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CASE

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Case Name

Family Advocate, Cape Town, and another v EM 2009 (5) SA 420 (C)

INCADAT reference

HC/E/ZA 721

Court

Country

SOUTH AFRICA

Name

Cape Provincial Division

Level

First Instance

Judge(s)
Madima AJ

States involved

Requesting State

UNITED KINGDOM

Requested State

SOUTH AFRICA

Decision

Date

28 November 2008

Status

Final

Grounds

Removal and Retention - Arts 3 and 12 | Consent - Art. 13(1)(a) | Acquiescence - Art. 13(1)(a) | Issues Relating to Return

Order

Return ordered

HC article(s) Considered

3 13(1)(a)

HC article(s) Relied Upon

3 13(1)(a)

Other provisions

-

Authorities | Cases referred to
Smith v. Smith 2001 (3) SA 845 (SCA); Re H and Others (Minors) (Abduction: Acquiescence) 1997 2 ALL ER 225 (HL); Central Authority v. H 2008 (1) SA 49 (SCA); Friedrich v. Friedrich 78 F 3d 1060 (6th Cir 1996); Police Commissioner of South Australia v Temple (No 1) (1993) FLC 92 - 365; Senior Family Advocate, Cape Town, and Another v. Houtman 2004 (6) SA 274 (C).
Published in
http://www.justice.gov.za/hague/caselaw/2009_famadv-v-EM.pdf

INCADAT comment

Aims & Scope of the Convention

Removal & Retention
Nature of Removal and Retention

Exceptions to Return

Consent
Establishing Consent
Acquiescence
Acquiescence

Implementation & Application Issues

Measures to Facilitate the Return of Children
Safe Return / Mirror Orders

SUMMARY

Summary available in EN

Facts

The proceedings concerned a child born in the United Kingdom in December 2004 to a British father and a South African mother. The parents had married in South Africa in 2000. The family lived together in the United Kingdom until the mother took the child to South Africa on vacation in September 2007.

After several weeks, the mother advised the father she intended to remain in South Africa permanently. However, on 27 November, the mother, maternal grandmother and child visited the father for two weeks. The child and grandmother returned to South Africa on 6 December.

At the mother's request, the father signed a letter to facilitate the passage of grandmother and child at border checks, stating that he gave his permission to the child going to South Africa. The father subsequently petitioned for the return of the child, proceedings being issued in South Africa on 2 October 2008.

Ruling

Retention wrongful and return ordered, subject to conditions; none of the exceptions had been proved to the standard required under the Convention.

Grounds

Removal and Retention - Arts 3 and 12

-

Consent - Art. 13(1)(a)


It was submitted for the mother that the letter of 4 December 2007 indicated consent on the part of the father. For the father, the letter was merely for the facilitation of easy passage for the child and her grandmother. The Court found that there was nothing to suggest that the letter was intended to grant consent for the child to be permanently removed from the United Kingdom or permanently retained in South Africa.

Acquiescence - Art. 13(1)(a)


It was argued that the father's general behaviour indicated his acquiescence in the retention:

- he instituted no action immediately after being informed by the mother that she would not be coming back to the United Kingdom, to secure the return of the child;
- he did not object unequivocally or protest to the mother;
- he made arrangements with the mother for child's visit to the United Kingdom;
- he took no action during the child's visit to secure her continued presence in the United Kingdom between November and December 2007; and
- he did not object or protest to his mother-in-law when she visited with the child.

Heavy reliance was also placed on what was allegedly not done by second applicant between the periods October 2007 and February 2008.

The Court, which considered international case law on the concept of acquiescence, rejected these submissions. It found that in permitting the child to go back to South Africa, the father was still hopeful the marriage could be salvaged. Moreover there was no merit in the argument that there was inordinate delay in the four month period complained of.

Issues Relating to Return


The Court ordered the return of the child, subject to various conditions. The latter included the father obtaining an English order covering a variety of practical matters, including accommodation and maintenance, were the mother to accompany the child back to the United Kingdom.

