followed
by the Constitutional Court in Sonderup v Tondelli and Another above (n 4) paras [43] – [44] at 1189B-
E, as quoted above.

While this may or may not be so, I do not consider it to be either
necessary or appropriate in the present case to consider whether South
African courts should follow ‘the stringent tests set by Courts in other
countries’40 in this regard. My reasons for this conclusion will become
apparent later on in this judgment.
The judgment of the Full Court
[36]  In Smith v Smith,41 Scott JA stated that, once the applicant for a
return order under the Convention has established that the child was
habitually resident in the Contracting State from which he or she was
removed immediately prior to the removal or retention and that such
removal or retention was wrongful in terms of art 3:
‘…the onus is upon a party resisting the order to establish one or other of the defences
referred to in article 13(a) or (b) or that the circumstances are such that a refusal would be
justified having regard to the provisions of article 20.42 If the requirements of article 13(a) or
(b) are satisfied, the judicial or administrative authority may still in its discretion order the
return of the child.’

40 Sonderup above (n 4) para [44] at 1189E-F.
41 Above (n 24) para [11] at 850J-851B.
42 On the ‘defence’ referred to in art 13(a), see Smith above paras [16] ─ [20] at 852H-854I. This was
the defence raised by the ‘abducting’ parent which ultimately succeeded before this Court in Smith. On
the exception to a mandatory return of the child contained in art 20, see Van Heerden et al op cit (n 5)
591-592.

[37] In its judgment in this case, the Full Court, quoting this dictum
of Scott JA, held that ‘it is clear from the wording of Article 13 that the
person opposing an application for the return of a child must “establish”
circumstances falling within sub-paragraph (a) or sub-paragraph (b)’.43
So far, so good. However, the court went on ‘to consider precisely what
was intended by the use of the term “onus” in [the] dictum’ of Scott JA,
and held that it was ‘not appropriate to equate the requirement that the
person opposing an order under Article 12 “establish” certain facts, to the
customary requirements for the discharge of an onus in our civil law.’44
[38] In my view, this approach cannot be accepted.  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,

43 See the reported  judgment (n 2) at 724d-e.
44 Above 724g-h.

viz that he or she is required to prove the various elements of the
particular art 13(b) defence on a preponderance of probabilities.45
[39]  As regards the approach to be adopted to disputed evidence on
affidavit in Convention applications, counsel for the appellant (at that
stage the respondent) contended before the Full Court that the court
should apply the time-honoured principles articulated by Corbett JA in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd46 ─  where in
proceedings on notice of motion disputes of fact have arisen on the
affidavits, a final order may be granted if those facts averred in the
applicant’s affidavits that have been admitted by the respondent, together
with the facts alleged by the respondent, justify such an order. This rule
has been held to apply even in cases where the onus of proving facts in a
dispute rests on the respondent and not only when the onus rests on the
applicant.47  The Full Court rejected this contention, stating that:

45 See ‘Evidence’ LAWSA Vol 9 (first re-issue, 1996) para 642.  Cf also Chief Family Advocate and
Another v G 2003 (2) SA 599 (W) at 610-D.
46 1984 (3) SA 623 (A) at 634E-635C.
47 Ngqumba en ‘n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en
Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C-263E.  It should be
mentioned that, in the recent judgment of this court in ABSA Bank Ltd t/a Bankfin v Jordashe Auto CC

‘Although this is, at first sight, an attractive proposition and one which has the substantial
merit of providing the court with a familiar and eminently workable basis upon which to
decide cases on paper without resorting to oral evidence, we do not feel that it is an
appropriate test for the special circumstances which arise in proceedings under the
Convention. This is because, in ordinary application proceedings, the applicant invariably has
an option as to whether he should seek final relief on application or have the matter referred
to trial or oral evidence. When he decides to dispense with reference to oral evidence such
applicant is effectively required to argue his case for relief on what is common cause and on
the respondent’s version of the facts which are in dispute. In the case of proceedings under the
Convention, the person seeking an order in terms of article 12 has little or no option but to
proceed by way of application and, as pointed out above, the judicial authority must almost
invariably make its assessment to grant or refuse the order on the basis of what is said in the
affidavits before it. In those circumstances to load an applicant with the burden of making his
or her case largely on the basis of contentious statements in the respondent’s affidavits might
well lead to unjust decisions. In our view, therefore, the approach to the question of whether a
respondent has “established” circumstances such as are contemplated in Articles 13(a) or (b)
must be the type of “robust approach” mentioned in a wide variety of judgments in our courts

