*Article* **Concurrent Convention and Non-Convention Cases: Child Abduction in England and Wales**

**Rob George 1,2,\* and James Netto 3,\***


**Abstract:** The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and heard alongside the Hague application. Given the different nature of these two applications, having them heard concurrently raises a number of challenges for the parties in terms of the evidence required and for the court in terms of the analytical process being undertaken. This article explores the nature of the two applications, the reasons why they might be brought concurrently, and the challenges that can arise in such cases.

**Keywords:** abduction; 1980 Hague Convention; non-Convention abduction cases; court procedure; concurrent applications

#### **1. Introduction**

When it applies, the 1980 Hague Convention on the Civil Aspects of International Child Abduction provides a robust and effective legal remedy to child abduction.1 It operates as a sort of 'forum' convention, where the welfare of the particular child concerned is not the court's paramount consideration.2 By contrast, in abduction cases where the Convention does not apply—colloquially termed 'non-Convention cases'—the court in England and Wales applies a welfare jurisdiction and determines, often based on a *summary* assessment of welfare, whether the child should be returned to the previous home country or not. While there is no presumption in favour of a return order in non-Convention cases, such orders are not unusual; judges are instructed that they 'may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there'.3 Crucially, although the classic case for this non-Convention approach to be applied is where the relevant other state is simply not a signatory to the 1980 Convention, it can also be used even when the Convention is applicable to the case, with the non-Convention application heard either concurrently with the Hague application or subsequently.

Our interest in this article is not with considering the general case law in England concerning either Convention or non-Convention cases, but in examining cases where an applicant runs their case under *both* of these jurisdictions concurrently. While the number of *reported* cases addressing this issue is relatively modest (we think there are about a dozen

**Citation:** George, Rob, and James Netto. 2023. Concurrent Convention and Non-Convention Cases: Child Abduction in England and Wales. *Laws* 12: 70. https://doi.org/ 10.3390/laws12040070

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 23 June 2023 Revised: 28 July 2023 Accepted: 29 July 2023 Published: 7 August 2023

**Copyright:** © 2023 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

<sup>1</sup> In a continuation of a long-standing pattern, in 2015 England and Wales returned 57% of children in applications under the Convention against a global average 'return rate' of 45%: (Lowe and Stephens 2018).

<sup>2</sup> The welfare of children *generally* is safeguarded by the operation of the Convention; the Preamble to the Convention states that parties to the Convention are '[f]irmly convinced that the interests of children are of paramount importance in matters relating to their custody'.

<sup>3</sup> *Re J (Abduction: Rights of Custody)* [2005] UKHL 40, [2006] 1 AC 80, [32].

reported decisions, though they are difficult to search for), our experience in practice4 is that it is common for cases to be pleaded simultaneously under both legal routes.5 More often than not, when deployed simultaneously, our experience is that the Hague application becomes the firm focus of the case, and the non-Convention return is given little more than cursory attention. However, with both applications live, litigants are able to rely on both as the case develops.

As we set out below, the English approach appears to be very unusual when seen in an international context. The English approach of allowing concurrent applications to be made demonstrates an important power of domestic law to supplement the provisions of the 1980 Hague Convention in responding to international child abduction, and the fact that similar provisions are not deployed in other states is notable. There are also serious challenges, though. One view is that a parent whose child has been wrongfully removed or retained should be able to deploy any remedy available to them as swiftly as possible, noting the long-term harms caused to children by child abduction (Freeman 2006, 2014). Against that, as we identify in this article, there are significant challenges that arise from the concurrent approach. Concurrent applications raise questions about the fairness of the procedure in individual cases, rely on intellectually different exercises and ask fundamentally different questions, and consequently can create practical difficulties in marshalling and analysing appropriate evidence for two applications. The particular challenge is that a court focused on a 1980 Hague case may find itself making a welfare decision with an inadequate evidential basis and where, had the case been run fully grounded on the individual child's welfare, different procedures might have been adopted and a different outcome reached.

#### **2. Non-Convention Child Abduction Cases**

It is trite to observe that international child abduction is a problem that existed long before the 1980 Convention, the Convention being, of course, a response to a problem that had been identified many years earlier. The pre-Convention approach of the English courts drew on the High Court's powers in wardship and under its inherent jurisdiction, based on a welfare assessment.6 Though grounded in the individual child's best interests, the courts not only permitted but were broadly favourable to return orders being made, requiring children to be returned to their previous home country following an abduction. While some cases have approached these applications on the basis of a full welfare enquiry,7 the modern approach to non-Convention cases generally focuses on a summary procedure whereby the court considers little or no oral evidence and determines the welfare issue on a summary basis.8 Welfare evidence is provided to the court in the form of written statements and, often, a welfare report from a social worker at Cafcass (the Child and Family Court

<sup>4</sup> Because this issue is often pleaded but not often reported, we rely to some extent on our experience in practice. James Netto is a Partner at the International Family Law Group in London; his practice focuses on international children cases and he typically runs and oversees dozens of child abduction cases each year. Rob George is a barrister practising from Harcourt Chambers; his practice also focuses on international children cases, and he is involved with around 20 child abduction cases each year, instructed by numerous solicitors. Both authors have also spoken with colleagues who practise in child abduction law in England and Wales, to broaden our understanding beyond our own direct experience.

<sup>5</sup> See, e.g., *WvZ* [2023] EWHC 469 (Fam); unlike the cases we focus on in this article, in that case the applicant mother accepted that the court would address the Hague application first and, only if that application was unsuccessful, then move on to consider her application under the inherent jurisdiction at a later hearing. See also the earlier examples of *W and W v H (Child Abduction: Surrogacy) (No 2)* [2002] 2 FLR 252: the intended parents in a surrogacy arrangement had earlier lost their Hague Convention return application ([2002] 1 FLR 1008), but Hedley J subsequently ordered the child's return to California pursuant to the inherent jurisdiction.

<sup>6</sup> *Re L (Minors) (Wardship: Jurisdiction)* [1974] 1 WLR 250.

<sup>7</sup> *Re L*, ibid., involved (as the headnote puts it) 'a full investigation of the facts with evidence from both parties' heard over two days. It remains possible for the court to consider a return order application on full evidence: the authors acted in a non-Hague abduction case that involved a 10-day fact-finding hearing and a further 3-day welfare hearing in 2021: *FvM* [2021] EWHC 553 (Fam).

<sup>8</sup> As Moylan LJ has pointed out, this process is often termed 'summary return', but that phrase is inapt. The descriptor is an inaccurate 'shorthand for a return order made after a summary welfare determination': *Re A and B (Children) (Summary Return: Non-Convention State)* [2022] EWCA Civ 1664, [3].

Advisory and Assessment Service), assessed by the judge following submissions from the parties' lawyers.

This approach is not without its critics,<sup>9</sup> but is designed to allow the court to respond speedily to child abduction cases and minimise the extent to which the passage of time becomes a significant factor in the welfare determination. While there may be some passing similarity between this approach and the position of summary return orders under the 1980 Convention, the more recent authorities have stressed that non-Convention cases are not to be approached on the same basis as Convention cases. In Baroness Hale's words, '[t]here is no warrant, either in statute or authority, for the principles of The Hague Convention to be extended to countries which are not parties to it'.10 More generally, Moylan LJ has stressed that 'the exercise in which the court is engaged when the court is determining an application for a return order under [the court's powers outside the 1980 Convention] ... is *not* the same as when the court is determining an application for the return of a child under the 1980 Convention'.<sup>11</sup> Lord Wilson went perhaps further in saying that the court's approach under the Convention is 'entirely different' from an assessment under the inherent jurisdiction.12 The reason for this difference of approach stems from the nature of the 1980 Convention. The decision of a State A to sign up to the Convention's rules, and the separate decision of each existing signatory state13 to accept State A's accession, involves an acceptance of the Convention's rules and a presumptive mutual respect for the legal processes of the other state. This separate system and reciprocity do not exist in child abduction cases outside the Convention, and so the approach to Convention cases cannot be extended to non-Convention situations.

Despite the fact that the Convention approach plainly does not apply to non-Convention cases, the English courts nonetheless take the view that return orders, based on a summary assessment of the child's welfare, should be made in many cases. The English approach to non-Convention cases appears to be relatively unusual by international standards. The International Academy of Family Lawyers (IAFL) surveyed its members from 17 jurisdictions in 2019 (Scott 2019). Their responses found that many jurisdictions do not consider return applications to non-Convention states at all, and of those that do, most are 'generally sparing in the use of this power' (Scott 2019, para. 6(iii)). Going further and considering concurrent or consecutive applications specifically, the Irish High Court has held that if an abduction falls within the scope of the 1980 Convention (in the sense that both relevant states are signatories to it), an application under the inherent jurisdiction would be contrary to principle: 'To use the inherent jurisdiction to make an order returning these children to Australia after holding that they are habitually resident in Ireland would be to circumnavigate the content and the principles of the Hague Convention'.14

#### **3. Mechanisms under Which the Non-Convention Application Can Be Made**

There are numerous possible legal responses in English law to a child abduction case outside the 1980 Convention.15 Some of these relate to other international law mechanisms,

<sup>9</sup> See, e.g., Holman J in *EF v LC* [2019] EWHC 3791 (Fam), [6], in the context of a case concerning serious allegations of sexual abuse: 'I have, frankly, found this an increasingly unsatisfactory procedure or process as the hearing has progressed. I am being asked to make a welfare judgment on the basis of very partial evidence and a relatively perfunctory inquiry.'

<sup>10</sup> Re J, [22].

<sup>11</sup> *Re A and B (Children) (Summary Return: Non-Convention State)* [2022] EWCA Civ 1664, [3] (original emphasis). See also the explanation of the different processes by Holman J in *EF v LC* [2019] EWHC 3791 (Fam), [2]–[4].

<sup>12</sup> *Re NY (Abduction: Jurisdiction)* [2019] UKSC 49, [2019] 3 WLR 962, [24].

<sup>13</sup> Or, in the case of EU states, the collective decision of the European Union: *Opinion 1/13 of the Court* (Grand Chamber) dated 14 October 2014.

<sup>14</sup> *KW v PW* [2016] IEHC 513, O'Hanlon J.

