G.S v A.H (11592/05) [2006] ZAWCHC 59; 2007 (3) SA 330 (C) (22 December 2006)

G.S v A.H (11592/05) [2006] ZAWCHC 59; 2007 (3) SA 330 (C) (22 December 2006)

The court held that it has jurisdiction to grant declaratory relief regarding rights of custody under the Hague Convention even before a request from a foreign authority, as such relief may be necessary for a prospective applicant to proceed with a Hague application in another jurisdiction. The court found that, although the applicant father did not possess rights of custody under South African law at the time of the child's removal, the court itself had acquired rights of custody by virtue of being actively seized with custody proceedings in which the child's place of residence and parental rights were at issue. The stage of litis contestatio had been reached, and the court's...

Citation
[2006] ZAWCHC 59
Parties
Applicant: G S; Respondent: A H
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
22 December 2006
Case Number
11592/05
Procedural Posture
Urgent Application / Application for Declaratory Relief Prior to Hague Convention Proceedings
Outcome
Declaratory relief granted; no order as to costs.
Judges
B M Griesel
Legal Topics
International Child Abduction, Hague Convention, Rights of Custody, Declaratory Relief
Family and Children Civil Procedure International Child Abduction Hague Convention Rights of Custody Declaratory Relief

Case Brief

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Parties

G S

Applicant

A H

Respondent

Procedural Posture

Urgent Application / Application for Declaratory Relief Prior to Hague Convention Proceedings

Legal Issues

  1. 1 Whether the South African court has jurisdiction to grant declaratory relief regarding rights of custody under the Hague Convention prior to a request from a foreign authority.
  2. 2 Whether the applicant father or the court itself held 'rights of custody' within the meaning of the Hague Convention at the time of the child's removal.
  3. 3 Whether the removal of the child by the mother was wrongful under the Convention given the status of custody proceedings in South Africa.

Ratio Decidendi

The court held that it has jurisdiction to grant declaratory relief regarding rights of custody under the Hague Convention even before a request from a foreign authority, as such relief may be necessary for a prospective applicant to proceed with a Hague application in another jurisdiction. The court found that, although the applicant father did not possess rights of custody under South African law at the time of the child's removal, the court itself had acquired rights of custody by virtue of being actively seized with custody proceedings in which the child's place of residence and parental rights were at issue. The stage of litis contestatio had been reached, and the court's...

Court Disposition

Declaratory relief granted; no order as to costs.

Orders

  • It is declared that this Court is currently seized with an action under case number 6304/06 which has not been determined to finality in which, inter alia, this Court is called upon to decide the issue of M.'s place of residence and in respect of which action no decision regarding rights of custody or guardianship...
  • It is declared that this Court is deemed to be 'an institution or any other body' to which rights of custody can be attributed within the meaning of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction.