Central Authority v Houwert (262/06) [2007] ZASCA 88; [2007] SCA 88 (RSA) (4 June 2007)

Summary: Minor – wrongful retention of – Hague Convention on the Civil Aspects of International Child Abduction (1980) – defences – article 13(a) – consent to retention – onus on parent raising the defence – no real or genuine dispute of fact raised on consent issue – expeditiousness essential at all stages of the Convention process, including appeals

This appeal concerns a little boy (N) who was born on 1 May 2002 and is now five years old. He was brought to South Africa by his mother, the respondent, from Zandvoort, the Netherlands, in September 2003. Both he and his mother are still in South Africa, presently living in Pretoria with the maternal grandparents.

On 24 June 2004, the appellant applied to the Pretoria High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (1980) (the Convention), as incorporated into South African law by the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (the Act), for an order directing the immediate return of N to the Netherlands.

This order was more or less identical to a draft order prepared by counsel for the mother at the request of the court a quo. In fact, it appears from the judgment that, after hearing argument, the learned judge requested counsel for the parties to each prepare a draft order providing for N’s return to the Netherlands ‘for the purpose of determination of the custody dispute’ and that both duly complied with his request.

On 28 June 2005, the appellant applied to the Pretoria High Court for leave to appeal to the Full Court, which application was refused on 28 September 2005. On 23 February 2006, this Court condoned the late filing of the appellant’s application for leave to appeal and granted leave to appeal to this Court, ‘conditional upon the appeal against the order of the Haarlem Court dated 27 September 2005, succeeding’. I will return in due course to the significance of the proceedings in the Dutch courts. Suffice it at this stage to say that the appeal against the said order of the Haarlem Court did indeed succeed, on 23 March 2006, hence the present proceedings.

The father, who is presently 31 years old, is a citizen of the Netherlands. He met N’s mother, who was born and bred in South Africa and who is now also 31 years old, in 1998 in the Netherlands, where she was working as an au pair. After living together for several years, first in Haarlem and then in Zandvoort, they were married in Pretoria on 15 July 2000 and thereafter returned to the Netherlands. Their son, N, was born in Zandvoort on 1 May 2002 and is also a citizen of the Netherlands. The mother has dual South African and Dutch citizenship.

On 25 September 2003, the mother and N left the Netherlands for South Africa, travelling on return tickets. It is common cause that the father consented to his wife’s taking N to South Africa at that time. However, according to the father, the agreed purpose of the visit to South Africa was an extended holiday, for no longer than three months, as the mother was homesick and needed some time to herself. The mother’s version is that they had jointly decided to emigrate to South Africa and make their permanent home there with N; that it was agreed that she and N would travel to South Africa by themselves in September 2003, leaving the father behind to wind up the family’s affairs in Holland, and that the father would join them in South Africa ‘by December 2003’.

In about January 2004, the mother informed the father that she was not returning to the Netherlands, but would remain in South Africa with N on a permanent basis. The mother says that the father informed her during December 2003 that he would be joining them in South Africa only in March 2004 and that, after December, it became apparent to her that their marriage relationship, which had been deteriorating for some time, had broken down irretrievably. In consequence, she telephonically discussed the question of divorce with him in January 2004, only to be told that he had already consulted a lawyer in Holland in that regard. According to her, they agreed that they should be divorced and that she would have custody of N and stay with the child in South Africa. It is her case that there is no question of a ‘wrongful removal’ of N from the Netherlands or a ‘wrongful retention’ of N in South Africa within the Convention meaning of these concepts.

The father’s version is again quite different. He states that, when he asked his wife, in about December 2003, exactly when she would be returning to the Netherlands with N, she indicated that she wanted to stay in South Africa a little longer. He did not agree to this and, in the weeks that followed, he realised that she had misled him and that she had in fact ‘abducted’ his son by retaining him in South Africa after the period of the agreed holiday visit had expired. It was at this stage (in about February 2004) that he consulted the Dutch Central Authority with a view to effecting N’s return to the Netherlands under the auspices of the Convention. His case is that, sometime in December 2003, the mother wrongfully retained N in South Africa and that it was this wrongful retention that gave rise to the application to the Pretoria High Court.

