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IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case No: 15972/2008

In the matter between:

THE FAMILY ADVOCATE, CAPE TOWN (In her representative capacity as the delegated Central Authority for South Africa in terms

and

JUDGMENT DELIVERED ON 28 NOVEMBER 2008

MADIMA AJ

1	This sad case concerns a little girl called M.H.M. (M.) who was born on [date] 2004 in the district of T... in the United Kingdom of Great Britain. M. was brought to the Republic of South Africa by her mother, the Respondent, whose marriage to her father, the Second Applicant, was in some sort of trouble. Both M. and her mother are currently in the Western Cape, South Africa.
2.	The instant application is brought 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, No.72 of 1996 (the Act), for an order directing, inter alia, the 	immediate return of M. to the United Kingdom.
3.	The First Applicant is the Family Advocate who brings this application in her representative capacity as the designated and delegated Central Authority for the Republic of 	South Africa in terms of section 3 of the Act. The Second Applicant is a United Kingdom national and the biological father of M.H.M., (M.) the subject of this 	application.
4.	The Respondent is the biological mother of M., a South African, currently resident in Paarl, Western Cape, Republic of South Africa (South Africa). Second Applicant and 	Respondent were married to each other on 25 November 2000 at Porteville, Western Cape, South Africa.
5.	As already stated above, M. was born in the United Kingdom on [date] 2004. The family lived together in the United Kingdom until September 2007 when 	Respondent and M. traveled to South Africa to spend the holidays with Respondent's family. Return air tickets were purchased as Respondent and M. would be 	returning to the United Kingdom after the holidays in South Africa. All these arrangements were done with the consent of Second Applicant.
6.	Some several weeks into her stay in South Africa, Respondent indicated to Second Applicant that she intended to remain in South Africa permanently with M. and would 	therefore not be returning to the United Kingdom. 1 need to emphasise that Respondent neither sought nor obtained Second Applicant's consent in this regard, that is, that 	Mea would not be returning to the United Kingdom. Second Applicant was merely informed to that effect.

7.	However a month later on or about 27 November 2007, M. traveled to the United Kingdom together with her grandmother (Mrs. H.) to pay Second Applicant a visit for two weeks. M. and grandmother returned to South Africa on 6 December 2007. Prior to their return to South Africa, Mrs. H. informed Second Applicant that she had experienced difficulties at various passport control points when she was traveling into the United Kingdom with M.. At her request, Second Applicant wrote the following letter dated 4 December 2007 (the letter of 4 December 2007) to facilitate easy travel for both Mrs. H. and M.;

To Whom it may concern

Please grant them safe passage.
Please do not hesitate to contact me for any assistance.
Yours Faithfully"

8.	The letter of 4 December 2007 was duly signed by Second Respondent. M. has been in South Africa since then.

Applicants and Respondent's respective cases

9.	The gist of Applicants' case on the one hand is that Mae's removal from the United Kingdom and her retention in South Africa by Respondent is unlawful in terms of the Act. Second Applicant in particular seeks that M. be returned to the United Kingdom where she was habitually resident before her unlawful removal and retention. The Respondent's, on the other relies on the provisions of Article 13(a) of the Act relating, inter alia, to consent and/or acquiescence in the said
removal and or retention of M..

Relevant provisions of the Hague Convention
10.	The Act aims to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to 	the State of their habitual residence, as well as to secure protection for rights of access. (See preamble to the Act.)
11.	Further to (a) secure the prompt return of the children wrongfully removed to, or retained in any Contracting State; and (b) to ensure that rights of custody and of access 	under the law of one Contracting State are effectively respected in the other Contracting States. (See Article 1 of the Act.)
12.	Article 3 of the Act provides instances where the removal or the retention of a child is to be considered wrongful. It is for example wrongful where

(a)	it is in breach of right of rights of custody attributed to a person..., either jointly or alone, under the law of the State in which the child was habitually resident immediately before the 	removal or retention; and
(b)	at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

13.	Article 12 provides for the remedy of return where there has been a wrongful removal or retention. It is stated in the provision that

"Where a child has been wrongfully removed or retained in terms of art 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith."

"Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requesting State is not bound to order the return of the child if the person ... |who] opposes its return establishes that -

15.	Article 14 provides that
"In ascertaining whether there has been wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of... the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

Onus of Proof

16.     Our Courts have laid down the following requirements for an applicant who wishes to secure the return of a child in terms of the Act:

18.	The learned Judge went further and stated that

emphasis)

Matters of common cause

19.	It appears from the papers before me that the following issues are not in dispute,
namely that

(a)      immediately prior to her removal, Mae's habitual place of residence was the United Kingdom;
(b)	both Second Applicant and Respondent jointly have parental responsibilities in respect of M. in terms of section 2(1) of the Childrens Act of 1989;
(c)	Second Applicant, at the time of the removal and / or retention of M., Second Applicant exercised his parental responsibilities over Mea
Issues in dispute
20.	The following matters are however in dispute
a)	whether Mae's removal to or retention in South Africa was wrongful;
b)	whether Second Applicant consented or acquiesced to Mea's removal;
c)		whether due to the delay in the bringing of the instant application, the application falls outside of the requirements of the Act and falls to be dismissed;
d)		Whether there has been compliance with Ruler 63 of the Uniform Rules with regard to the Affidavits of Second Applicant; and
e)	Whether Respondent is entitled to costs de bonis propriis against First Applicant.

22.	I now deal with the issues that are in dispute between the parties.

Wrongful removal and or retention

23.	The question is whether or not the removal from the United Kingdom or retention in South Africa of M. by Respondent was unlawful. The answer to this question
can be found squarely within the provisions of Article 3 of the Act. 1 repeat here what Article 3 provides for the sake of easy reading. The removal or retention of a
child is wrongful where
a)	it is in breach of right of rights of custody attributed to a person..., cither jointly or alone, under the law of the State in which the child was habitually resident immediately before the 	removal or retention; and
b)	at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

26.	The Respondent's state of mind in this regard is not disputed. She communicated same to Second Applicant in October of 2007 when she said she would not be coining 	back to the United Kingdom. It is Second Applicant's state of mind that is examined with relation to the removal and or retention of M.. It is the Second-
Applicant's Article 3 rights that were breached when Respondent communicated to him that she would not be coming back to the United Kingdom, but intends settling permanently in South Africa with M.. That was the defining moment. Second Applicant had not given his consent

27. 	There is no doubt that the removal and retention is unlawful. The fact that Respondent has allowed M. to travel to the United Kingdom to visit Second Applicant and in turn the fact that Second Applicant has allowed M. to return to Respondent during the period November and December 2007 respectively should not distract us from the fact that Respondent's intention is to permanently remove M. from the United Kingdom and or to permanently retain Mac in South Africa.

Consent and or acquiescence

"The Second Applicant's letter dated 4 December 2007, the contents of which he personally formulated and signed, not only states his express consent to Mae's return, but puts his blessing on her safe return to the RSA. This express consent was given before commencing with this application".

