CASE

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Case Name

Pennello v. Pennello [2003] ZASCA 147, [2004] 1 All SA 32, 2004 (3) SA 117 (SCA)

INCADAT reference

HC/E/ZA 1022

Court

Country

SOUTH AFRICA

Name

Supreme Court of Appeal

Level

Superior Appellate Court

Judge(s)
Mpati DP, Farlam, Brand, Lewis JJA and Van Heerden AJA

States involved

Requesting State

UNITED STATES OF AMERICA

Requested State

SOUTH AFRICA

Decision

Date

1 December 2003

Status

Final

Grounds

Aims of the Convention - Preamble, Arts 1 and 2 | Grave Risk - Art. 13(1)(b) | Undertakings | Procedural Matters

Order

-

HC article(s) Considered

13(1)(b)

HC article(s) Relied Upon

13(1)(b)

Other provisions

-

Authorities | Cases referred to
Sonderup v. Tondelli and Another 2001 (1) SA 1171 (CC); C v. C (Minor: Abduction: Rights of Custody Abroad) [1989] 2 All ER 465 (CA); Gsponer v. Johnston (1988) 12 Fam LR 755; Re C (Abduction: Grave Risk of Physical or Psychological Harm) [1999] 2 FLR 478(CA); Re J (A Minor) [1997] EWCA Civ 2841; Re C (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 (CA); Re S (A Child) [2002] EWCA Civ 908 (CA); Re B (Children) Abduction: New Evidence) (2002) 2 FCR 531 (CA); Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 (CA); Re F (Child Abduction: Risk of Returned) [1995] 2 FLR 31 (CA); Re H (Children) [2003] EWCA Civ 355; Smith v. Smith 2001 (3) SA 845 (SCA); Re A (A Minor) (Abduction) [1988] 1 FLR 365 (CA); Thomson v. Thomson (1994) 119 DLR (4th) 253; Director-General, Department of Families, Youth and Community Care v. Bennett [2000] Fam CA 253; Chief Family Advocate and Another v. G 2003 (2) SA 599 (W); TB v. JB (Abduction: Grave Risk of Harm) [2001] 2 FCR 497 (CA); In re the Application of John Walsh 31 F. Supp 2d 200 (1998); State Central Authority of Victoria v. Ardito (Family Court of Australia, unreported 29 October 1997); Director-General, Department of Families, Youth and Community Care v. Hobbs [1999] FamCA 2059.

INCADAT comment

Exceptions to Return

Grave Risk of Harm
Primary Carer Abductions
Immigration Issues

Implementation & Application Issues

Measures to Facilitate the Return of Children
Safe Return / Mirror Orders
Undertakings

SUMMARY

Summary available in EN

Facts

The child, a girl was 1 ½ at the date of the alleged wrongful removal. She had until then lived her entire life in the United States. The parents were married and had joint rights of custody. By 2002, the parents' were experiencing marital problems and on 25 September 2002, the mother secretly took her daughter to South Africa, to the home of the maternal grand-parents.

On 22 November, the Durban and Coast Local Division ordered the return of the child, subject to undertakings being made and mirror orders being entered in New Jersey. The mother appealed. On 14 February 2003, the Full Court of the Natal Provincial Division allowed the appeal, finding the Article 13(1)(b) exception to have been proved to the standard required under the Convention. The father appealed.

Ruling

Appeal allowed and return ordered; Article 13(1)(b) had not been proved to the standard required under the 1980 Hague Child Abduction Convention.

Grounds

Aims of the Convention - Preamble, Arts 1 and 2

The Court noted that the underlying premise of the Convention was that the authorities best placed to resolve the merits of a custody dispute were the courts of the state of the child's habitual residence and not the courts of the state to which the child had been removed or in which the child was being retained.

Grave Risk - Art. 13(1)(b)


The mother's case at trial was that the marriage was characterised by frequent bitter arguments and continual physical and verbal abuse by the father. She alleged that she was so traumatised by the father's conduct that she had to return to the safety of her family in South Africa.

The trial judge, Pillay J, had not been satisfied that a sustained and established pattern of domestic violence had been shown to exist. Pillay J had regarded as crucial the father's undertakings, which addressed the mother's concerns to an appreciable extent and ameliorated the potential hardships to which the child might be exposed upon return to New Jersey.

This finding was overturned on appeal by the Full Court of the Natal Provincial Division. The Supreme Court of Appeal noted that it had to decide whether Article 13(1)(b) did indeed apply and should act to bar the return of the child to the United States of America. If not, consideration would then have to be given to any conditions to govern the return of the child.

Having considered foreign case law on the interpretation to be given to Article 13(1)(b), the Supreme Court of Appeal held that it was neither necessary nor appropriate to consider whether South African courts should follow the stringent tests set by courts in other Contracting States.

The Supreme Court rejected the approach of the Full Court as regards the applicable standard of proof, namely that it was "not appropriate to equate the requirement that the person opposing an order under Article 12 "establish" certain facts, to the customary requirements for the discharge of an onus in our civil law". The Supreme Court held there was nothing in Article 13, or in previous South African case law, to suggest that a person resisting an order for return did not bear the usual civil onus of proof, namely proof on a preponderance of probabilities.

The Supreme Court held that there had been several misconceptions by the Full Court as regards the objectives of the Convention and its underlying assumptions.

In particular, it held that whilst the age of an abducted child may, in certain circumstances, be one of the factors relevant to the determination of whether a court-ordered return would expose the child to a grave risk of physical or psychological harm or otherwise place the child in an intolerable situation, there was no basis to differentiate in principle on the basis of age, or to be swayed by some kind of "tender years" principle in the application of the Convention.

Furthermore, courts considering return applications under the Convention should not engage in speculation on the possible outcome of a custody dispute, or leave to relocate application to be heard in the courts of the State of habitual residence.

The Supreme Court noted that the mother was to a large extent the author of her present predicament and it would be reasonable to expect her to make all appropriate use of the welfare system and the machinery of the courts which may be available to her in New Jersey for her protection and that of her daughter.

The Supreme Court accepted that since the father had secured a decree of divorce against the mother, there was a possibility the mother would not be permitted to return to the United States of America and an even stronger possibility that, should she be allowed to return with the child, this would only be for a limited period of time and she would not legally be able to work while there.

But it ruled that this did not assist the mother in establishing the grave risk of harm exception, rather it was a matter to be dealt with in the conditions for the child's return. In this the Court rejected the mother's submission that the condition should be in terms that she be allowed to reside permanently in the United States of America and be allowed to work there.

Rather, the mother was to be given leave to enter and remain in the United States of America until at least the final adjudication and determination, by the New Jersey courts, of the issues of custody and care of and access to the child, including any appeal.

Undertakings


The Supreme Court formulated detailed conditions, similar to those made by the trial judge, for the return of the child. The conditions sought to secure the best possible interim protection of the child's needs, while at the same time not subjecting the father to unreasonable and excessive financial demands. To this end the father was to secure a mirror order from the competent court in New Jersey, which was to include provision, inter alia, for the warrant for the arrest of the mother to be withdrawn.

Procedural Matters


The Court considered whether fresh evidence could be adduced. It noted that in Re J (A Minor) [1997] EWCA Civ 2841, the English Court of Appeal had held that evidence of events subsequent to the initial return hearing could be accepted, provided that the evidence would substantially change the basic assumptions on which the trial court had made the original order and such that in general it would be an affront to justice for the evidence not to be admitted.

The Court endorsed this "common-sense approach" and noted that it accorded with the practice of South African courts in determining applications to adduce further evidence on appeal.

Author of the summary: Peter McEleavy

INCADAT comment

A summary of the judgment of the Full Court of the Natal Provincial Division is found at: Pennello v. Pennello [2003] 1 All SA 716 (N) [INCADAT Reference: HC/E/ZA 497].

Primary Carer Abductions

The issue of how to respond when a taking parent who is a primary carer threatens not to accompany a child back to the State of habitual residence if a return order is made, is a controversial one.

