KG v CB and Others (748/11) [2012] ZASCA 17; 2012 (4) SA 136 (SCA); [2012] 2 All SA 366 (SCA) (22 March 2012)

KG v CB and Others (748/11) [2012] ZASCA 17; 2012 (4) SA 136 (SCA); [2012] 2 All SA 366 (SCA) (22 March 2012)

The Supreme Court of Appeal held that CB possessed rights of custody under UK law at the time of T’s removal, as he had parental responsibility and was exercising contact rights. KG’s removal of T from the United Kingdom without CB’s consent was wrongful under the Hague Convention. The appellant failed to prove any defence under Article 13: there was no clear evidence of CB’s consent or acquiescence, and the alleged grave risk of harm or intolerable situation was not substantiated. The court found that protective measures, including undertakings for accommodation, maintenance, and supervised contact, could adequately safeguard T’s welfare upon return. The delays in proceedings were...

Citation
[2012] ZASCA 17
Parties
Appellant: KG; Respondent: CB; Respondent: Essex County Council; Respondent: Central Authority for the Republic of South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 March 2012
Case Number
748/11
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court, Johannesburg
Outcome
Appeal dismissed; order for return of the minor child T to the United Kingdom, subject to protective conditions.
Judges
Mthiyane, Van Heerden, Leach, Boruchowitz, Plasket
Legal Topics
International Child Abduction, Hague Convention, Rights of Custody, Best Interests of Child, Consent and Acquiescence, Grave Risk Exception
Family and Children Civil Procedure Public International Law International Child Abduction Hague Convention Rights of Custody Best Interests of Child Consent and Acquiescence +1 more

Case Brief

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Parties

KG

Appellant

CB

Respondent

Essex County Council

Respondent

Central Authority for the Republic of South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court, Johannesburg

Legal Issues

  1. 1 Whether the removal of the minor child T from the United Kingdom to South Africa was wrongful under the Hague Convention.
  2. 2 Whether CB had rights of custody within the meaning of the Convention at the time of removal.
  3. 3 Whether any defences under Article 13 of the Convention, including consent, acquiescence, or grave risk of harm, were established by the appellant.

Ratio Decidendi

The Supreme Court of Appeal held that CB possessed rights of custody under UK law at the time of T’s removal, as he had parental responsibility and was exercising contact rights. KG’s removal of T from the United Kingdom without CB’s consent was wrongful under the Hague Convention. The appellant failed to prove any defence under Article 13: there was no clear evidence of CB’s consent or acquiescence, and the alleged grave risk of harm or intolerable situation was not substantiated. The court found that protective measures, including undertakings for accommodation, maintenance, and supervised contact, could adequately safeguard T’s welfare upon return. The delays in proceedings were...

Court Disposition

Appeal dismissed; order for return of the minor child T to the United Kingdom, subject to protective conditions.

Orders

  • The appeal is dismissed, with no order as to costs.
  • The order of Satchwell J is replaced with a detailed return order for T to the jurisdiction of the Central Authority for England and Wales, subject to specified conditions regarding accommodation, maintenance, travel, and supervised contact.