REPORTA
BLE
IN THE  SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No 112/2000
In the matter between:
WARREN DEAN SMITH
Appellant
and
LISA VIVIENNE SMITH
Respondent
CORAM:
HEFER ACJ,  SMALBERGER ADCJ  et  SCOTT JA
HEARD :
2 MARCH 2001
DELIVERED:      16 MARCH 2001
Hague Convention on the Civil Aspects of International Child Abduction
1980  - acquiescence by wronged parent
J U D G M E N T

SCOTT JA/...
SCOTT JA:
[1] The appellant is the father of two young children who are presently
in South Africa with their mother, the respondent.   They have been here since 20
January 1999. The appeal is against the order of Foxcroft J in the Cape Provincial
Division dismissing the appellant’s application for the return of the children to the
United Kingdom in terms of the Hague Convention on the Civil Aspects of
International Child Abduction 1980.   The Convention has the force of law in
South Africa by virtue of s 2 of 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.   The appeal is with the leave of the Court a quo.
[2] No fewer than five sets of affidavits were filed in the Court below.
The appellant embarked upon a scathing attack on the respondent alleging inter
alia that she was an unfit mother, a lazy housewife and mentally unstable. All this

was stoutly denied by the respondent who in turn accused the appellant of being
hypercritical, a “control freak”, and lacking all understanding.   Much of what is
contained in the papers is wholly irrelevant to the relief claimed. The facts giving
rise to the application may be stated shortly.
[3] The parties are both South African citizens.   They were married in
Cape Town on 6 April 1996. For the first six months of their marriage they lived
with the respondent’s parents in a suburb of Cape Town. In September 1996 the
appellant was seconded to his employer’s office in the United Kingdom. He
applied for and obtained an “ancestry” visa which allowed him in effect to reside
and work in the United Kingdom for five years. The respondent was also granted
a visa which entitled her to work and reside in the United Kingdom but it was
subject to her being married to the appellant and his remaining in the country.
Shortly after their arrival the respondent obtained employment as a freelance
secretary. However, she fell pregnant and their first child, Jay, was born on 24

June 1997. By this time the appellant had resigned from his employment and had
set up his own business as a software engineer. The respondent, too, had
resigned and was working at home for the appellant. Jay was apparently a poor
sleeper and the respondent was frequently up at night attending to him. The extent
of the role each parent played in attending to the needs of Jay is the subject of
dispute. Nonetheless, it is clear that the appellant was working long hours and of
necessity the bulk of the caring for Jay was left to the respondent. During this
period the appellant’s mother came from South Africa to stay with the young
couple for some 5 weeks.    The respondent’s parents also came to see the baby.
In addition, there were numerous other South African visitors who came to stay.
The respondent says she found it all very stressful.
[4] In January 1998 the couple travelled to South Africa for a holiday.
The appellant returned after a week but the respondent, who by then was once
again pregnant, stayed on with Jay for two and a half months, returning on 9 April

1998.
[5] The couple’s second child, Joshua, was born on 11 September
1998.  By then, or within a very short time thereafter, the marriage relationship
had all but disintegrated. In December 1998 the appellant sought and obtained
information regarding divorce proceedings from a solicitor. On 28 December he
went on a business trip to Moscow taking with him a woman, Ms Dorfman,
whom he said he proposed employing as an au-pair and whose background he
wished to investigate.   On 1 January 1999 Ms Dorfman moved in to commence
her duties as an au-pair. There is a dispute as to how this came about but it need
not be resolved. The respondent consulted a solicitor and the parties agreed that
the respondent and the children would spend a two-month holiday in South
Africa with her parents, whereafter they would return to the United Kingdom on
21 March 1999.   She left on 19 January with the children. Jay was then 18
months old; Joshua was a baby of four months.   Back in South Africa the