2003 (1) SA 401 (SCA) para [23] at 409 D-E, there was an oblique indication that the correctness or
otherwise of the Ngqumba  case might have to be reconsidered at some stage.

in situations where matters have to be disposed of expeditiously and without all of the
trappings which go with a full-scale hearing.’48
[40]    I am in agreement with the argument of counsel for the appellant
that the Full Court erred in departing from the well-known Plascon-Evans
rule, as applied in the Ngqumba case, with regard to disputes of fact in
proceedings on affidavit. As indicated above, the Convention is framed
around proceedings brought as a matter of urgency, to be decided on
affidavit in the vast majority of cases, with a very restricted use of oral
evidence in exceptional circumstances.49 Indeed, there is direct support in
the wording of the Convention itself for return applications to be decided
on the basis of affidavit evidence alone,50 and courts in other jurisdictions
have, in the main, been very reluctant to admit oral testimony in
proceedings under the Convention.51  In incorporating the Convention
into South African law by means of Act 72 of 1996, no provision was

48 See the reported judgment (n2) at 725b-e.
49 See para [18] above.
50 Article 30 of the Convention provides that ‘[a]ny application submitted to the Central Authorities or
directly to the judicial or administrative authorities of a Contracting State in accordance with the terms
of this Convention, together with documents and any other information appended thereto or provided
by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting
States.’
51 See the authorities cited in notes 13, 14 and 15 above.

made in the Act or in the regulations promulgated in terms of s 5
thereof indicating that South African courts should not adopt the same
approach to proceedings under the Convention as that followed by other
Contracting States. In accordance with this approach, that Hague
proceedings are peremptory and ‘must not be allowed to be anything
more than a precursor to a substantive hearing in the State of the child’s
habitual residence, or if one of the exceptions is satisfied, in the State of
refuge itself’.52
[41]  As counsel for the appellant pointed out (correctly, in my view),
there is no reason in law or logic to depart, in Convention proceedings,
from the usual approach to the meaning and discharge of an onus in civil
law and from the application of the Plascon-Evans rule to disputes of fact
arising from the affidavits filed in such proceedings. In the circumstances
of the present case, a proper application of this usual approach would have

52 Beaumont & McEleavy op cit (n 13) 258.

rendered it unnecessary for the Full Court to make somewhat confusing
statements such as the following:53
‘A further question arises, however, which was not dealt with either in the case of Sonderup
(supra) or in the decision of the Supreme Court of Appeal in the case of Smith (supra). It
concerns the meaning of the reference to a “grave risk” [in art 13(b) of the Convention]. In
our view, the contemplated risk can have two possible sources. Firstly it can be a risk which
emerges as a matter of probability from an assessment of the affidavit evidence. Secondly it
can be a risk which must necessarily be associated with the rejection of relevant assertions
made by the respondent without the benefit of having these assertions tested at a hearing of
viva voce evidence. Accordingly where a respondent contends that the applicant is guilty of
conduct which will compromise the safety, well-being and interests of the child, and the
applicant puts up evidence to refute these contentions, the court, in assessing whether an order
for the return of the child will be associated with the “grave risk” should, even though it is not
able to resolve the issue, be alert to the consequences that may possibly flow if the
respondent’s evidence is, in fact, true.’
[42]  In considering the merits of the appeal, the Full Court ‘tend[ed] to
agree with the general statement by the learned judge in the court a quo
that the respondent has not made out “an established pattern of domestic

53 See the reported judgment (n 2) at 725j-726c.

violence” in relation to her’.54  It accepted that, ‘on an objective
appraisement of the evidence’, the marriage relationship between the
parties had deteriorated to the point where, at least from the respondent’s
perspective, cohabitation with the appellant had become physically and
psychologically intolerable. In view of, inter alia, the fact that the parties
had been attending marriage counselling for some time, the appellant’s
poor ‘track record…insofar as his ability to participate in a successful
marriage relationship is concerned’, and the manner in which the
respondent had left the United States with Alyssa, the Full Court was
prepared to assume, in the respondent’s favour, that her ‘assertions that
life with the [appellant] will be intolerable for her are bona fide and
genuine’ (emphasis added).55 As the judges correctly stated, however, the
main question to be determined was not whether the respondent’s attitude
to the continuation of her marriage was reasonable or justified, but rather