It is common cause that, at the time of the alleged wrongful retention of N in South Africa in December 2003, the little boy was habitually resident in the Netherlands. It is clear from the extract from the Dutch Civil Code annexed to the appellant’s founding affidavit, as well as from the correspondence addressed by the Dutch Central Authority to the Acting Chief Family Advocate of South Africa which forms part of the record, that both parents were exercising equal custody rights in respect of their child at that time.

On 3 February 2004, the father completed and signed the necessary documentation to request the Dutch Central Authority for its help in securing N’s return. That Central Authority in turn transferred the father’s application under the Convention to the Acting Chief Family Advocate of South Africa in terms of article 9 of the Convention. On 6 April 2004, the latter delegated her Convention powers and duties in respect of this return application to Mr Gerhard van Zyl, then a family advocate based in Pretoria. Mr van Zyl attempted to correspond with the mother by registered mail dated 19 April 2004, but this letter was returned unclaimed. A few days later, upon receipt of a copy of the divorce summons issued by the mother against the father in the Pretoria High Court, he ascertained that she was represented by attorneys, with whom he immediately made telephonic contact and arranged a meeting with the mother and her local attorney for 28 April. Pursuant to that meeting, Mr van Zyl informed the mother’s attorneys in writing that she was ‘retaining N wrongfully in South Africa’ and put her to terms to agree to a voluntary return with N to the Netherlands. Shortly thereafter, Mr van Zyl resigned from the Office of the Family Advocate and, on 10 May 2004, Ms Cheryl Grobler, also a family advocate based in Pretoria, was delegated by the Acting Chief Family Advocate to deal with this matter in Mr van Zyl’s stead. The latter’s delegation was withdrawn on the same day.

By letter dated 9 June 2004, Ms Grobler informed the mother’s attorneys that an application under the Convention for the return of N to the Netherlands was about to be launched against her. Ms Grobler requested the attorneys to suspend the South African divorce proceedings instituted by the mother against the father in March 2004 – in which she was claiming inter alia custody of and maintenance for N – as well as her subsequent application in terms of Uniform Rule 43, pending a decision in the forthcoming return application.

As indicated above, the return application was instituted in late June 2004. Ms Grobler deposed to the main founding affidavit. For some (unexplained) reason, the father was not joined as a co-applicant, as is usually the case when a return application under the Convention is instituted by the Central Authority. The application was opposed by the mother. In her answering affidavit, filed only on 15 November 2004, she relied mainly upon her allegation that the father had consented to the permanent removal of N to South Africa and that her retention of N in this country after December 2003 was therefore not ‘wrongful’ for the purposes of the Convention. In essence, she raised a defence in terms of article 13(a) of the Convention, which provides as follows:

‘Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child [in other words, it has a discretion in this regard] if the person, institution or other body which opposes its return establishes that –

In the meantime, the father had instituted divorce proceedings against the mother in the Haarlem District Court on 9 February 2004, claiming inter alia custody of N. This claim was opposed by the mother who counterclaimed for sole custody of and maintenance for N. On 12 October 2004, the Haarlem court granted a divorce order, but stayed the proceedings in respect of the custody and maintenance issues because of the then pending return application in South Africa. Subsequently, on 27 September 2005, the Haarlem court declared that it did not have jurisdiction ‘to hear the requests for relief separately submitted by both parties in respect of the parental authority and establishment of the principal residence of’ N.

The Appeal Court thus ‘annulled’ the judgment of the Haarlem District Court in this regard and referred the case for further hearing and judgment back to that court. The effect of this judgment is, as explained by the Dutch Central Authority in a letter to the Acting Chief Family Advocate dated 9 June 2005, that:

‘the last mentioned Court [the Haarlem District Court] will await the outcome of proceedings before the Supreme Court [of Appeal] in South Africa before it will re-initiate proceedings. After it has been decided in South Africa whether the applicant father’s request for return will succeed or whether it will be dismissed, the Court of Haarlem will decide upon the issues of parental custody and habitual residence.’

