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Sonderup v Tondelli and another (CCT53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1) SA 1171 (4 December 2000)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 53/00
LISA TRACY SONDERUP (previously
TONDELLI) Appellant
versus
ARTURO TONDELLI First
Respondent
THE FAMILY ADVOCATE Second Respondent
Heard on : 23
November 2000
Decided on : 4 December 2000
JUDGMENT
GOLDSTONE J:
Introduction
| [1] | This appeal concerns a
four-year-old girl, who was brought to South Africa from Canada by her mother in
June 2000 and who is still
here with her mother. The question which this Court
has to consider is whether the mother is acting in violation of the provisions
of the Hague Convention on the Civil Aspects of International Child
Abduction[1] (the Convention). If so,
further questions arise including the constitutionality of the statute
incorporating the Convention into
South African
law. |
| [2] | On 18 October 2000, Jennett
J, sitting in the South Eastern Cape High Court (the High Court), ordered that
Sofia Chilo Tondelli (Sofia)
forthwith be returned to British Columbia,
Canada.[2] The order was made
pursuant to the provisions of the Hague Convention on the Civil Aspects of
International Child Abduction Act[3]
(the Act). This Act gives statutory recognition to the Convention which has
been ratified by many nations including Canada and South
Africa. The Act came
into force on 1 October 1997. In terms of section 2, the Convention, which is a
schedule to the Act, applies
in South Africa and, in terms of section 231(4) of
the Constitution[4] it has become law.
It is the meaning and effect of this Act which falls to be interpreted in this
case. |
| [3] | There were competing
applications in the High Court. Lisa Tracy Sonderup, the mother of Sofia (the
mother) claimed an order granting
her custody of Sofia. Arturo Tondelli, the
father of Sofia (the father), sought in a counterclaim to have an order of the
Supreme
Court of British Columbia awarding him custody of Sofia made an order of
the High Court, and to have Sofia returned forthwith to
British Columbia. The
Chief Family Advocate[5] (the Family
Advocate), who is designated by section 3 of the Act as the Central Authority
for the Republic,[6] brought her own
application for the return of Sofia to British Columbia in terms of Article 12
of the Convention. It was the last-mentioned
application that was granted by
the High Court. |
| [4] | On 9 November 2000 the
mother sought leave to appeal directly to this Court in terms of rule 18 of the
Rules of the Constitutional
Court. In considering the mother’s
application, we came to the conclusion that there is a constitutional issue to
be determined
in the appeal and that this Court therefore has jurisdiction to
entertain the matter. We were further of the view that it is in
the interests
of justice and of Sofia that this litigation should be finalised as soon as
possible. The father and the Family Advocate
did not object. Accordingly this
appeal was set down for hearing in this Court on an expedited basis. The father
did not appear
in this Court and filed a consent to abide our decision. We are
indebted to counsel appearing for the mother and the Family Advocate
for having
filed helpful argument in the short time available to
them. |
The Background
| [5] | The mother was born in South
Africa and the father in Italy. They were married to each other in South Africa
on 19 June 1989. They
lived for some years in Italy and in July 1997 they
emigrated to Canada. They made their home at Owl Ridge, Mount Currie in British
Columbia. The marriage foundered and during 1998 they
separated. |
| [6] | On 7 July 1999 a consent
paper was made an order of the Supreme Court of British Columbia. In terms
thereof, the mother was granted
sole custody of Sofia and the father rights of
access to her. They were granted joint guardianship and the father was ordered
to
pay maintenance for the child. It was further provided
that: |
“. . . neither the Plaintiff (the father) nor the Defendant (the mother)
shall remove the Child from the Province of British
Columbia without further
Court Order or the written agreement of the parties except that either party
will be permitted to travel
outside of British Columbia with the child once per
year for a period not to exceed 30 days.
. . . if the Child is taken out of Canada for a period exceeding 30 days,
without further court Order or written consent of both
parties permitting the
same, the child will have been wrongfully removed from the Province of British
Columbia, Canada, in contravention
of the Convention [on] the Civil Aspects of
International Child Abduction (Convention).
. . . the state of habitual residence of the Child, within the meaning of the
Convention, is the Province of British Columbia,
Canada.”
| [7] | On 31 May 2000, the mother
and the father were divorced in the Supreme Court of British Columbia. The
order of 7 July 1999 was left
in place. In June 2000, the father sought an
urgent order from the Supreme Court of British Columbia restraining the mother
from
removing Sofia from British Columbia. The application was settled and by
consent it was ordered on 9 June 2000 that an investigation
be conducted into
issues of custody of and access to Sofia and that they be set for trial at the
earliest date. It was further ordered
that: |
“. . . the Defendant (the mother) be allowed to travel to South Africa
with the Child, for a one-month period from June 12,
2000 and returning July 14,
2000 on the following conditions:
(a) the Plaintiff (the father) will have sole custody of the Child in the event
that the Child is not returned to British Columbia
by July 14,
2000;
(b) the Defendant will deposit the sum of $5,000.00 with her counsel to be held
by him or her as security for the return of the Child
and be immediately paid
over to the Plaintiff or his counsel if the Child is not returned to British
Columbia on or about July 14,
2000.”
| [8] | The mother and Sofia left
for South Africa where they moved in with the mother’s family in Port
Elizabeth. When it became clear
to the father that neither Sofia nor the mother
was returning to Canada, he approached the Supreme Court of British Columbia and
on 21 July 2000 obtained an order, without notice to the mother, to the effect
that he was awarded sole custody and guardianship
of Sofia, ordering the mother
forthwith to deliver Sofia to the father and providing for the arrest of the
mother in the event of
her breaching the order. |
| [9] | Thereafter, the Family
Advocate received a request, in terms of the Convention, from the Central
Authority of British Columbia, for
steps to be taken to ensure the prompt return
of Sofia to British Columbia. |
The
Convention
| [10] | According to its preamble,
the purpose of the Convention is to protect children from the harmful effects of
their wrongful removal
or retention and to ensure their prompt return to the
state of their habitual residence. I agree with L’Heureux-Dubé
J’s comments in Thomson v
Thomson[7]
that: |
“. . . the necessity of international agreements with regard to the
abduction of children has been abundantly demonstrated
particularly in recent
years. The increase in rapid international transportation, the freer crossing
of international boundaries,
the continued decrease in documentation
requirements when entering foreign jurisdictions, the increase in
‘international families’,
where parents are of different countries
of origin, and the escalation of family breakups worldwide, all serve to
multiply the number
of international abductions.”
| [11] | The Convention provides for
a mandatory return procedure whenever a child has been removed or retained in
breach of the rights of
custody of any person or institution “under the
law of the State in which the child was habitually resident immediately before
the removal or retention” and where those rights were actually being
exercised or would have been but for the removal or retention.
