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South Africa decisions
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Family Advocate Welkom v C.M.C and Another (2452/2024) [2024] ZAFSHC 208 (28 June 2024)
High Court dismissed a Hague Convention return application after finding insufficient proof of wrongful retention, custody rights, and habitual residence in Cyprus.
MB v LC and Another (21586/2023) [2024] ZAWCHC 61; 2024 (6) SA 546 (WCC) (29 February 2024)
Hague Convention application for the return of two children to Australia was dismissed after the court found consent, alternatively acquiescence, to their stay in South Africa.
Central Authority (Republic of South Africa) and Another v R (28983/2014) [2014] ZAGPPHC 1008 (5 December 2014)
The court found that the minor child was habitually resident in the UK prior to his retention in South Africa, and that the respondent did not have the applicant’s consent or a UK court order to retain the child. The application was brought within one year of the retention, making Article 12 of the Hague Convention peremptory unless an Article 13 exception was established. The respondent failed to prove on a balance of probabilities that returning the child would expose him to grave psychological harm or place him in an intolerable situation, particularly as the mother intended to accompany t…
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AA v LA (10498/2013) [2013] ZAWCHC 168 (6 November 2013)
The applicant failed to establish the existence of any agreement for the children's return to the USA by a fixed date. The evidence demonstrated that the children were habitually resident in South Africa, having acclimatised and settled there with the respondent. The applicant actively participated in integrating the children into South African life and shared the mutual intention to fix their residence in South Africa until at least July 2013. There was no wrongful retention under the Hague Convention, and the application for summary return was not justified. The applicant's contradictory ve…
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Family Advocate v R (2004/2012) [2013] ZAECPEHC 10 (15 February 2013)
The court found that the removal of the children from England by the respondent was wrongful under the Hague Convention, as it breached the father's custody rights. However, the evidence established that returning the children, particularly J, would expose them to grave psychological harm and place them in an intolerable situation, as contemplated by Article 13(b) of the Convention. J's objections to return were found to be genuine and based on real fears of abuse and emotional distress. The lack of financial and emotional support in England, coupled with the father's refusal to provide under…
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N.F v M.C (17845/2012) [2012] ZAWCHC 198 (27 November 2012)
The court dismissed a Hague Convention return application, finding the applicant failed to prove wrongful retention or an express agreement to return the child by 29 December 2012.
Central Authority for Republic of South Africa v Iguwa (10/15111) [2010] ZAGPJHC 62 (27 August 2010)
The court found that the minor child’s habitual residence was Ireland, and that the respondent’s retention of the child in South Africa was wrongful under the Hague Convention and the Act. The mother, Mlotshwa, had custody by virtue of a court order, and her consent for the child’s visit did not amount to consent for permanent retention. The respondent’s claim of custody was based on a tampered document and was rejected. The court held that the child was not settled in South Africa, as evidenced by poor school performance, and that the alleged objection to return was not credible given the ch…
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Central Authority for the Republic of South Africa v David (19415/02) [2002] ZAGPHC 41 (10 December 2002)
High Court ordered the return of children wrongfully removed from Wales to South Africa under the Hague Convention, finding the father had custody rights.
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