54 Above 726d-e.
55 Above 726f-h.

whether or not the court should order the return of Alyssa to New
Jersey under the Convention.
[43]  The Full Court disapproved of the reliance by the court of first
instance on the above quoted dictum of Butler-Sloss LJ in C v C (Minor:
Abduction: Rights of Custody Abroad), (henceforth referred to as C v C
(1989)),56 which dictum commenced with the following statements:
‘The grave risk of harm arises not from the return of the child, but the refusal of the mother to
accompany him. The Convention does not require the court in this country to consider the
welfare of the child as paramount, but only to be satisfied as to the grave risk of harm. I am
not satisfied that the child would be placed in an intolerable situation if the mother refused to
go back…’

According to the Full Court:

‘There are several aspects of this passage which, to put the matter at its lowest, are
not compatible with the law as applied in this country.  In the first place, the statement that
the Convention does not require English courts to consider the “welfare” of the child [sic: the
words ‘as paramount’ appear to have been inadvertently omitted] is (if we have correctly
understood “welfare” to mean “general interests and well-being”) directly contrary to the

56 Above (n 11) at 471a-c.

express stipulation in the preamble which stipulates that the interests of children are “of
paramount importance”.  Furthermore, we cannot accept the suggestion that the principle of
international comity should outweigh the interests of the child.  We do not think that the fact
that the mother created a situation which would cause problems about the return of the child
should be taken as a basis for deciding that the child should not be returned.  The emphasis
here seems to be to preclude the mother from relying on a situation which she had created
when, instead, the court should have been considering the question posed by Article 13(b)
from the child’s point of view.  It follows that we can also not agree with the “rule of thumb”
that a mother who removes a young child from his or her habitual residence cannot rely on
her own refusal to return with the child as a basis for opposing an application in terms of
Article 12 ... Insasmuch, therefore, as C v C purports to lay down any principle of general
application relating to young children or to situations where a parent refuses to accompany a
child who is the subject of an order under Article 12, we do not consider such principle to be
acceptable in our law.  In our law where the interests of the child are paramount, the only
basis on which to decide each case is on its own particular facts.’57
[44]  These statements by the Full Court reveal several misconceptions
regarding the objectives of the Convention and its underlying
assumptions, as well as a misunderstanding of the meaning of the dictum

57 See the reported judgment (n 2) at 727c-g.

of Butler-Sloss LJ in C v C (1989), particularly as regards the meaning
of the word ‘welfare’ as utilised in such dictum.
[45]  It is clear from the judgments of courts in other Contracting States
that, in considering the art 13(b) defence to the summary return of an
abducted child, the court must distinguish between its role as a court
determining matters of custody and access, on the one hand, and its role
under the Convention as a court dealing with an application for the return
of an abducted child to the state of his or her habitual residence, on the
other. From several dicta in judgments subsequent to C v C (1989), it is
apparent that the reference by Butler-Sloss LJ to the ‘welfare of the child’
in the abovequoted dictum from her judgment in that case was a reference
to the principles guiding the courts in the determination of custody and
other like matters.58 Thus, in Re M (Abduction: Psychological Harm),59
Butler-Sloss LJ stated that:

58 Sometimes referred to, particularly by English courts, as ‘the welfare principle’: see Reddaway &
Keating op cit (n 22) 79-83 and the other authorities there cited. This is hardly surprising, as s 1(1) of
the UK Children Act 1989 provides that ‘[w]hen a court determines any question with respect to: (a)
the upbringing of a child, or (b) the administration of a child’s property or the application of any
income arising from it, the welfare of the child shall be the court’s paramount consideration’
(emphasis added).

‘…the approach of the Convention is directed to the welfare of the child but the welfare
test generally is to be applied in such a way as to enable the courts of the habitual residence of
the child to make decisions as to what are the best interests of that child…the Convention
none the less exceptionally makes provision for specific consideration of the welfare of the
particular child with whom the requested State is concerned, where the threshold has been
crossed and the needs of the child require the court to take another course than summary
return under Article 12. That specific consideration of welfare is only to be found in Article
13’ (the relevant part which is then cited as being art 13 (b)).60
At a later stage in this judgment,61 Butler-Sloss LJ again pointed out that–
‘Article 13 gives the requested State this limited but none the less important opportunity to
look at the specific welfare of these children at the time when the application for summary
return is made.’
[46]  The same point was cogently made by Laws LJ in the English
Court of Appeal judgment in TB v JB (Abduction: Grave Risk of Harm),62
in which case the abducting parent (the mother) had relied upon, inter
alia, the art 13(b) defence, alleging that the children in question would be
exposed to a grave risk of physical or psychological harm or would be