There are examples from many Contracting States where courts have taken a very strict approach so that, other than in exceptional situations, the Article 13(1)(b) exception has not been upheld where the non-return argument has been raised, see:

Austria
4Ob1523/96, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 561]

Canada
M.G. v. R.F., 2002 R.J.Q. 2132 [INCADAT Reference: HC/E/CA 762]

N.P. v. A.B.P., 1999 R.D.F. 38 [INCADAT Reference: HC/E/CA 764]

In this case, a non-return order was made since the facts were exceptional. There had been a genuine threat to the mother, which had put her quite obviously and rightfully in fear for her safety if she returned to Israel. The mother was taken to Israel on false pretences, sold to the Russian Mafia and re-sold to the father who forced her into prostitution. She was locked in, beaten by the father, raped and threatened. The mother was genuinely in a state of fear and could not be expected to return to Israel. It would be wholly inappropriate to send the child back without his mother to a father who had been buying and selling women and running a prostitution business.

United Kingdom - England and Wales
C. v. C. (Minor: Abduction: Rights of Custody Abroad) [1989] 1 WLR 654 [INCADAT Reference: HC/E/UKe 34]

Re C. (Abduction: Grave Risk of Psychological Harm) [1999] 1 FLR 1145 [INCADAT Reference: HC/E/UKe 269]

However, in a more recent English Court of Appeal judgment, the C. v. C. approach has been refined:

Re S. (A Child) (Abduction: Grave Risk of Harm) [2002] 3 FCR 43, [2002] EWCA Civ 908 [INCADAT Reference: HC/E/UKe 469]

In this case, it was ruled that a mother's refusal to return was capable of amounting to a defence because the refusal was not an act of unreasonableness, but came about as a result of an illness she was suffering from. It may be noted, however, that a return order was nevertheless still made. In this context reference may also be made to the decisions of the United Kingdom Supreme Court in Re E. (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 A.C. 144 [INCADAT Reference: HC/E/UKe 1068] and Re S. (A Child) (Abduction: Rights of Custody) [2012] UKSC 10, [2012] 2 A.C. 257 [INCADAT Reference: HC/E/UKe 1147], in which it was accepted that the anxieties of a respondent mother about return, which were not based upon objective risk to her but nevertheless were of such intensity as to be likely, in the event of a return, to destabilise her parenting of the child to the point at which the child's situation would become intolerable, could in principle meet the threshold of the Article 13(1)(b) exception.

Germany
Oberlandesgericht Dresden, 10 UF 753/01, 21 January 2002 [INCADAT Reference: HC/E/DE 486]

Oberlandesgericht Köln, 21 UF 70/01, 12 April 2001 [INCADAT: HC/E/DE 491]

Previously a much more liberal interpretation had been adopted:
Oberlandesgericht Stuttgart, 17 UF 260/98, 25 November 1998 [INCADAT Reference: HC/E/DE 323]

Switzerland
5P_71/2003/min, II. Zivilabteilung, arrêt du TF du 27 mars 2003 [INCADAT Reference: HC/E/CH 788]

5P_65/2002/bnm, II. Zivilabteilung, arrêt du TF du 11 avril 2002 [INCADAT Reference: HC/E/CH 789]

5P_367/2005/ast, II. Zivilabteilung, arrêt du TF du 15 novembre 2005 [INCADAT Reference: HC/E/CH 841]

5A_285/2007/frs, IIe Cour de droit civil, arrêt du TF du 16 août 2007 [INCADAT Reference: HC/E/CH 955]

5A_479/2012, IIe Cour de droit civil, arrêt du TF du 13 juillet 2012 [INCADAT Reference: HC/E/CH 1179]

New Zealand
K.S. v. L.S. [2003] 3 NZLR 837 [INCADAT Reference: HC/E/NZ 770]

United Kingdom - Scotland
McCarthy v. McCarthy [1994] SLT 743 [INCADAT Reference: HC/E/UKs 26]

United States of America
Panazatou v. Pantazatos, No. FA 96071351S (Conn. Super. Ct., 1997) [INCADAT Reference: HC/E/USs 97]

In other Contracting States, the approach taken with regard to non-return arguments has varied:

Australia
In Australia, early Convention case law exhibited a very strict approach adopted with regard to non-return arguments, see:

Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane) [INCADAT Reference: HC/E/AU 294]

Director General of the Department of Family and Community Services v. Davis (1990) FLC 92-182 [INCADAT Reference: HC/E/AU 293]
 
In State Central Authority v. Ardito, 20 October 1997 [INCADAT Reference: HC/E/AU 283], the Family Court of Australia at Melbourne did find the grave risk of harm exception to be established where the mother would not return, but in this case the mother had been denied entry into the United States of America, the child's State of habitual residence.

