Koch N O and Another v Ad hoc Central Authority for the Republic of South Africa and Another (188/2021) [2022] ZASCA 60; [2022] 3 All SA 17 (SCA); 2022 (6) SA 323 (SCA) (26 April 2022)

Koch N O and Another v Ad hoc Central Authority for the Republic of South Africa and Another (188/2021) [2022] ZASCA 60; [2022] 3 All SA 17 (SCA); 2022 (6) SA 323 (SCA) (26 April 2022)

The Supreme Court of Appeal found that the retention of the child in South Africa was wrongful under the Hague Convention, as the father had not unequivocally consented to her remaining permanently. However, the Court held that the mother and aunt had established the grave risk exception under article 13(b), supported by expert evidence showing that returning the child to the UK would expose her to severe psychological harm and place her in an intolerable situation, given her attachment to her aunt and the trauma of losing her mother. The mechanisms available in the UK were found insufficient to mitigate this harm. The Court also granted the application to admit further evidence regarding...

Citation
[2022] ZASCA 60
Parties
Appellant: Heidi Nicole Koch N O; Appellant: Heidi Nicole Koch; Respondent: Ad hoc Central Authority for the Republic of South Africa; Respondent: Paul Graham Ball
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 April 2022
Case Number
188/2021
Procedural Posture
Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town
Outcome
Appeal upheld; order for return of the child to the UK set aside; application for return dismissed.
Judges
Zondi, Nicholls, Carelse, Weiner, Molefe
Legal Topics
Hague Convention Child Abduction, Wrongful Retention, Grave Risk Exception, Consent and Acquiescence, Admission of Further Evidence
Family and Children Civil Procedure Hague Convention Child Abduction Wrongful Retention Grave Risk Exception Consent and Acquiescence Admission of Further Evidence

Case Brief

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Parties

Heidi Nicole Koch N O

Appellant

Heidi Nicole Koch

Appellant

Ad hoc Central Authority for the Republic of South Africa

Respondent

Paul Graham Ball

Respondent

Procedural Posture

Civil Appeal / Appeal From the Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the retention of the child in South Africa by her mother and aunt was wrongful under the Hague Convention.
  2. 2 Whether the father had consented or acquiesced to the child remaining in South Africa.
  3. 3 Whether there was a grave risk that the child's return to the UK would expose her to psychological harm or place her in an intolerable situation under article 13(b) of the Convention.

Ratio Decidendi

The Supreme Court of Appeal found that the retention of the child in South Africa was wrongful under the Hague Convention, as the father had not unequivocally consented to her remaining permanently. However, the Court held that the mother and aunt had established the grave risk exception under article 13(b), supported by expert evidence showing that returning the child to the UK would expose her to severe psychological harm and place her in an intolerable situation, given her attachment to her aunt and the trauma of losing her mother. The mechanisms available in the UK were found insufficient to mitigate this harm. The Court also granted the application to admit further evidence regarding...

Court Disposition

Appeal upheld; order for return of the child to the UK set aside; application for return dismissed.

Orders

  • The application to adduce further evidence is granted with costs.
  • The appeal succeeds with costs including costs of two counsel.