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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

Not Reportable

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION – PORT ELIZABETH

Case No: 3245/14

3454/14

In the matter between:

THE FAMILY ADVOCATE.................................................................................Applicant

and

P[…] M[…] F[…] …..........................................................................................Respondent

and

P[…] M[…] F[…] …............................................................................................Applicant

and

J[…] K[…] F[…]

(Born M[…])............................................................................................ First Respondent

THE FAMILY ADVOCATE

PORT ELIZABETH.......................................................................... Second Respondent

MARISA DU TOIT N.O. ….................................................................Third Respondent

RONEL HERMAN N.O. …................................................................Fourth Respondent

In re: N[…] R[…] F[…]

JUDGMENT

REVELAS J

[1] There are two applications before me concerning the relocation of a minor child aged six, who is presently living in Port Elizabeth, to the United Kingdom.  The first application is brought in terms of the Hague Convention on the Civil aspects of International Child Abduction (“the Convention”) as incorporated into South African law in terms of section 275 and Schedule 2 to the Children’s Act, 38 of 2005 (“the Children’s Act”).  This application is for the return of a minor child to the jurisdiction of the Central Authority for England and Wales.  The minor child is a girl, N who was born on 28 August 2008 in the United Kingdom.  She was brought to Port Elizabeth, South Africa by her father (the respondent), from London in August this year.  Presently they both live in Bluewater Bay, Port Elizabeth, with N’s paternal grandmother.  N is in Grade one and attends school in Port Elizabeth.

[2] The applicant is the Family Advocate (Adv Marisa du Toit) whom the Central Authority of South Africa (The Chief Family Advocate) has delegated the powers to pursue the obligation of compliance with the Convention. A letter sent on 12 September 2014, written by Ms Samantha Marsh, the official solicitor at the International Child Abduction and Contact Unit (ICACU) in London was forwarded to the applicant.  The letter was addressed to the South African Central Authority requesting N’s return in terms of Article 12 of the Convention, at the behest of N’s mother, Mrs Joanna Malinowska (“the complainant”).

[3] The complainant had approached the ICACU on 4 September 2014 and based on her version, the request was made to the Family Advocate.  She has indicated that she was willing to fly to South Africa to fetch N, in the event of the application being successful.

[4] The second application is brought by the respondent, N’s father. He seeks an order to the effect that, pending the finalisation of the divorce action that has been instituted by him agaist the complainant, N should reside primarily with him as her primary caregiver.  Such an order is however dependent upon the outcome of the first application.

The Dispute

[5] The respondent and the complainant were married to each other in Port Elizabeth on 14 October 2006.  Thereafter they returned to London where both were living and working at the time.  It is common cause that before or on 9 August 2014, the respondent brought N to South Africa.  According to the complainant, N was unlawfully retained in South Africa because the respondent refused to return N to England before her  school started on 2 September 2014, in terms of the agreement the complainant had reached with the respondent before he left with N on a holiday to South Africa.  The respondent contends that N did not leave London with him just on a school holiday to South Africa, but to live there. He and the complainant had agreed to relocate to South Africa and also that he and N would leave for South Africa in July, and that the complainant would join them later.  However, he argued, the complainant had consented to N remaining in South Africa and that was the basis upon which he took N with him. Consequently the complainant’s belated changed of mind should not entitle her to retract her consent at such a late stage.

[6] The complainant and the respondent have advanced different versions as to whether N’s removal was by consent between her parents or not. Accordingly a decision will have to be made as to which version, based on a proponderance of probabilties, is the more likely one

The Applicable Principles

[7] Article 1 of the Convention provides for the prompt return of children wrongfully removed to or retained in any contracting state; and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting state.

[8] Article 2 of the Convention directs contracting states to “take all appropriate measures to secure within their territories the implementation of the objectives of the Convention.  For this purpose they shall use the most expeditious procedures available”.

[9] Articles 3, 4 and 5 apply when the removal, or retention (as is the issue in the present case) is unlawful.  Article 3 defines the unlawfulness of a removal or retention as where –

“(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or intention; and

(b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, and would have been so exercised but for the removal or retention”.

[10] Article 4 provides that the Convention shall apply to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights.  The convention shall cease to apply when the child attains the age of sixteen years.

[11] Article 5 states that for the purpose of this Convention –

(a) ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

(b) ‘rights of access’ should include the right to take the child for a limited period of time to a place other than the child’s habitual residences”.

The case of the applicant

[12] The complainant made a statement to the effect that the respondent, who had returned to South Africa during 2013 to find work, arrived in London on 18 July 2014, for a visit to both her and N.  The respondent and the complainant agreed that the respondent would take N on holiday to South Africa and N will be returned to her mother in London before school started again on 2 September 2014.