As has been pointed out by this Court more than once, the purpose of the Convention is to protect children 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. This the Convention does by establishing a procedure to secure the prompt return of any such child to the country of his or her habitual residence so that custody and similar issues in respect of the child can be adjudicated upon by the courts of that country.

In terms of article 12 of the Convention, where the removal or retention of the child in question is indeed wrongful within the meaning of articles 3 and 4 and, at the date of commencement of the return proceedings before the judicial or administrative authority of the requested State, a period of less than a year after the wrongful removal or retention has elapsed – as is the case with N – then the authority concerned is obliged to order the immediate return of the child. Even if a period of 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.

There are, however, certain limited exceptions to the mandatory return of the child, one of which is contained in article 13(a). Once the applicant for a return order under the Convention has established that the child was habitually resident in the Contracting State from which he or she was removed immediately prior to the removal or retention and that the removal or retention was wrongful, then the onus is on the party resisting return to establish one or other of the defences referred to in articles 13(a) or (b), or that the circumstances are such that the return of the child ‘would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms’. Even if the requirements of one or more of these ‘defences’ to a mandatory return of the child are satisfied, the relevant authority may still in its discretion order the return of the child.

As indicated above, the central issue in this case revolved around the article 13(a) defence of consent. In her heads of argument filed before this Court, the mother’s counsel submitted that, because of the lengthy period of time that N has been in South Africa, a return to the Netherlands at this stage would place him in ‘an intolerable situation’ within the meaning of article 13(b) of the Convention. Although counsel did not pursue this argument at the hearing before us, it must be pointed out that the question of the inordinate delay adversely impacting on N and creating an ‘intolerable situation’ in the event of his return to the Netherlands was not specifically raised as an issue for determination nor adequately canvassed in the affidavits before the court a quo. Had the mother thought it necessary for this Court to consider that issue, even at this late stage of the proceedings, it was open to her to launch an appropriate application to place before us such additional information as may have borne upon that issue. Had this been done, then the appellant would of course have been entitled to reply. The mother did not, however, follow this route. Although I will return later in this judgment to the systemic delays which have plagued these Convention proceedings, there is in my view no basis for deciding the matter other than on the central issue of consent.

‘If it is clear, viewing a parent’s words and actions as a whole and his state of knowledge of what is planned by the other parent, that he does consent to what is planned, then in my judgment that is sufficient to satisfy the requirements of Art 13. It is not necessary that there is an express statement that “I consent”. In my judgment it is possible to infer consent from conduct.’

The main dispute of fact arising from the affidavits relates to whether or not the father consented, either expressly or tacitly, to the continued residence of the mother and N in South Africa on a permanent basis. As stated already, the onus of establishing such consent rests on the mother. As neither party sought to have the matter referred for the hearing of oral evidence, whether or not the ‘defence’ of consent will succeed depends upon the uncontested facts in this regard in the appellant’s founding affidavit and the respondent’s (the mother’s) version in her answering papers in respect of those facts which are the subject of a ‘real, genuine or bona fide dispute of fact’. In a situation where such a dispute exists, the court may well be obliged, in appropriate circumstances, to refer it for oral evidence if there is no other way of deciding the issue. However, any such reference to oral evidence would have to be strictly circumscribed by the essential elements of the defence and the hearing would have to take place as a matter of urgency. It should always be borne in mind that, as pointed out in Pennello:

‘[T]he Convention is framed around proceedings brought as a matter of urgency, to be decided on affidavit in the vast majority of cases, with a very restricted use of oral evidence in exceptional circumstances. Indeed, there is direct support in the wording of the Convention itself for return applications to be decided on the basis of affidavit evidence alone, and courts in other jurisdictions have, in the main, been very reluctant to admit oral testimony in proceedings under the Convention. In incorporating the Convention into South African law by means of Act 72 of 1996, no provision was made in the Act or in the regulations promulgated in terms of s 5 thereof indicating that South African courts should not adopt the same approach to proceedings under the Convention as that followed by other Contracting States. In accordance with this approach, Hague proceedings are peremptory and “must not be allowed to be anything more than a precursor to a substantive hearing in the State of the child’s habitual residence, or if one of the exceptions is satisfied, in the State of refuge itself”.’ (Footnotes omitted.)