59  [1997]  FLR 690 (CA).
60 At 694F-H.
61 At 699F.
62 (2001) 2 FCR 497 (CA) para 109 at 527f-g.

placed in an intolerable situation should the court order their return to
New Zealand:
‘In my judgment it is critical to recognise and to bear in mind at every stage of the court’s
consideration of the case, the difference between the judicial exercise upon which we are here
engaged in administering the Convention on the Civil Aspects of International Child
Abduction 1980…and the task which family courts daily undertake (in care proceedings and
otherwise) of deciding where the welfare of a child or children lies. In dealing with an
application to return a child under art 12 of the Convention we do not apply a straightforward
welfare test; if we did, we should risk frustrating the plain purpose of the Convention.’
[47]  As was submitted by counsel for the appellant, these dicta are
entirely consistent with – indeed, are predicated upon – the preamble to
the Convention which records that the States signatory to the convention
are ‘[f]irmly convinced that the interests of the children are of paramount
importance in matters relating to their custody’, and desire ‘to protect
children internationally from the harmful effects of their wrongful
removal or retention and to establish procedures to ensure their prompt
return to the State of their habitual residence.’

[48]  As regards the statement by the Full Court (in the passage quoted
above) to the effect that ‘we cannot accept the suggestion that the
principle of international comity should outweigh the interests of the
child’, this too reflects a misunderstanding of the purpose and scope of
the Convention which, as a matter of international comity, has as its basic
premise the idea that the policy of prompt return to the state of habitual
residence protects the interests of children generally by reversing the ill-
effects of the wrongful removal or retention as quickly as possible and by
deterring wrongful removals or retentions in the first place.63
[49]  The misconceptions underpinning the statements of the Full Court
in the passage quoted above are thrown into further relief by the
following dicta of the Constitutional Court in Sonderup v Tondelli and
Another:64
‘The Convention itself envisages two different processes – the evaluation of the best interests
of  children in determining custody matters, which primarily concerns long-term interests, and
the interplay of the long-term and short-term best interests of children in jurisdictional

63 See for example Schuz ‘The Hague Child Abduction Convention: Family Law and Private
International Law’ (1995) 44 ICLQ 771 at 775-6 and the other authorities cited by this writer.
64 Above (n 4).

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’,65
and
‘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…Rather, the Convention seeks to ensure that custody issues are determined by the
court in the best position to do so by reason of  the relationship between its jurisdiction and
the child…
Given the appropriateness of a specific forum, the Convention also aims to prevent the
wrongful circumvention of that forum by the unilateral action of one parent. In addition, the
Convention is intended to encourage comity between States parties to facilitate co-operation
in cases of child abduction across international borders. These purposes are important and are
consistent with the values endorsed by any open and democratic society.’66
[50]  The passage from the judgment of Butler-Sloss LF in C v C (1989)
cited by the Full Court, as clarified in subsequent cases, also does not
support the interpretation given to it by the Full Court to the effect that
‘the fact that the mother has created a situation which would cause
problems about the return of the child should be taken as a basis for

65 Above para [28] at 1183G-1184B
66 Above paras [30] – [31] at 118 A-D.

deciding that the child should not be returned’.67  It is evident from the
judgments of inter alia the English Court of Appeal, including that of
Butler-Sloss LJ herself in Re M (Abduction:  Psychological Harm),68 that
the approach to the art 13(b) defence always remains focused on the child
in question and the risk of harm to which a return order may expose the
child, while the conduct of the abducting parent may, in appropriate
cases, be one of the factors relevant to the determination of the existence
and gravity of such risk of harm to the child.69
[51] The Full Court referred to ‘the fundamental assumption’ upon
which the Convention is based, namely ‘that it is a child’s best interests to
have questions of custody and/or access decided by the judicial authority
in the place of the child’s habitual residence’.70 In this regard, however,
they expressed the view that –
‘As a general statement this is probably true, especially of children who have developed
social relationships with peers and who have attended schools or even day-care institutions as

67 See the reported judgment (n2) at 727e.
68 Above (n 59) at 699B-700E.
69 See also the judgment of Arden LJ in TB v JB (Abduction: Grave Risk of Harm) above (n 62) para 95
at 524d-e.
70 See the reported judgment (n 2) at 728d-e.