respondent sought professional help and guidance regarding her marriage. She
decided that it had come to an end and on 17 March 1999 advised the appellant
that she was not returning to the United Kingdom but would remain in South
Africa with the children.   She consulted an attorney in Cape Town and
commenced divorce proceedings in the High Court, Cape Town on 25 March
1999.   The appellant has since vacated the former matrimonial home and has
moved in with Ms Dorfman with whom he lives as husband and wife.
[6] The object of the Convention is plain; it is to protect children
internationally from the harmful effects of their wrongful removal from the
country of their habitual residence to another country or their wrongful retention
in another country. To this end the Convention establishes a procedure to ensure
their prompt return to the country of their habitual residence so that the issues of
custody can be adjudicated upon by the courts of that country.
[7] In terms of articles 3 and 4 the removal or retention of a child under

the age of 16 years is said to be wrongful when it is effected in breach of the
rights of custody attributed to any person, institution or body under the law of
the State in which the child was habitually resident.   Articles 6 and 7 make
provision for each contracting State to designate a central authority to discharge
the duties imposed upon it by the Convention. (In South Africa the designated
central authority is the chief family advocate appointed in terms of the Mediation
in Certain Divorce Matters Act 24 of 1987 (see s 3 of the Act).   The central
authority for England and Wales is the Lord Chancellor’s Department.) Article
8 entitles a party claiming that a child has been wrongfully removed or retained
to apply to the central authority of the State in which the child is habitually
resident or to the central authority of any other State for assistance in securing the
return of the child.   If the central authority receiving such an application has
reason to believe that the child is in another contracting State it is obliged in terms
of article 9 to transmit the application to the central authority of the State to which

the child has been removed. Under art 10 the latter central authority must take all
appropriate measures to obtain the voluntary return of the child. A party claiming
that a child has been wrongfully removed or retained may also in terms of art 29
apply directly to the judicial or administrative authorities of a contracting State for
the return of the child.
[8] Article 12 is crucial to the achievement of the Convention’s
objective.  It provides that where a child has been wrongfully removed or retained
in terms of art 3 and less than one year has elapsed between the date of removal
or retention and the date of the commencement of proceedings before the judicial
or administrative authority of the State where the child is, the authority in question
is obliged to order the return of the child forthwith.   Even if a period longer than
a year has elapsed the authority concerned is still obliged to order the return of
the child unless it is demonstrated that the child is settled in its new environment.
[9] The return of a child may be refused only on certain limited grounds.

Two such grounds are contained in article 13, which in so far as relevant
provides:
“Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the
return of the child if the person, institution or other body which opposes
its return establishes that -
a
the person, institution or other body having the care of the person
of the child was not actually exercising the custody rights at the time
of removal or retention, or had consented to or subsequently
acquiesced in the removal or retention; or
b
there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable situation.”
A judicial or administrative authority hearing an application for the return of a
child is required by art 16 not to decide on the merits of a custody claim until it
has been determined that the child is not to be returned under the Convention.
[10] As to the third ground on which the return of a child may be refused,
art 20 provides:
“The return of the child under the provisions of Article 12 may be refused

if this would not be permitted by the fundamental principles of the
requested State relating to the protection of human rights and fundamental
freedoms.”
The signatories to the Convention accordingly acknowledged in this article that
in countries such as South Africa where there is a constitution containing a bill
of rights the right of an applicant to procure the return of a child may be subject
to further limitations. In Sonderup v Tondelli and Another 2001(1) SA 1171
(CC) the Constitutional Court had occasion to consider the extent to which an
order for the return of a child under the Convention may be affected by s 28 (2)
of the Constitution. However, in view of the conclusion to which I have come in
the present case it is unnecessary to consider the constitutional issues which may
have arisen from the relief sought.
[11] It is apparent from the aforegoing that a party seeking the return of
a child under the Convention is obliged to establish that the child was habitually
resident in the country from which it was removed immediately before the

removal or retention and that the removal or retention was otherwise wrongful in
terms of art 3.   Once this has been established the onus is upon a party resisting
the order to establish one or other of the defences referred to in art 13 (a) and (b)
or that the circumstances are such that a refusal would be justified having regard
to the provisions of art 20. If the requirements of art 13 (a) or (b) are satisfied the
judicial or administrative authority may still in the exercise of its discretion order
the return of the child.
[12] In the present case it was common cause that both children were
habitually resident in the United Kingdom at the time of their retention in South
Africa and that their retention was wrongful within the meaning of art 3.   It was
contended on behalf of the respondent, however, that the appellant had
subsequently acquiesced in their retention in South Africa and that there was in
any event a grave risk that their return to the United Kingdom would expose them
to physical or psychological harm or would otherwise place them in an intolerable

