MB v LC and Another (21586/2023) [2024] ZAWCHC 61; 2024 (6) SA 546 (WCC) (29 February 2024)

MB v LC and Another (21586/2023) [2024] ZAWCHC 61; 2024 (6) SA 546 (WCC) (29 February 2024)

The court found that the father had consented, alternatively acquiesced, to the children remaining in South Africa while the parties attempted to resolve their issues and long-term plans. The evidence showed that the father suggested the mother and children stay in South Africa, and his subsequent conduct—including communications and settlement negotiations—demonstrated acquiescence. The court held that there was no wrongful retention as at 1 January 2023, and even if the Convention applied, the mother had established the defences of consent and acquiescence under article 13(a). The children were happy and settled in South Africa, and the mother facilitated their relationship with the...

Citation
[2024] ZAWCHC 61
Parties
Applicant: MB; Respondent: LC; Respondent: THE FAMILY ADVOCATE, WESTERN CAPE
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
29 February 2024
Case Number
21586/2023
Procedural Posture
Urgent Application / Final Determination of Application for Summary Return of Children Under the Hague Convention
Outcome
Application dismissed. Costs awarded against the applicant on a party and party scale.
Judges
J Cloete
Legal Topics
International Child Abduction, Hague Convention, Wrongful Retention, Consent and Acquiescence, Custody Rights
Family and Children International Child Abduction Hague Convention Wrongful Retention Consent and Acquiescence Custody Rights

Case Brief

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Parties

MB

Applicant

LC

Respondent

THE FAMILY ADVOCATE, WESTERN CAPE

Respondent

Procedural Posture

Urgent Application / Final Determination of Application for Summary Return of Children Under the Hague Convention

Legal Issues

  1. 1 Whether the mother wrongfully retained the minor children in South Africa in breach of the father's custody rights under the Hague Convention.
  2. 2 Whether the father consented to or acquiesced in the children remaining in South Africa, thereby defeating the application for summary return.
  3. 3 Whether the children should be summarily returned to Australia under article 12 of the Hague Convention.

Ratio Decidendi

The court found that the father had consented, alternatively acquiesced, to the children remaining in South Africa while the parties attempted to resolve their issues and long-term plans. The evidence showed that the father suggested the mother and children stay in South Africa, and his subsequent conduct—including communications and settlement negotiations—demonstrated acquiescence. The court held that there was no wrongful retention as at 1 January 2023, and even if the Convention applied, the mother had established the defences of consent and acquiescence under article 13(a). The children were happy and settled in South Africa, and the mother facilitated their relationship with the...

Court Disposition

Application dismissed. Costs awarded against the applicant on a party and party scale.

Orders

  • The application is dismissed.
  • The applicant shall pay the first respondent's costs on the scale as between party and party as taxed or agreed, including any reserved costs orders and the costs of one senior counsel.