part of their lifestyle.  It is also plainly true of children whose parents are, for one reason or
another, not living together and whose custody and access arrangements have been governed
by agreement or order in their place of habitual residence.  But when it comes to a young child
on the very threshold of life such as [Alyssa], the applicability of the assumption becomes
doubtful.  It is difficult to conceive [of] any benefit which might flow to [Alyssa] by having the
question of her custody and the parties’ respective access rights decided by a court in
Princeton [New Jersey].’ 71 (Emphasis added.)
[52] I agree with the submission made by counsel for the appellant that
the approach of the Full Court in this regard (particularly the statements
highlighted above) is also questionable.  While the age of the child in
question may well, in certain circumstances, be one of the factors relevant
to the determination of whether a court-ordered return would expose the
child to a grave risk of physical or psychological harm or otherwise place
the child in an intolerable situation, there is no basis to differentiate in
principle on the basis of age, or to be swayed by some kind of ‘tender
years’ principle in the application of the Convention.  Moreover, while it

71 Above 728e-g.

may be so (as was apparently accepted by the Full Court),72 that the
appellant’s chances of ultimately obtaining custody (joint or otherwise) of
Alyssa, judged according to South African law, are somewhat slim – I do
not express any view one way or the other in this regard – I share the
doubts expressed by Ward LJ in Re C (Abduction: Grave Risk of
Psychological Harm)73 as to the appropriateness of a court hearing a
return application under the Convention ‘to engage in speculation’74 on
the possible outcome  of a custody dispute or leave to relocate application
to be heard in the courts of the State of habitual residence.
[53] It is important to bear in mind that a return order made under art 12
of the Convention is an order for the return of the child in question 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 custody of the other

72 Above 730f-h.
73 Above (n 15) at 1159 C-E.  See also TB v JB (Abduction:  Grave Risk of Harm) above (n 62) para 43
at 509i-510a (per Hale LJ) and para 67 at 516a-b (per Arden LJ).
74 This was also the approach followed by the Constitutional Court in Sonderup above (n 4) para [53] at
1194B-C.

parent.  In the words of Butler-Sloss P in the very recent case of Re H
(Children):75
‘The return of children under the convention is to the jurisdiction of their habitual residence
and it is not generally necessary or likely that the return would be to the same situation.’

[54] Furthermore, it must be remembered that the policy of the
Convention appears to require that the evaluation of risk, for the purposes
of consideration of an art 13(b) defence, be carried out:
‘... 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...’ 76

As in several of the cases referred to above, the respondent before us  is,
to a large extent, the author of her present predicament and it would be
reasonable to expect her to make all appropriate use of the welfare system
and the machinery of the courts which may be available to her in New
Jersey for her protection and that of her daughter.  In any event, the

75 Above (n 19) para 33. See also Gsponer v Johnstone above (n 13) at 768 and In re the Application of
John Walsh 31 F. Supp 2d 200 (United States District Court:  Massachusetts) (1998) para 30.
76 TB v JB (Abudction:  Grave Risk of Harm) above (n62) para 97 at 5241-525a.

undertakings given by the appellant, which formed the basis of the
conditions imposed by the court of first instance, in my view do
ameliorate to a large extent the concerns expressed by the respondent and
the potential hardships to which Alyssa might be exposed should her
return to New Jersey be ordered.  I agree fully with the submission by
counsel for the appellant and for the amicus curiae that the reasons given
by the Full Court for finding that there was a grave risk that Alyssa would
be exposed to harm or be placed in an intolerable situation were she to be
returned to New Jersey under the aegis of the protective order (framed as
a mirror order in New Jersey), are inadequate and unconvincing.
Accepting at face value the relevant allegations made by the respondent, I
am firmly of the view that she has not discharged the onus resting on her,
in terms of art 13(b) of the Convention, of showing  that the return of
Alyssa to New Jersey will expose the child to a grave risk of physical or
psychological harm or otherwise place the child in an intolerable
situation.

[55] What then is the effect (if any) on this conclusion of the ‘new’
evidence which this Court allowed both the appellant and the respondent
to adduce on appeal?  Despite the contention of counsel for the
respondent to the contrary, the fact that the appellant has, subsequent to
the date of the judgment of the Full Court, obtained a decree of divorce
against the respondent, does not in my view in itself assist the respondent
in establishing the 13(b) defence.  As indicated above, despite this
divorce order, the New Jersey courts have not yet finally adjudicated
upon and determined the key issues of custody of and access to Alyssa.  It
would, however, appear from the report of the amicus curiae to this Court
and other documentation (emanating from the United States Central
Authority) placed by the amicus curiae before us at the hearing of the
appeal, that the permanent resident’s status and work permit (‘green
card’) held by the respondent in the United States of America prior to her
departure in September 2002 might well have lapsed because of her
absence from the United States for more than 12 consecutive months.