situation.   The learned judge in the Court a quo found that it had been
established that there was a grave risk that the children would be placed in an
intolerable situation if removed from their mother. He was not satisfied on the
basis of the undertakings given by the appellant that there was adequate provision
for her support in England and,  as the respondent had a very real fear that she
might  not be permitted to stay in England for any length of time, had no
guarantee of employment and the means to stay in England during what might be
protracted proceedings, he held that the application had to fail.   In the course of
his judgment, the  judge disposed of the respondent’s contention that there had
been an acquiescence with the following remarks:
“... I would be loath to deny [the appellant] the opportunity of placing his
argument before me on the basis that he had, on his version, dropped the
proceedings for a week or two until being given different advice. I am
satisfied that it was always his desire to proceed with a Hague Convention
application and that the entry into negotiations after receiving the first
advice should not stand in the way of placing his argument before me.”

In this Court counsel for the respondent persisted in the contention that the
appellant had acquiesced in the retention of the children in South Africa and
urged that on this ground alone the appeal be dismissed.
[13] It accordingly becomes necessary to revert to the facts. On learning
that the respondent was not returning to the United Kingdom the appellant
immediately consulted his solicitor who on 17 March 1999 wrote to the
respondent advising that unless the children were returned within the following
week their removal -
“.... will become wrongful and we have advised our client as to the
appropriate  steps that he can take, if needs be.”
The appellant was presumably advised of his rights under the Convention.
Indeed, on 26 March 1999, being the day after the respondent commenced
divorce proceedings in Cape Town, the appellant’s solicitor wrote advising -
“Our client has therefore issued an Application under the Hague
Convention through the Child Abduction Unit of the Lord Chancellor’s

Department.”
In fact it was subsequently on 19 April 1999 that the appellant deposed to an
affidavit in support of his application to the Lord Chancellor’s Department
under art 8 of the Convention. On 22 April the application was transmitted to the
chief family advocate in South Africa in terms of art 9 and received by the latter
on 30 April.
[14] On 2 May 1999 the appellant travelled to Cape Town where he
remained until 10 May.   Before leaving for Cape Town he contacted a Durban
attorney who, according to the appellant, advised him “that a father has no
chance of having such young children returned through the procedures of the
Hague Convention and that a father would have absolutely no chance of winning
custody of such children.” On arriving in Cape Town he consulted an attorney,
Mr Gerald Shnaps. He also had several discussions with a friend who is a partner

of another firm of attorneys in that city. Both, he said, gave him similar advice
“namely, that a father would not be granted custody of such young children.”
[15] As a result of this advice, which the appellant categorized as
“incorrect”, he gave instructions to Mr Shnaps to inform the family advocate that
he was not proceeding with his application under the Convention. Mr Shnaps and
the respondent’s attorneys entered into negotiations and on 6 May 1999 a so-
called round table conference was held which was attended by the attorneys
representing both parties as well as the appellant himself and his attorney-friend.
On 11 May 1999 Mr Shnaps wrote to the family advocate advising that he had
written instructions to the effect that the appellant was no longer proceeding with
his application under the Convention and that he had returned to England. On the
same day he wrote to the respondent’s attorneys informing them of his
communication to the family advocate and advising that he would be writing
“under separate cover with regard to the action itself”.   The reference to “the

action” was clearly a reference to the respondent’s action for divorce which she
had instituted on 25 March 1999.   Subsequently the appellant was contacted by
another attorney who advised him to launch the present proceedings which he did
on 4 June 1999.
[16] There can be little doubt that the acquiescence referred to in art 13
(a) involves an informed acceptance of the infringement of the wronged party’s
rights. But that is not to say that acquiescence requires full knowledge of the
precise nature of those rights and every detail of the guilty party’s conduct.  As
observed by Stuart-Smith LJ in Re A and another (minors) (abduction:
acquiescence) [1992] 1 All ER 929 (CA) at 940 b:
“A party cannot be said to acquiesce unless he is aware, at least in general
terms, of his rights against the other parent. It is not necessary that he
should know the full or precise nature of his legal rights under the
convention...”
What he or she should know is at least that the removal or retention of the child