<sup>15</sup> The same is true in some other states. In New Zealand, for example, an application can be brought: (i) as a form of relocation application pursuant to the powers under the Care of Children Act 2004; (ii) as an argument in relation to forum conveniens, such as in the unreported case of *AMD v MMN*, 8 July 2011, Judge E Smith sitting in Christchurch; (iii) by the equivalent to wardship proceedings, having children placed in the guardianship of the High Court and then summary return orders made, as in *SG v DSG* [2019] NZHC 1015 (there, return

such as the 1996 Hague Child Protection Convention16 or the European Convention on the Recognition and Enforcement of Decisions concerning Custody of Children and on the Restoration of Custody of Children 1980,17 but our interest in this paper is in the intersection of 1980 Hague cases and English domestic law remedies. As we go on to show, there are two main domestic law remedies—an application under the Children Act for (usually) a specific issue order under s 8, or an application invoking the High Court's inherent jurisdiction or wardship powers. As it is of some relevance to the argument, we pause briefly to note that each of these applications is made on a different form. An application under the Hague Convention is made on Form C67; an application under the inherent jurisdiction is on Form C66; and an application under the Children Act for a private law remedy is under Form C100. Forms C66 and C67 can be issued *only* in the High Court;18 conversely, a C100 can be issued *only* in the Family Court (though the proceedings can then be *transferred* to be heard in the High Court).19 In practice, this technicality should make little difference as Judges of the High Court can sit as Judges of the Family Court, and the court rooms at the Royal Courts of Justice in London are courts of both the High Court and the Family Court.

It is also possible for orders to be made without any formal application, if the court is otherwise seised of proceedings in relation to the family. The court (either the Family Court or the High Court) can make a private law order under the Children Act of its own motion in any 'family proceedings';<sup>20</sup> family proceedings include any application under the inherent jurisdiction but do *not* include a 1980 Hague application.21 Separately, the High Court<sup>22</sup> can invoke the inherent jurisdiction of its own motion, seemingly in any proceedings before it including 1980 Hague proceedings, though this is not stated in any Act or court rules.23

#### *Domestic Law Remedies*

By far the most common is an application under domestic law for one of two orders: a specific issue order under s 8 of the Children Act 1989, or an order under the powers of the High Court's inherent jurisdiction.<sup>24</sup> As this is our main concern in relation to what we term concurrent applications, we set this out here in some detail.

An application under the Children Act 1989 is for a specific issue order pursuant to the court's powers in s 8. This type of order can be used to regulate any aspect of parental responsibility in relation to a child. Orders can be made in relation to any child up to the age of 18, but orders in relation to 16 and 17 year olds should be made only if the circumstances are 'exceptional'.25 There is clear authority at the highest level that a specific issue order

orders from India to New Zealand); and (iv) by application for writ under the Habeas Corpus Act 2001, as in *Olsson v Culpan* [2017] NZHC 215 (summary return from New Zealand to Abu Dhabi) and *Kaufusi v Klavenes* [2010] NZHC 1555.

<sup>16</sup> *Re J (1996 Hague Convention: Morocco)* [2015] EWCA Civ 329, [2015] 3 WLR 747 makes clear that the 1996 Convention can, in the right circumstances, be used to respond to child abduction.

<sup>17</sup> The specific powers in relation to cases of what it terms 'improper removal' are under Article 8 and 9. For an example, see *T v R (Abduction: Forum Conveniens)* [2002] 2 FLR 544.

<sup>18</sup> FPR 2010, r 12.45 and 12.36, respectively.

<sup>19</sup> FPR 2010, r 5.4.

<sup>20</sup> Children Act 1989, s 10(1)(b); 'family proceedings' are defined in s 8(3)–(4).

<sup>21</sup> Children Act 1989, s 8(3) and (4).

<sup>22</sup> The Family Court cannot invoke the inherent jurisdiction.

<sup>23</sup> *Re NY* [54].

<sup>24</sup> These powers are also used in relation to so-called outward abduction cases, where a child has been removed from England and Wales to another state. Separately, in a different use of the phrase, the inherent jurisdiction is sometimes used to justify the English court's claim to having jurisdiction in relation to an abducted child who is no longer within England and Wales based on the child being a British national, but this is not our concern in this article.

<sup>25</sup> Children Act 1989, s 9(6).

can be used to effect the return of a child following an abduction,26 and indeed that this should be the preferred legal route unless there are reasons to adopt an alternative path.27

The inherent jurisdiction is the name used for the High Court's ancient powers to make orders for the care or protection of children; these powers include the ability to make a child a ward of court, though the powers are wider than that (Lowe and White 1986). Although reinforced by some statutory provisions,28 the powers are derived from the Crown's claimed right and duty to defend its citizens. There is no statutory code and, while there are restrictions on the *exercise* of the inherent jurisdiction's powers,29 the actual powers themselves are said to be 'theoretically limitless'.<sup>30</sup> There is no doubt that the scope of the inherent jurisdiction includes making order for the return of a child following an abduction,31 and indeed in our experience this remains the most common legal route used in the English courts.

In many ways, applications under s 8 or under the inherent jurisdiction are interchangeable, although specific practical considerations may apply, as explored in more detail below. In our experience, there is often no particular legal reason why one is chosen rather than the other;<sup>32</sup> Though a focus on the inherent jurisdiction may flow from the greater access to legal aid for those applications (which we address later), along with '[t]he instinctive reaction of the English lawyer in these circumstances ... to reach for the inherent jurisdiction'.33 However, both legal routes allow the court to make an enforceable order for the immediate return of a child from one country to another, which may or may not also involve a determination of child arrangements issues concerning the care of the child or contact with a parent following that return. While the English court uses these orders in relation both to children who have been abducted *to* England and Wales and those abducted *from* it to another country,<sup>34</sup> our interest with concurrent application cases is only with children who have been wrongfully brought to this country.

The question of whether it was permissible to use the inherent jurisdiction when there was a statutory remedy available under the Children Act was subject to specific consideration by the Supreme Court in *Re NY (Abduction: Jurisdiction)*. <sup>35</sup> Contrary to the appellant's arguments,36 Lord Wilson held that it was permissible to bring an application under *either* route. In rejecting the argument that, where a specific issue order could be sought, it should not be permissible to apply under the inherent jurisdiction, Lord Wilson said:

<sup>26</sup> The leading authority on non-Hague child abduction is *Re J (Abduction: Rights of Custody)* [2005] UKHL 40, [2006] 1 AC 8, where the order in question was a specific issue order under s 8.

<sup>27</sup> *Re NY (Abduction: Jurisdiction)* [2019] UKSC 49, [2019] 3 WLR 962; *Re N (A Child)* [2020] EWFC 35.

<sup>28</sup> Senior Courts Act 1981, s 41 and Sched 1, para. 3(b)(ii), for example.

<sup>29</sup> *HB v A Local Authority and the Local Government Association* [2017] EWHC 524 (Fam), [50].

<sup>30</sup> See, e.g., *Re X (Wardship: Jurisdiction)* [1975] Fam 47, 57 (Lord Denning MR), 60 (Roskill LJ) and 61 (Sir John Pennycuick), though all referring to the limitations on the court in terms of whether it will *exercise* that jurisdiction; see also *Re W (Medical Treatment: Court's Jurisdiction)* [1993] Fam 64, 81 (Lord Donaldson MR).

<sup>31</sup> The classic authority is *Re L (Minors) (Wardship: Jurisdiction)* [1974] 1 WLR 250; See generally Lowe and White (1986, chp. 17). On the history of the English court's approach, see Lowe and Nicholls (2016, para. 30.6 et seq).

<sup>32</sup> There are some differences, though, which can matter in other contexts. For example, in an outward abduction where the English court's jurisdiction may be in doubt, an application for a s 8 order will be caught by the jurisdictional rules of the Family Law Act 1986, whereas an application under the inherent jurisdiction for a 'bare' return order will not unless it also includes an application in relation to the custody, care and control, or education of the child concerned. See *A v A (Children: Habitual Residence)* [2013] UKSC 60, [2014] AC 1, [28], though it is a question of substance rather than of form, with the court looking both at the application and at the applicant's substantive statement to determine whether what s/he is seeking falls within the 1986 Act's jurisdictional rules or not: see *Re A (A Child)* (Habitual Residence; 1996 Hague Child Protection Convention) [2023] EWCA Civ 659, [62].

<sup>33</sup> *Re J (1996 Hague Convention: Morocco)* [2015] EWCA Civ 329, [2015] 3 WLR 747, [74].

<sup>34</sup> The law and procedures are the same: *Re N (A Child)* [2020] EWFC 35, [3].

<sup>35</sup> [2019] UKSC 49, [2019] 3 WLR 962.

<sup>36</sup> The authors acted for the appellant in the Supreme Court in *Re NY*, together with Mark Twomey KC and Alex Laing.

... if the issue could have been determined under the 1989 Act as, for example, an application for a specific issue order, the policy reasons to which I have referred will need to be addressed. At the first hearing for directions the judge will need to be persuaded that, exceptionally, it was reasonable for the applicant to attempt to invoke the inherent jurisdiction. It may be that, for example, for reasons of urgency, of complexity or of the need for particular judicial expertise in the determination of a cross-border issue, the judge may be persuaded that the attempted invocation of the inherent jurisdiction was reasonable and that the application should proceed. Sometimes, however, she or he will decline to hear the application on the basis that the issue could satisfactorily be determined under the 1989 Act.

The three reasons given by Lord Wilson as to why the inherent jurisdiction should be available in these cases—urgency, complexity, the need for High Court expertise in crossborder cases—do not stand up to much scrutiny (George and Laing 2020, pp. 275–76). First, not all abduction cases have these qualities, yet it remains common that cases are brought under the inherent jurisdiction. Second, other cases that are brought concurrently, such a medical treatment cases,<sup>37</sup> do not have the cross-border element to them. Third, other types of case where these characteristics are present, such as some international relocation cases, are not eligible for an application to be made under the inherent jurisdiction. Finally, it is never explained why these characteristics make a case unsuitable for hearing as an application under the Children Act foras8 specific issue order, allocated to a judge sitting at High Court level.38 While some judges have endeavoured to interpret *Re NY* as saying that applications should be brought under the specific issue order route unless there are particular, expressed reasons why the inherent jurisdiction is needed,39 looking at the reported cases one continues to find a plethora of decisions in this area all made under the inherent jurisdiction.40

In reality, the inherent jurisdiction is often preferred because legal aid is more readily available for an applicant issuing an application under the inherent jurisdiction. Under the current legal aid regime, an application in relation to child abduction made by way of Form C66 invoking the court's wardship or inherent jurisdiction powers is eligible for meansand merits-assessed legal aid without any kind of preliminary threshold being met; the respondent would also be eligible to apply on the same bases. By contrast, an application for the same substantive remedy made by way of C100 seeking a specific issue order would face the additional threshold hurdle of needing to demonstrate either that the applicant was at least prima facie the victim of domestic abuse<sup>41</sup> or that the case justified 'exceptional case funding';<sup>42</sup> delay can bedevil complex funding arrangements, which is contrary to the need for speedy resolution of child abduction cases. Moreover, even if an applicant can

<sup>37</sup> For criticism of the use of the inherent jurisdiction in these cases, on the basis that an adequate remedy under the Children Act exists, see *Re JM (Medical Treatment)* [2015] EWHC 2832 (Fam), [2016] 2 FLR 235 per Mostyn J; R George, 'The Legal Basis of the Court's Jurisdiction to Authorise Medical Treatment of Children', in Goold et al. (2019); Bridgeman (2017).