Following the judgment of the High Court of Australia (the highest court in the Australian judicial system) in the joint appeals DP v. Commonwealth Central Authority; J.L.M. v. Director-General, NSW Department of Community Services [2001] HCA 39, (2001) 180 ALR 402 [INCADAT Reference HC/E/AU 346, 347], greater attention has been focused on the post-return situation facing abducted children.

In the context of a primary-carer taking parent refusing to return to the child's State of habitual residence see: Director General, Department of Families v. RSP. [2003] FamCA 623 [INCADAT Reference HC/E/AU 544]. 

France
In French case law, a permissive approach to Article 13(1)(b) has been replaced with a much more restrictive interpretation. For examples of the initial approach, see:

Cass. Civ 1ère 12. 7. 1994, S. c. S.. See Rev. Crit. 84 (1995), p. 96 note H. Muir Watt; JCP 1996 IV 64 note Bosse-Platière, Defrénois 1995, art. 36024, note J. Massip [INCADAT Reference: HC/E/FR 103]

Cass. Civ 1ère, 22 juin 1999, No de RG 98-17902 [INCADAT Reference: HC/E/FR 498]

And for examples of the stricter interpretation, see:

Cass Civ 1ère, 25 janvier 2005, No de RG 02-17411 [INCADAT Reference: HC/E/FR 708]

CA Agen, 1 décembre 2011, No de RG 11/01437 [INCADAT Reference HC/E/FR 1172]

Israel
In Israeli case law there are contrasting examples of the judicial response to non-return arguments:
 
Civil Appeal 4391/96 Ro v. Ro [INCADAT Reference: HC/E/IL 832]

in contrast with:

Family Appeal 621/04 D.Y v. D.R [INCADAT Reference: HC/E/IL 833]

Poland
Decision of the Supreme Court, 7 October 1998, I CKN 745/98 [INCADAT Reference: HC/E/PL 700]

The Supreme Court noted that it would not be in the child's best interests if she were deprived of her mother's care, were the latter to choose to remain in Poland. However, it equally affirmed that if the child were to stay in Poland it would not be in her interests to be deprived of the care of her father. For these reasons, the Court concluded that it could not be assumed that ordering the return of the child would place her in an intolerable situation.

Decision of the Supreme Court, 1 December 1999, I CKN 992/99 [INCADAT Reference: HC/E/PL 701]

The Supreme Court specified that the frequently used argument of the child's potential separation from the taking parent, did not, in principle, justify the application of the exception. It held that where there were no objective obstacles to the return of a taking parent, then it could be assumed that the taking parent considered his own interest to be more important than those of the child.

The Court added that a taking parent's fear of being held criminally liable was not an objective obstacle to return, as the taking parent should have been aware of the consequences of his actions. The situation with regard to infants was however more complicated. The Court held that the special bond between mother and baby only made their separation possible in exceptional cases, and this was so even if there were no objective obstacles to the mother's return to the State of habitual residence. The Court held that where the mother of an infant refused to return, whatever the reason, then the return order should be refused on the basis of Article 13(1)(b). On the facts, return was ordered.

Uruguay
Solicitud conforme al Convenio de La Haya sobre los Aspectos Civiles de la Sustracción Internacional de Menores - Casación, IUE 9999-68/2010 [INCADAT Reference: HC/E/UY 1185]

European Court of Human Rights (ECrtHR)
There are decisions of the ECrtHR which have endorsed a strict approach with regard to the compatibility of Hague Convention exceptions and the European Convention on Human Rights (ECHR). Some of these cases have considered arguments relevant to the issue of grave risk of harm, including where an abductor has indicated an unwillingness to accompany the returning child, see:

Ilker Ensar Uyanık c. Turquie (Application No 60328/09) [INCADAT Reference: HC/E/ 1169]

In this case, the ECrtHR upheld a challenge by the left-behind father that the refusal of the Turkish courts to return his child led to a breach of Article 8 of the ECHR. The ECrtHR stated that whilst very young age was a criterion to be taken into account to determine the child's interest in an abduction case, it could not be considered by itself a sufficient ground, in relation to the requirements of the Hague Convention, to justify dismissal of a return application.