These rights,
according to the Convention may arise by operation of law, by judicial or
administrative decision or by an agreement
having legal
effect.[8] The Convention defines
“rights of custody” to “include rights relating to the care of
the person of the child
and, in particular, the right to determine the
child’s place of
residence.”[9] In applying the
Convention “rights of custody” must be determined according to this
definition independent of the meaning
given to the concept of
“custody” by the domestic law of any state party. Whether a person,
an institution or any other
body has the right to determine a child’s
habitual residence must, however, be established by the domestic law of the
child’s
habitual residence. As L’Heureux-Dubé J correctly
points out: |
“[h]owever, although the Convention adopts an original definition of
‘rights of custody’, the question of who holds the . . .
‘right to determine the child’s place of residence’ within the
meaning of the Convention is in principle
determined in accordance with the law
of the state of the child’s habitual place of residence . .
.”[10] (Emphasis
added)
At all material times Sofia’s habitual place of
residence was British Columbia, and the law of that province prohibited her
from
residing in any other place without the authority of an order of court or
written agreement between the mother and the father.
| [12] | Where a child has been
wrongfully removed or retained in terms of Article 3, and a period of less than
a year after the wrongful removal
or retention has elapsed, the judicial or
administrative authorities of the requested state “shall order the return
of the
child forthwith.”[11]
Such judicial or administrative authority is granted a discretion to refuse to
order such return by the provisions of Article 13.
It reads 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 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.
The judicial or administrative authority may also refuse to order the return of
the child if it finds that the child objects to being
returned and has attained
an age and degree of maturity at which it is appropriate to take account of its
views.
In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account
the information relating to
the social background of the child provided by the Central Authority or other
competent authority of
the child’s habitual
residence.”[12]
A
further ground for refusing to return a child is to be found in Article 20. It
provides that:
“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.”
| [13] | Article 6 requires states
parties to designate a Central Authority to discharge the duties imposed by the
Convention. As already
indicated, in South Africa the Act designates the Family
Advocate for this purpose.[13] In
British Columbia, according to the papers before the Court, the Attorney-General
has been so
designated.[14] |
| [14] | Under Article 7 the Central
Authorities are to co-operate with each other and promote co-operation amongst
the competent authorities
in their respective states to secure the prompt return
of children to achieve the objects of the
Convention.[15] Thus, under the
Convention, the Family Advocate must act on behalf of the Central Authority of
the requesting state to facilitate
the return of children. Contrary to the
neutral role that the Family Advocate takes in domestic matters, the Family
Advocate may
be obliged to adopt an adversarial role and oppose the wishes of
the parent opposing such
return.[16] |
| [15] | In addition, Article 7
requires the Central Authorities, directly or through an intermediary, amongst
other things, “to exchange,
where desirable, information relating to the
social background of the
child”.[17] This requirement
for co-operation between Central Authorities suggests that the Family Advocate
ought, where possible, to liaise
with the Central Authority of the requesting
state, here the Attorney-General of British Columbia, to obtain any reports with
relevant
information. Reports containing the objective assessment of facts that
are in issue would greatly assist the courts. Under the
Convention, it is
reasonable to expect the Family Advocate to initiate the exchange of information
and provide the results of those
inquiries to the courts. It would also be most
helpful for the Central Authority of the requesting state to furnish a court
considering
an Article 13 exemption with any relevant information relating to
the circumstances of the child. This is envisaged by Article 13
itself, which
states: |
“ . . .
In considering the circumstances referred to in this Article, the judicial and
administrative authorities shall take into account
the information relating to
the social background of the child provided by the Central Authority . . . of
the child’s habitual
residence”.[18]
The
Proceedings in the High Court
| [16] | By agreement, the High
Court considered only the urgent application brought by the Family Advocate, in
which she sought an order for
the return of Sofia to British Columbia in terms
of Article 12 of the Convention. It was accepted that if the Family
Advocate’s
application was granted, the mother’s application and the
father’s counter-application would fall to be
dismissed. |
| [17] | The mother challenged the
application of the Family Advocate, arguing that to order Sofia back to Canada
under the Convention would
amount to making an order in conflict with section
28(2) of the Constitution[19]
because such a return would be against the child’s best interests.
Jennett J held that there is no conflict between the Convention
and section
28(2) of the Constitution, since under both instruments, the interests of
children are of paramount importance in determining
custody. He recognised,
however, that the central issue of the case before the court was not to decide
who should have custody but
rather to decide which court should consider the
merits of custody. Jennett J determined that the best interests of the child
would
be to allow the court that could best dispose of the case to do so. He
held that the Convention is reconcilable with section 28(2)
of the
Constitution. |
| [18] | Jennett J also decided
that, given the evidence before him, it was not inconsistent with Sofia’s
best interests that issues
relating to the father’s access and custody be
considered by the Supreme Court of British Columbia. Accordingly, he concluded
it was in her best interests to grant the Family Advocate’s application
and order the return of Sofia to British Columbia.
In his order, he recorded
the terms of a number of undertakings given by the
father.[20] |
The
Issues
| [19] | The issues before this
Court are the following: |
(1) Whether the provisions of the Convention apply in the present case;
(2) If so, whether, as incorporated by the Act, they are consistent with the
Constitution;
(3) Whether these provisions require the return of
Sofia.