<sup>38</sup> Mostyn J makes the same point in robust language in *Re N (A Child)* [2020] EWFC 35, [9]: 'I have referred above to the need to establish exceptionality if the path chosen is an application to the High Court under its inherent powers. *It is hard to conceive of circumstances where this would be justified.* The matters referred to by Lord Wilson, namely urgency, complexity or judicial expertise can be fully accommodated by allocating the matter upwards within the Family Court, if necessary to High Court judge level.' (Emphasis added.)

<sup>39</sup> See e.g., Mostyn J in *Re N (A Child)* [2020] EWFC 35, [9] Peel J made similar comments in an inward return case where a child aged 16 years and 7 months had been removed to the USA, and the application was brought under the inherent jurisdiction: *Re DD (Inward Return Order)* [2021] EWHC 607 (Fam).

<sup>40</sup> There are at least 11 cases reported on Bailii in 2021–2022 that use the inherent jurisdiction to seek the return of an abducted child. Our experience is that at least half of the final decisions given by the High Court in these cases are not made available on Bailii.

<sup>41</sup> The criteria for demonstrating this are also immensely unhelpful for an international case. For example, a report of domestic abuse to any police force within the United Kingdom will be accepted as adequate evidence, but a report to any foreign police force will not.

<sup>42</sup> It is difficult to secure 'exceptional case funding': since 2015–2016, an average of only 152 family law cases per year have been granted exceptional case funding in England and Wales: Ministry of Justice (2022) *Legal Aid*

meet this threshold, it is unlikely that a respondent would do so. This difference of legal aid availability presumably arises from a lack of understanding on the part of the drafters of the legal aid rules, but creates a serious disincentive for parties to use the available statutory remedies when the consequence of doing so will be to remove the possibility of legal aid to support their proceedings.

#### **4. Why Would Concurrent Applications Be Made?**

The provisions of the 1980 Convention envisage explicitly that there will be cases where the remedies under the Convention itself are not complete. Article 18 says in terms: 'The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time.' While this provision does not confer any new powers on the court,<sup>43</sup> it makes clear that the fact that an application is brought under the Convention does not limit the court's ability to rely on other, non-Convention powers to respond to the case before it. As Baroness Hale explained, Article 18 shows 'that the provisions of the Convention do not limit any *other* power which the court may have to order the child's return. It is contemplating powers conferred by the ordinary domestic law rather than by the Convention itself.'<sup>44</sup> That in itself says nothing about *concurrent* applications, rather than (as we understand the approach in other states to be) *consecutive* applications.

Nonetheless, there are a number of reasons why an applicant might want to argue their case both under the Convention and outside it. In practice, experienced practitioners will often simply add a line to their applicant Hague statements, highlighting that, in the alternative, the applicant seeks the child's return pursuant to the inherent jurisdiction. Our experience is that there may be a fleeting and unremarkable reference to the inherent jurisdiction in the headers of documents, and perhaps a short concluding paragraph of counsel's written summary ('position statement') before a first hearing noting the option of an alternative case being made under the inherent jurisdiction. Very occasionally, a C66 (inherent jurisdiction) application form is filed alongside the usual C67 (1980 Hague Convention) and C1A (allegations of harm) forms, but otherwise the issue rarely occupies much further thought until during (or after!) the final hearing.

#### *4.1. Cases Where an 'Element' of the Convention Is in Doubt*

It is not uncommon for an applicant to issue a 1980 Convention case knowing that one or more aspect of what we term the 'elements' of the case—that is, the requirements of Article 3: habitual residence, rights of custody that were being exercised, and breach of those rights amounting to a wrongful removal or retention—is in doubt. Early cases tended to relate to unmarried fathers where the applicant might technically lack rights of custody,45 but there are numerous other examples. In *Re KL*, the father's case was brought on the basis of a 1980 Convention case that 'depend[ed] upon whether K was still habitually resident in Texas on [the relevant date]', and—to safeguard against a negative answer to that question—also 'asserted that the court should exercise its inherent jurisdiction to return the child even if not required to do so under the terms of the Convention'.46 In *Re KL*, therefore, a child who had become habitually resident in England and Wales prior to the date of wrongful retention was nonetheless returned after a summary determination of welfare using the court's domestic powers under the inherent jurisdiction.

*Statistics Quarterly: April to June 2022: gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2022*, Table 8.2.

<sup>43</sup> *Re M (Abduction: Rights of Custody)* [2007] UKHL 55, [2008] 1 AC 1288, [7] and [21]; Perez-Vera (1980, para. 112).

<sup>44</sup> *Re M (Abduction: Rights of Custody)* [2007] UKHL 55, [2008] 1 AC 1288, [21].

<sup>45</sup> See, e.g., *Hunter v Murrow (Abduction: Rights of Custody)* [2005] EWCA Civ 976, [2005] 2 FLR 1119; in *TvR (Abduction: Forum Conveniens)* [2002] 2 FLR 544, concurrent applications were made under the 1980 European Convention and the inherent jurisdiction, with no application under the 1980 Hague Convention 'because it was accepted that the mother's removal of the child from Sweden was not wrongful within Art 3 because at that time the mother had sole custody of the child under an order of a Swedish court.'

<sup>46</sup> *Re KL (Abduction: Habitual Residence)* [2013] UKSC 75, [2014] AC 1017, [13].

*Re NY* can be seen as another such case,47 though the issue there arose in a procedurally irregular way. The application by the father for the return of the child to Israel was brought only under the 1980 Convention. However, at first instance MacDonald J, in ordering return under the Convention, commented in passing that in addition he would also have ordered the child to be returned under the inherent jurisdiction.48 On appeal, the Court of Appeal held that the 1980 Convention was not applicable on the facts of the case, because the mother's retention of the child in England and Wales was not 'wrongful' and therefore the Convention did not 'bite'.49 However, relying on MacDonald J's passing comments, the Court of Appeal went on to make an order for return under the inherent jurisdiction on their summary assessment of welfare. Moylan LJ added that he would 'caution against applications under inherent jurisdiction being made save in circumstances when there are real doubts as to whether the 1980 Convention applies'.50 It is less clear why the court issued this warning; while we identify in this paper the complications of concurrent applications, there seem to be distinct advantages as well. The Court of Appeal's own return order was subsequently overturned by the Supreme Court,51 which criticised not only on the procedural unfairness of the Court of Appeal's approach (making an order for which there was no application and indeed no warning to the mother that it was in contemplation), but also the inadequacy of the evidential foundation available to the court. Because the parties had only ever filed evidence relevant to the 1980 Hague Convention proceedings, the court was ill-equipped to consider a welfare-based order. As we explore elsewhere in this article, the scope of the evidence before the court is crucial. Because the 1980 Hague Convention is expressly not about the individual child's best interests, even in cases where the court gains a discretion about the return of the child because an exception has been successfully invoked,52 the evidential focus of a Convention case is quite different from a welfare case. Consequently, while the Supreme Court's judgment is open to criticism,53 we agree that the court's focus on the evidence available to the court was crucial.

#### *4.2. Cases Where a Child Is Over the Age of 16*

By virtue of Article 4 of the 1980 Hague Convention, the provisions cease to apply to children once they reach the age of 16. Applicants therefore who are seeking the return of an older child (either alone or as part of a sibling group) may therefore need to consider a non-Hague mechanism for return.<sup>54</sup> Where the two relevant states are both parties to the 1996 Hague Convention, that instrument will usually provide a remedy in relation to the wrongful removal or retention of a child aged 16 or 17.55 Outside the 1996 Convention, recourse is again had to the English court's domestic remedies.

This was the approach adopted in *Re Q and V (1980 Hague Convention and Inherent Jurisdiction Summary Return)*, <sup>56</sup> regarding an application for the return of two children to Poland. The child 'V' was 13, whose return was sought pursuant to the 1980 Hague Convention, while 'Q' was 17, where the application was pursuant to the inherent jurisdiction. Williams J rejected the arguments for any exceptions under the 1980 Convention in relation to V, in particular under the 'grave risk/intolerability' provisions of Article 13(b), and ordered that he should be returned. In relation to Q, the judge held it was in his welfare

<sup>47</sup> [2019] UKSC 49, [2019] 3 WLR 962.

<sup>48</sup> [2019] EWHC 1310 (Fam), [52] and [73].

<sup>49</sup> [2019] EWCA Civ 1065, [59].

<sup>50</sup> Ibid., [64].

<sup>51</sup> [2019] UKSC 49, [2019] 3 WLR 962.

<sup>52</sup> Re M—the policy of the Convention remains relevant and can be balanced against welfare.

<sup>53</sup> See above, text from fn 50; see also R George and A Laing, 'Return Orders and the Inherent Jurisdiction After Re NY' [2020] *Family Law* 271.

<sup>54</sup> *Re DD (Inward Return Order)* [2021] EWHC 607 (Fam) is an example of a non-Convention application brought in relation to a young person aged 16 years and 7 months who had been removed to the USA.

<sup>55</sup> Unlike the 1980 Convention, the 1996 Convention applies until a child's 18th birthday: see Article 2.

<sup>56</sup> [2019] EWHC 490 (Fam).

interests to be returned to Poland pursuant to the inherent jurisdiction. In that case, the mother's track record of non-compliance with Polish court orders was a significant factor, and policy considerations were particularly forceful in what was a 'hot pursuit' matter. The interconnection between the factors relevant to Article 13(b) for V and the welfare arguments for Q was noted specifically by Williams J:

My discussion in the following paragraphs is of relevance to the application for V's return pursuant to the 1980 Hague Convention where the Article 13(b) and child's objections exceptions are deployed. However it is also relevant to the welfare of Q which is the paramount consideration in relation to the application for his return pursuant to the inherent jurisdiction. The interplay between the evidence, issues arising and conclusions does not facilitate clear dividing lines.57

Williams J identifies here some important considerations which we think apply generally to concurrent applications, and which highlight the challenges that these cases can create. In *Re Q and V*, the evidence in relation to the two children under the two different legal mechanisms overlapped to a significant extent, though clearly the fact of the two separate applications in relation to two separate children will have allowed the parties to prepare evidence that was directed explicitly to both issues.58 In other cases, the factual evidence may not so easily overlap, creating a greater challenge for a judge asked to consider both types of case simultaneously.

A further conceivable set of circumstances could involve a half-siblings or other nonsubject child having been abducted as part of a family unit, where a 1980 Convention application can be brought regarding one child but not the other. The applicant may, for example, struggle to establish rights of custody in relation to this child, but nonetheless seek their return, both for its own sake but also to avoid the risk of arguments about sibling separation being made in the 1980 Convention proceedings.