Furthermore, it would seem that, because the appellant has obtained a
divorce from the respondent in the interim, he will not be able to
‘sponsor’ the respondent to obtain permanent residence (and a work
permit) in the United States of America – she is no longer his direct
family member.  There is therefore a possibility that the respondent will
not be permitted to return to the United States and an even stronger
possibility that, should she be allowed to return with Alyssa, this will
only be for a limited period of time and she will not legally be able to
work while in the United States.
[56]  It was for the above reasons that the draft order presented to this
Court (at our request) on behalf of the respondent, setting out the
conditions which should, in the respondent’s submission, be imposed
should this Court order Alyssa’s return to New Jersey, stipulated that
such return order should only operate once the respondent had been
granted leave to reside permanently in the United States of America and
be lawfully employed there.  The order proposed by the amicus curiae

and accepted by the appellant, on the other hand, appears to envisage
only a temporary visa enabling the respondent to reside in the United
States for a limited period (to encompass the period of the custody
proceedings).  I am of the view that, were this Court to impose a
condition along the lines of that proposed in this regard by the
respondent, this would thwart the objectives of the Convention and in
effect allow the respondent to rely on the consequences of her wrongful
removal of the child to avoid having to return to the state of habitual
residence  so as to allow the courts of that state to adjudicate upon the
issues of custody and access.77  This would amount to permitting the
respondent ‘to effectively blackmail this Court into shirking its
obligations under the Convention’.78
[57] It follows from what I have said above that, in my view, the
respondent has not established the art 13(b) defence relied upon by her

77 The circumstances of the present case can easily be distinguished from those in the case of State
Central Authority of Victoria v Ardito (Family Court of Australia, unreported 29 October 1997) where,
despite strenuous efforts on the part of the abducting mother, she was not able to obtain even a
temporary visa to return to the United States with the child she had wrongfully removed to Australia.
78 Director-General, Department of Families, Youth and Community Care v Hobbs [1999] FamCA
2059 (24 September 1999) (Family Court of Australia) para 94-102, especially para 99.

and that Alyssa’s return to New Jersey must be ordered in terms of art
12 of the Convention.  I have carefully considered the draft conditions for
such a return order prepared and filed (at our request) on behalf of the
respondent, on the one hand, and the amicus curiae and the appellant, on
the other.  In formulating the conditions which I intend to impose, I have
attempted, as far as possible, to secure the best possible interim protection
of Alyssa’s needs, while at the same time not subjecting the appellant to
unreasonable and excessive financial demands with which he has little or
no chance of complying.
[58] To a large extent, the order which we intend to make is very
similar to that made by Pillay J on 22 November 2002.  Because of the
lapse of time since that order was made, however, there have in the
interim been various changes in the circumstances of both the appellant
and the respondent, and other developments.  It has inter alia been made
clear by counsel for the respondent that, should this Court order Alyssa’s
return to New Jersey, the respondent will accompany her daughter. Thus,

certain parts of the order made by Pillay J are no longer necessary,
while other parts require amendment.  It is therefore more convenient to
replace Pillay J’s order in its entirety, despite the fact that many of the
conditions, as originally formulated, remain largely unchanged.

Costs
[59]  As indicated above,79 the appellant initially applied, via the United
States Central Authority, to the Office of the Durban Family Advocate (as
the relevant delegate of the South African Central Authority), for its
assistance in securing Alyssa’s return.  Had the Chief Family Advocate or
her delegate carried out the obligation imposed by the Convention ‘to
initiate or facilitate the institution of judicial ... proceedings with a view
to securing the return of the child’,80 the Chief Family Advocate or her
delegate would probably have brought the application for Alyssa’s return.
As pointed out by the Constitutional Court in Sonderup v Tondelli and

79 See paras [5]-[7] above.
80 Article 7(f) of the Convention.

Another,81 the Chief Family Advocate ‘is a State official acting in terms
of an International Convention which provides in art 26 that each Central
Authority should bear its own costs in applying the Convention’.82  In
terms of the regulations made under s 5 of the Act,  it is envisaged that
the Chief Family Advocate or her delegate will represent a return
applicant in any court proceedings necessary to give effect to the
provisions of the Convention in those cases where the applicant either
does not qualify for legal aid or does not wish to appoint his or her own
legal representative.83  Thus, had the Office of the Durban Family
Advocate not misconstrued its role and declined to assist the appellant,
the latter would probably have been spared most of the costs incurred by
him in the legal battles to secure Alyssa’s return to New Jersey.  This
being so, I am of the view that it would be just and equitable to order the
Chief Family Advocate and the (ultimately) unsuccessful respondent to