The Applicability of the
Convention
| [20] | The mother denies that the
father possesses any “rights of custody” as defined in the
Convention and thus asserts that neither the removal of Sofia from British
Columbia nor her retention in South Africa
are wrongful. Consequently, so she
claims, the Convention has no application in this
matter. |
| [21] | As stated above, the
Convention defines “rights of custody” to include, in particular,
“the right to determine the
child’s place of
residence”.[21] In this case
there was a non-removal (“ne exeat”) provision in the order of the
Supreme Court of British Columbia of
7 July
1999.[22] It has been held by
courts in several jurisdictions that such a non-removal provision can, depending
on the circumstances, confer
a right of custody within the meaning of the
Convention.[23] |
| [22] | In urging this Court to
find that the Convention does not apply, the mother relies on the recent case of
Croll v Croll[24] in which
the United States Court of Appeals for the Second Circuit held, contrary to the
weight of authority, that a non-removal
provision does not found a right of
custody. |
| [23] | In the court a quo, Jennett
J dismissed this argument, preferring to follow the approach taken in the
dissent of Sotomayor J. In
his judgment, Sotomayor J said
that: |
“rights arising under a ne exeat clause include the ‘right to
determine the child’s place of residence’ . . . A parent’s
ne exeat rights fit comfortably within the category of rights the
Convention seeks to
protect”.[25]
This
followed, according to Sotomayor J, because when a parent takes a child abroad
in violation of ne exeat rights, that parent effectively
nullifies the custody
order of the country of habitual residence – exactly the mischief the
Convention seeks to avoid.
| [24] | In any event, the facts in
Croll are not identical to those in the present case. Here, we are not
dealing only with a non-removal provision in a final custody agreement.
In this
case we have an interim agreement between the parties that Sofia would be
returned to her country of habitual residence
by a particular date, and that
“the issues of custody and access be set for trial at the earliest dates .
. . available for
counsel and the court
registry”.[26] That agreement
was made an order of the Supreme Court of British
Columbia. |
| [25] | The “rights of
custody” as defined in the Convention may, according to Article 3, arise
either by court order or by agreement
having a legal effect under the law of the
requesting state. It is not in dispute in this case that both the agreement and
the order
incorporating it constituted the basis upon which the mother was to
retain custody of Sofia and upon which the father was entitled
to exercise
rights of access to her. In effect the mother was entitled to exercise her
rights of custody (in the sense of caring
for the daily needs of Sofia) only in
British Columbia, save for the period from 12 June 2000 to 14 July 2000. Her
failure to return
to British Columbia with the child on the latter date was a
breach of the conditions upon which she was entitled to exercise her
rights of
custody and a concomitant breach of the father’s rights under the
agreement and order. It therefore constituted
a wrongful retention by her of
Sofia outside British Columbia as contemplated by Article 3 of the
Convention.[27] I conclude
therefore that the Convention is
applicable.[28] |
The
Constitutionality of the Act and the Effect of Section 28(2)
| [26] | It is now necessary to
consider the submission on behalf of the mother that the Act is inconsistent
with the Constitution. The only
basis upon which this submission was made was
that the Act obliges our courts to act in a manner which does not recognise the
paramountcy
of the best interests of the child. |
| [27] | That the Constitution is
our supreme law is made clear from section 2 which provides
that: |
“This Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations
imposed by it must be
fulfilled.”
As was stated by Mohamed CJ:
“This inquiry must crucially rest on the Constitution of the Republic of
South Africa Act . . . It is supreme—not Parliament. It is the
ultimate source of all lawful authority in the
country.”[29] (Emphasis in the
original)
It follows that if the Act or any of its provisions are
inconsistent with a provision of the Constitution, such inconsistency would
have
to be justifiable under the provisions of section 36 of the
Constitution[30] in order for the
Act to be constitutionally valid.
| [28] | 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 matters. The Convention clearly recognises and
safeguards the paramountcy of the best interests of children in
resolving
custody matters. It is so recorded in the preamble which affirms that the
states parties who are signatories to it, and
by implication those who
subsequently ratify it, are “[f]irmly convinced that the interests of
children are of paramount importance
in matters relating to their
custody.” As was stated by Donaldson MR in Re
F:[31] |
“I agree with Balcombe LJ’s view expressed in Giraudo v Giraudo .
. . that in enacting the 1985 Act [giving effect to the Convention],
Parliament was not departing from the fundamental principle that
the welfare of
the child is paramount. Rather it was giving effect to a
belief—
‘that in normal circumstances it is in the interests of children that
parents or others shall not abduct them from one jurisdiction
to another, but
that any decision relating to the custody of the children is best decided in the
jurisdiction in which they have
hitherto been habitually resident.’
”
| [29] | What, then, of the
short-term best interests of children in jurisdictional proceedings under the
Convention? One can envisage cases
where, notwithstanding that a child’s
long-term interests will be protected by the custody procedures in the country
of that
child’s habitual residence, the child’s short-term interests
may not be met by immediate return. In such cases, the
Convention might require
those short-term best interests to be overridden. I shall assume, without
deciding, that this argument
is valid. To that extent, therefore, the Act might
be inconsistent with the provisions of section 28(2) of the Constitution which
provide an expansive guarantee that a child’s best interests are paramount
in every matter concerning the child. I shall proceed
therefore to consider
whether such an inconsistency is justifiable under section 36 of the
Constitution,[32] which requires a
proportionality analysis and weighing up of the relevant
factors. |
| [30] | In conducting this
proportionality analysis, section 36 enjoins this Court to consider the
importance of the purpose of the limitation,
and the relationship between the
limitation and its purpose.[33] The
purpose of the Convention is important. It is to ensure, save in the
exceptional cases provided for in Article 13 (and possibly
in Article
20),[34] that the best interests of
a child whose custody is in dispute should be considered by the appropriate
court. It would be quite
contrary to the intention and terms of the Convention
were a court hearing an application under the Convention to allow the
proceedings
to be converted into a custody application. Indeed, Article 19
provides that: |
“A decision under this Convention concerning the return of the 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.
| [31] | 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. |
| [32] | There is also a close
relationship between the purpose of the Convention and the means sought to
achieve that purpose. The Convention
is carefully tailored, and the extent of
the assumed limitation is substantially mitigated by the exemptions provided by
Articles
13 and 20.[35] They cater
for those cases where the specific circumstances might dictate that a child
should not be returned to the State of the
child’s habitual residence.