[13] The complainant alleged that she left London on 24 July 2014 (six days after the respondent arrived) to attend her best friend’s wedding in Poland on 9 August 2014 and to visit her mother.  After many arguments between herself and the respondent (she did not specify what the arguments were about) she left for Poland.  According to the comlainant, she and the respondent had agreed that he would wait with N in London for her return from Poland, and then only would he leave with N for their holiday in South Africa.

[14] However, whilst in Poland, and on the day of the wedding (9 August), she said the respondent sent her a photograph on her cellphone of N in South Africa.  She added that she “never knew the date of their flight”.  Since her return to London (she does not specify the date) she asked the respondent continuously about the date of N’s return and his answer each time was that he was still looking for cheaper tickets.  On 29 August 2014 the respondent told the complainant that “he is refusing to bring [N] back to England.  He said that if I want to see [N] I must move to South Africa, because South Africa is the country where he wants to make a home for us even when I keep asking him for a divorce”.

[15] The complainant disputes that they ever had joint plans to return to South Africa.  According to her, the respondent had left the United Kingdom to find work in South Africa because he had financial difficulties. She did not want to go to South Africa.

[16] The complainant denied that her relationship with the respondent was a happy one as contended by him and that it was simply the case that she had changed her mind at a very late stage.  She contended that she never intended to make South Africa her home.  It was submitted by the applicant on the complainant’s behalf that the respondent’s conduct in instituting divorce proceedings so soon after he and N arrived in South Africa, was suspicious

[17] It was argued by the applicant that the respondent did not discharge the onus of establishing the defence of consent or acquiescence on a preponderance of probabilities.  The consent or acquiescence referred to in Article 13(1)(a) of the Convention involves an informed consent to (or acquiescence) in the breach of the wronged party’s rights.  That does not mean that consent or acquiescence.

“Requires full knowledge of the precise nature of those rights and every detail of the guilty party’s conduct . . . . . what he or she should known at least is 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”.[1]

The case of the respondent

[18] The respondent contends that N’s removal was with the complainant’s consent.  Her refusal to relocate came as a surprise to him and it came too late. The respondent argued that N’s removal was therefore not unlawful. Accordingly, the Convention found no application in this matter. 

[19] The respondent alleged that he suspected that the complainant’s change of heart came about as a result of an affair with someone.  He was however, uncertain.  As he regarded her refusal to relocate to be incompatible with their plans and the continuation of a marriage relationship, the respondent instituted divorce proceedings against the complainant in the Regional Court, Port Elizabeth, South Africa towards the end of August this year.  On 27 August 2014, the respondent obtained an order from the aforesaid court giving him leave to institute action against the complainant by way of edictal citation and appointing him as the interim caregiver of N, pending finalisation of the divorce proceedings.

[20] The respondent came to South Africa in 2011 with N, then three years old, for a month’s holiday.  Thereafter in 2013, he returned to South Africa to find work with the intention of remaining permanently.  At the end of December 2013 N and the complainant came to South Africa to visit the respondent for approximately six weeks whereafter both returned to the United Kingdom. According to the respondent the complainant and he agreed that the complainant and N would join him as soon as N had completed her school year in England.

[21] The respondent alleged that he travelled to the United Kingdom during July 2014, not just for a visit, but to help the complainant pack their things for their relocation to South Africa.

[22] The respondent stated that as early as 2009, and also in 2011, he and the complainant had sent crates with some of their belongings to South Africa in anticipation of the move.  He attached photographs of their cartons and their contents as proof of the move to his answering affidavit. The applicant admits that boxes were sent in 2009, but not in 2011. However, the date on the freight bill depicted on the box in one of the annexures clearly shows that it was sent in June 2011.

[23] The respondent attached affidavits from three persons confirming his version about a longstanding agreement with the complainant to relocate. Each of these persons deposed to an affidavit stating that when the complainant and N were visiting South Africa at the end of 2013, the complainant had intimated that she and N would later join the respondent in South Africa, as soon as N finished her school year in London. One of the deponents was the respondent’s former wife.  It was not in dispute that the school year in the United Kingdom, and I believe elsewhere in the northern hemisphere, runs from midyear to midyear.

The Report of N’s Legal Representative

[24] Advocate J Coertzen of the Legal Aid Board was retrospectively appointed to act as N’s legal representative.  She consulted with N and filed a report wherein she recommended that N be returned to her mother in the United Kingdom.

[25] On the day the matter was argued N’s legal representative informed me that the principal of N’s school was present in Court and had advised that a social worker would be investigating N’s situation at her school since there were concerns about her care.