81 Above (n 4) para [55] at 1194I-1195A.
82 Article 26 provides further that a Central Authority may not require a return applicant to contribute
to the costs and expenses of the return proceedings, including the costs of legal representation or
advice, although payment may be demanded in respect of expenses related to implementing the child’s
return.
83  Above (n 7) regulation 5, read with regulation 2.

pay jointly and severally the costs incurred by the appellant in the
appeal to the Full Court, as well as in the appeal in this Court.
[60] The court of first instance took the view that it would be
inappropriate to make a costs order against the respondent in relation to
the application before it. Pillay J thus ordered each party to bear his or her
own costs.  There was no appeal against this order and I do not propose to
alter it in any way.
[61] As concerns the costs of the respondent’s application to this Court
for leave to adduce further evidence on appeal, and the appellant’s
conditional counter-application in this regard, I am of the view that the
most equitable outcome is that each party should pay his or her own
costs.
Order
[62] The following order is made:
A.
The appeal is upheld and the Order of the Full Court dated 14
February 2003 is set aside.

B.
The Order of Pillay J in the Durban and Coast Local Division
dated 22 November 2002 is replaced by the following order:
It is ordered and directed that the minor child, Alyssa Meryl-Dawn
Pennello (Alyssa), be returned forthwith, subject to the terms of this
Order, to the jurisdiction of the Central Authority, New Jersey, United
States of America.
2.1
The order for the return of Alyssa shall only come into operation
once Hayley Sarah-Dawn Pennello (the respondent) has been granted
leave by the relevant immigration authorities of the United States of
America to enter and remain in the United States of America until at least
the final adjudication and determination, by the New Jersey courts, of the
issues of custody and care of and access to Alyssa, including any appeal.
To this end the respondent is ordered forthwith to contact the relevant
American immigration authorities and to comply timeously with  all of
their requirements and procedures.  The Family Advocate (Kwa-Zulu
Natal) is directed to request the United States Central Authority to do

everything within its power to facilitate and expedite the granting of
such leave to the respondent by the relevant immigration authorities.
2.2
Should the respondent fail to contact the relevant immigration
authorities within seven days of this Order or thereafter fail to comply
timeously, to the satisfaction of the Family Advocate (Kwa-Zulu Natal),
with any requirements or procedures of such authorities, the order for the
return of Alyssa in terms of paragraph 1 above shall, subject to the terms
set out in the other paragraphs of this Order, come into immediate
operation.
Robert Salvatore Pennello (the appellant) shall, within 14 days of
the date of this Order, launch proceedings and pursue them with due
diligence to obtain an order of the appropriate judicial authority in the
State of New Jersey, United States of America, in the following terms:
3.1
The warrant for the arrest of the respondent is withdrawn and will
not be re-instated and the respondent will not be subject to arrest or
prosecution by reason of her removal of Alyssa from New Jersey and the

United States of America on 25 September 2002 or for any past
conduct relating to Alyssa.  The appellant will not institute or cause to be
instituted or support any legal proceedings or proceedings of any other
nature in the United States of America for the arrest, prosecution or
punishment of the respondent or any member of her family, for any past
conduct by the respondent relating to Alyssa.
3.2
The respondent is awarded interim custody of Alyssa pending the
final adjudication and determination by the appropriate court in New
Jersey of the issues of custody and care of and access to Alyssa, which
adjudication and determination shall be requested forthwith by the
appellant.
3.3
Until otherwise ordered by the appropriate court in New Jersey:
3.3.1 The appellant is ordered to arrange, and to pay any required deposit
for, suitable separate furnished accommodation (either a rented apartment
or hotel accommodation) for the respondent and Alyssa in New Jersey, in
a similar neighbourhood to that in which the former matrimonial home

was situated, and to pay all the rentals or tariffs for such
accommodation timeously and in full.  The appellant shall provide proof
to the satisfaction of the Family Advocate (Kwa-Zulu Natal), prior to the
departure of the respondent and Alyssa from South Africa, of the nature
and location of such accommodation and that such accommodation is
available for the respondent and Alyssa immediately upon their arrival in
New Jersey.  The Family Advocate (Kwa-Zulu Natal) shall (in
consultation with the Central Authority, New Jersey, United States of
America) decide whether the accommodation thus arranged by the
appellant is suitable for the needs of the respondent and Alyssa, should
there be any dispute between the parties in this regard, and the decision of
the Family Advocate shall be binding on the parties.
3.3.2 The appellant is ordered to pay maintenance for Alyssa from the
date of her arrival in New Jersey at the rate of US $102 per week or such
other amount as may reasonably be required for her maintenance and
upkeep, and failing agreement between the parties in this regard, such