#### *4.3. Settlement Cases?*

One potential reason that both applications might be made relates to 'settlement' cases, where more than a year has passed since the child was brought to this country and has subsequently become 'settled' here pursuant to Art 12(2) of the Convention. Article 12 sets out the *requirement* to return a child where an application is brought within a year of the date of the wrongful removal or retention, and then provides in sub-paragraph (2):

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

As Lowe and Nicholls (2019) explain in their detailed analysis of Article 12(2) cases in different jurisdictions, there is presently a divergence of views globally about the scope and interpretation of this provision.

The now-established English approach takes a wide interpretation of Article 12(2), holding that in such cases, even when a year has passed *and* the child is settled in their new environment, the court retains a discretion *under Art 12(2) of the Convention itself* to order the child's return (or not).<sup>59</sup> In exercising that discretion, the court considers a wide range of factors, and welfare is relevant but not determinative; the court can also consider, crucially, the policy objectives of the Convention.60 Courts in some other jurisdictions, including the USA (though there relying in part on Article 18) and New Zealand and Japan (in both

<sup>57</sup> Ibid., [58].

<sup>58</sup> Cf. the approach in *Re NY*, discussed above, where the Court of Appeal sought to use evidence prepared only in relation to Article 13(b) to support a welfare-based return order, an approach criticised by the Supreme Court.

<sup>59</sup> *Re M (Abduction: Rights of Custody)* [2007] UKHL 55, [2008] 1 AC 1288 ('*Re M*'), per Baroness Hale, with whom Lord Bingham, Lord Hope and Lord Brown agreed on this point—a decision that Baroness Hale held to be 'very difficult' and that she reached 'not without considerable hesitation'.

<sup>60</sup> *Re M*, [5] (Lord Hope) and [31] *et seq* (Baroness Hale).

cases interpreting their own domestic law) have reached the same conclusion, holding that the court retains a discretion to order the child's return even if settlement is established (Lowe and Nicholls 2019, pp. 42–44).<sup>61</sup> This approach, as well as creating consistency of approach with the other reasons why the court might not order a child's return under the Convention, also 'avoid[s] the separate and perhaps unfunded need for proceedings in the unusual event that summary return would be appropriate in a settlement case'.62

While this approach to Article 12(2) reduces the need for concurrent applications, because the court's discretion under the Convention (including consideration of policy) is likely to yield a more positive outcome from the applicant's perspective anyway, there are exceptions. In *Re B (A Child)*, <sup>63</sup> a Spanish child who had been abducted from Spain but had remained missing for over two years came to the attention of social services in London, following which the father was alerted as to the child's location. The father issued proceedings pursuant to the 1980 Hague Convention *and* under the inherent jurisdiction, seeking for the child's return to Spain. The judge determined the Hague Convention application first, holding (perhaps inevitably) that the child was indeed settled in England and Wales. However, following a more detailed, welfare-based evaluation (including a further Cafcass report), the judge determined that the child's welfare required a return order to be made under the inherent jurisdiction. As we go on to discuss in the next section, this case is illustrative of some of the challenges that concurrent applications can create.

The alternative, narrower view of Article 12(2) is quite different, holding that once a year has passed and the child is settled, the Convention no longer provides a mechanism to order the child's return.64 This approach appears to accord more naturally with the wording of Article 12(2) itself (Lowe and Nicholls 2019, p. 46; Schuz 2013, p. 234). However, if this approach were adopted, the potential need for concurrent applications becomes greater, because the Convention remedy can fall away entirely if the child is shown to be settled (which experience suggests is a low bar, given that at least a year has passed since the wrongful removal or retention).

This narrower approach to Article 12(2) was taken by the Full Court of the Family Court of Australia in *Department of Family and Community Services v Magoulas*. <sup>65</sup> The position in Australia is slightly different, because the 1980 Hague Convention is incorporated by separate domestic law provisions, rather than being given direct effect; consequently, as Bennett J has noted in the context of the 1996 Hague Convention, 'It is [the] legislation and regulations, rather than the 1996 Convention per se, which have the force of law in Australia'.66 In considering the Regulations that transpose Art 12(2) of the 1980 Convention into domestic law, the Full Court in *Magoulas* held that

there is nothing in Reg 16 which signals that a court is obliged, or in the exercise of some residual discretion, may order the return of a child if Reg 16(2) applies and the person opposing return establishes that the child is settled in his or her new environment.67

As Lowe and Nicholls summarise it, if the application under the 1980 Convention is made more than a year after the date of the wrongful removal or retention, and the child has become settled in their new environment, 'the court *cannot* make a return order' (Lowe and Nicholls 2019, p. 42). In the Australian view, there is a discretion under the Convention

<sup>61</sup> Citing in particular *Lozano v Montoya Alvarez* 134 S.Ct, 1224 (2014) and *Fernandez v Bailey* 2018 WL 6060380 on the US position, and *Secretary of State for Justice (as the New Zealand Central Authority) on behalf of TJ v HJ* [2006] NZSC 97 on New Zealand.

<sup>62</sup> *Re M*, [31].

<sup>63</sup> [2018] EWHC 1643 (Fam).

<sup>64</sup> This was the view in some early English cases (see, e.g., *Re S (A Minor) (Abduction)* [1991] 2 FLR 1 (CA) and *Cannon v Cannon* [2004] EWCA Civ 1330, [2005] 1 WLR 32, [62]), and commended itself to Lord Rodger in dissent in *Re M*, [7].

<sup>65</sup> (2018) 57 FamLR 371.

<sup>66</sup> *Adel and Banes* [2019] FamCA 7, [20].

<sup>67</sup> (2018) 57 FamLR 371, [18].

itself only where more than a year has passed, but the child has not yet become settled. The same approach is taken in France, Germany and Hong Kong (Lowe and Nicholls 2019, p. 44).

This approach has some support from the Perez-Vera Explanatory Report (Perez-Vera 1980; see also Eekelaar 1982). Describing the bright-line rule that applies up to the anniversary of the child's wrongful removal or retention as 'perhaps arbitrary', the report comments that:

in so far as [summary] return of the child is regarded as being in its best interests, it is clear that after a child's has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it—something which is outside the scope of the Convention. (Para 107)

The Perez-Vera report goes on to note that the provisions of Article 18 may have particular relevance to a case caught by Article 12(2):

[Article 18] underlines the non-exhaustive and complementary nature of the Convention. In fact, it authorizes the competent authorities to order the return of the child by invoking other provisions more favourable to the attainment of this end. This may happen particularly in the situations envisaged in the second paragraph of article 12, i.e. where, as a result of an application being made to the authority after more than one year has elapsed since the removal, the return of the child may be refused if it has become settled in its new social and family environment. (Para 112)

These two approaches to Article 12(2) are, on the surface, quite different. However, as *Re B* shows, even when the wider approach is taken, there may be cases where a concurrent application is required, or is at least desirable, though such instances will be significantly rarer in states where the wider view of Article 12(2) is taken.

#### **5. Challenges of Concurrent Applications**

Asking a court to consider a non-welfare summary assessment under the Hague Convention and a welfare determination under either the inherent jurisdiction or the Children Act simultaneously opens up significant challenges. The intellectual exercise that the court is being asked to undertake is markedly different in the two types of case, and asking judges, litigants (and their lawyers, if they are represented) and Cafcass to consider both concurrently raises a number of concerns.

The involvement of Cafcass is one area that warrants particular attention. Cafcass is the Children and Family Court Advisory and Support Service, an independent body whose employees are social workers, employed to assist the court in making assessments in relation to children. There is a specialist 'High Court team' within Cafcass, with particular expertise in the kinds of work that arise in cases heard by High Court Judges, including international child abduction work. In Hague cases, the role of Cafcass is generally limited to objections reports for children regarding defences under Article 13(2), and for most cases involving the defence of settlement under Article 12(2).68

By contrast, in a non-Hague case, the role of Cafcass is to advise the court broadly in relation to the child's welfare. *Re NY* specifically records the obligation to consider a Cafcass report,<sup>69</sup> but how is a Cafcass Officer meant to straddle both applications? Should an Officer be specifically instructed to report, or not report, on certain matters? Can a single report simultaneously be expected to address the strictly limited issue of child's objections and the broader issues relevant to a welfare assessment?

Similarly, the contrast of the two approaches may influence the evidence parents would wish to file. Whereas judges routinely highlight the summary nature of Hague

<sup>68</sup> *Re M (Abduction: Rights of Custody)* [2007] UKHL 55, [2008] 1 AC 1288.

<sup>69</sup> *Re NY (Abduction: Jurisdiction)* [2019] UKSC 49, [2019] 3 WLR 962, [62].

proceedings and stress that statements must not traverse every aspect of a child's life,<sup>70</sup> in non-Hague proceedings the evidence that the parents provide will likely need to address broader factors relevant to the child's family life. As the Supreme Court made clear in *Re NY*, an attempt to construct a welfare judgment based only on evidence directed to an Article 13(b) 'grave risk' defence under the Hague Convention will be an appealable error of approach.71

Intrinsically linked to issues of evidence and welfare reports is the question of findings amidst disputed allegations, often in relation to domestic abuse. For disputed allegations in Hague Convention matters, the court embarks down the well-trodden path of taking the relevant allegations "at their highest" with a view to determining the sufficiency of protective measures. In *Re S (Abduction: Rights of Custody)*, Lord Wilson went as far as saying that it would be 'entirely inappropriate' to descend into an 'in-depth' analysis of what the European Court of Human Rights had termed 'the entire family situation' in a Hague return application.72

By contrast, it was Lord Wilson who, when considering an inherent jurisdiction welfare-based return order in *Re NY*, listed the need to consider 'fact-finding' as a central concern, second only to the need for 'up-to-date evidence' in his list of relevant considerations. While the court is not mandated to conduct a separate fact-finding exercise in a non-Hague case,73 it is a 'major judicial determination' whether to do so or not;74 in a Hague application, the English court would (almost) never embark on a fact-finding hearing within the Hague process. These contrasting approaches to allegations of domestic abuse highlight the challenges that we have sought to explore in this article.

Similar issues arise in other contexts, an obvious example being the question of whether Cafcass (the court's social workers) should be asked to give input by way of a full analysis of the child's welfare. Cafcass get involved in 1980 Hague cases to provide the court with evidence about child's objections or settlement, if applicable, but generally not otherwise (unless the case reaches the high threshold of the child being joined as a party75, when a guardian from Cafcass can be appointed to represent the child's interests in the litigation). However, Cafcass's role is limited; they do not, for example, provide evidence specifically going to the full range of issues that might be relevant to the exercise of the court's discretion. By contrast, in a welfare-based decision, the court might order a full welfare analysis from Cafcass.76 Again, this dichotomy of approaches raises challenges for cases being run concurrently.