They are intended to provide exceptions, in extreme circumstances, to protect
the welfare of children.
Any person or body with an interest may oppose the
return of the child on the specified grounds. |
| [33] | The nature and extent of
the limitation are also mitigated by taking into account section 28(2) of our
Constitution when applying
Article 13. The paramountcy of the best interests of
the child must inform our understanding of the exemptions without undermining
the integrity of the Convention. The absence of a provision such as section
28(2) of the Constitution in other jurisdictions might
well require special care
to be taken in applying dicta of foreign courts where the provisions of the
Convention might have been
applied in a narrow and mechanical
fashion. |
| [34] | Moreover, in the
application of Article 13, 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.[36] Our courts should
not trivialise the impact on children and families of violence against women.
In S v Baloyi[37] this Court
quoted the following statement with approval: |
“Domestic and family violence is a pervasive and frequently lethal problem
that challenges society at every level. Violence
in families is often hidden
from view and devastates its victims physically, emotionally, spiritually and
financially. It threatens
the stability of the family and negatively impacts on
all family members, especially the children who learn from it that violence
is
an acceptable way to cope with stress or problems or to gain control over
another person.”
Where there is an established pattern
of domestic violence, even though not directed at the child, it may very well be
that return
might place the child at grave risk of harm as contemplated by
Article 13 of the Convention.
| [35] | A South African court
seized with an application under the Convention is obliged to place in the
balance the desirability, in the
interests of the child, of the appropriate
court retaining its jurisdiction, on the one hand, and the likelihood of
undermining the
best interests of the child by ordering her or his return to the
jurisdiction of that court. As appears below, the court ordering
the return of
a child under the Convention would be able to impose substantial conditions
designed to mitigate the interim prejudice
to such child caused by a court
ordered return.[38] The
ameliorative effect of Article 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. |
| [36] | For the above reasons I am
satisfied that the limitation is manifestly reasonable and justifiable in an
open and democratic society
based on human dignity, equality and freedom.
Therefore, I conclude that the Act incorporating the Convention is consistent
with
the Constitution. |
| [37] | It was argued on behalf of
the mother that the provisions of Article 20 require the provisions of section
28(2) of the Constitution
to be applied as a further exception to the obligation
to return the child to the state of habitual residence. In the light of the
above analysis the argument based on Article 20 takes the matter no
further. |
The Reliance on Article 13
| [38] | Within the parameters of
the Convention, the mother submitted that there should not be an order for the
return of Sofia because she
would be at grave risk of psychological harm and
would be placed in an intolerable situation should she be returned. The factual
matrix upon which the mother’s claim is based is to be found in the
affidavits and documentary material placed before the High
Court. Much of it is
disputed by the father and none of it has been tested by viva voce
evidence. |
| [39] | Counsel for the mother, in
argument in this Court, relied upon the following allegations of the
mother: |
(1) A physical assault upon her by the father on one occasion during June 1998.
(An allegation by the mother of an earlier assault
was not relied upon by
counsel. It occurred soon after the Tondellis took up residence in British
Columbia, and resulted in the
mother having a bruised thigh.) The June 1998
incident resulted in a peace bond being placed upon the father. It was issued
on
30 July 1998 and was the consequence of the father, during an argument,
having “grabbed my arm and [thrown] me onto the kitchen
counter”;
(2) A second peace bond was issued on 11 May 2000 and was the consequence of
alleged threatening behaviour on the part of the father.
In her affidavit in
the High Court, the mother alleged that the peace bond was granted in the light
of the following conduct by
the father (who is referred to as the First
Respondent):
“23.1 Over the period 1 November 1999 to 25 March 2000 [he] verbally and
psychologically abused and intimidated me. Explanations
thereof are the
following:
23.1.1 First Respondent informed me that if I wouldn’t live with him, I
would not live with any other man.
23.1.2 He informed me that there wouldn’t be a divorce until I did
things the way he wanted me to do them.
23.1.3 First Respondent followed and watched me and phoned me incessantly.
He once queried me where my car was and who was driving
it, and stated that he
saw my car outside my home.
23.1.4 First Respondent’s tone of voice and body language towards me
was often threatening and intimidating. On occasion he
did not want to leave my
shop and I was compelled to call in the assistance of the police to do
so.
23.2 [He] was inclined to insult hunters, whom he never liked. First Respondent
informed me that he on occasion sabotaged a hunter’s
summer house by
sealing all the locks and bolts of the door with super glue, so that the hunters
had to break the door down to get
into the
house.
23.3 [He] informed me that he had thrown light bulbs filled with brake fluid on
hunters’ cars that were parked near our property.
He told me that he
threw the light bulbs on the cars because the brake fluid would eat the paint on
the cars. First Respondent
used a syringe and injected the brake fluid into the
bulbs.”;
(3) During the proceedings for the second peace bond, the judge who heard the
matter commented adversely on the father’s conduct
in court. She
said:
“Mr. Tondelli, unfortunately, appears to have no insight into the effect
his actions have on others. Today in the courtroom
he clearly displayed anger,
frustration and hostility. I understand he is upset at the present state of his
access to his daughter,
but at times he appeared to be barely in
control.”;
(4) In her replying affidavit the mother refers to incidents where the father
allegedly lost control of himself and broke a kitchen
tap, threw framed
photographs on the floor and broke them and hit his fist through the top of a
washing machine;
(5) While watching a movie, the father made a remark approving of the physical
and verbal abuse of a woman;
(6) The father cut the telephone lines of a woman with whom he had had an
argument;
(7) Statements allegedly made by the father to a newspaper journalist during the
proceedings in the High Court to the effect that
“I don’t care if
she [the mother] gets arrested [on her return to Canada] or not although it will
be to the detriment
of little Sofia. I will fight this matter to the bitter
end.”;
(8) The mother’s strong objection to returning to Canada where she was
desperately unhappy, alone and isolated. She has “no
real friends and
family there” and no support system;
(9) The father “has been telling all those concerned that [the mother] was
either paranoid or schizophrenic and that [she has]
a great mental instability.