In her answering affidavits, the mother alleged that she and the father discussed the question of a permanent move to South Africa from about May 2003 and that these discussions had resulted in a joint decision that the family would emigrate to South Africa. However, in a document written by her on 15 April 2004, which was annexed to the appellant’s replying affidavit as Annexure ‘G’, she made the following statements:

It was during this time [in December 2003] that I came to the decision that things would never work out between Nico and I. In January ’04 I informed him of my decision and proceeded to get an appointment with my lawyer 12^th Feb. On this visit I asked what the legal position was and what my rights were . . .’ (Emphasis added.)

In support of her ‘defence’ of consent, the mother also relied quite heavily on the signature by the father of a so-called ‘change of address form’ at the Zandvoort municipal offices on the day before she left with N for South Africa. However, in this regard too, the mother’s version as set out in her answering papers conflicts in material respects with her version as set out in the abovementioned Annexure ‘G’. There are also other uncontested facts set out on the papers which detract from the mother’s version, and favour the father’s version, on the issue of consent. So, for example, the mother and N came to South Africa in September 2003 on return tickets; the mother travelled with only two suitcases, leaving behind in Zandvoort the bulk of her personal belongings such as clothing, photo albums and video tapes of N, make-up and personal letters, as well as almost all N’s belongings such as his clothing and toys; in the few weeks leading up to her departure from the Netherlands with N, she and the father purchased several bulky items of furniture for their home (eg a king-size bed, a dining table and chairs etc), all of which would have had to be shipped to South Africa at considerable expense had the couple really been planning to ‘sell up’ in Zandvoort and emigrate to South Africa.

It must also be borne in mind that, after the alleged wrongful retention of his son in South Africa in December 2003, the father wasted little time in approaching the Dutch Central Authority for its assistance in securing N’s return under the Convention. By no later than 3 February 2004, he had completed all the necessary documentation in this regard. Whilst not decisive, this conduct certainly provides support for the father’s version and is inconsistent with the notion that he had consented to a permanent removal of the child to South Africa.

In my view, the material contradictions in the mother’s version, against the backdrop of the papers as a whole, makes it evident that the mother did not raise a real or genuine dispute of fact on the key issue of the father’s consent. There was thus no sustainable ‘defence’ based on article 13(a).

As none of the exceptions justifying the non-return of N to the Netherlands was established on the papers, the court a quo was obliged in terms of article 12 of the Convention to order N’s return to that country. This it did not do, instead ordering the mother to return to the Netherlands ‘for the purposes of attending and/or opposing the custody hearing in respect of’ N, and that only ‘if oral evidence is required’. That order clearly does not comply with the Convention and must be set aside.

Prior to the hearing of the matter before us, counsel for the appellant filed a draft order, setting out conditions for N’s return to the Netherlands intended to ameliorate any potential hardships to which N might be exposed on his return. Counsel for both parties were requested to comment on the draft order during the course of the hearing, and also to consider certain aspects of the order and revert to this Court in writing. In formulating the conditions which I intend to impose, I have carefully considered the oral and written submissions made by counsel in this regard. However, before dealing with the return order, there are two important aspects which need to be addressed.

The primary object of the Convention is to secure the swift return of children wrongfully removed to or retained in any Contracting State, to restore the status quo ante the wrongful removal or retention as expeditiously as possible so that custody and similar issues in respect of the child can be adjudicated upon by the courts of the country from which the child was removed. Not only is this explicitly stated in article 1 of the Convention, but article 11 expressly enjoins the relevant authorities to ‘act expeditiously in proceedings for the return of children’ and provides that –

‘If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of the commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay.’

So too, the Guide to Good Practice under the 1980 Convention drafted by the Permanent Bureau of the Hague Conference on Private International Law states as one of its ‘key operating principles’ that ‘expeditiousness is essential at all stages of the Convention process including appeals’.

South Africa: Supreme Court of Appeal

Central Authority v Houwert (262/06) [2007] ZASCA 88; [2007] SCA 88 (RSA) (4 June 2007)