Finally, there is also a question about the policy of the 1980 Hague Convention. We quoted earlier from the Irish High Court, where O'Hanlon J rejected the principle of concurrent applications because using a domestic remedy to order an abducted child returned after finding that the 1980 Hague Convention applied but did not require the child to be returned would be 'to circumnavigate the content and the principles of the Hague Convention'.77 The argument is that the 1980 Convention provides both a rule (return of the child) and exceptions (sometimes termed defences), and if a respondent successfully makes out an exception to the rule, the Convention therefore provides for the child to remain in the destination country. However, we do not find this argument convincing. Article 18 of the 1980 Convention states explicitly that the Convention's provisions 'do not limit the power of a judicial or administrative authority to order the return of the child at any time'. As the Perez-Vera report explains, Article 18 'authorizes the competent authorities to order

<sup>70</sup> See, e.g., most recently *CvM* [2023] EWHC 208 (Fam) at [4]; see also Sir Andrew McFarlane P's *Practice Guidance: Case Management and Mediation of International Child Abduction Proceedings*, March 2023, para. 3.7.

<sup>71</sup> *Re NY (Abduction: Jurisdiction)* [2019] UKSC 49, [2019] 3 WLR 962.

<sup>72</sup> [2012] UKSC 10, [2012] 2 AC 257, [38].

<sup>73</sup> See, e.g., *Re A and B (Summary Return: Non-Convention State)* [2022] EWCA Civ 1664. Permission to appeal to the Supreme Court was refused.

<sup>74</sup> *KvK* [2022] EWCA Civ 468, [2022] 1 WLR 3713, [43].

<sup>75</sup> On joinder of children, see Part 16 of the Family Procedure Rules 2010 and Practice Direction 16A.

<sup>76</sup> Children Act 1989, s 7.

<sup>77</sup> *KW v PW* [2016] IEHC 513, O'Hanlon J.

the return of the child by invoking other provisions more favourable to the attainment of this end' (Perez-Vera 1980, para. 112). The Convention is fully committed to its primary aim—'to secure the prompt return of children wrongfully removed to or retained in any Contracting State'78—and permits non-Convention means to be used to achieve that aim if they will be more effective than the Convention's own tools.

#### **6. Conclusions**

Perhaps reflective of the scant case law in this area, it is rare for a case to be run all the way concurrently under the Hague Convention and the non-Hague route. Although the Supreme Court has paved the way for dual applications to be made, this has not yet led to a notable uptick in cases being brought in this manner. The Court can only be commended for arming practitioners and left-behind parents with a further tool in its armoury for the protection and return of abducted children. That in itself is a fairly unimpeachable principle, and the court's power to bring applications in this manner is beyond reproach—even if it appears to be a uniquely English creation. However, launching concurrent applications at present risks opening a Pandora's box of unresolved issues of policy and procedure; until this is remedied, caution is needed.

It is the nitty-gritty framework of concurrent cases—e.g., the evidence, the remit of any fact-finding, the role of Cafcass, the structure of proceedings, and so on—that perhaps throws up the biggest issue, intrinsically linked with the difficulties of asking the court to undertake two separate and in some ways incompatible intellectual exercises simultaneously. Thus far, this crucial issue has attracted little guidance. As a consequence, in any concurrent application, the possibility of an appeal arising out of this less-welltrodden area of law remains, in our view, a realistic prospect. Any appeal injects an inevitable delay that can only prejudice an applicant's case; in an international abduction matter, it may even prove catastrophic and is frequently lamented by the Court of Appeal.<sup>79</sup>

Further judicial clarity is probably needed in relation to specific evidential requirements, necessary timelines, and the structure of hearings in concurrent cases. Considered and pragmatic guidance on the structure of concurrent return applications should, we suggest, follow the broad-brush approach adopted by the Supreme Court in *Re NY*. Applicants are entitled to choose the most suitable vehicle for their case, even when the factual matrices involved border on the esoteric. They must be allowed to weigh up the risks versus the rewards of launching one or more applications, without fear of confusion or appeal. Respondents conversely have the right to challenge what is being prosecuted, and how best to set out their stall accordingly. Judges should feel empowered to proceed down this route in appropriately structured trials with the requisite evidence before them, allowing the making of a considered, unchallengeable decision. For now, cases embarking on concurrent applications may remain few in number, but if approached with sufficient care they present interesting opportunities for challenging cases.

**Author Contributions:** The authors contributed equally to the article. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Data Availability Statement:** Not applicable.

**Acknowledgments:** We are grateful to Nigel Lowe and Steven Vaughan for their comments on an earlier draft of this paper.

**Conflicts of Interest:** The authors declare no conflict of interest.

<sup>78</sup> Article 1(a).

<sup>79</sup> See, e.g., *Re F (Return Order: Appeal)* [2016] EWCA Civ 1253, [2017] 4 WLR 4, [28].

#### **References**


George, Rob, and Alex Laing. 2020. Return Orders and the Inherent Jurisdiction After Re NY. *Family Law*, 271.


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### *Review* **International Child Abduction in South Africa**

**Zenobia Du Toit 1,\* and Bia Van Heerden 2,\***


**Abstract:** This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate ("FA") has been appointed as the Central Authority ("CA") and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children's best interests and measures to protect their interests are evaluated. SA's approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA's compromised role as the CA, and the delays in outcomes prejudice the HC's philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA's future.

**Keywords:** voice of the child; Art 13 defences; best interests of child; Hague Convention provisions; return orders

#### **1. Introduction**

International child abduction is a 'global and growing phenomenon' (Freeman and Taylor 2020, p. 154). This paper evaluates how South Africa ('SA') approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction ('HC'), the challenges it faces, and how it submits proposals to improve its application (HCCH 1980). The HC was ratified by SA on 16 July 1995, with the Children's Act 38 of 2005 ("the Children's Act") incorporating the HC, as Schedule 2 to Chapter 17, into our law through s275. The courts in SA are 'the upper guardians of children in terms of the common law' and uphold the best interests of the child as a paramount principle (Du Toit 2018, p. 59). The Chief Family Advocate ("FA") has been appointed as the Central Authority ("CA") and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions.

#### **2. Habitual Residence**

Habitual residence is not defined in the Children's Act nor in the HC. Its meaning is determined by considering all the facts and circumstances in a specific case, with the idea of a 'stable territorial link' being realised through the length of time the child has lived

**Citation:** Du Toit, Zenobia, and Bia Van Heerden. 2023. International Child Abduction in South Africa. *Laws* 12: 74. https://doi.org/ 10.3390/laws12040074

Academic Editors: Marilyn Freeman and Nicola Taylor

Received: 23 June 2023 Revised: 11 August 2023 Accepted: 11 August 2023 Published: 21 August 2023

**Copyright:** © 2023 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

there or evidence indicating the child has a close connection to the place (du Toit C 2017, p. 453). *Central Authority v TK* appeared to support a child-centric approach in determining habitual residence and confirms that determining what the child's habitual residence was is a factual inquiry that considers the child's views and looks into whether the child has been there for enough time to have acclimatised or become attached and believes that they may be living there permanently or not.1 In *Central Authority v ER*, a return order for the child to the UK was overturned on appeal.2 The mother was an asylum seeker in the UK whose applications were repeatedly unsuccessful. The CA's position was that the immigration status was not relevant for the purposes of the HC. However, the judge pointed out that an asylum seeker is, by definition, seeking to change her habitual residence, and until the mother could attain some sort of immigration status, she would not acquire habitual residence; hence the mother of the child had not been habitually resident in the UK prior to the removal.3

In *Central Authority for the Republic of SA and SC v SC*, the applicants bore the onus pertaining to the habitual residence of the minor children and the respondent bore the onus in respect of the defence raised under Article 13(b) of the HC.4 In both instances, the parties had to prove the relevant elements on a balance of probabilities. When applying the principles to the facts, it was not possible to determine any common intention regarding habitual residence. However, it was found that the children's experiences underlay a factual connection to Texas, USA, on a 'cultural, social and linguistic level'.5 The case of *KG v CB* was quoted, noting that the order is linked to the return of the child and not to the 'left-behind' parent. It is not about a removal of care from one parent to another parent. Crucially, the court has to put into place protective measures so that the child will not be in a harmful situation upon return.6

Opperman J further noted that the HC does not define habitual residence and referred to Bridget Clark, who viewed habitual residence as without technical definition but as a question of fact in each individual case. It may be voluntarily acquired by 'assuming residence in a country for settled purpose [and] may be lost when a person leaves that country with the settled intention not to return ...'.7 Habitual residence is not acquired in one day but rather in an appreciable period of time and with a settled intention to enable the person to become habitually resident.8

Opperman J referred to three models—namely, the dependency model, the parental rights model and the child-centred model—when determining habitual residence of a child.

'In terms of the dependency model, a child acquires the habitual residence of his or her custodians whether or not the child independently satisfies the criteria for acquisition of habitual residence in that country. The parental rights model proposes that habitual residence should be determined by the parent who has the right to determine where the child lives, irrespective of where the child actually lives. Where both parents have the right to determine where the child should live, neither may change the child's habitual residence without the consent of the other. In terms of the child-centred model, the habitual residence of a child depends on the child's connections or intentions, and the child's habitual residence is defined

<sup>1</sup> *Central Authority v TK* 2015 (5) SA 408 (GJ) at 34–42.

<sup>2</sup> (2014) JDR 0297 (GNP).

<sup>3</sup> *Central Authority v ER* (2014) JDR 0297 (GNP).

<sup>4</sup> *Central Authority for the Republic of South Africa and SC v SC* (2022/0001) [2022] ZAGPJHC 700 (15 September 2022) at 27.

<sup>5</sup> *Central Authority for the Republic of South Africa and SC v SC* (2022/0001) [2022] ZAGPJHC 700 (15 September 2022) at 28.

<sup>6</sup> *Central Authority for the Republic of South Africa and SC v SC* (2022/0001) [2022] ZAGPJHC 700 (15 September 2022) at 37.

<sup>7</sup> *Central Authority for the Republic of South Africa and SC v SC* (2022/0001) [2022] ZAGPJHC 700 (15 September 2022) at 22.

<sup>8</sup> SC (n7) at 22.

as the place where the child has been physically present for an amount of time sufficient to form social, cultural, linguistic and other connections'.9

SA courts follow a hybrid model, with the courts taking into account 'the life experiences of the child' such as whether the child has established a stable territorial link or whether the child has a factual connection to the State (e.g., culturally, socially and linguistically) and what the parents' intentions are.10 Young children's habitual residence usually follows that of the custodial parent.

#### **3. Child Participation**

A child's right to participate in any matters that affect them is entrenched in Article 12 of the *UNCRC* 1989. Article 4(2) of the *ACRWC* 1990 provides that opportunities should be given for the child's views to be 'heard either directly or through an impartial representative, as a party to proceedings' that affect the child, where the child is able to communicate their own views, and that the child's views must be considered 'in accordance with the provisions of the' applicable law (Organization of African Unity (OAU) 1990). In SA, there have been frequent cases of children litigating 'independently of parental guardian assistance, where the interests of the parent or guardian are adversarial' to those of the child (Du Toit 2018, p. 59). It can be argued that SA courts have a stronger obligation to look at the child's views and objections, given the below-mentioned Children's Act provisions, than may be the case in foreign jurisdictions' HC applications. However, in principle, the HC prevails over domestic law.

