Online Symposium on Recent Developments in African PIL (VII) – South Africa’s Supreme Court of Appeal orders the return of a child under the Hague Child Abduction Convention

As a part of the second on-line symposium on current developments in African non-public worldwide legislation, we’re happy to current the seventh an ultimate contribution, kindly ready by Solomon Okorley (College of Johannesburg, South Africa), which examines a call of the South African Supreme Court docket of Attraction ordering the return of a kid beneath the Hague Little one Abduction Conference.

South Africa’s Supreme Court docket of Attraction Orders the Return of a Little one beneath the Hague Little one Abduction Conference: Marital Standing of Mother and father not Vital in Figuring out the Little one’s Routine Residence

1            Introduction

Worldwide little one abduction[1] refers back to the unilateral elimination or retention of a kid by a mother or father or guardian in a State apart from that of the kid’s recurring residence, with out the consent of the opposite mother or father or in breach of current custodial rights.[2] This phenomenon has more and more been characterised as each international in attain and rising in prevalence,[3] reflecting the intensification of cross-border mobility, transnational households, and jurisdictional fragmentation in household legislation. In circumstances of worldwide little one abduction, the left-behind mother or father seeks judicial aid within the type of a return order, the aim of which is to revive the established order ante by returning the kid to the State of recurring residence.

South Africa occupies a pivotal place within the adjudication of worldwide little one abduction issues,[4] with its judicial selections exerting vital affect on the event of jurisprudence inside the Southern African Improvement Neighborhood (SADC) area.[5] This paper will briefly analyse the current case of The Central Authority for the Republic of South Africa v MV and One other,[6] the place the South African Supreme Court docket of Attraction upheld an enchantment for the return of a kid who was wrongly faraway from Switzerland. The court docket held that “the minor little one (L) be returned forthwith, topic to the phrases of this order, to the jurisdiction of the Central Authority of Switzerland”.[7]

This case is important as a result of the case addresses an essential consider worldwide little one abduction circumstances: ascertaining the recurring residence of the kid. Consequently, it’s a case that different contracting states of the 1980 Hague Little one Abduction Conference would discover helpful when ascertaining the recurring residence of a kid in a global little one abduction dispute.

2            Information of the case

The case issues a minor little one (L), born in Italy in Could 2021 to single dad and mom. The mom (MV) is a twin South African–Italian citizen, whereas the daddy (VL) is an Italian nationwide who later acquired Swiss citizenship. The dad and mom had been engaged and had lived collectively previous to and after the kid’s start. Earlier than the kid’s start, the events resided collectively in Switzerland, the place the daddy was employed. Following the kid’s start in Italy, the dad and mom returned with the kid to Switzerland and continued to reside collectively as a household. The daddy bought an house in Geneva, financially supported the mom and little one, and took steps according to establishing household life there, together with enrolling the kid in a crèche and making use of for Swiss identification documentation for the kid.

In Could 2022, the dad and mom and the kid travelled collectively to South Africa to attend the marriage of the mom’s brother. Return flights to Switzerland had been booked shortly after the marriage. On the scheduled return date, the mom examined constructive for COVID-19. In consequence, the daddy returned to Switzerland alone, with the understanding that the mom and little one would return as soon as she had recovered. After recovering, the mom didn’t return to Switzerland with the kid. She delayed her return and in the end determined to stay completely in South Africa with the kid, citing the breakdown of the connection and the presence of her household assist community in South Africa.

The daddy objected to the kid remaining in South Africa with out his consent and initiated steps by means of Italian and Swiss authorities, which culminated in an utility by the South African Central Authority for the kid’s return to Switzerland. Whereas in South Africa, the mom obtained an ex parte order from the Excessive Court docket granting her major care and parental obligations over the kid and directing that the kid be registered as a South African citizen. The daddy opposed the order and continued to pursue the kid’s return by means of the South African Central Authority by submitting a return utility on the Excessive Court docket. As on the time court docket was adjudicating the case in 2025, the boy was four-year-old.

