S v T and Another (CCT 53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1) SA 1171 (4 December 2000)

S v T and Another (CCT 53/00) [2000] ZACC 26; 2001 (2) BCLR 152; 2001 (1) SA 1171 (4 December 2000)

The Constitutional Court held that the Hague Convention applies, as the Canadian court orders and agreements conferred rights of custody, including the right to determine the child's place of residence. The Act incorporating the Convention is consistent with the Constitution, as it safeguards the best interests of the child by ensuring custody disputes are resolved in the child's habitual residence. The Convention's exceptions, particularly Article 13, are narrowly tailored and allow for refusal to return only in cases of grave risk of harm. The mother failed to establish that returning the child to Canada would expose her to grave risk of psychological harm or place her in an intolerable...

Citation
[2000] ZACC 26
Parties
Appellant: L[…] T[…] S[…]; Respondent: A[…] T[…]; Respondent: THE FAMILY ADVOCATE
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
4 December 2000
Case Number
CCT 53/00
Procedural Posture
Civil Appeal / Appeal From High Court Order; Direct Appeal to Constitutional Court
Outcome
Appeal upheld in part; High Court order set aside and replaced with a conditional order for the return of the child to Canada, subject to protective measures for the mother and child.
Judges
Goldstone, Chaskalson, Langa, Ackermann, Kriegler, Mokgoro, Ngcobo, O'Regan, Sachs, Yacoob, Madlanga
Legal Topics
International Child Abduction, Hague Convention, Best Interests of Child, Constitutional Supremacy, Jurisdictional Forum, Section 28 Rights
Family and Children Constitutional Law Civil Procedure International Child Abduction Hague Convention Best Interests of Child Constitutional Supremacy Jurisdictional Forum +1 more

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Parties

L[…] T[…] S[…]

Appellant

A[…] T[…]

Respondent

THE FAMILY ADVOCATE

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Order; Direct Appeal to Constitutional Court

Legal Issues

  1. 1 Whether the Hague Convention on the Civil Aspects of International Child Abduction applies to the facts of this case.
  2. 2 Whether the Act incorporating the Convention is consistent with the Constitution, specifically section 28(2).
  3. 3 Whether the Convention requires the return of the child to Canada under the circumstances presented.

Ratio Decidendi

The Constitutional Court held that the Hague Convention applies, as the Canadian court orders and agreements conferred rights of custody, including the right to determine the child's place of residence. The Act incorporating the Convention is consistent with the Constitution, as it safeguards the best interests of the child by ensuring custody disputes are resolved in the child's habitual residence. The Convention's exceptions, particularly Article 13, are narrowly tailored and allow for refusal to return only in cases of grave risk of harm. The mother failed to establish that returning the child to Canada would expose her to grave risk of psychological harm or place her in an intolerable...

Court Disposition

Appeal upheld in part; High Court order set aside and replaced with a conditional order for the return of the child to Canada, subject to protective measures for the mother and child.

Orders

  • The minor child ST is to be returned forthwith to the jurisdiction of the Central Authority, British Columbia, Canada, subject to the terms of this order.
  • If the mother indicates willingness to accompany ST, the father must obtain a Canadian court order withdrawing the arrest warrant and awarding interim custody to the mother.