. .”;
(10) Sofia is a special needs child who requires constant supervision and
treatment. She is receiving such treatment in Port Elizabeth.
In Owl Ridge, on
the other hand, there are no comparable facilities;
(11) Sofia’s condition improved after she came to Port Elizabeth and has
again deteriorated after the father’s arrival
there to contest the High
Court proceedings;
(12) If she is forced to return with Sofia to Canada, she will be completely
dependent upon the father for the financial needs of
herself and
Sofia.
| [40] | The mother’s counsel
relied also on the report of Mr Ian Meyer, a clinical psychologist practising in
Port Elizabeth. Based
upon the information furnished to him by the mother and
her parents, he expresses the view that the evidence is overwhelmingly in
favour
of the mother remaining the sole custodial parent. He states further that the
continuation of the status quo in Canada would
have a severely compromising
effect on the healthy psychological development of
Sofia. |
| [41] | Finally, counsel referred
to the likelihood of the mother being arrested upon her return to Canada for
being in contempt of the order
granted by the Supreme Court of British Columbia
on 9 June 2000.[39] He also drew
attention to the ex parte order made by the Supreme Court of British Columbia on
21 July which took away her rights
of custody and co-guardianship of
Sofia.[40] He submitted that it
would be unfair and unjust to expect the mother to return to live in
Canada. |
| [42] | The question we have to
decide is whether, on her allegations, the mother has established, under Article
13 of the Convention, that
there is a grave risk that Sofia’s return to
Canada will expose her to psychological harm or otherwise place her in an
intolerable
situation. |
| [43] | 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 returned to that jurisdiction so
that the law can take its course. It makes provision,
however, in Article 13
for exceptional cases where this will not be the
case. |
| [44] | An Article 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.[41] |
| [45] | I accept that the mother
finds herself in a most difficult situation. The relationship between her and
the father is clearly hostile.
In addition the mother’s difficulties are
exacerbated by the absence of a family or support system in British Columbia.
On
her allegations, her reasons for leaving British Columbia are not difficult
to understand. That, however, is not the issue. The
question is whether the
mother has established the elements for exemption under Article
13. |
| [46] | There is no suggestion that
Sofia will suffer physical harm if she is returned to British Columbia. The
psychological harm which
it is said that Sofia will suffer if she is returned to
Canada is not harm of the serious nature contemplated by Article 13. It
is 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. |
| [47] | I have thus come to the
conclusion that the facts are insufficient to support a finding that the return
of the child to British Columbia
involves the grave risk of the harm referred to
in Article 13. I base this view upon the following specific
considerations: |
(1) There are no allegations at all which suggest that the father has abused
Sofia either physically or psychologically. Mr Meyer
refers in his report to
the father having “taken a more involved role with his daughter, albeit
predominantly subsequent to
the parties separating. He clearly has a keen love
for his daughter and interest in her progress.” The return of Sofia to
the proximity of her father does not in itself pose a grave risk of harm to
her;
(2) The problems which Sofia may experience are the consequence of the tension
and trauma which is associated with the relationship
between her mother and
father. There is nothing to suggest that if Sofia and her mother return to
British Columbia the mother and
father need associate with one another;
(3) The mother nowhere suggests that she fears for her physical safety when she
is not in physical proximity with the father;
(4) The child’s special needs can adequately be catered for in British
Columbia;
(5) This Court can make an appropriate order to address some of the concerns of
the mother with regard to her possible arrest on
her return to British Columbia,
her needs and those of Sofia pending a determination of the custody and
guardianship of Sofia by
the Supreme Court of British Columbia, and ensuring
that finality with regard thereto should be reached expeditiously;
(6) The order which I propose we should make will render enforceable the
undertakings of the father which were recorded in the order
of the High
Court;
(7) Although there is evidence that Sofia is adversely affected by the
interaction between her parents, it has not been established
that if returned
to British Columbia, Sofia will suffer psychological harm of a serious nature or
that she will otherwise be placed
in an intolerable situation. I have come to
this conclusion on the basis of accepting at face value the relevant allegations
made
by the mother.
| [48] | Accordingly, I am of the
opinion that the mother has not satisfied the grave risk requirement and that it
is in the best interests
of Sofia that the Supreme Court of British Columbia
should determine questions relating to her future custody and guardianship.
That court is already seized of the matter, and the relevant incidents took
place within its jurisdiction. It is clearly in a better
position than a South
African court to resolve the serious disputes of fact between the mother and the
father. It could also consider
an application by the mother for the permanent
removal of Sofia to South Africa. |
The Form of
the Order
| [49] | The following order was
made by Jennett J in the High Court: |
“1. It is ordered and directed that the minor child, Sofia Tondelli, be
forthwith returned to the jurisdiction of the Central
Authority, British
Columbia, Canada.
2. In the event of applicant being willing to accompany the minor child Sofia
Tondelli on her return to British Columbia, which willingness
applicant must
communicate to both first and second respondents on or before Wednesday 25
October 2000 it is ordered that the minor
child Sofia Tondelli will remain in
the de facto custody of applicant pending the final adjudication and
determination of the Supreme
Court of British Columbia, Canada of the issues of
custody and care of and access to the said child which adjudication and
determination
applicant and first respondent, or either of them, must request
forthwith.
3. In the event of 2 above i.e. Applicant being willing to accompany the minor
child Sofia Tondelli on her return to British Columbia,
the following
undertakings given by First respondent are recorded:
-
(a) He will not seek to enforce against respondent the Order of the Supreme
Court of British Columbia dated 21 July 2000 in terms
of which he was granted
custody of Sofia and he will not seek to remove Sofia from the day to day care
of applicant save for the
purpose of exercising his rights of reasonable access
to Sofia.
(b) He will not institute or support any proceedings, whether criminal or
contempt of court proceedings, for the punishment of applicant
or any member of
her family, whether by imprisonment or otherwise, for any matter arising out of
the removal by applicant of Sofia
from British Columbia and her retention
therefrom on or after 14 July 2000. In particular he will not proceed with any
charges against
applicant in respect of her breach of any of the previous Orders
of the Supreme Court of British Columbia and he will take all steps
that he
reasonably can for the withdrawal of any criminal charges pending against her in
this regard.