2.1         Excessive Court docket Ruling  

Based on the Excessive court docket, it appeared that neither the minor little one nor MV had settled within the Swiss group and that MV didn’t intend to stay in Switzerland completely until VL married her. The court docket additional discovered that it isn’t sure that Mr VL regarded Geneva because the minor little one’s recurring residence. The court docket didn’t consider that the events had the settled objective of residing in Switzerland. Consequently, it discovered that the minor little one was not a habitually resident in Switzerland on the time of his elimination to South Africa.[8] The court docket additional held that eradicating the minor little one from Ms MV’s care would trigger the minor little one, critical emotional hurt.[9] Within the train of its discretion, the Excessive Court docket dismissed the return utility. Dissatisfied with the ruling, the Central Authority and MV appealed to the SCA with the depart of the Excessive Court docket.

2.2         Abstract of the Judgment of the Supreme Court docket of Attraction (SCA)

Based on the SCA, the core challenge was the minor little one’s recurring residence previous to his alleged illegal retention in South Africa.[10] The decision of the core challenge will, of necessity entail figuring out  (i) whether or not the elimination of the kid was wrongful; (ii) whether or not the related rights of custody had been truly being exercised on the time of the minor little one L’s elimination.

In its bid to resolve the difficulty, the SCA indicated that the relevant Legislative Framework included: the 1980 Hague Little one Abduction Conference;[11] the 1996 Hague Conference on Jurisdiction, Relevant Regulation, Recognition, Enforcement and Co-operation in Respect of Parental Duty and Measures for the Safety of Kids;[12] Swiss Federal Act on Non-public Worldwide Regulation (PILA);[13] the Swiss Civil Code;[14] the Structure of the Republic of South Africa of 1996;[15] and South Africa’s Kids’s Act.[16]

As an essential preliminary challenge, the court docket got down to handle the applicability of the Hague Conference.[17] The court docket famous that Switzerland is a signatory to the 1996 Hague Conference whereas South Africa is a signatory to the 1980 Hague Conference. Based on the SCA, “It’s the 1996 Hague Conference that permits the dedication of the problems which are extra-territorial corresponding to these. Absent the 1996 and the 1980 Hague Conventions, our courts and so is our State wouldn’t be capable of lean on the worldwide agreements between states on issues involving, amongst others, the worldwide abduction and retention of youngsters.”[18] The SCA then made reference to the Constitutional Court docket case of Sonderup[19] the place the apex court docket outlined the aim of the 1980 Hague Conference, which inter alia ensures the immediate return of youngsters to the state of their recurring residence. The SCA thus concluded that the 1980 Hague Conference applies to this case.

Based on the court docket, for the reason that little one is Italian and had been registered as such at start, his preliminary recurring residence was Italy. And per the mixed impact of Articles 316 and 337 of the Italian Code, each dad and mom had parental duty which included joint custody.[20] The court docket opined that the parental duty was not extinguished after they moved to Switzerland by advantage of the 1996 Hague Conference, which is relevant between Italy and Switzerland: “Parental duty which exists beneath the legislation of the State of the kid’s recurring residence subsists after a change of that recurring residence to a different state.”[21]

Based on the SCA, the continuity of parental rights the place there’s a change of recurring residence accords with the most effective pursuits of the kid precept that the Hague Conference seeks to guard. The court docket held that the daddy has custodial rights over the kid. Since each dad and mom had custodial rights in the direction of the kid in Switzerland, Mr VL’s consent to the retention of the kid in South Africa was peremptory. The court docket due to this fact held that the failure to hunt and procure Mr VL’s consent earlier than retaining the kid in South Africa was wrongful.