The provisions of the Children's Act deal with the voice and representation of children in matters affecting them. Section 6(2)(a) sets out that the proceedings must 'respect, protect, promote and fulfil the child's rights' as noted in the Bill of Rights, the child's best interests (s7), and the principles and rights in the Children's Act 'subject to any lawful limitation'.11 All matters concerning children should follow an approach that is 'conducive to conciliation and problem solving', with confrontational approaches and delays in any decisions being 'avoided as far as possible'.12

A child 'must be informed of any action or decision taken' significantly affecting them (s6(5)).13 A child of such an 'age, maturity and stage of development' that they have the ability to take part in any matters involving them has the 'right to participate' in a manner considered appropriate, and the child's views 'must be given due consideration' (s10).14 Section 278(3) affords a child the chance to object to their return, and if they do so, then the court is obliged to 'give due weight to that objection, taking into account the age and maturity of the child'.15

Under s278(1), courts have the power to demand that the CA 'provide a report on the domestic circumstances of a child prior to the alleged abduction' in order to ascertain if there has been a wrongful retention or removal under Article 3 of the HC's meaning.16 Section 279 notes that the child must be represented by a legal representative 'in all applications' under the HC.17

S9 provides that the best interests of the child are 'of paramount importance', with s28(2) of the Constitution entrenching this.18 Children have the right to be assigned a legal practitioner 'by the State, at the State's expense in civil proceedings affecting the child, if

<sup>16</sup> (n11).

<sup>18</sup> Children's Act. (n11).

<sup>9</sup> SC (n7) at 23.

<sup>10</sup> SC (n7) at 23.

<sup>11</sup> Children's Act 38 of 2005.

<sup>12</sup> S6(4) Children's Act 38 of 2005.

<sup>13</sup> (n11).

<sup>14</sup> Children's Act. (n11).

<sup>15</sup> Children's Act (n11).

<sup>17</sup> Children's Act. (n11).

substantial injustice would otherwise result'.19 All children have the right to 'bring and to be assisted in bringing a matter to court'.<sup>20</sup> This seems to broaden this right of the child to be legally represented beyond the substantial injustice test. However, in practice, the ability to access State-funded legal representation is generally limited. It has been argued that the rights should not be linked to State representation and expense and the right to representation should be a separate right.21 NGOs such as the Centre for Child Law may intervene pro bono on behalf of the child.

#### **4. Different Mechanisms Are Utilised to Hear Children's Voices**


<sup>19</sup> S28(1)(h) of the Constitution of the Republic of SA, 1996.

<sup>20</sup> S14 Children's Act 38 of 2005.

<sup>21</sup> *Brossy v Brossy 602/11 (212) ZASCA 151* (28 September 2012).

<sup>22</sup> S18(3) of the Children's Act 35 of 2005.

<sup>23</sup> *Soller NO v G* 2003 (5) SA 430 (W) at 439 J.

<sup>24</sup> *FB and Another v MB* (2012) (2) SA 394 (GSJ) at 13.

<sup>25</sup> FB (n24) at 13.

<sup>26</sup> *Centre of Child Law v The Governing Body of Hoerskool Fochville* 4 ALL SA 571 (SCA) 2016 at 19, 26.

A child-centred approach necessitates an individualized close consideration of the exact situation and reality of the specific child involved, as well as acknowledging children's dignity, and that it would not be in the child's best interests to simply apply a predetermined formula irrespective of the situation. 'If a child is to be constitutionally imagined as an individual with a distinctive personality and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a near extension of his or her parents, umbilically destined to sink or swim with them'.27 Where a child is mature enough to express their feelings accurately, or able to make an 'intelligent judgment', then due consideration should be afforded to the child's expressed preference.28 Developments in case law and legislation have provided for a child's rights to participation and separate legal representation, with the Constitutional Court promoting an approach that 'respects the views, wishes and opinions of children in all matters where they are concerned'.29

SA courts have denied some return orders on the basis of the child objecting. In *Central Authority v K*, the child noted they wanted to stay in SA and the court held it would be inappropriate to order the child's return.30 *Family Advocate v B* held that the seven-yearold was mature enough to have an informed decision, although uncertainty around how the child's voice should be heard and weighted, with debates around the appropriate approach, was noted.31 Here, the child's objection to returning was instrumental in the court's decision to deny the return order.32

*Central Authority of the Republic of SA v B* noted that, where the child objects, being of 'sufficient age and maturity to take his views into account', judges have to make sure that this objection is independent and not swayed by the parent that abducted them, nor is it due to them preferring this parent.<sup>33</sup> The objection is merely a factor to be taken into account. The court found that the child's objection is a separate defence to the grave harm objection. Return orders do not determine custody disputes. The court held that the child's views were independent and, on the basis of his strong objection, as well as the evidence, denied the return application.<sup>34</sup> However, the court noted a lack of clear guidelines around at what stage the child should have their opinion considered, and this challenge may lead to uncertainty. Furthermore, the courts still follow a contradictory approach in regard to the child's objection and Article 13(1)(b) defence being two separate issues, although the *Guide to Good Practice* has been useful in alleviating this to an extent. This case emphasised the paramountcy of the child's best interests, noting that this 'should inform understandings of the exceptions, without undermining the integrity' of the HC (Du Toit 2018, p. 61). These cases convey that the courts in SA take children's views and objections seriously and employ progressive approaches towards children participating in these Hague abduction cases, with courts recognising the significance of listening to the child's voice in matters that affect them. Other jurisdictions have been critiqued for dismissing the child's objections, with SA being praised for its progressive approach and inclusion of the child's voice within HC decisions (Freeman and Taylor 2020, p. 172). SA's approach gives effect to both the relevant sections of the Children's Act, Constitution, and HC.

Implementation of the hearing of children's voices is, however, often problematic, inter alia, due to lack of resources, skills, and adverse cultural and social attitudes around children's role in both families and communities. Advocacy, education, and awarenessraising could assist (Freeman and Taylor 2020, p. 171).

<sup>27</sup> *S v. M (Centre for Child Law as Amicus Curiae)* 2008 (3) SA232 (CC) at 18.

<sup>28</sup> *McCall v McCall* 1994 (3) SA 201 (C).

<sup>29</sup> *T Boezaart Child Law in South Africa* 2ed (2017) Juta 110.

<sup>30</sup> *Central Authority for the Republic of South Africa v K* 2015 (5) SA 408 (GJ) at 52.

<sup>31</sup> *Family Advocate v B* 2007 (1) All SA 602 (SE) at 28.

<sup>32</sup> B (n31)at 28.

<sup>33</sup> *Central Authority of the Republic of South Africa v B* 2012 (2) SA 296 (GSJ) at 13.

<sup>34</sup> *Central Authority of the Republic of South Africa v B* 2012 (2) SA 296 (GSJ) at 20.

#### **5. The Tension between the Child's Best Interests and the Convention**

SA cases have debated the approach to international child abductions, with many questioning whether the HC's return remedy contradicts the best interests of the child. The courts have developed the application of its discretion in regard to the best-interests principle and the manner of consideration of the defences, sometimes in a contradictory manner.

#### *Concerns Have Furthermore Been Raised Regarding the Implementation of the HC vis a vis Children*


*Sonderup v Tondelli* considered the HC's constitutionality in light of the paramountcy of the child's best interests under the SA Constitution. It would be contrary to the intention and terms of the HC if the application were converted into a care and contact application.<sup>35</sup> Goldstone J pointed out that the court would be able to impose substantial conditions in the mitigation of interim prejudice to a child caused by a court order to the return. The ability to shape a protective order ensures a limitation to achieve the important purpose of the HC. It was argued that the HC was not aligned with the best-interests standard, as return orders did not provide for having considerations that were individualised around the child's distinctive circumstances.<sup>36</sup> The court found that the HC safeguards and acknowledges the child's long-term best interests in regard to the custody.37 The short-term best interests of the child might be limited by deciding to return the child, but the court held that this was a justifiable limitation due to the HC's important purposes.<sup>38</sup> The court further noted that the HC's exceptions to the peremptory return rule conveyed that there was only a limiting of short-term best interests where this is needed to ensure the HC's aims are achieved, with the HC employing means that are proportional to the result it aims to achieve.39


<sup>35</sup> *Sonderup v Tondelli* 2001 (1) SA 1171 (CC).

<sup>36</sup> *Sonderup* (n35).

<sup>39</sup> *Sonderup v Tondelli* 2001 (1) SA 1171 (CC) at 35.

The idea that the best interests of the child are somehow contradicted by the HC's peremptory return remedy is still debated in SA cases, despite *Sonderup* providing a good analysis around this. The *Central Authority v LC* case raised this again recently, with it being submitted that S7 of the Children's Act around best interests hierarchically trumped the HC in SA jurisdiction.<sup>40</sup> It was further argued that s7 should be viewed as an independent defence, and not merely one that only applies along with Article 13(1)(b).41 This argument was strongly dismissed, with the court holding that the HC and the Children's Act were not inconsistent with each other, that one does not trump the other, and that they are rather supplementary to each other.<sup>42</sup> The court did note that rigidly implementing the HC might result in injustice within some specific cases. However, the court was in agreement with the *Sonderup* suggestions of the remedy for this being in the significance of making orders that are aimed at mitigating the short-term prejudicial effects of the child when the return order is given, and that extensive conditions could be incorporated into the return order where necessary.43 This judgment confirms *Sonderup* and indicates that there are still disagreements around the approach to, and application of, the HC within the SA context.

Another recent case is *LD v Central Authority*, which has been critiqued for its approach of privileging the role that best interests has to play over that of a prompt return, within the context of interpreting the facts around whether the Article 13(1)(b) defence had been established or not.<sup>44</sup> The majority judgment noted that the order to return the child would result in disrupting and replacing a family and siblings, which they viewed as conflicting with the child's rights under the Constitution's s28(1)(b), which they considered to be inclusive of the "nurturing and support that a child receives from its immediate family group".45 This appears to imply that an individual best-interests standard may be utilised. The minority judgment strongly disavows this by noting that that the majority went astray through their erroneous asking of whether returning the child would be in its best interests or not, as well as their problematic approach when considering "what harms might flow" from a return order from the court.46 The minority also held that the child's best interests would not have been damaged by a return order if this order had appropriate protective measures included within it. The minority judgment reinforced *Sonderup* and noted that the 'paramountcy of the best interests of the child must inform our understanding of the exemptions without undermining the integrity of the Convention'.47 The minority approach should arguably be the preferred approach in future HC cases. The majority judgment indicates a concerning approach in SA to the application of the HC, with it conflicting with the judgment in *Sonderup*.

