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Case Name
Central Authority v MG 2010 JDR 1535 (GNP)
INCADAT reference
HC/E/ZA 724
Court
SOUTH AFRICA
North Gauteng High Court, Pretoria
First Instance
Botha J
States involved
UNITED KINGDOM
SOUTH AFRICA
Decision
9 December 2010
Final
Aims of the Convention - Preamble, Arts 1 and 2 | Settlement of the Child - Art. 12(2) | Issues Relating to Return
Return ordered
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-
-
INCADAT comment
Exceptions to Return
Settlement of the Child
Implementation & Application Issues
Safe Return / Mirror Orders
SUMMARY
Summary available in
EN
Facts
The father petitioned for the child's return. Initially, the mother indicated that she was willing to return with the child, if certain conditions were met. She subsequently opposed the child's return.
Ruling
Grounds
Aims of the Convention - Preamble, Arts 1 and 2
The Court noted that the Hague Convention was based on mutual trust and reciprocity between nations. The Convention implicitly accepted that the same level and quality of justice would be dispensed in the courts of all States Parties.
The Convention aimed at discouraging self-help - the unlawful act must be reversed before the merits of a disputed right could be adjudicated. The Court further noted that the merits of the custody dispute need not be entertained, because there was absolute confidence in the judicial system of the Requesting State.
Settlement of the Child - Art. 12(2)
The Court found that the mother had not adduced sufficient, or compelling evidence to indicate that the child was so settled in her new environment that she should not be returned. The Court noted that the child was only two years old, that the mother was the main person in her life and that she would remain with the mother.
Issues Relating to Return
The Court regulated the practicalities of the return order as the parties had been unable to reach a complete agreement.
The Court rejected the mother's condition that her application for legal aid in the United Kingdom be approved before she could be obliged to return the child. It held that such a condition could only unnecessarily protract the matter. In this the Court noted that the mother was eligible for legal aid and had already made her application.
The Court rejected a further condition that the mother should be entitled to return immediately to South Africa if the father did not comply with his obligations. It held that such a provision would allow a circumvention of the authority of the United Kingdom courts.
As regards the inclusion of an interdict prohibiting the father from making contact with the mother or coming within one kilometre of her home, the Court held that the mother could obtain protection in the United Kingdom from the appropriate authorities if the need arose. The Court held that it was not appropriate to grant an interdict on the strength of a situation which had happened 18 months ago.
Author of the summary: Peter McEleavy
INCADAT comment
Settlement of the Child
A uniform interpretation has not emerged with regard to the concept of settlement; in particular whether it should be construed literally or rather in accordance with the policy objectives of the Convention. In jurisdictions favouring the latter approach the burden of proof on the abducting parent is clearly greater and the exception is more difficult to establish.
Jurisdictions in which a heavy burden of proof has been attached to the establishment of settlement include:
United Kingdom - England & Wales
Re N. (Minors) (Abduction) [1991] 1 FLR 413 [INCADAT cite: HC/E/UKe 106]
In this case it was held that settlement is more than mere adjustment to surroundings. It involves a physical element of relating to, being established in, a community and an environment. It also has an emotional constituent denoting security and stability.
Cannon v. Cannon [2004] EWCA CIV 1330, [2005] 1 FLR 169 [INCADAT cite: HC/E/UKe 598]
For academic criticism of Re N. see:
Collins L. et al., Dicey, Morris & Collins on the Conflict of Laws, 14th Edition, Sweet & Maxwell, London, 2006, paragraph 19-121.
However, it may be noted that a more recent development in England has been the adoption of a child-centric assessment of settlement by the House of Lords in Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937]. This ruling may impact on the previous case law.
However there was no apparent weakening of the standard in the non-Convention case Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649,[INCADAT cite: HC/E/UKe 982].
United Kingdom - Scotland
Soucie v. Soucie 1995 SC 134 [INCADAT cite: HC/E/UKs 107]
For Article 12(2) to be activated the interest of the child in not being uprooted must be so cogent that it outweighs the primary purpose of the Convention, namely the return of the child to the proper jurisdiction so that the child's future may be determined in the appropriate place.
P. v. S., 2002 FamLR 2 [INCADAT cite: HC/E/UKs 963]
A settled situation was one which could reasonably be relied upon to last as matters stood and did not contain indications that it was likely to change radically or to fall apart. There had therefore to be some projection into the future.
C. v. C. [2008] CSOH 42, [INCADAT cite: HC/E/UKs 962]
United States of America
In re Interest of Zarate, No. 96 C 50394 (N.D. Ill. Dec. 23, 1996) [INCADAT cite: HC/E/USf 134]
A literal interpretation of the concept of settlement has been favoured in:
Australia
Director-General, Department of Community Services v. M. and C. and the Child Representative (1998) FLC 92-829 [INCADAT cite: HC/E/AU 291];
China - (Hong Kong Special Administrative Region)
A.C. v. P.C. [2004] HKMP 1238 [INCADAT cite: HC/E/HK 825].
The impact of the divergent interpretations is arguably most marked where very young children are concerned.
It has been held that settlement is to be considered from the perspective of a young child in:
Austria
7Ob573/90 Oberster Gerichtshof, 17/05/1990 [INCADAT cite: HC/E/AT 378];
Australia
Secretary, Attorney-General's Department v. T.S. (2001) FLC 93-063 [INCADAT cite: HC/E/AU 823];
State Central Authority v. C.R [2005] Fam CA 1050 [INCADAT cite: HC/E/AU 824];
Israel
Family Application 000111/07 Ploni v. Almonit, [INCADAT cite: HC/E/IL 938];
Monaco
R 6136; M. Le Procureur Général contre M. H. K., [INCADAT cite: HC/E/MC 510];
Switzerland
Präsidium des Bezirksgerichts St. Gallen (District Court of St. Gallen) (Switzerland), decision of 8 September 1998, 4 PZ 98-0217/0532N, [INCADAT cite: HC/E/CH 431].
A child-centric approach has also been adopted in several significant appellate decisions with regard to older children, with emphasis placed on the children's views.
United Kingdom - England & Wales
Re M. (Children) (Abduction: Rights of Custody) [2007] UKHL 55, [2008] 1 AC 1288, [INCADAT cite: HC/E/UKe 937];
France
CA Paris 27 Octobre 2005, 05/15032, [INCADAT cite: HC/E/FR 814];
Québec
Droit de la Famille 2785, Cour d'appel de Montréal, 5 December 1997, No 500-09-005532-973 [INCADAT cite: HC/E/CA 653].
In contrast, a more objective assessment was favoured in the United States decision:
David S. v. Zamira S., 151 Misc. 2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) [INCADAT cite: HC/E/USs 208]
The children, aged 3 and 1 1/2, had not established significant ties to their community in Brooklyn; they were not involved in school, extra-curricular, community, religious or social activities which children of an older age would be.
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.