(c) He will arrange separate accommodation for applicant and Sofia in British
Columbia, close to an appropriate school for Sofia
and he shall contribute 500
Canadian dollars per month to applicant’s expenses pertaining to such
accommodation. He will also
pay maintenance for Sofia from the date of her
arrival in British Columbia until the final adjudication of the issue of the
custody
and care of Sofia by the Supreme Court of British Columbia at the rate
of 500 Canadian dollars per month and he will contribute towards
the cost of
schooling for Sofia and also the cost of all her reasonable educational and
extramural requirements.
(d) He will provide for the use by applicant of a roadworthy motor vehicle from
the date of applicant's arrival in British Columbia
for a period of 2 months or
until the adjudication of the custody issue, whichever may be the later, and he
will share the expense
of running such vehicle equally with
applicant.
(e) He will pay for any medical expenses reasonably incurred by applicant in
respect of Sofia and in the event of her receiving therapy
he will bear the
costs of such therapy.
(f) He will co-operate fully with the Ministry of Children, British Columbia and
with any professionals who conduct an assessment
in order to determine what
future custody, care and access arrangement will be in the best interests of
Sofia.
(g) He will contribute, if so required and so notified as provided in paragraph
2 hereof, towards the cost of air tickets and if
necessary, also rail and road
tickets for the return of applicant and Sofia from Port Elizabeth to British
Columbia. Details of
the travel arrangements in this regard will be made by
first respondent and specified to applicant's attorneys no later than 3 working
days before the date of departure of the flight upon which applicant and Sofia
are to depart from Port Elizabeth.
(h) He will upon receipt of this Court Order, at his own expense, take all steps
necessary to cause this order to be made an order
of the Supreme Court of
British Columbia, Canada, insofar as that is possible, and he will take such
other steps as are necessary
to ensure that this order is enforced in the
Province of British Columbia, Canada and to provide proof thereof to applicant's
attorneys
and to this Court as soon as such Order of the said Canadian Court has
been granted, that such necessary steps have been
taken.
4. In the event of Applicant requiring first respondent to implement his
undertaking in paragraph 3(g) above applicant is ordered
to return the minor
child Sofia Tondelli to British Columbia, Canada on the tickets provided and the
flights and other means of transport
specified.
5. In the event of applicant failing to notify first and second respondents of
her willingness to accompany the minor child Sofia
Tondelli on her return to
British Columbia, Canada, it is to be accepted that applicant is not prepared to
so accompany the said
minor child in which event second respondent is authorised
to make such arrangements as are necessary to ensure that the minor child,
Sofia
Tondelli, is safely returned to the custody of the Central Authority, British
Columbia, Canada and to take such steps as are
necessary to ensure that such
arrangements are complied with.
6. Pending the return of the minor child Sofia Tondelli to British Columbia,
Canada as provided for in this Order, applicant shall
not remove Sofia from the
district of Port Elizabeth and she shall until then keep first respondent's
attorney informed of her physical
address and contact telephone numbers in Port
Elizabeth.
7. Pending the return of the minor child Sofia Tondelli to British Columbia,
Canada first respondent is to have reasonable access
to the said minor child,
such access to be under the supervision of a suitably independent person
nominated by Ian Meyer, Clinical
Psychologist, which access will be exercised in
accordance with such person's reasonable
requirements.
8. The costs of second respondent in this counter-application are to be paid by
applicant.
9. No order is made on applicant's application or on first respondent's
counter-application but applicant is ordered to pay the costs
of both first
respondent and second respondents in opposing applicant's application, which
cost in the case of first respondent are
to include the costs of employing two
counsel.”
| [50] | I agree that there should
be an order for the return of Sofia to British Columbia. However, as the mother
appears to be intent on
accompanying Sofia, it is in Sofia’s interests
that her mother be given greater protection than that provided by the order
of
the High Court. On the evidence before this Court, I cannot find that the
mother is acting unreasonably in not being content
to rely upon the undertakings
of the father. |
| [51] | Section 38 of the
Constitution provides that, where anyone approaches a court alleging that a
right in the Bill of Rights has been
infringed, that court may grant appropriate
relief.[42] Pursuant to section 38,
read with section 28(2),[43] this
Court is entitled to impose conditions in the best interests of Sofia. Such
conditions should be consistent with, and not hamper,
the objectives of the
Convention, and in particular, should not unnecessarily delay the return of the
child to the proper
jurisdiction.[44] |
| [52] | The order should ensure
that the mother can return to British Columbia without the risk of arrest. If
she accompanies Sofia, she
and Sofia should not be required to leave South
Africa before there is an appropriate order of the Supreme Court of British
Columbia
to the effect that criminal proceedings are no longer pending against
the mother for her failure to comply with the order of that
court dated 9 June
2000. Such an order is consistent with the undertakings given by the father in
the High Court. In the implementation
of this order, the father will no doubt
be able to rely on the co-operation of the Family Advocate who, in turn, can
obtain the assistance
of the Central Authority in British
Columbia. |
| [53] | On the information before
this Court, it seems likely that sole custody of Sofia will be awarded by the
Supreme Court of British Columbia
to the mother. I refer specifically in this
regard to the age of Sofia and the fact that she has been in the constant daily
care
of her mother all of her young
life.[45] Whether it is in the best
interests of Sofia that she should be allowed to live permanently with her
mother in South Africa is a
matter on which it is unnecessary for me to comment.
It appears on the information before this Court that the best interests of Sofia
dictate that she should remain in the sole custody of her mother subject, of
course, to reasonable rights of access for her father
until this matter has been
finally adjudicated by the courts of British Columbia. The order of this Court
should be formulated to
achieve this. |
| [54] | It is clearly also in the
interests of Sofia that certainty as to her custody and guardianship be settled
at the earliest possible
time. It was primarily for this reason that the appeal
before this Court was expedited. For this reason this Court requested the
Family Advocate to make inquiries from the Central Authority in British Columbia
as to the time it would take to have the custody
and guardianship proceedings
commence in the Supreme Court of British Columbia and the time which any appeal
from such a decision
would require. In response, the Attorney-General of
British Columbia has assured the Family Advocate that an urgent interim custody
application could be heard within two days of a request therefor and that a full
expedited trial could be heard in four to five months.
