Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London v IRRJ (EL528/2019; 1730/2019) [2019] ZAECELLC 17 (16 August 2019)

Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London v IRRJ (EL528/2019; 1730/2019) [2019] ZAECELLC 17 (16 August 2019)

The court found that the children were habitually resident in New Zealand at the time of their removal and retention in South Africa. The respondent mother failed to establish, on a balance of probabilities, that the father had consented to or acquiesced in the permanent relocation of the children. Her evidence was inconsistent, contradictory, and lacked clear and unequivocal proof of consent or acquiescence. The retention was therefore wrongful under Article 3(a) of the Hague Convention. No grave risk of harm or intolerable situation under Article 13(b) was established. The best interests of the children, as contemplated by the Convention and South African law, require their prompt...

Citation
[2019] ZAECELLC 17
Parties
Applicant: Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London; Respondent: IRRJ
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
16 August 2019
Case Number
EL528/2019; 1730/2019
Procedural Posture
Urgent Application / Final Judgment on Application for Return of Children Under Hague Convention
Outcome
Application granted. The retention of the children in South Africa is declared wrongful. The children are to be returned to New Zealand, subject to practical arrangements and a brief stay until the end of the school term.
Judges
Hartle
Legal Topics
Hague Convention Child Abduction, Habitual Residence, Wrongful Retention, Consent and Acquiescence, Best Interests of Child, Onus of Proof
Family and Children Civil Procedure Hague Convention Child Abduction Habitual Residence Wrongful Retention Consent and Acquiescence Best Interests of Child Onus of Proof

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Parties

Chief Family Advocate of the Republic of South Africa as represented by Mr Keuben Gounden, Senior Family Advocate, East London

Applicant

IRRJ

Respondent

Procedural Posture

Urgent Application / Final Judgment on Application for Return of Children Under Hague Convention

Legal Issues

  1. 1 Whether the retention of the minor children in South Africa is wrongful under Article 3(a) of the Hague Convention.
  2. 2 Whether the respondent mother has established a defence under Article 13(a) or (b) of the Convention, namely consent/acquiescence or grave risk of harm.
  3. 3 Whether the children should be returned to New Zealand under the Convention.

Ratio Decidendi

The court found that the children were habitually resident in New Zealand at the time of their removal and retention in South Africa. The respondent mother failed to establish, on a balance of probabilities, that the father had consented to or acquiesced in the permanent relocation of the children. Her evidence was inconsistent, contradictory, and lacked clear and unequivocal proof of consent or acquiescence. The retention was therefore wrongful under Article 3(a) of the Hague Convention. No grave risk of harm or intolerable situation under Article 13(b) was established. The best interests of the children, as contemplated by the Convention and South African law, require their prompt...

Court Disposition

Application granted. The retention of the children in South Africa is declared wrongful. The children are to be returned to New Zealand, subject to practical arrangements and a brief stay until the end of the school term.

Orders

  • The retention of the children, L and A, is declared wrongful within the meaning of Article 3(a) of the Convention.
  • The children are to be returned forthwith, subject to the terms of this order, to the jurisdiction of the Central Authority in New Zealand.