Author of the summary: Peter McEleavy

INCADAT comment

Nature of Removal and Retention

Preparation of INCADAT commentary in progress.

Establishing Consent

Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.

United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].

This strict view has not been repeated in later first instance English cases, see:

Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];

Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].

In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing.  Moreover, there could also be cases where consent could be inferred from conduct.

Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].

Convincing evidence is required to establish consent.

Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].

The Re K. approach was specifically endorsed by the Irish Supreme Court.

The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].

Consent need not be for a permanent stay.  The only issue is that there must be consent and that it has been proved convincingly.

South Africa
Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

Consent could be express or tacit.

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];

5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];

5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];

The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child.  To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.

United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].

There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.

Acquiescence

There has been general acceptance that where the exception of acquiescence is concerned regard must be paid in the first instance to the subjective intentions of the left behind parent, see:

Australia
Commissioner, Western Australia Police v. Dormann, JP (1997) FLC 92-766 [INCADAT cite: HC/E/AU 213];

Barry Eldon Matthews (Commissioner, Western Australia Police Service) v. Ziba Sabaghian PT 1767 of 2001 [INCADAT cite: HC/E/AU 345];

Austria
5Ob17/08y, Oberster Gerichtshof, (Austrian Supreme Court) 1/4/2008 [INCADAT cite: HC/E/AT 981].

Considering the issue for the first time, Austria's supreme court held that acquiescence in a temporary state of affairs would not suffice for the purposes of Article 13(1) a), rather there had to be acquiescence in a durable change in habitual residence.

Belgium
N° de rôle: 02/7742/A, Tribunal de première instance de Bruxelles 6/3/2003, [INCADAT cite: HC/E/BE 545];

Canada
Ibrahim v. Girgis, 2008 ONCA 23, [INCADAT cite: HC/E/CA 851];

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

In this case the House of Lords affirmed that acquiescence was not to be found in passing remarks or letters written by a parent who has recently suffered the trauma of the removal of his children.

Ireland
K. v. K., 6 May 1998, transcript, Supreme Court of Ireland [INCADAT cite: HC/E/IE 285];

Israel
Dagan v. Dagan 53 P.D (3) 254 [INCADAT cite: HC/E/IL 807];

New Zealand
P. v. P., 13 March 2002, Family Court at Greymouth (New Zealand), [INCADAT cite: HC/E/NZ 533];

United Kingdom - Scotland
M.M. v. A.M.R. or M. 2003 SCLR 71, [INCADAT cite: HC/E/UKs 500];

South Africa
Smith v. Smith 2001 (3) SA 845 [INCADAT cite: HC/E/ZA 499];

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841].

In keeping with this approach there has also been a reluctance to find acquiescence where the applicant parent has sought initially to secure the voluntary return of the child or a reconciliation with the abducting parent, see:

United Kingdom - England & Wales
Re H. and Others (Minors) (Abduction: Acquiescence) [1998] AC 72 [INCADAT cite: HC/E/UKe 46];

P. v. P. (Abduction: Acquiescence) [1998] 2 FLR 835, [INCADAT cite:  HC/E/UKe 179];

Ireland
R.K. v. J.K. (Child Abduction: Acquiescence) [2000] 2 IR 416, [INCADAT cite: HC/E/IE 285];

United States of America
Wanninger v. Wanninger, 850 F. Supp. 78 (D. Mass. 1994), [INCADAT cite: HC/E/USf 84];

In the Australian case Townsend & Director-General, Department of Families, Youth and Community (1999) 24 Fam LR 495, [INCADAT cite: HC/E/AU 290] negotiation over the course of 12 months was taken to amount to acquiescence but, notably, in the court's exercise of its discretion it decided to make a return order.

Safe Return / Mirror Orders

A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.

Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:

Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];

United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499  [INCADAT cite: HC/E/ UKe 599];

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:

Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].

A request that a return order be made subject to the implementation of mirror orders was turned down in:

Israel 
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].

The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.