The court docket needed to handle the core challenge which was the recurring residence of the kid. Based on the SCA, the excessive court docket misdirected itself when it targeted on the difficulty of marriage as an essential challenge when figuring out the difficulty of recurring residence.[22] Based on the court docket, Italy was the kid’s recurring residence and his start residence till his dad and mom moved to Switzerland. At that time, the minor little one’s recurring residence and his dad and mom grew to become Switzerland.[23]

The mom contended that the kid’s recurring residence was Italy and that she had no intention of residing in Switzerland completely – a spot she had lived for nearly two years. The SCA rejected this arguments by counting on the Swiss legislation definition of recurring residence the place it’s stipulated {that a} pure particular person ‘has their recurring residence within the state the place they reside for a sure time period, even when this era is of restricted length from the outset’.[24] The court docket in rejecting the argument by the mom additionally relied on the dependency mannequin which espouses that the kid acquires the recurring residence of his or her custodians. Thus, for the reason that custodians had been habitually resident in Switzerland, he acquires the recurring residence of Switzerland and never that of Italy.

An try by the mom to invoke an article 13(b) [of the 1980 Hague Convention] defence on the bottom that  the psychological and psychological state of Mr VL poses a grave danger of hurt to the minor little one additionally failed. Based on the court docket, the physique of proof confirmed that each Ms MV and Mr VL do have some psychological challenges and that these challenges might be higher addressed by the Swiss Court docket.[25]

3            Evaluation

3.1         Preliminary challenge: The territorial scope of the 1980 Hague Conference

Though the SCA was appropriate in its conclusion that the 1980 Hage Conference was relevant, it’s submitted that the method adopted within the judgment was marked by an unnecessarily circuitous evaluation, which generated avoidable doctrinal and interpretive difficulties. Though not talked about by the SCA, Switzerland is a contracting state to the 1980 Hague Conference, likewise South Africa.[26] The conference is relevant if the kidnapping occurred from one conference state (the place the kid had his or her recurring residence) to a different conference state.[27] Thus, per the territorial scope of the 1980 Hague Conference, this makes the conference relevant to the case simpliciter.

3.2         Routine residence of the kid

A central idea underpinning the Hague Conference is that of the “recurring residence” of the kid. Nevertheless, the time period is neither expressly outlined within the Conference itself nor in South Africa’s Kids’s Act. The query of whether or not an individual is or isn’t habitually resident in a specified nation is a fact-specific inquiry, the place the essence of a ‘secure territorial hyperlink’ is established by means of size of keep or by means of proof of a very shut tie between the particular person and the place.[28]

Judicial efforts to provide content material to the notion of recurring residence have crystallised into three dominant fashions of research: the dependency mannequin, the parental rights mannequin, and the child-centred mannequin.[29] By way of the dependency mannequin, a toddler acquires the recurring residence of his or her custodians. Making use of the info of this case to this mannequin, the dad and mom are habitually resident in Switzerland. Ipso facto, the kid can be habitually resident in Switzerland.

The parental rights mannequin proposes that recurring residence must be decided by the mother or father who has the proper to find out the place the kid lives, no matter the place the kid truly lives; and the place each dad and mom have the proper to find out the place the kid ought to reside, neither could change the kid’s recurring residence with out the consent of the opposite. Per the info of this case, each dad and mom have the proper to find out the place the kid lives, thus, solely the mom can not decide the recurring residence of the kid.

By way of the child-centred mannequin, the recurring residence of a kid depends upon the kid’s connections or intentions and the kid’s recurring residence is outlined because the place the place the kid has been bodily current for an period of time ample to kind social, cultural, linguistic and different connections. From the info of the case, the kid has been current for a substantial period of time in Switzerland earlier than the mom wrongly eliminated him. The dad and mom had agreed for him to be enrolled at a crèche in Switzerland and Mr VL had additionally utilized for the minor little one to be issued with an official Swiss id doc. All these additionally level to the truth that the kid’s recurring resident in Switzerland.