amount as may be ordered by the appropriate authority responsible for
such matters in New Jersey.  The first such payment shall be made to the
respondent on the day upon which she and Alyssa arrive in New Jersey
and thereafter weekly in advance on the Monday of every week.
3.3.3 The appellant is ordered to pay maintenance for the respondent in
the sum of US $200 per month from the date of her arrival in New Jersey,
the first such payment to be made on the day upon which she and Alyssa
arrive in New Jersey and thereafter monthly in advance on the first day of
every month.
3.3.4 The appellant is ordered to pay any medical expenses reasonably
incurred by the respondent in respect of herself and/or Alyssa.
3.3.5 The appellant is ordered to provide a roadworthy motor vehicle
equipped with a child seat for Alyssa, for the use of the Respondent and
Alyssa from the date of their arrival in New Jersey, and to pay the
deposit, rental and insurance costs in respect thereof.

3.3.6 The appellant is granted reasonable access to Alyssa, which
access shall be arranged without the necessity of direct contact between
the appellant and the respondent.
3.4
The appellant is interdicted and restrained from assaulting,
threatening, harassing or abusing in any way the respondent and from
entering any residence occupied by the respondent or any place of
employment obtained by her, it being noted that the appellant makes no
admission that he has in the past engaged in any such conduct in respect
of the respondent.
3.5
The appellant and the respondent are ordered to co-operate fully
with the Family Advocate (Kwa-Zulu Natal), the United States Central
Authority, the relevant court or courts in New Jersey, and any
professionals who conduct an assessment to determine what future
custody, care and access arrangements will be in the best interests of
Alyssa.

3.6
The appellant is ordered to pay for the costs of economy class air
tickets, and if necessary, the costs of rail or other travel, for the
respondent and Alyssa to travel by the most direct route from Knysna,
South Africa, to New Jersey, United States of America.
Subject to the provisions of paragraph 2 above, the order for the
return of Alyssa to New Jersey shall be stayed until the respondent has
been granted leave (as referred to in paragraph 2 above) by the relevant
immigration authorities of the United States of America to enter and
remain in the United States of America, until the appropriate court in
New Jersey has made an order in the terms set out in paragraph 3 above,
and further until the Family Advocate (Kwa-Zulu Natal) has been
satisfied, by the submission to him or her of all relevant documents, that
such leave has been granted, that such an order has been made, and that
the appellant has taken the necessary steps to secure the accommodation
and the motor vehicle for the respondent referred to in, respectively,
paragraphs 3.3.1 and  3.3.5 above.

Pending the return of Alyssa to New Jersey, as provided for in
this Order, the respondent shall not remove Alyssa from the district of
Knysna and, until then, she shall keep the Family Advocate (Kwa-Zulu
Natal) informed of her physical address and contact telephone numbers.
Pending the return of Alyssa to New Jersey, the appellant is to
have reasonable telephone access to Alyssa.
The Family Advocate (Kwa-Zulu Natal) is directed to seek the
assistance of the United States Central Authority in order to ensure that
the terms of this Order are complied with as soon as possible.
In the event of the relevant immigration authorities of the United
States of America failing or refusing to grant leave to the respondent to
enter and remain in the United States, as envisaged in paragraph 2 above,
or in the event of the appropriate court of competent jurisdiction in New
Jersey failing or refusing to make the order referred to in paragraph 3
above, the appellant is given leave to approach this Court for a variation
of this Order.

The Chief Family Advocate of South Africa and the respondent
are ordered to pay, jointly and severally, the one paying the other to be
absolved, the costs incurred by the appellant in the appeal to the Full
Court of the Natal Provincial Division, as well as the costs incurred by
the appellant in the appeal to this Court.
No order as to costs is made in respect of either the respondent’s
application to this Court for leave to adduce further evidence on appeal,
or the appellant’s conditional counter-application to this Court for leave
to adduce further evidence on appeal.
A copy of this Order shall forthwith be transmitted by the Family
Advocate (Kwa-Zulu Natal) to the United States Central Authority and its
representative in New Jersey.

______________________
BJ VAN HEERDEN AJA
CONCUR:
MPATI DP
FARLAM JA
BRAND JA
LEWIS JA