This concerning trend was again noticeable in the decision of *Central Authority, Republic of South Africa v Y.R*. <sup>48</sup> After travelling to SA for a brief holiday, the mother (YR) refused to return with the child to Canada. The judge considered whether the Article 13 Exception to return a child to Canada raised by the abducting mother had been established. A curatrix was appointed by the court to the child and an expert appointed by the mother filed a report.49

YR argued that the parties had a verbal and physically abusive relationship after the birth of CJ, and if she were to return to Canada, the same intolerable circumstances that plagued her before and contributed to her emotional state and post-partum depression would arise and affect CJ. CJ had settled in SA and had the support of an extended

<sup>47</sup> LD (n46).

<sup>40</sup> *Central Authority v LC Case* 20/18381 (Gauteng Local Division) 2020 unreported at 100.

<sup>41</sup> *Central Authority v LC Case* 20/18381 (Gauteng Local Division) 2020 unreported at 96.

<sup>42</sup> *Central Authority v LC Case* 20/18381 (Gauteng Local Division) 2020 unreported at 105.

<sup>43</sup> *Central Authority v LC Case* 20/18381 (Gauteng Local Division) 2020 unreported at 106.

<sup>44</sup> *LD v Central Authority (Republic of South Africa)* 2022 (3) SA 96 (SCA).

<sup>45</sup> *LD v Central Authority (Republic of South Africa)* 2022 (3) SA 96 (SCA) at 37.

<sup>46</sup> *LD v Central Authority (Republic of South Africa)* 2022 (3) SA 96 (SCA) at 62.

<sup>48</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023).

<sup>49</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023) at 16.

family group, and if returned would not have access to this extended family, which might contravene S28(1)(b) of the Constitution. Additionally, CJ's developmental problems had not been picked up by the Canadian doctors, whilst they had been by experts in SA. CJ might not receive proper medical attention in Canada and developmental problems may arise again.<sup>50</sup> CR argued that during YR's period of postpartum depression, she had threatened an intention to harm or abandon CJ, and he had then become intensely involved in the care for CJ, with the court noting that it appeared that CR was a 'very involved and loving parent'.51

The Judge found that the child's return would be intolerable, mainly because of the child's 'medical history' based on the findings of the medical experts in SA.52 It would be irresponsible to expose the child in the same circumstances and developmental delays in Canada. The Judge criticized the expert who had not dealt with the consequences of the return of the child with the mother in her report, commented that the curatrix had strayed too close to the best-interests principle and that Article 13 had to be treated as a limited and more restrictive enquiry.53 The Judge therefore dismissed the application for return.

The judgment may be criticized in that it does not appear to have taken into account, nor addressed in any detail, what preventative and protective measures could be put in place and what the effectiveness thereof would be, were there to be a return of the child. It also seems as if the judgment moved in a degree to a best-interests assessment instead of implementing the prompt return policy. Despite the mother's questionable behavior in regard to the retention of the child in SA, she succeeded with her Article 13 defence.

The inconsistent approach around the paramountcy of the best interests of the child and whether this should be seen as an independent defence in HC applications is concerning. SA courts should be careful of undermining the HC's integrity when considering how to involve the child's best interests in their analysis. As *Sonderup* noted, the HC does not necessarily contradict best interests.54

The *Guide to Good Practice* confirms, in regard to Article 13 of the HC, that in assessing whether there is a 'grave risk' that returning the child would result in their exposure to 'physical or psychological harm' or would otherwise place the child in 'an intolerable situation', the availability of effective and adequate measures to ensure protection within the State habitual residence should be included.55 An objective approach is required, which was confirmed in *KG v CB* also quoting the UK case *Re: E* confirming the restricted application of the exception, with the onus being on the parent opposing the return to substantiate the exception on the balance of probabilities.56 This case confirmed that the exception is narrowly interpreted and requires objectivity as well as particularity to the child and their circumstances.

*Sonderup v Tondelli* emphasised the grave risk and noted that harm needs to be 'of a serious nature' when considering the intolerable situation.<sup>57</sup> The exception and the defences have been dealt with in various cases as referred to below. In *Central Authority of the Republic of SA v JW*, the mother alleged that she had suffered emotional and physical abuse by the father, with the court finding that the children would be put into an intolerable situation if returned without their mother, as she was the primary caregiver, and thus denied the return order.<sup>58</sup> More recently, *Central Authority v H* also raised this exception, with the court holding that harm which is a 'natural consequence of a child's removal' from

<sup>50</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023) at 65.

<sup>51</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023) at 12.

<sup>52</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023) at 68.

<sup>53</sup> *Central Authority, Republic Of South Africa v Y.R* (061066/2022) [2023] ZAGPPHC 376 (29 May 2023) at 67.

<sup>54</sup> See (n35) above.

<sup>55</sup> Guide to Good Practice under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction Part VI Article 13(1)(b) as published by The Hague Conference on Private International Law (2020).

<sup>56</sup> *KG v CB* 2012 (4) SA 136 (SCA), Re E (Children) (Wrongful Removal: Exceptions to Return) 2011 All ER 517(SC) at 31.

<sup>57</sup> *Sonderup v Tondelli* 2001 (1) SA 1171 (CC) at 47.

<sup>58</sup> *Central Authority of the Republic of South Africa v JW* 2013 JDR 1117 (GNP) at 54.

the country of habitual residence, a return order, and a challenged custody dispute would not meet the seriousness required for the exception.<sup>59</sup> The exception was thus applied in a restrictive manner.

*Family Advocate Cape Town v Chirume* noted that the 'intolerability of the situation should be looked at from the viewpoint of the minor child and not of the respondent' and that the grave risk should come from the child's return, and 'not from the refusal of the mother to accompany the child'.60 The court upheld the high threshold when establishing a 'grave risk' of physical, psychological harm in order to refuse return in *Family Advocate PE v Hide*, which highlighted how mirror orders or undertakings can be important, and confirmed that the SA courts are able to set conditions for the child's return in the court's final order, with this order being encouraged to be made an order of the court in the country that the child is being returned to, if possible.<sup>61</sup> Contrary to the approach above, in *Central Authority v MR*, the court noted that the exceptions under Article 13 and 20 cater to 'cases where specific circumstances might' allow for the child not being returned, with exceptions existing to protect the child's welfare.62 Mitigation of the exception's extent and nature should occur, with s28(2) of the Constitution being kept in mind when Article 13 is applied. The court found that it was worthwhile to consider the views of the child here, even though they were mainly related to 'short term views and interests' and also confirmed that the child objecting to their return was indeed a defence that is separate from the grave harm defence.63

*Pennello v Pennello* confirmed that the person resisting the return order on the basis of Article 13(b) bears the civil onus of proof, on a preponderance of probabilities. The return application cannot be converted into a custody application. The SCA reiterated that the grave risk should require 'clear and compelling evidence', which must be substantial and 'of a severity which is much more than is inherent in the inevitable disruption, uncertainty and anxiety which follows an unwelcome return to the jurisdiction of the court of habitual residence'.<sup>64</sup> In *Central Authority of the Republic of SA v Engelenhoven*, the siblings had disparate views about the return. The court refused a return on the basis that it would not consider the separation of the siblings, as that would, in itself, create an intolerable situation for the children.65

*Central Authority for the Republic of SA v SC* discussed the interpretation of Article 13(b), and *Koch NO v Adhoc Central Authority for the RSA* was quoted, noting that the defence:

*'looks to the future: the situation as it would be if the child were returned forthwith to his/her home country. The situation which the child will face on return depends crucially on the protective measures which can be put in place* ... *Where the risk is serious enough the court will be concerned not only with the child's immediate future, because the need for protection may persist'.*<sup>66</sup>

#### **6. Domestic Violence**

Establishing domestic violence by a party's behaviour is not itself sufficient reason for justifying the court holding that the child could possibly face grave risk were they to be returned, with the establishment of an 'established pattern of domestic violence' from the other party's behaviour needing to be shown, as well as the definition of domestic violence needing to be met (Trimmings and Momoh 2021, p. 9). Allegations of domestic abuse and/or the child witnessing this abuse, should be considered and evaluated by people with extensive training relating to this. The *Domestic Violence Amendment Act* 14 of 2021 defines

<sup>59</sup> *Central Authority (Republic of South Africa) v H* 2019 ZAGPPHC 138 at 54.

<sup>60</sup> *Family Advocate Cape Town v Chirume* (6090/05) [2005] ZAWCHC 94 at 36.

<sup>61</sup> *Family Advocate Port Elizabeth v Hide* (2007) 3 All SA 248 (SE).

<sup>62</sup> *Central Authority v MR (LS Intervening)* (2011) (2) (SA) (428) (GNP) at 13.

<sup>63</sup> *Central Authority v MR (LS Intervening)* (2011) (2) (SA) (428) (GNP) at 29.

<sup>64</sup> *Pennello v Penello (Chief Family Advocate as amicus curiae)* 2004 (3) SA 117 (SCA) at 34.

<sup>65</sup> *Central Authority of the Republic of South Africa v Engelenhoven* (Case No. 43352/2021) ZAGPPHC 699 at 50.

<sup>66</sup> *Central Authority for the Republic of South Africa v SC* (2022/0001) [2022] ZAGPJHC 700 at 38.

domestic violence as encompassing physical, sexual, verbal, emotional, or psychological abuse—and can include harassment, 'controlling behaviour', and exposure of children to domestic violence—with this conduct harming or inspiring 'reasonable belief that harm may be caused to the complainant'.67 It has been noted that SA courts have followed a wider approach in these defences, and have considered the rising cases of domestic violence as well as the child's safety (Weideman and Robinson 2011, p. 90). Indeed, courts should consider the circumstances of each case pertaining to each individual child, with the need to avoid mechanical approaches, especially in domestic violence cases.

*L v Ad Hoc Central Authority for the Republic of SA* was an application for leave to appeal against a court order for the return of three children to Thailand. Allegations that the removal was wrongful in terms of Article 3 of the HC and of sexual misconduct were made. The SCA dealt with the Article 13(b) defence. The High Court order was aimed at mitigating any interim prejudice that may arise by the children being returned, with 'built-in mechanisms and a wide range of protective measures'.68 The order hoped to ensure the children's protection, and included the children residing with the applicant, 'maintenance for the applicant', access to occupational therapists and psychologists, 'financial commitments on the part of second respondent, and the assistance of the Thai CA'.69 The SCA found that the High Court's order was 'tailored' to meet all the children's needs, in order 'to achieve the objectives of the Convention' and to 'effectively encompass protective mechanisms' so that the children's best interests received protection.70 The appeal was thus dismissed.

