S[....] v S[....] (D7960/2019) [2022] ZAKZDHC 7 (18 February 2022)

S[....] v S[....] (D7960/2019) [2022] ZAKZDHC 7 (18 February 2022)

The court found that the decisive factor is the best interests of the minor child, Z. The mother is unable to return to the UK due to repeated visa refusals, and Z has been in her primary care in South Africa for over 30 months. Enforcing the mirror order would result in Z being separated from his primary caregiver, exposing him to psychological harm and placing him in an intolerable situation. The father failed to establish on a balance of probabilities that enforcement of the mirror order serves Z’s best interests. The court held that Z should remain with his mother in South Africa, with the father entitled to reasonable contact when in South Africa. The Family Advocate should conduct...

Citation
[2022] ZAKZDHC 7
Parties
Applicant: S[....]; Respondent: S[....]
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
18 February 2022
Case Number
D7960/2019
Procedural Posture
Urgent Application / Final Judgment on Main and Counter Application
Outcome
Application dismissed with costs; counter-application granted.
Judges
Steyn
Legal Topics
Child Custody, Best Interests of Child, Mirror Order Enforcement, International Child Abduction, Hague Convention, Parental Contact
Family and Children Civil Procedure Child Custody Best Interests of Child Mirror Order Enforcement International Child Abduction Hague Convention Parental Contact

Case Brief

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Parties

S[....]

Applicant

S[....]

Respondent

Procedural Posture

Urgent Application / Final Judgment on Main and Counter Application

Legal Issues

  1. 1 Whether enforcement of the mirror order for the return of the minor child to the UK is in the best interests of the child.
  2. 2 Whether the mother’s inability to return to the UK due to immigration refusal renders enforcement of the mirror order unfair or intolerable.
  3. 3 Whether the father has established on a balance of probabilities that enforcement of the mirror order serves the child’s best interests.

Ratio Decidendi

The court found that the decisive factor is the best interests of the minor child, Z. The mother is unable to return to the UK due to repeated visa refusals, and Z has been in her primary care in South Africa for over 30 months. Enforcing the mirror order would result in Z being separated from his primary caregiver, exposing him to psychological harm and placing him in an intolerable situation. The father failed to establish on a balance of probabilities that enforcement of the mirror order serves Z’s best interests. The court held that Z should remain with his mother in South Africa, with the father entitled to reasonable contact when in South Africa. The Family Advocate should conduct...

Court Disposition

Application dismissed with costs; counter-application granted.

Orders

  • The application is dismissed with costs, including costs of senior counsel.
  • Pending final determination of divorce proceedings, the minor child Z shall reside with the mother in South Africa.