A father's application in the Johannesburg High Court for his children to return to the USA, was recently dismissed as the Judge ruled that it was in the children's best interests to reside in South Africa
A recent judgment in the Johannesburg High Court denied a father's request for his children to return to the USA. The Court considered the matter in light of Article 12 of Chapter III of the Hague Convention on the Civil Aspects of International Child Abduction Act, as well as the Children's Act when it considered the merits of the father's application.
A father launched an application in the Johannesburg High Court for the return of his minor children from South Africa to the USA (The Central Authority for the Republic of South Africa and another v SC (2022/0001)  ZAGPJHC 700). His application was dismissed after the Court had considered Article 12 of Chapter III of the Hague Convention on the Civil Aspects of International Child Abduction Act (the Convention), as well as the Children's Act (the Act). The father currently resides in the USA, whereas the mother and three children came to South Africa in July 2021 with the written consent of the father. The parents are currently embroiled in divorce proceedings.
The children were all born in the USA, and the family moved around a lot due to the father's work obligations. In 2018 the father lost his job and the family home at the time had to be sold.
The purpose of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country, or their wrongful retention in another country. It does so by establishing a procedure to secure a prompt return of any such child to the country of their habitual residence so that custody and similar issues in respect of the children can be adjudicated upon by the Courts of that country. The Convention is primarily aimed at deterring self-help and provides for the return of children in such circumstances.
In addition, it only applies if the Central Authority can illustrate that the children were wrongfully removed or retained. It must be proved that:
- The children were habitually resident in the requesting State immediately before the removal or retention;
- That the removal or retention of the children was wrongful in that it constituted a breach of custody rights of the left-behind parent; and
- That the parent left behind was actually exercising these rights at the time of the wrongful removal or retention or would have exercised such rights but for the removal or retention.
If these requirements are met and the application is brought within one year from the date of the removal or retention, the return of the children is peremptory, save for a few exceptions. Sections 274 to 280 of the Act also has reference:
"The Court must, in considering an application for the return of a child, afford that child the opportunity to raise an objection to be returned and in doing so must give due weight to the objection, taking into account the age and maturity of the child."
The Court concluded that in these circumstances, there was clear and compelling evidence that there was a substantial and severe risk that the children would be placed in an intolerable situation if they were returned to the USA. The Court was also not convinced that there were sufficient safeguards in place to prevent the children from being placed in an intolerable situation if they are returned.
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