The South African Courts have adopted a hybrid of the fashions in figuring out recurring residence of youngsters which relies upon the life experiences of the kid and the intentions of the dad and mom of the dependent little one.[30] The courts have additional held that with very younger kids the recurring residence of the kid is often that of the custodian mother or father.[31] Additionally, following this hybrid method of the South African courts, it results in the identical outcome that the kid is habitually resident in Switzerland: the intention of the dad and mom is for the kid to be habitually resident in Switzerland. That is evinced within the enrolment of the kid in crèche; the appliance for a Swiss id doc; and the return air ticket to Switzerland that was bought.

From a comparative perspective, in Monasky v. Taglieri,[32] the US Supreme Court docket enunciated a stricter threshold in figuring out the recurring residence of the kid. The court docket, in uniformity with the choices of the courts of different contracting states of the 1980 Hague Conference held that “a toddler’s recurring residence depends upon the totality of the circumstances particular to the case.” This threshold is increased than the one espoused by the South African court docket within the Houtman case the place it said that the recurring residence “have to be decided by reference to the circumstances of every case”.[33] It’s submitted that the South African court docket in figuring out the recurring residence of the kid ought to apply the “totality of circumstances normal”. On this case, it’s clear that the SCA took into consideration your complete circumstances of the case in arriving at its resolution,

4            Marital standing of fogeys and the recurring residence of the kid

In the entire crystallised fashions analysed within the instant previous paragraph, it’s clear that marital standing isn’t a determinant of the recurring residence of the kid. In a newer case, Advert Hoc Central Authority for the Republic of South Africa and One other v DM,[34] which additionally concerned single dad and mom, in figuring out the recurring residence of the kid, the court docket didn’t consider the marital standing of the dad and mom.

Marital standing (e.g., married, divorced, separated, or by no means married) doesn’t seem within the textual content of the 1980 Hague Conference as a criterion for return selections, exceptions (like grave danger beneath Article 13(b), little one objection, consent, or non-exercise of rights), or another core dedication. The Conference is intentionally status-neutral to advertise uniformity throughout signatory nations. Nevertheless, marital standing can have oblique relevance in restricted methods, relying on the legislation of the kid’s recurring residence. In some jurisdictions, married dad and mom robotically share joint custody rights from start, making it simpler for both to determine a breach of these rights. For single dad and mom, the rights of custody aren’t at all times computerized. In some nations, an single father might have to determine paternity legally, get hold of a court docket order for custody/entry, or meet different necessities to have enforceable “rights of custody”. If no such rights exist beneath the legislation of the recurring residence of the kid, the elimination may not qualify as “wrongful” beneath the Hague Conference. This can be a query of home legislation within the nation of the recurring residence of the kid, not the Conference itself imposing a marital standing check. On this occasion case, though the dad and mom had been single, primarily based on Italian Household Regulation, the daddy had custody rights.

In any occasion, figuring out the kid’s recurring residence is a vital antecedent to any evaluation of whether or not the relevant legislation confers custody rights on an single father. It’s submitted that reliance on the marital standing of the dad and mom in figuring out a toddler’s recurring residence is conceptually misplaced. The Hague Conference adopts a distinctly child-centred method; accordingly, an examination of the dad and mom’ marital standing introduces adult-centred concerns which are extraneous to the Conference’s underlying targets.

It’s due to this fact submitted that marital standing shouldn’t be an element to think about in figuring out a toddler’s recurring residence in worldwide little one abduction circumstances. At most, it could function a contextual evidential consider assessing shared parental intention and household stability, however the decisive inquiry should stay anchored within the little one’s lived actuality, social integration, and factual circumstances.

5            Conclusion

This resolution displays the South African Supreme Court docket of Attraction’s agency dedication to the immediate return of youngsters to their State of recurring residence, consistent with the targets of the 1980 Hague Conference. The Excessive Court docket’s try and introduce marital standing as a “novel” determinant of recurring residence was accurately rejected on enchantment. The SCA’s refusal to endorse this method is commendable, as elevating parental marital standing to a determinative issue dangers remodeling little one abduction proceedings into an adult-centred inquiry, thereby undermining the child-focused framework and core targets of the Conference.

