V.L v M.A.V and Others (B 39322/2022) [2024] ZAGPPHC 861 (27 August 2024)

V.L v M.A.V and Others (B 39322/2022) [2024] ZAGPPHC 861 (27 August 2024)

The court found that although the applicant had custodial rights, the child L was not habitually resident in Switzerland at the time of his removal to South Africa. The evidence showed that the parties' residence in Switzerland lacked permanence and settled purpose, with frequent travel and instability in their relationship. The respondent did not have permanent residency rights in Switzerland, and the child was not integrated into Swiss society. The applicant's own communications indicated a preference for the child to reside in Italy or South Africa, rather than Switzerland. Furthermore, the applicant acquiesced in the child's retention in South Africa by failing to demand his return...

Citation
[2024] ZAGPPHC 861
Parties
Applicant: V L; Respondent: M A V; Respondent: The Central Authority of the Republic of South Africa; Respondent: The Department of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
27 August 2024
Case Number
B 39322/2022
Procedural Posture
Urgent Application / Judgment After Opposed Application
Outcome
Application dismissed with costs, including costs of two counsel and the curatrix on Scale C.
Judges
Swanepoel
Legal Topics
Hague Convention Child Abduction, Habitual Residence, Parental Rights and Responsibilities, Custody Disputes, International Child Abduction, Court Discretion
Family and Children Hague Convention Child Abduction Habitual Residence Parental Rights and Responsibilities Custody Disputes International Child Abduction Court Discretion

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Parties

V L

Applicant

M A V

Respondent

The Central Authority of the Republic of South Africa

Respondent

The Department of Home Affairs

Respondent

Procedural Posture

Urgent Application / Judgment After Opposed Application

Legal Issues

  1. 1 Whether the applicant has parental rights of custody in respect of the minor child L.
  2. 2 Whether the child L was habitually resident in Switzerland at the time of his removal to South Africa.
  3. 3 Whether the retention of L in South Africa was wrongful under the Hague Convention.

Ratio Decidendi

The court found that although the applicant had custodial rights, the child L was not habitually resident in Switzerland at the time of his removal to South Africa. The evidence showed that the parties' residence in Switzerland lacked permanence and settled purpose, with frequent travel and instability in their relationship. The respondent did not have permanent residency rights in Switzerland, and the child was not integrated into Swiss society. The applicant's own communications indicated a preference for the child to reside in Italy or South Africa, rather than Switzerland. Furthermore, the applicant acquiesced in the child's retention in South Africa by failing to demand his return...

Court Disposition

Application dismissed with costs, including costs of two counsel and the curatrix on Scale C.

Orders

  • The application is dismissed.
  • The applicant shall pay the costs of the application, including the costs of two counsel where so employed, as well as the costs of the curatrix, on Scale C.