CASE

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Case Name

NF v. MC (17845/2012)

INCADAT reference

HC/E/ZA 1249

Court

Country

SOUTH AFRICA

Name

Western Cape High Court, Cape Town

Level

First Instance

Judge(s)
Cloete AJ

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

SOUTH AFRICA

Decision

Date

27 November 2012

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Procedural Matters

Order

Application dismissed

HC article(s) Considered

3 13(1)(a)

HC article(s) Relied Upon

3 13(1)(a)

Other provisions
Children's Act, 2005 (South Africa); Constitution of the Republic of South Africa, 1996
Authorities | Cases referred to
Pennello v. Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA); Smith v. Smith 2001 (3) SA 845 (SCA); G Sonderup v. Tondelli and Another 2001 (1) SA 1171 (CC); KG v. CB 2012 (4) SA 136 (SCA).

INCADAT comment

Exceptions to Return

Consent
Classifying Consent
Prospective Consent

Implementation & Application Issues

Procedural Matters
Costs

SUMMARY

Summary available in EN

Facts

The proceedings related to a child born in the United States of America on 10 May 2012 to an American father and South African mother. The parents had married in April 2011 and shared custody rights in respect of the child.

On 28 June 2012, the mother took the child to South Africa for an agreed stay. The length of the stay was the subject of dispute between the parents. The mother needed to apply for a new visa in order to take up employment in the United States of America. She also needed assistance with care for the child who had a serious medical condition.

The father visited the family on 18 August 2012. On 21 August, the father was served with divorce proceedings. On his return to the United States of America, the father issued his own divorce proceedings and filed a request for the return of the child.

Ruling

Application dismissed; the retention was not wrongful as there was no express agreement that the child would return to the United States of America on 29 December 2012.

Grounds

Removal and Retention - Arts 3 and 12

-

Consent - Art. 13(1)(a)


See above, Removal & Retention

Procedural Matters


Costs were awarded to the mother (the Court declined to make a punitive costs order).

Authors of the summary: Peter McEleavy and Erika du Plessis (Office of the Chief Family Advocate, South Africa)

INCADAT comment

Classifying Consent

The classification of consent has given rise to difficulty. Some courts have indeed considered that the issue of consent goes to the wrongfulness of the removal or retention and should therefore be considered within Article 3, see:

Australia
In the Marriage of Regino and Regino v. The Director-General, Department of Families Services and Aboriginal and Islander Affairs Central Authority (1995) FLC 92-587 [INCADAT cite: HC/E/AU 312];

France
CA Rouen, 9 mars 2006, N°05/04340, [INCADAT cite : HC/E/FR 897];

United Kingdom - England & Wales
Re O. (Abduction: Consent and Acquiescence) [1997] 1 FLR 924 [INCADAT cite: HC/E/UKe 54];

Re P.-J. (Children) [2009] EWCA Civ 588, [INCADAT cite: HC/E/UKe 1014].

Although the issue had ostensibly been settled in English case law, that consent was to be considered under Art 13(1) a), neither member of the two judge panel of the Court of Appeal appeared entirely convinced of this position. 

Reference can equally be made to examples where trial courts have not considered the Art 3 - Art 13(1) a) distinction, but where consent, in terms of initially going along with a move, has been treated as relevant to wrongfulness, see:

Canada
F.C. c. P.A., Droit de la famille - 08728, Cour supérieure de Chicoutimi, 28 mars 2008, N°150-04-004667-072, [INCADAT cite: HC/E/CA 969];

Switzerland
U/EU970069, Bezirksgericht Zürich (Zurich District Court), [INCADAT cite: HC/E/CH 425];

United Kingdom - Scotland
Murphy v. Murphy 1994 GWD 32-1893 [INCADAT cite: HC/E/UKs 186].

The case was not considered in terms of the Art 3 - Art 13(1) a) distinction, but given that the father initially went along with the relocation it was held that there would be neither a wrongful removal or retention.

The majority view is now though that consent should be considered in relation to Article 13(1) a), see:

Australia
Director-General, Department of Child Safety v. Stratford [2005] Fam CA 1115, [INCADAT cite: HC/E/UKe 830];

United Kingdom - England & Wales
Re C. (Abduction: Consent) [1996] 1 FLR 414, [INCADAT cite: HC/E/UKe 53];

T. v. T. (Abduction: Consent) [1999] 2 FLR 912;

Re D. (Abduction: Discretionary Return) [2000] 1 FLR 24, [INCADAT cite: HC/E/UKe 267];

Re P. (A Child) (Abduction: Acquiescence) [2004] EWCA CIV 971, [2005] Fam. 293, [INCADAT cite: HC/E/UKe 591];

Ireland
B.B. v. J.B. [1998] 1 ILRM 136; sub nom B. v. B. (Child Abduction) [1998] 1 IR 299, [INCADAT cite: HC/E/IE 287];

United Kingdom - Scotland
T. v. T. 2004 S.C. 323, [INCADAT cite: HC/E/UKs 997];

For a discussion of the issues involved see Beaumont & McEleavy, The Hague Convention on International Child Abduction, OUP, 1999 at p. 132 et seq.

Prospective Consent

There is authority that consent might validly be given to a future removal, see:

Canada
Decision of 4 September 1998 [1998] R.D.F. 701, [INCADAT cite: HC/E/CA 333].

United Kingdom - England & Wales
Re L. (Abduction: Future Consent) [2007] EWHC 2181 (Fam), [2008] 1 FLR 915; [INCADAT cite: HC/E/UKs 993].

It was held that the happening of the event must be reasonably ascertainable and there must not have been a material change in the circumstances since the consent was given.

United Kingdom - Scotland
Zenel v. Haddow 1993 SC 612, [INCADAT cite: HC/E/UKs 76].

For a criticism of the majority view in Zenel v. Haddow, see:

Case commentary 1993 SCLR 872 at 884, 885;

G. Maher, Consent to Wrongful Child Abduction under the Hague Convention, 1993 SLT 281;

P. Beaumont and P. McEleavy, The Hague Convention on International Child Abduction, OUP, Oxford, 1999 at pp. 129, 130.

Costs

Preparation of INCADAT commentary in progress.