Earlier contributions:

On-line Symposium on Current Developments in African Non-public Worldwide Regulation, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory publish)
Recognition and Enforcement of Worldwide Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
The Recognition and Enforcement of Overseas Judgments inside the CEMAC Zone, by Boris Awa
Overseas Judgments in Mozambique by means of the Lens of the Enforcement of a Chinese language Judgment: Liberal Observe within the Shadow of Statutory Rigidity, by Béligh Elbalti
Celebration Autonomy, Real Connection, Comfort, Prices, Privity, and Public Coverage: The Kenyan Excessive Court docket on Unique Jurisdiction Clauses, by Anam Abdul – Majid and Kitonga Mulandi
Cross-border employment, competitors and delictual legal responsibility merge within the South African Excessive Court docket: Placement Worldwide Group Restricted v Pretorius and Others, by Elisa Rinaldi
From Daddy to Zaddy or Each? Proof of Overseas Regulation and the Fragility of Overseas Marriages in Ghanaian Courts – Reflections on Akosua Serwaah Fosuh v. Abusua-Panin Kofi Owusu & 2 Others, Go well with No. GJ12/20/2026, by Theophilus Edwin Coleman

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[1] Previously often called ‘authorized kidnapping’ or ‘childnapping’. See Dyer “The Hague Conference on the Civil Elements of Worldwide Little one Abduction – In direction of International Cooperation: Its Successes and Failures” 1993 The Worldwide Journal of Kids’s Rights 273 275.

[2] Baruffi and Holliday “Little one Abduction” in Beaumont and Holliday (eds) A Information to International Non-public Worldwide Regulation (2022) 481.

[3] Freeman and Taylor “Home violence and little one participation: Up to date challenges for the 1980 Hague little one abduction conference” 2020 Journal of Social Welfare and Household Regulation 154.

[4] See INCADAT which presently incorporates 21 reported South African little one abduction selections in its database.

[5] https://www.sadc.int/member-states

[6] [2025] ZASCA 197.

[7] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 87.

[8] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 13.4

[9] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 13.5.

[10] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 29.

[11] Articles 3, 5, 12, 13, 16, 18, and 19 of the 1980 Hague Conference.

[12]  Articles 3 and 17 of the 1996 Hague Conference.

[13] Articles 14, 20 and 82 of PILA.

[14] Article 296 of the Swiss Civil Code

[15] Part 28 of the 1996 Structure of South Africa.

[16] Chapter 17 of the Kids’s Act 38 of 2005.

[17] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 41.

[18] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 43.

[19] Sonderup v Tondelli and One other 2001 1 SA 1171 (CC).

[20] The Central Authority for the Republic of South Africa v MV and One other (n 6) pars 48 and 51.

[21] Article 16(3) of the 1996 Hague Conference.

[22] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 67.

[23] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 62.

[24] Article 20(b) of the PILA.

[25] The Central Authority for the Republic of South Africa v MV and One other (n 6) par 77.

[26] See the standing desk of the 1980 Hague Conference.

[27] Kruger Worldwide Little one Abduction: The Inadequacies of the Regulation (2011) 112.

[28] Senior Household Advocate, Cape City, and One other v Houtman 2004 (6) SA 274 (CPD) par 9.

[29] Central Authority for the Republic of South Africa and One other v C 2021 (2) SA 471 (GJ) par 63.

[30] Central Authority for the Central Republic of South Africa and One other v C 2021 (2) SA 471 (GJ) par 63.

[31] Central Authority for the Central Republic of South Africa and One other v C 2021 (2) SA 471 (GJ) par 63.

[32] 140 S. Ct. 719 (2020).

[33] Senior Household Advocate, Cape City, and One other v Houtman 2004 (6) SA 274 (CPD) par 11.

[34] [2024] ZAWCHC 170.