Smith v Smith (112/2000) [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 (SCA) (16 March 2001)

Smith v Smith (112/2000) [2001] ZASCA 19; [2001] 3 All SA 146 (A); 2001 (3) SA 845 (SCA) (16 March 2001)

The Supreme Court of Appeal found that the appellant, with knowledge of his rights under the Hague Convention, instructed his attorney to withdraw his application for the return of the children and entered into settlement negotiations. This conduct constituted acquiescence in the wrongful retention of the children in South Africa. The appellant's claim that he was misled by incorrect legal advice was rejected, as the advice received was an informed opinion regarding his prospects of success and did not negate acquiescence. Given the long lapse of time since the children were first retained in South Africa, their settled environment, and the objectives of the Convention, the Court...

Citation
[2001] ZASCA 19
Parties
Appellant: Warren Dean Smith; Respondent: Lisa Vivienne Smith
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 March 2001
Case Number
112/2000
Procedural Posture
Civil Appeal / Appeal From High Court Dismissal of Hague Convention Application
Outcome
Appeal dismissed with costs.
Judges
Hefer, Smalberger, Scott
Legal Topics
International Child Abduction, Hague Convention, Acquiescence, Custody Dispute
Family and Children Civil Procedure International Child Abduction Hague Convention Acquiescence Custody Dispute

Case Brief

Summary, issues, holding and outcome

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Parties

Warren Dean Smith

Appellant

Lisa Vivienne Smith

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Dismissal of Hague Convention Application

Legal Issues

  1. 1 Whether the appellant acquiesced in the wrongful retention of his children in South Africa under article 13(a) of the Hague Convention.
  2. 2 Whether the return of the children to the United Kingdom should be ordered despite the lapse of time and circumstances.
  3. 3 Whether the advice received by the appellant from his legal advisers negates acquiescence.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant, with knowledge of his rights under the Hague Convention, instructed his attorney to withdraw his application for the return of the children and entered into settlement negotiations. This conduct constituted acquiescence in the wrongful retention of the children in South Africa. The appellant's claim that he was misled by incorrect legal advice was rejected, as the advice received was an informed opinion regarding his prospects of success and did not negate acquiescence. Given the long lapse of time since the children were first retained in South Africa, their settled environment, and the objectives of the Convention, the Court...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.