I.B.F v A.D.K and Another (2023-015928) [2023] ZAGPPHC 1129 (31 August 2023)

I.B.F v A.D.K and Another (2023-015928) [2023] ZAGPPHC 1129 (31 August 2023)

The court found that the Hague Convention does not apply as Sint Maarten is not a signatory. The paramount consideration is the best interests of the children, as required by the Children’s Act and the Constitution. The evidence demonstrated severe parental alienation, with the applicant enlisting the children as allies against the respondent and exposing them to litigation details, causing emotional harm. The children are settled and happy in South Africa and strongly opposed to returning to Sint Maarten. Returning them would exacerbate their trauma. Both parties have failed the children, but the least detrimental option is to leave them in the applicant’s care, subject to strict...

Citation
[2023] ZAGPPHC 1129
Parties
Applicant: I B F; Respondent: A D K; Respondent: THE OFFICE OF THE FAMILY ADVOCATE IN ITS CAPACITY AS CENTRAL AUTHORITY IN TERMS OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
31 August 2023
Case Number
2023-015928
Procedural Posture
Urgent Application / Final Determination of Care and Contact Arrangements for Minor Children; Counter Application for Return of Children to Sint Maarten
Outcome
The application for primary care by the applicant is granted; the counter-application for return of the children to Sint Maarten is refused. The children remain in the applicant’s care subject to strict conditions, therapy, and parental coordination. No order as to costs.
Judges
Swanepoel
Legal Topics
Parental Alienation, Child Abduction, Best Interests of the Child, Hague Convention, Care and Contact, Therapy and Parental Coordination
Family and Children Parental Alienation Child Abduction Best Interests of the Child Hague Convention Care and Contact Therapy and Parental Coordination

Case Brief

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Parties

I B F

Applicant

A D K

Respondent

THE OFFICE OF THE FAMILY ADVOCATE IN ITS CAPACITY AS CENTRAL AUTHORITY IN TERMS OF THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION

Respondent

Procedural Posture

Urgent Application / Final Determination of Care and Contact Arrangements for Minor Children; Counter Application for Return of Children to Sint Maarten

Legal Issues

  1. 1 Whether the children should be returned to Sint Maarten following their removal by the applicant during divorce proceedings.
  2. 2 Whether the Hague Convention on the Civil Aspects of International Child Abduction applies to the facts.
  3. 3 What care and contact arrangements serve the best interests of the minor children.

Ratio Decidendi

The court found that the Hague Convention does not apply as Sint Maarten is not a signatory. The paramount consideration is the best interests of the children, as required by the Children’s Act and the Constitution. The evidence demonstrated severe parental alienation, with the applicant enlisting the children as allies against the respondent and exposing them to litigation details, causing emotional harm. The children are settled and happy in South Africa and strongly opposed to returning to Sint Maarten. Returning them would exacerbate their trauma. Both parties have failed the children, but the least detrimental option is to leave them in the applicant’s care, subject to strict...

Court Disposition

The application for primary care by the applicant is granted; the counter-application for return of the children to Sint Maarten is refused. The children remain in the applicant’s care subject to strict conditions, therapy, and parental coordination. No order as to costs.

Orders

  • The parties shall have joint parental rights and obligations in respect of the minor children JD K, M-A K, and AL K.
  • Primary care and residence of the minor children shall vest in applicant.