29. 	Respondent's legal representative went further and submitted that there could be no better proof of Second Applicant's consent to Mae's retention in the RSA than from said letter of 4 December 2007. It was further argued that had Second Applicant intended otherwise, he could have inserted wording in the letter that qualified his consent or otherwise noted certain conditions to giving his consent.
30.	Counsel for Applicants for her part, contended that the letter of 4 December 2007 says no more than it states, namely, the facilitation of easy passage for M. and 	grandmother.
31.	I have gone over the letter of 4 December 2007 several times. I can find nothing which suggests that the letter was intended to grant consent for M. to be permanently 	removed from the United Kingdom or for her permanent retention in South Africa by Respondent. What I have found is a letter that facilitates easy passage for an adult 	traveling with a minor child who bears a different surname to the adult. I am neither surprised at the difficulties that Mae's grandmother allegedly encountered when going 	through customs nor at the request by Mae's grandmother that Second Applicant provide them with such letter of comfort or of easy passage. This is because such 	problems are common, what with child trafficking and indeed abductions specifically catered for by the Act. It is also telling that the letter is addressed to no one in 	particular, but to anyone who cared to know the circumstances of the two travelers.
32.	Respondent further submitted through her legal representative that Second Applicant's actions, or lack thereof, and more especially Second Applicant's general behaviour 	regarding this matter, also clearly indicates his consent to or acquiescence in Mae's retention.
33.	Second Applicant, according to the submissions, instituted no action immediately after being informed by Respondent that she would not be coming back to the United 	Kingdom, to secure the return of M.. He did not object unequivocally or protest to Respondent. He made arrangements with Respondent for Mae's visit to the UK. He 	took no action during Mae's visit to secure her continued presence in UK between November and December 2007. He did not object or protest to his mother-in-law when 	she visited with M.. Heavy reliance was placed on what was allegedly not done by Second Applicant between the periods October 2007 to February 2008.
34.	Second Applicant submitted through his counsel that he had indeed consented to M. travelling to South Africa with Respondent in September of 2007 for a visit. Both 	M. and Respondent would be coming back to the United Kingdom at the end of their holiday. Both M. and Respondent had purchased return tickets. Second Applicant 	was shocked when a month later in October 2007, Respondent informed him that she would not be returning to the United Kingdom but would be remaining permanently in 	South Africa with M..
35.	Counsel for Applicants submitted that the marriage between Second Applicant and Respondent was undergoing challenges and that they had been to a marriage 	counsellor. Second Applicant always was hopeful that their marriage could be salvaged somehow. That is the reason Second Applicant allowed M. to go to South Africa 	I September 2007 and again in December 2007 accompanied by her grandmother. It was also submitted that Respondent had also made an undertaking that she would never 	take M. away from him.

37.	Referring further to the concept of acquiescence, other courts in foreign jurisdictions held that

38. 	In the United Kingdom, the House of Lords held that the burden is strongly on the parent who has removed a child to establish consent by the other parent. The Law Lords held that

"In my judgment, therefore, in the ordinary case the court has to determine whether in all the circumstances of the case the wronged parent has, in fact, gone along with the wrongful abduction. Acquiescence is a question of the actual subjective intention of the wronged parent, not of the outside world's perception of his intentions."
"In the process of this fact-finding operation, the Judge, as a matter of ordinary judicial common sense, is likely to attach more weight to the express words or conduct of the wronged parent than to his subsequent evidence as to his state of mind, In reaching conclusions of fact, Judges always, and rightly, pay more attention to outward conduct than to possibly self-serving evidence of undisclosed intentions. But in so doing the Judge is finding the actual facts. He can infer the actual subjective intention from the outward and visible acts of the wrong pareut. That is quite a different matter from imputing to the wronged parent an intention which he did not, in fact, possess."

"Although each case will depend on its own circumstances, I would suggest judges should be slow to infer an intention to acquiesce from attempts by the wronged party to effect reconciliation or to reach an agreed voluntary return of the abducted child... Attempts to produce a resolution of problems by negotiation or through religious or other advisers do not, to my mind normally connote an intention to accept the status quo if those attempts fail."

39.	The Law Lord concluded that

'the issue of consent is a very important matter that]..."needs to be proved on the balance of probabilities, but the evidence in support of it needs to be clear and cogent [because]...(i)f the court is left uncertain, then the 'defence' under art 13 (a) fails" land] it is furthermore obvious that consent must be real[,]...positive and ...unequivocal.

Delay in instituting proceedings and acquiescence

40.	I now examine Second Applicant's conduct between the period October 2007 and February 2008. Respondent seems to suggest that Second Applicant did not do much or anything after she had told him that she was not coming back to the United Kingdom an intended to settle permanently in South Africa with M.. Submissions were made that Second Applicant was shocked at the realisation thathis wife was indeed leaving him and that his daughter was also to resettle in South Africa.
41.	 Second Applicant submitted through his counsel that he consulted a solicitor and barrister between October 2007 and February 2008, and once he had been given legal 	advice on the matter, the instant process and proceedings were launched. I must say that I find nothing that suggests any slackness on Second Applicant's part in this 	regard that can be interpreted as acquiescence to the removal and retention of M.. 1 do not find the delay inordinate. On the contrary I am impressed that Second 	Applicant was able to bring these proceedings inside a period of four months since he was informed that by Respondent of her intention to permanently remove M. from 	the United Kingdom and to retain her in South Africa.
42.	I have also come to appreciate the time that it takes to get urgent matters such as the instant proceedings on the roll of our court system. I find it is reasonable in the 	circumstance for a person in Second Applicant's position to seek and obtain legal advice in the manner he did with its concomitant challenges. I therefore find that the 	slackness attributed to Second Applicant by Respondent lacks merit, and consequently Second Applicant did not unequivocally consent or acquiescence to Mae's 	removal and or retention by his conduct.
43.	I now deal with the disputed issue of delay in launching the proceedings. Article 12 of the Act makes provision that

44.	The Article goes on and condones such non-compliance and states that judicial or administrative authorities shall still order the return of the child, unless it is determined 	that the child is now settled in its new environment.

46.	There is no doubt that the delay envisaged by Article 12 is not applicable in this case before me. Respondent removed and retained M. on 26 October 2007. This 	application was launched on 2 October 2008. The matter therefore falls within the mandatory provisions of article 12, which provides that where a period of less than one 	year has elapsed from the date of the wrongful retention to dale of the commencement of the proceedings before the judicial or administrative authority of the Contracting 	State, the authority concerned shall order the return of the child forthwith.
47.	In the circumstances I find that Applicant was not late with his application and that M. was wrongfully removed and retained by Respondent. It is for the above reasons 	that the application must succeed.
Costs
48.	I am faced with a situation where the marriage between Second Applicant and Respondent still subsists and I am loath to make a cost order as its effect would be akin to a 	cost order against oneself. The fact that divorce proceedings arc pending between the parties is important and I have taken cognisance of the fact that they are still 	husband and wife. In these circumstances, I think it is fair that I make no order as to cost.
49.	In the result I make the following order:
50.	That M. be returned forthwith, subject to the terms of this order, to the jurisdiction of the United Kingdom ("the UK") in accordance with the provisions of Article 12 of 	the schedule to the Hague Convention on the Civil Aspects of International Child Abduction Act, No. 72 of 1996 ("the Hague Convention Act").
51.	Second Applicant, or his appointee, be granted leave and authorisation insofar as same may be necessary, to remove the child from the Republic of South Africa ("the 	RSA") and to accompany her back to the UK, being the minor child's country of habitual residence, together with the Respondent in the event of her electing to return to t	he UK.
52.	Second Applicant shall, within 14 days of the date of this order, launch proceedings and pursue them with diligence to obtain, of the appropriate judicial authority in the 	UK, an order that, until otherwise ordered by the appropriate court in the UK:
a. The Second Applicant is ordered to arrange and to pay for suitable accommodation for the minor child and the Respondent, should she elect to return to the UK with the minor child. The Second Applicant shall
provide proof to the satisfaction of Respondent prior to the departure of the minor child and the Respondent, should she elect to return to the UK with the minor child, of the nature and location of such accommodation and that such accommodation is available to the minor child and the Respondent immediately upon their arrival in the UK.

b.	The Second Applicant is ordered to pay, for the minor child and the Respondent should she elect to return to the UK with the child, maintenance in such amount as may reasonably be required for their maintenance and upkeep, and failing agreement between them in this regard, such amount as may be ordered by the appropriate authority responsible for such matters in the UK.

c.	The Second Applicant is ordered to pay any medical expenses reasonably
incurred by the Respondent in respect of the minor child.

d.	The Second Applicant is granted reasonable access to the minor child.
53.	First Applicant is directed to seek the assistance of the UK Central Authority in order to ensure that the terms of this order are complied with as soon as possible.
54.	A copy of this order shall forthwith be transmitted by the First Applicant to the UK Central Authority.
55.	There shall be no order as to cost.
MADIMA, AJ