[26] These aspects were not reduced to evidence on oath.  I was also informed that certain hearsay evidence in the report pertaining to what was allegedly said by the respondent to the mother of N’s school friend, Holly, was incorrectly reported.  The incorrect report was that the respondent had asked Holly’s mother if N could sleep over at their place, or else she would have to sleep in his truck.  This was said in error and would therefore be disregarded.

[27]  There were however other aspects of the report which should be considered.  N seems very happy living with her father and with the living conditions at her paternal grandparents.  Persons in positions of authority at N’s school are however concerned about her welfare.  She also had lice at some stage, according to the report.  The school principal had reported to Ms Coertzen on the day of the hearing (therefore this is also not in the report) that the respondent had sent intimidating messages to someone at the school who, according to Ms Coertzen’s report, had made adverse comments about N’s situation.

[28]  Also, N had told Ms Coertzen that she will “stand by [her] father’s side”, that her mother was “evil”.  She also refused at some point to engage further with Ms Coertzen on the topic of her mother.  Her negative attitude towards her mother is not natural.  In my view, it suggests that she had probably been influenced by someone before her interview with Ms Coertzen.

The Seond Application

[29]  The respondent has indicated that he would abide by any order made in the first application. He has however, in his application to be appointed as N’s primary caregiver, raised another aspect which could also be regarded as a defence to the application for N’s return to England, quite apart from from the defence of consent raised in terms of Article 13 (1)(a) of the Convention The respondent contended that the living conditions wherein N would find herself if she had to return to London, were far from favourable and compared very poorly with her present situation.  In Bluewater Bay she has pets (a cat called Rosie, hamster and a tortoise – her dog Jack drowned in their swimming pool) and has settled in well in her safe environment.  The respondent pointed out that the complainant lives in a two-bedroom flat in a dodgy part of London where her brother rents one of the rooms in the flat for fifty pounds per month.  He emphasized the dangers in the area and said that Police visits to the neighbourhood are a daily occurrence.  He attached photographs of such visits. According to the respondent, the flats where they would live are dirty, unhygienic and very unsafe. 

[30]  Here I must point out that this was the situation before the respondent left for South Africa with N.

[31] Much emphasis was placed by the respondent on the provisions of section 28 (2) of the South African Constitution which provides that:

“A child’s best interests are of paramount importance in every matter concerning the child”.

And also on section 9 of the Children’s Act, 38 of 2005 which provides that:

In all matters concerning the care protection and well-being of a child, the standard that the child’s best interest is of paramount importance, must be applied”.

[32]  There is no express provision in the Convention which mirrors the principle that the child’s best interests “are of paramount importance” or that it becomes the primary consideration in matters such as these.  That was recognized in RE E (Children) (Wrongful Removal: Exceptions to Return)[2] where it was held that it can be assumed, if there is a dispute about any aspect of the future upbringing of the child, that the interests of the child should be of “paramount importance” in resolving that dispute.  “Those assumptions may be rebutted, albeit in a limited range of circumstances, but all of them are inspired by the best interests of the child”.[3]

[33]  The respondent has seen fit to bring an application for his appointment as primary caregiver simultaneously with the application under the Convention.  He has already obtained an interim order from the Regional Court that he is N’s primary caregiver.  At the heart of this second application lies an evaluation of N’s living conditions with her mother in England, compared to those with her father.  This comparison echoes the defence in terms of Article 13(1)(b) of the Convention, namely that there was a “grave risk that [N’s] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

[34]  In KG v CB the following was said in para [49] about this defence:

“as was discussed in Pennello v Pennello courts in other Constracting States have given a restrictive interpretation to Article 13(1)(b), by and large resisting ‘efforts to convert Article 13(1)(b) into a substitution for a ‘best interest’ determination”.

[35] Relying on a judgment of the English courts in Re (E) (supra)[4] van Heerden JA in KG v CB held that the aforesaid was the correct approach to adopt.[5] Even on a wider approach, the respondent has in my opinion not established a defence under Article 13(1)(b) of the Convention.  I am also mindful not to convert the determination of this defence into a ‘best interest’ hearing, which the respondent has rather cleverly set in motion.

The Probabilities

[36] Attached to the respondent’s application (the second application) were copies of “whatsapp” messages exchanged between him and the complainant in July 2014, wherein they discussed what work the respondent would be doing in South Africa.  He relies on them to prove that he and the complainant had planned to relocate to South Africa.  The message reflects that she offered to be his “office lady” and said he could be her “boss”.  Messages of fondness were also exchanged.  It was shortly before N’s sixth birthday (on 28 August 2014) and the respondent told the complainant that he was decorating the house for a party and that N had designed her own birthday cake.  Her response was that she wished she was with them.  Just after a message from the respondent telling her he wished she was with them, she tells him to “Get lost P[…].  You are the biggest mistake in my live (sic)”.  When he, in his response corrects her spelling of “live” to “life”!!!!” she responds by telling him “bring [N] back and go to your sunny Afriica (sic) I don’t wanna see you anymore”.  In my view this could not have been the first glimpse the respondent had of troubles between himself and the complainant.  