is unlawful under the Convention and that he or she is afforded a remedy against
such unlawful conduct.
[17] It is also necessary to observe that art 13 (b) requires no more than
that the person seeking relief should have acquiesced. Once he has done so the
requirement is satisfied and the fact that he has subsequently changed his mind
does not alter the situation. It must be remembered, of course, that an
acquiescence   in the past does not mean that the court will necessarily refuse to
order the return of the child. Its effect is no more than to “unlock the door” (as
it is sometimes expressed) to the exercise of the court’s discretion under art 13.
That discretion is to be exercised “in the context of the approach of the
convention.” (Per Lord Donaldson of Lymington MR in Re A and another,
supra, at 942 d.)
[18] In several decisions of the Court of Appeal in England a distinction
was drawn between active and passive acquiescence. In the case of the former

the uncommunicated subjective intention of the wronged parent was normally
regarded as irrelevant while in the latter the subjective intention was regarded as
relevant.   This distinction was rejected by the House of Lords in Re H and
others (minors) (abduction : acquiescence) [1997] 2 All ER 225 (HL). Lord
Browne-Wilkinson considered that art 13 looked to the subjective state of mind
of the wronged parent and that accordingly the true inquiry was simply whether
he had in fact consented to the continued presence of the children in the
jurisdiction to which they had been removed or had been retained. At 235 e  the
learned law lord said:
“In my judgment, therefore, in the ordinary case the court has to determine
whether in all the circumstances of the case the wronged parent has, in
fact, gone along with the wrongful abduction. Acquiescence is a question
of the actual subjective intention of the wronged parent, not of the outside
world’s perception of his intentions.”
And continued (at 235 g):
“In the process of this fact-finding operation, the judge, as a matter of

ordinary judicial common sense, is likely to attach more weight to the
express words or conduct of the wronged parent than to his subsequent
evidence as to his state of mind. In reaching conclusions of fact, judges
always, and rightly, pay more attention to outward conduct than to
possibly self-serving evidence of undisclosed intentions. But in so doing
the judge is finding the actual facts. He can infer the actual subjective
intention from the outward and visible acts of the wronged parent. That is
quite a different matter from imputing to the wronged parent an intention
which he did not, in fact, possess.”
I respectfully agree. Indeed, I can see no justification for importing into art 13 (a)
a rule of thumb distinction which is not to be found in the words used.
[19] To the above approach, Lord Browne-Wilkinson added one
qualification; that is the case where although the judge is satisfied that the
wronged parent did not, in fact, acquiesce his outward conduct was such as to
lead the abducting parent to believe that the wronged parent was not going to
insist on the summary return of  the child.   This was because (at 236 f) -
“[n]o developed system of justice would permit the wronged parent in
such circumstances to go back on the stance which he has, to the
knowledge of the other parent, unequivocally adopted: to do so would be

unjust.”
In the present case the appellant was aware of the Convention and that the
respondent’s conduct in retaining the children in South Africa was unlawful.    He
was aware, too, that he was afforded a remedy under the Convention.   With this
knowledge he nonetheless instructed his attorney to withdraw his application
under art 8 of the Convention and to enter into settlement negotiations with the
respondent’s attorney. These facts clearly justify the inference that the appellant,
with knowledge of his rights, in fact intended to go along with the wrongful
retention of the children in South Africa. His conduct would certainly have led the
respondent reasonably to believe that he was not insisting on their summary
return.
[20] Counsel for the appellant, however, argued that there had been no
proper acquiescence as the appellant was misled as to his rights under the
Convention by the incorrect advice given to him by his legal advisers in South