*Central Authority for the Republic of SA v SC* was an application for the return of children that the mother had brought to SA, with her alleging a s13(b) defence, inter alia, relating to a nomadic life the children had led in Texas, which had caused instability.71 Allegedly, the father was 'manipulative, domineering and controlling...physically and emotionally' abusive of the mother, excessively controlling of the children, and erratically employed.72 Factual disputes were raised. The children's views were represented by a curator ad litem. There was psychological evidence regarding the children's best interests, the father's contact with the children, and his interactions with them. The court found that there were certain intolerable aspects of the children's family life, immediately before they had departed to SA, and was of the view that an order could not be shaped to mitigate the prejudice to the children, failing the assurance that the father would be able to 'financially afford and otherwise comply with his undertakings'.73 Cognisance was taken of the realities and the children's best interests, without discriminating against the father. The application for return was dismissed.

In *Sonderup*, Goldstone J stated that in the application of Article 13, acknowledgement must be given to the role that domestic violence has in inducing mothers 'to seek to protect themselves and their children by escaping to another jurisdiction'.<sup>74</sup> He emphasised that the impact of domestic violence on women and children should not be trivialised and indicated that, 'where there is an established pattern of domestic violence, even though not directed at the child, it may very well be that the return might place the child at grave risk of harm as contemplated by Article 13'.<sup>75</sup> If Article 13 is applied restrictively and the child is returned, the mother has to make a decision about her return and the danger of further domestic violence (Freeman and Taylor 2020, p. 157). Although protective measures may mitigate risks, there is a gap between the theory of protective measures versus their

<sup>67</sup> S1 Domestic Violence Amendment Act 14 of 2021.

<sup>68</sup> *L v Ad Hoc Central Authority for the Republic of South Africa and Others* (1143/2020) [2021] ZASCA 107 at 11.

<sup>69</sup> L (n68) at 11.

<sup>70</sup> *L v Ad Hoc Central Authority for the Republic of South Africa and Others* (1143/2020) [2021] ZASCA 107 at 15.

<sup>71</sup> *Central Authority for the Republic of South Africa v SC* (2022/0001) [2022] ZAGPJHC 700 at 38 at 1.

<sup>72</sup> *Central Authority for the Republic of South Africa v SC* (2022/0001) [2022] ZAGPJHC 700 at 43.

<sup>73</sup> *Central Authority for the Republic of South Africa v SC* (2022/0001) [2022] ZAGPJHC 700 at 82.

<sup>74</sup> *Sonderup* (n57) at 34.

<sup>75</sup> *Sonderup* (n57) at 34.

practical implementation in the returning State (Trimmings and Momoh 2021, p. 4). Indeed, 'a thorough, limited and expeditious examination of disputed allegations of domestic violence should be carried out by court in return proceedings before the court proceeds to determining the availability of protective measures' (Trimmings and Momoh 2021, p. 9), and courts should consider the extent to which these measures will actually be enforceable in the returning State, as it seems recent SA cases have endeavoured to do.

#### **7. Certain Measures May Be Taken to Safeguard and Protect the Child's Best Interests**


#### **8. Failure to Comply with the Requirement for Expeditious Proceedings**

The HC's requirement for expeditious proceedings has been difficult to implement in SA. Regulation 23(1) to the Children's Act sets out that 'proceedings for the return of a child under the Hague Convention must be completed within six weeks from the date on which judicial proceedings were instituted in the High Court, except where exceptional circumstances make this impossible'.76 Regulation 23(2) sets out the procedural steps that are taken in such proceedings. The judiciary has developed practice directives around 'timeframes for the set down and conclusion of the hearings' (Sloth-Nielsen 2023).

A cost order was awarded against the FA because of the inexplicable delays in their bringing of the urgent return application in *Central Authority v B*, with the child having had, at the hearing of the appeal, spent more than half of her life in SA.77 In *KG v CB*, the child was abducted and brought to SA in early 2009, and in June 2010, the High Court ordered the child's return.78 The mother appealed the decision, with the appeal only being heard in February 2012.<sup>79</sup> The SCA highlighted the delays, finding them 'unacceptable' in light of the HC and also the Children's Act requirements that HC cases be finished within six weeks from their commencement in the High Court.80 The mother argued that there had been drastic changes to the circumstances of the child due to delays. Despite the mother's

<sup>79</sup> *KG v CB* 2012 (4) SA 136 (SCA) at 1.

<sup>76</sup> Children's Act 38 of 2005 Regulations Relating to Children's Courts And International Child Abduction, 2010 Published Under Gn R250 In Gg 33067 of 31 March 2010.

<sup>77</sup> *Central Authority v B* 2009 (10) SA 624 (W).

<sup>78</sup> *KG v CB* 2012 (4) SA 136 (SCA).

<sup>80</sup> *KG v CB* 2012 (4) SA 136 (SCA) at 58.

arguments and immense delays, an order to return the child was surprisingly still made.81 In *Central Authority v Houwert*, the matter only reached the SCA once a period of three and a half years had passed since the abduction, and with the court upholding the principles of the HC and ordering the return of the child, despite the long delay, criticizing the systemic delays that plagued the matter.82

*N v The Central Authority for the Republic of SA* dealt with the unlawful removal from Northern Ireland of a child retained in SA by the mother. From the date of the removal on 31 December 2012, it took until 10 May 2016 for the appeal judgment to be delivered. The judge notes that the courts are 'held to ransom' by both the appellant's 'delaying tactics' and the respondent's ineptitude in not making sure that the matter was speedily looked at.<sup>83</sup> The court decried the 'dilatory manner' in which the SA CA had 'handled the litigation' and hoped that future respondents would give more focus toward finalising matters like these, since failing to finalise these speedily 'inevitably causes psychological prejudice to the families involved'.<sup>84</sup> The abducting parent's strategies exploited the time delays to establish a settled status quo, thereby creating an advantage and a complicated choice for the courts. In *LD v Central Authority RSA*, the child was removed on 4 October 2018 and the SCA judgment was given on 17 January 2022.<sup>85</sup> These delays are unacceptable and prejudicial within the spirit of the implementation of the HC.

Humphrey discusses the Regulations to the Children's Act and makes certain proposals to expedite proceedings [Regulation 17(1)] (Humphrey 2023). He provides, inter alia, that the CA must bring an application to the court within ten days after the child has been located, and proposes that Practice Directives be instituted, inter alia, to allocate a special case number. The CA should be cited or served in the event of a private application. A copy of the application must be delivered to the Liaison Judge on the same date that the application is issued (Humphrey 2023). An expedited timetable should procedurally be followed, and an expedited date for argument of the application on a special opposed roll should be allocated. The Judge hearing the application shall deliver judgment and an order within a period of 3 court days from the date on which the application was argued. An application for leave to appeal should also be subject to expedited dates and procedure. The Liaison Judge should case-manage the application and any appeal thereafter (Humphrey 2023). It is suggested that mediation could also provide a helpful tool to circumvent and/or shorten litigation in these cases.

#### **9. Mediation**

SA, with its lack of resources, struggles with overburdened court rolls, drawn out litigation, and delays in finalizing matters (Ferreira 2019, p. 26). If the swift return of a child is not achieved, the philosophy of the HC may be compromised. Mediation, as part of the legal framework for family disputes, has become popular in HC disputes, and Ferreira suggests that this should not only be an alternative to the litigation but also a mandatory requirement in these matters (Ferreira 2019, p. 26). Her view is that the outcomes imposed by courts may not always be a good fit in family matters, given the personal nature of the issues necessitating comprehensive considerations, and that ADR provides faster, nonconfrontational, conciliatory approaches (Ferreira 2019, p. 26). The Children's Act also encourages conciliatory resolution of matters involving children, which would, inter alia, facilitate parent and child participation. Mediation as a tool should be publicised and education in this regard should take place.

<sup>81</sup> *KG v CB* 2012 (4) SA 136 (SCA) at 62.

<sup>82</sup> *Central Authority v Houwert* 2007 JOL 20032 (SCA).

<sup>83</sup> *N v The Central Authority for the Republic of SA* 2016 ZAKZPHC 43 at 25.

<sup>84</sup> *N v The Central Authority for the Republic of SA* 2016 ZAKZPHC 43 at 29–30.

<sup>85</sup> *LD v Central Authority (Republic of South Africa)* 2022 (3) SA 96 (SCA).

#### **10. Mirror Orders**

SA Courts have often given elaborate orders that spell out all the details of a return order. In *LD v Central Authority*, the minority judge's detailed order for protecting the child's interests conveys that mirror orders could have an important role to play in future cases.86 Mirror orders could support such international safeguards and interim care and contact arrangements. However, many jurisdictions do not allow mirror orders, and undertakings are then relied upon instead.

Arcaro proposes that, inter alia, a uniform international registry system for child care and contact orders, and undertakings for return if a child goes overseas, should be considered (Arcaro 2018, p. 262). Domestic law is going to vary from country to country; thus, it is vital 'to determine if the order will be enforced as written, harmonious with foreign law, and if the order would be modifiable in the foreign country' (Arcaro 2018, p. 262), with the language being amended so that it is able to be enforced in the foreign country. Despite potential impediments arising when trying to organise and enforce these rights, these are legitimate priorities within the HC, and legal and practical implementation measures must be filed to maintain parent/child relations post Hague proceedings.

#### **11. Proposals to Ameliorate Concerns Regarding Implementation of the Convention**


<sup>86</sup> See n85 above.

<sup>87</sup> See n55 above.

have implemented practice directives around HC matters (Ramotsho 2019). The SCA has also attempted to set up rules that they are hoping to approach the Rules Board with, around how these matters should be handled in courts (Ramotsho 2019). Practice directives and rules could assist the various Divisions with reducing uncertainties. There is room for improvement regarding SA's approach to the role that the best interests of the child plays within return proceedings and the consideration of Article 13 defences.

#### **12. Conclusions**

How SA approaches international child abduction, and applies the HC, has been explored. SA clearly has a rich jurisprudence around the practical application of the HC. The procedure in these matters, the general rules and exceptions, the voice, representation and participation of the child, and the approach to children's best interests and measures to protect their interests have been evaluated. SA's approach in regard to HC matters could be improved. The challenges of an independent best-interests factor and outcomes veering away from the return principles, the FA's compromised role as CA, and the delays in outcomes prejudice the HC's philosophy and the application thereof. Recommendations have been made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences, incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA's future.

**Author Contributions:** Conceptualization, Z.D.T. and B.V.H.; writing—original draft preparation, Z.D.T. and B.V.H.; writing—review and editing, Z.D.T. and B.V.H. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research received no external funding.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**

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#### **Secondary Sources**


HCCH. 1980. *Convention of 25 October 1980 on the Civil Aspects of International Child Abduction*. The Hague: HCCH Hague Convention. Humphrey, Stuart. 2023. *Justice Delayed Is Justice Denied*. Durban: KZN Liaison Judge.


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