Recourse has been had to expert evidence to assist in ascertaining the potential consequences of the child being separated from the taking parent

Maumousseau and Washington v. France (Application No 39388/05) of 6 December 2007 [INCADAT Reference: HC/E/ 942]

Lipowsky and McCormack v. Germany (Application No 26755/10) of 18 January 2011 [INCADAT Reference: HC/E/ 1201]

MR and LR v. Estonia (Application No 13420/12) of 15 May 2012 [INCADAT Reference: HC/E/ 1177]

However, it must equally be noted that since the Grand Chamber ruling in Neulinger and Shuruk v. Switzerland, there are examples of a less strict approach being followed. The latter ruling had emphasised the best interests of the individual abducted child in the context of an application for return and the ascertainment of whether the domestic courts had conducted an in-depth examination of the entire family situation as well as a balanced and reasonable assessment of the respective interests of each person, see:

Neulinger and Shuruk v. Switzerland (Application No 41615/07), Grand Chamber, of 6 July 2010 [INCADAT Reference: HC/E/ 1323]

X. v. Latvia (Application No 27853/09) of 13 December 2011 [INCADAT Reference: HC/E/ 1146]; and Grand Chamber ruling X. v. Latvia (Application No 27853/09), Grand Chamber [INCADAT Reference: HC/E/ 1234]

B. v. Belgium (Application No 4320/11) of 10 July 2012 [INCADAT Reference: HC/E/ 1171]

In this case, a majority found that the return of a child to the United States of America would lead to a breach of Article 8 of the ECHR. The decision-making process of the Belgian Appellate Court as regards Article 13(1)(b) was held not to have met the procedural requirements inherent in Article 8 of the ECHR. The two dissenting judges noted, however, that the danger referred to in Article 13 should not consist only of the separation of the child from the taking parent.

(Author: Peter McEleavy, April 2013)

Immigration Issues

Preparation of INCADAT case law analysis in progress.

Safe Return / Mirror Orders

A practice has arisen in a number of Contracting States for return orders to be made subject to compliance with certain specified requirements or undertakings. To ensure that such protective measures are enforceable, the applicant may be required to have these measures registered in identical or equivalent terms in the child's State of habitual residence. These replica orders are commonly referred to as ‘safe return' or ‘mirror orders'.

Return orders have been made subject to the enactment of safe return /mirror orders in the following jurisdictions:

Australia
Director-General Department of Families, Youth and Community Care and Hobbs, 24 September 1999, Family Court of Australia (Brisbane), [INCADAT cite: HC/E/AU 294];

United Kingdom - England & Wales
Re W. (Abduction: Domestic Violence) [2004] EWHC 1247, [2004] 2 FLR 499  [INCADAT cite: HC/E/ UKe 599];

Re F. (Children) (Abduction: Removal Outside Jurisdiction) [2008] EWCA Civ. 842, [2008] 2 F.L.R. 1649 [INCADAT cite: HC/E/UKe 982];

South Africa
Sonderup v. Tondelli 2001 (1) SA 1171 (CC), [INCADAT cite: HC/E/ZA 309];

Central Authority v. H. 2008 (1) SA 49 (SCA) [INCADAT cite: HC/E/ZA 900].

A request by the English High Court for protective measures ancillary to an order for international contact to be registered in the State of visitation was upheld by the Panama Second Court of Childhood and Adolescence, see:

Ruling Nº393-05-F, [INCADAT cite: HC/E/PA 872].

A request that a return order be made subject to the implementation of mirror orders was turned down in:

Israel 
Family Application 8743/07 Y.D.G. v T.G., [INCADAT cite: HC/E/IL 983].

The Jerusalem Family Court ruled that since accusations against the father had not been upheld there was no basis to impose conditions to ensure the children's safety, other than deposit of money to secure the father's undertaking that they could live in his apartment. There was no need to obtain a mirror order from the US courts as the delay in so doing would harm the children.

Undertakings

Preparation of INCADAT case law analysis in progress.