Africa. I am far from persuaded that in the circumstances outlined above it is
even open to the appellant to put in issue the correctness of the advice he
received. Quite apart from Lord Browne-Wilkinson’s ‘exception’, it strikes me
as quite unfair to require the respondent, who bears the onus, to establish what
was said or not said in the course of privileged conversations between the
appellant and his legal advisers. Nonetheless I shall assume, without deciding, that
it is permissible in these circumstances to enquire into what the appellant was told
by his legal advisers.   It is important to bear in mind that all three attorneys
consulted by the appellant were aware of the appellant’s rights under the
Convention, as was the appellant himself. The question which confronted them
was whether the appellant would succeed in obtaining an order for the summary
return of the children and indeed, if so, whether he would ultimately obtain a
custody order in his favour.   Counsel criticised the advice given (on the basis of
the appellant’s cryptic version of that advice) because it was founded on an over-

emphasis of the tender   age of Jay and Joshua. She pointed out that summary
returns are ordered under the Convention even in the case of very young children.
That is undoubtedly so, but while age is not necessarily decisive it could well be
a weighty factor when considering the exceptions under art 13 (a) and for that
matter art 20.   I can see no reason for accepting that the advice was anything
other than an informed expression of opinion as to the appellant’s prospects of
success. It is in any event quite clear from the appellant’s own evidence that his
advisers considered it very unlikely that he would ultimately obtain custody
having regard to the age of the children.    That advice can hardly be categorised
as incorrect or unreasonable and whether or not the appellant would ultimately
succeed in the custody proceedings would, of course,  have been a vital
consideration when deciding whether it was  worth persisting in the application
under the Convention. I am unpersuaded therefore that the appellant was misled
by his legal advisers. Furthermore, he elected to accept their views in preference

to what he claimed in his founding affidavit was contrary advice received from
his English solicitor.  In my judgment the respondent succeeded in discharging
the onus of establishing that the appellant acquiesced in the wrongful retention of
the children in South Africa.
[21] There remains the question of the discretion. Counsel for the
appellant very fairly conceded that in the event of it being found that there was
an acquiescence, the Court should not in the exercise of its discretion order the
return of the children to England having regard to the long lapse of time since
they were first retained in this country.   I think the concession was well made.
The Convention envisages a prompt restoration of the status quo ante so that the
questions of custody or access can be determined by the courts of the country
from which the children were removed.   Not only is there a statement to this
effect in art 1 but art 11 expressly enjoins the judicial or administrative authorities
of contracting States to act expeditiously in proceedings for the return of

children.   Furthermore, in terms of art 12 the non-discretionary obligation to
order the return of children is inapplicable if a year or more has elapsed between
the removal and the commencement of proceedings. In the present case the
proceedings were anything but expeditious. The application was launched only
some two and a half months after the respondent had made it clear that she was
not returning. Voluminous affidavits were filed and the matter was set down for
hearing on the semi-urgent role on 8 September 1999. (The final set of affidavits
was filed by the appellant on 6 September.) The hearing took two days and
judgment was delivered by Foxcroft J a little more than a week later on 17
September 1999. An application for leave to appeal was filed on 8 October 1999
but for some reason which is unexplained the application was only heard on 2
March 2000.   Leave was granted  immediately but it took until 14 July 2000 for
the record of the proceedings to be lodged with the registrar of this Court.
Finally, it was only when counsel’s heads of argument and practice note were

filed on 31 October 2000 that notice was given that the matter was urgent. By
then it was too late to place the matter on the roll for November and it was
accordingly set down for hearing in the first term of 2001.
[22] The result of all this is that more than two years have elapsed since
the children first arrived in South Africa. Joshua was then a baby of 4 months;
he is now two and a half years old. Jay was 18 months; he is now three and a half
years old. It is unlikely that either child has any recollection of having lived in
England.   Whatever the reason, their home is now with their mother in Cape
Town.  I can see no sense at this stage in sending them back to England for the
question of custody to be determined there.
[23] It is accordingly unnecessary to consider the defence raised under
art 13 (b) of the Convention.
The appeal is dismissed with costs.

D G   SCOTT
JUDGE OF APPEAL
CONCUR
HEFER
ACJ
SMALBERGER ADCJ