An appeal would take a
further two months. The mother’s attorneys have informed the Court that
their inquiries indicate that
a trial and appeal would take from eleven to
thirteen months. Having regard to the fact that Sofia is to be returned to
British
Columbia under the Convention, it can be assumed that the judicial and
administrative authorities there will ensure that custody
and associated matters
regarding Sofia are determined on an expedited
basis. |
Costs
| [55] | The mother has had limited
but significant success in this Court with regard to the order which is made.
To that extent the order
of the High Court will have to be set aside and
replaced with the order which appears below. In these circumstances I am of the
view that we are at large to consider the costs in the High Court. The father
was substantially successful in that court in obtaining
an order for the return
of Sofia and there is no reason he should not have been awarded his costs in
that court. However, I can
find no warrant for the order that the mother should
pay the costs of the Family Advocate. The latter is a state official acting
in
terms of an international Convention which provides in Article 26 that each
Central Authority should bear its own costs in applying
the Convention. In this
Court the Family Advocate has not sought an order for
costs. |
The Order
| [56] | The following order is
made: |
A The appeal is upheld in part.
B The order of Jennett J in the South Eastern Cape High Court is set aside and
it is replaced by the following
order:
1 It is ordered and directed that the minor child, Sofia Chilo Tondelli (Sofia)
be returned forthwith, but subject to the terms of
this order, to the
jurisdiction of the Central Authority, British Columbia, Canada.
2 In the event of Lisa Tracy Sonderup (the mother) indicating to the Family
Advocate on or before 9 December 2000 that she intends
to accompany Sofia on her
return to British Columbia the provisions of paragraph 3 shall apply.
3 Arturo Tondelli (the father) shall, within 30 days of service of this order on
his Port Elizabeth attorney of record, launch proceedings
and pursue them with
due diligence to obtain an order of the Supreme Court of British Columbia in the
following
terms:
| (1) | The
warrant for the arrest of the mother is withdrawn and she will not be subject to
arrest by reason of her failure to return Sofia
to British Columbia on 14 July
2000 or for any other past conduct relating to
Sofia; |
| (2) | The mother is awarded interim
custody of Sofia pending the final adjudication and determination by the Supreme
Court of British Columbia
of the issues of custody and care of and access to
Sofia, which adjudication and determination shall be requested forthwith by the
father; |
| (3) | Until otherwise ordered by the
Supreme Court of British Columbia: |
| (1) | the
father is ordered to arrange separate accommodation for the mother and Sofia in
British Columbia, chosen by the mother, and the
father is ordered to contribute
the sum of 500 Canadian Dollars per month towards the cost of such
accommodation; |
| (2) | The father is ordered to pay
maintenance for Sofia from the date of her arrival in British Columbia at the
rate of 500 Canadian Dollars
per month; |
| (3) | The
father is ordered to pay for the reasonable costs of the schooling of Sofia and
also the costs of her other reasonable educational
and extramural
requirements; |
| (4) | The father shall provide for
the use of the mother a roadworthy motor vehicle from the date of her arrival in
British Columbia until
the adjudication of the custody issue and share equally
with the mother the reasonable expenses in respect of the running of the
vehicle; |
| (5) | The father is ordered to pay any
medical expenses reasonably incurred by the mother in respect of Sofia which
shall include the cost
of therapy Sofia may reasonably
require; |
| (6) | The father and the mother are
ordered to co-operate fully with the Ministry of Children, British Columbia and
with any professionals
who conduct an assessment in order to determine what
future custody, care and access arrangements will be in the best interests of
Sofia; |
| (7) | The father is ordered to pay for the
costs of economy air tickets, and if necessary road or rail costs, for the
return of Sofia and
her mother to British Columbia. Such arrangements are to be
made by the mother; |
| (8) | The father is granted
reasonable access to Sofia which access shall be arranged without the necessity
of direct contact between the
mother and the
father. |
4 In the event of the mother giving the
notice to the Family Advocate referred to in paragraph 2, the order for the
return of Sofia
shall be stayed until the Supreme Court of British Columbia has
made the order referred to in paragraph 3 and when the Family Advocate
is
satisfied that such an order has been made, she or he shall so notify the
mother.
5 In the event of the mother failing to notify the Family Advocate of her
willingness to accompany Sofia on her return to British
Columbia, it is to be
accepted that the mother is not prepared to accompany Sofia, in which event the
Family Advocate is authorised
to make such arrangements as are necessary to
ensure that Sofia is safely returned to the custody of the Central Authority,
British
Columbia and is to take such steps as are necessary to ensure that such
arrangements are complied with.
6 Pending the return of Sofia to British Columbia, as provided for in this
order, the mother shall not remove Sofia from the District
of Port Elizabeth and
until then she shall keep the father’s attorney informed of her physical
address and contact telephone
numbers in Port Elizabeth.
7 Pending the return of Sofia to British Columbia, the father is to have
reasonable access to Sofia, such access to be under the supervision
of a
suitably independent person nominated by the Family Advocate. Such access will
be exercised in accordance with such person’s
reasonable requirements.
8 No order is made on the mother’s application or on the father’s
counter-application.
9 The mother is ordered to pay the costs of the father, which costs are to
include the costs of two counsel.
10 There is no order as to the costs of the Family Advocate.
C The Family Advocate is directed to seek the assistance of the Central
Authority of British Columbia in order to ensure that the
terms of this order
are complied with as soon as possible.
D In the event of the mother indicating to the Family Advocate, in terms of
paragraph B2 that she is willing to accompany Sofia to
British Columbia, the
Family Advocate shall forthwith give notice thereof to the Director of this
Court, the Registrar of the South
Eastern Cape High Court, the Central Authority
of British Columbia and the father’s
attorney.
E In the event of the Supreme Court of British Columbia failing to make the
order referred to in paragraph B3, the father is given
leave to approach this
Court for a variation of this order.
F In respect of the appeal there is no order as to
costs.