[37] According to the respondent, these whatsapp exchanges took place between 24 and 26 August 2014.  Not much can be proved by these messages.  By 24 August 2014, the respondent must have already seen his lawyers about a divorce.  On 26 August 2014, he already attested to an affidavit in support of his application for leave to serve summons on the complainant by way of edictal citation and to be appointed primary caregiver of N, pending the outcome of the divorce action.  This unusual expedition suggests the respondent had his plans ready some time before 24 August.  The difficulties between the complainant and the respondent, on the probabilities, did not commence only in August 2014, but prior thereto.

[38]  On the probabilities, before the complainant told him to “get lost”, the respondent is likely to have had the divorce plans in place.  In his affidavit in support of his application for edictal citation he stated that a week prior to the application, he had told the applicant to forget the man she was having the affair with and join him and N so that they could be a family. This conversation seems irreconcilable with the subsequent whatapp messages but nonetheless suggests that things were not going well with the marriage. The parties had also been living apart for a substantial period. The complainant’s version is that she had been asking for a divorce for some time and that seems very probable in the circumstances.

[39]  Generally marriage relationships do not end in divorce proceedings with the kind of abruptness and suddeness evidenced in this case. In my view, the relationship between the parties started deteriorating some time prior to the institution of the divorce proceedings, just as the complainant alleged. The respondent, more than likely was aware that the complainant was not as committed as he was to relocate to South Africa.  A divorce was on the cards. In any event, even if the complainant changed her mind at a late stage and decided not to make a life in South Africa, which would have been a life changing event of great magnitude for her, she should not forfeit her rights of custody and access under the laws of The United Kingdom.

[40] Through the actions of the respondent, the complainant now finds herself in a position where she has to contend with a custody dispute in foreign courts, and without any support system in South Africa.  In the United Kingdom the playing fields are at least more or less more equal for both of them in so far as the parties were both foreigners who had lived and worked in London cor several years. 

[41] It is not in dispute that N was habitually resident in the United Kingdom, is a British citizen (with a South African passport) and that the respondent refuses to return her to the United Kingdom More importantly N has been in South Africa for almost four months now.  Article 12(1) of the Convention provides that, where the removal of the child is wrongful and where less than one year has elapsed from the date of such removal or retention, then, subject to certain exceptions, the court concerned is obliged to order the return of the child forthwith. Any custody dispute rising from the impending divorce must clearly be determined by the laws of that country.

[42]  On the facts of this matter I have concluded that the complainant had no quarrel with N visiting her father for a holiday in South Africa, but that it is hardly likely that she would have consented to him taking N to South Africa indefinitely. The respondent had known this, or ought to reasonably have known this.  His removal of N and his subsequent refusal to return her to her mother’s care thus constitutes wrongful retention under the Convention.

[43]  In the circumstances I make the following order.

1. The minor child, N, is to be returned forthwith to the jurisdiction of the Central Authority for England and Wales.

2. The minor child is to be handed over to her mother, J[…] M[…] at Port Elizabeth within 7 (seven) days of granting of such order.

3. Ms M[…] is hereby authorized to travel from Port Elizabeth via OR Tambo International Airport at Johannesburg to London accompanied by the minor daughter N.

4. The respondent is directed to immediately make suitable travel arrangements for Ms M[…] to travel from and to the United Kingdom with N at his own cost.  Such arrangements are to be made in conjunction with Ms Marisa Du Toit.

5. That Ms Du Toit is hereby authorized in her discretion, with due regard to practical and logistical aspects, to extend any time limits. 

6. Pending the return to the United Kingdom, the respondent shall not remove N from the Nelson Mandela Metropolitan Metropol without the written consent of Ms Marisa Du Toit first being obtained, and shall furthermore keep Ms Du Toit informed of his physical address and contact telephone numbers.

7. A copy of this order shall forthwith be transmitted by the Family Advocate to the Central Authority for England and Wales.  

8. The respondent is to pay the costs of this application.

9. The respondents’ application for interim custody is removed from the roll.

10. The operation of the Regional Court order dated 28 August 2014, appointing the respondent as primary caregiver, is hereby suspended pending the outcome of the custody proceedings in the United Kingdom.

_______________________

E Revelas

Judge of the High Court

Counsel for the applicant, Adv Jooste, instructed by the State Attorneys.

Counsel for the respondent, Adv Mullins, instructed by Bester Attorneys.

On behalf of N, Adv Coertzen, instructed by Legal Aid.

Date Heard: 12 November 2014

Date Delivered: 28 November 2014

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