By Estelle de Wet, Head of the Child & Family Law department at Shepstone & Wylie Attorneys
South Africa is a signatory to the Hague Convention, which provides that, if a parent removes a child from hisher habitual place of residence without the other parent's consent (where such consent is required), then the country to which the child has been removed must immediately return that child to hisher country of habitual residence. This is ony applicable in circumstances where both countries are signatories to the Hague Convention. One of the very few exceptions to this rule is, that if a child has become settled in hisher environment, then the court is not obliged to return the child.
In a recent case, a mother (who was domiciled in Northern Ireland) removed her young daughter to South Africa after she was ordered by a court to hand her over to her father in Northern Ireland. The child was about 5 years old when she arrived in South Africa and the proceedings were delayed by inaction on the part of the Central Authority in South Africa for some considerable time. A judgment was given in the Durban High Court ordering the mother to return the child and this order was appealed by her.
By the time the matter came before the appeal court, some three and a half years had lapsed from the time the child was first brought to South Africa. At this time, the child was about 9 years old and the appeal court, although extremely scathing of the mother's conduct, held that the child had by all accounts settled in South Africa. The appeal court found that it would be "a shock to her [the child’s] system" to have to go back to Northern Ireland at this critical time of her life, and the court thus ordered that she could remain in South Africa notwithstanding her wrongful removal from Northern Ireland.
For any queries on the above, please contact:
Estelle de Wet
Head of Child & Family Law
Shepstone & Wylie Attorneys
+27 31 575 7505