G A copy of this order shall forthwith be transmitted by the Family Advocate to
the Central Authority of British Columbia and served
upon the father’s
attorney.
Chaskalson P, Langa DP,
Ackermann J, Kriegler J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J, Yacoob J
and Madlanga AJ concur in
the judgment of Goldstone J.
For the appellant: PJ de Bruyn SC and BJ Pienaar instructed by Smith Tabata
Loon and Connellan Inc.
For the second respondent: GG Goosen instructed by the State Attorney, Port
Elizabeth.
[1] The Convention was adopted at The
Hague on 25 October 1980.
[2] Sonderup v Tondelli and The
Family Advocate 18 October 2000, as yet unreported.
[3] Act 72 of 1996.
[4] Section 231(4) of the Constitution
provides inter alia that:
“Any international agreement becomes law in the Republic when it is
enacted into law by national legislation . . .
”
[5] The Family Advocate is appointed
by the Minister of Justice in terms of the Mediation in Certain Divorce Matters
Act 24 of 1987.
[6] The Convention requires the
appointment of a “Central Authority” as the relevant official to
ensure that the provisions
of the Convention are implemented. See para 13
below.
[7] (1994) 119 DLR (4th) 253 at
296.
[8] Article 3 of the Convention.
[9] Article 5a of the Convention.
[10] W.(V.) v S.(D.) (1996)
134 DLR (4th) 481 at 496.
[11] Article 12 of the
Convention.
[12] In the present case the mother
relies on Article 13b, claiming that the return of Sofia would expose her to
psychological harm or
otherwise place her in an intolerable situation.
[13] Above para 3.
[14] In Canada, the respective
provinces have ratified the Convention and the terms thereof are incorporated in
provincial legislation.
[15] Article 7 of the
Convention.
[16] Article 7f-g of the
Convention
[17] Article 7d of the
Convention.
[18] It is not necessary to decide
in this case the precise implications of the language used in this sub-paragraph
of Article 13.
[19] Section 28(2) of the
Constitution provides:
“A child’s best interests are of paramount importance in every
matter concerning the child.”
[20] Para 49 below.
[21] Above para 11.
[22] Above para 6.
[23] Australia: Director-General
Department of Families, Youth And Community Care v Julie Hobbs [1999] FamCA
2059 at paras 68-69. Canada: Thomson, above n 7 at 278-80. England:
B v B (abduction: custody rights) [1993] 2 All ER 144 (CA) at 148-49;
C v C (minor: abduction: rights of custody abroad) [1989] 2 All ER
465 (CA) at 469, 472 and 473.
[24] Croll v Croll 229 F.3d
133, 139 (2d Cir 2000)
[25] Ibid at 146.
[26] Order of the Supreme Court of
British Columbia of 9 June 2000 in the matter of Tondelli v Tondelli No.
D110334.
[27] In Re H and another
(minors)(abduction: custody rights); Re S and another (minors)(abduction:
custody rights) [1991] 3 All ER 230 (HL) at 238, Lord Brandon held that,
within the context of the Convention, retention is an event which occurs
once
and for all on a specific occasion. He continued at 240
that:
“. . . retention occurs where a child, which has previously been for a
limited period of time outside the state of its habitual
residence, is not
returned to that [state] on the expiry of such limited
period.”
[28] It is unnecessary to consider
whether the order of 21 July 2000 granting the father sole custody and
guardianship of Sofia has relevance
in this matter.
[29] Speaker of the National
Assembly v De Lille and Another 1999 (4) SA 863 (CC); 1999 (11) BCLR 1339
(SCA) para 14.
[30] Section 36(1) of the
Constitution reads as follows:
“The rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity, equality
and freedom, taking into account
all relevant factors,
including—
(a) the nature of the
right;
| (2) | the
importance of the purpose of the
limitation; |
| (3) | the nature and extent of the
limitation; |
| (4) | the relation between the
limitation and its purpose; and |
| (5) | less
restrictive means to achieve the
purpose.” |
[31] [1999] 3 All ER 97 (CA) at
99.
[32] Above n 30.
[33] See De Lange v Smuts
1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) at paras 86-88 and S v
Makwanyane and Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 SA (CC) at
para 104.
[34] See para 37 below.
[35] Above para 12.
[36] For a perspective on the
failure of courts to apply the Hague Convention with adequate concern and
information about domestic violence
and gender dynamics, see Kaye, “The
Hague Convention and the Flight From Domestic Violence: How Women and Children
Are Being
Returned by Coach and Four” (1999) 13 International Journal
of Law, Policy and the Family 191at 195.
[37] S v Baloyi (Minister of
Justice and Another Intervening) 2000 (2) SA 425 (CC); 2000 (1) BCLR 86 (CC)
at para 11.
[38] Below para 51.
[39] Above para 7.
[40] Above para 8.
[41] Australia: Laing v The
Central Authority (1999) 24 Fam LR 555 at para 29, Gsponer v
Johnstone (1989) 12 Fam LR 755 at paras 45-51. Canada: Thomson above
n 7 at 285-86. England: Re C (abduction: grave risk of psychological
harm) [1999] 1 FLR 1145 at 1154, Re L (abduction: pending criminal
proceedings) [1999] 1 FLR 433 at 440, Re A (a minor)(abduction)
[1988] 1 FLR 365 at 372. Germany: Korowin v Korowin-Schreiner (District
Court of Horgen) LS 138036 (1992) a translation of which was furnished to the
Court by counsel for the Family Advocate.
United States: Friedrich v
Friedrich 78 F.3d 1060, 1067-68 (6th Cir 1996), Nunez-Escudero
v Tice-Menley 58 F.3d 374, 376-77 (8th Cir 1995).
[42] Section 38 provides
that:
“Anyone listed in this section has the right to approach a competent
court, alleging that a right in the Bill of Rights has
been infringed or
threatened, and the court may grant appropriate relief, including a declaration
of rights. The persons who may
approach the court are
—
(1) anyone acting in their own
interest;
(b) anyone acting on behalf
of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”
[43] Above n 19.
[44] See Thomson, above n 7,
at 294.
[45] These remarks are not intended
in any way to influence any decision taken by the courts in Canada.
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