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The parents, citizens of South Africa, were married in 2008.  Their first child, L, was born in South Africa in November 2008.  The family immigrated to New Zealand a year later.  They spent two years there before leaving for Australia where their second child, A, was born. At the end of 2013 the parties returned to live in New Zealand (after a short visit to South Africa in between). New Zealand was home to the family but both parents travelled on occasion to South Africa together with the children.

In 2018 the family were granted permanent residency in New Zealand. Towards the end of 2018 the parents separated.

In January 2019 the mother and the children left New Zealand for South Africa. The father claimed he consented to the children spending up to one year in South Africa. The mother claimed that the father gave consent for her and the children to move there permanently.

In March 2019 the mother told father that she was unsure if and when she planned to return to New Zealand and that she would issue the divorce action in South Africa.

The father applied under the 1980 Hague Convention for the immediate return of the children to South Africa.

The Family Advocate attempted to mediate the voluntary return of the children to New Zealand by the mother in May 2019, but the mediation was unsuccessful. 

The Court found that the retention of the children in South Africa was wrongful and ordered their return to New Zealand.

Rights of Custody - Art. 3

The mother argued that the father was not exercising his custodial rights at the time the children were brought to South Africa, based on his lack of involvement in their lives, his failure to support them financially and because they had already moved apart from the family home.

The Court held that the facts demonstrating the father’s supposed lack of interest did not detract from his right as a co-guardian to determine where the children are to live.  Rather, those complaints against him should decide the issue of his lack of suitability as a custodian parent or one having the primary care of his children which were immaterial for the issue of a return application under the 1980 Convention.

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

The mother argued that the children’s wellbeing would be compromised by their return to New Zealand because since their departure their father had not supported them financially and that if the children were returned he would neglect them.  She also argued that the father had never been a stable father figure, that she was always the primary caregiver and that she was subjected to emotional abuse by the father. 

The Court found that these concerns did not amount to a “grave risk” that the children’s return would place them in harm’s way or in an intolerable situation.

Consent - Art. 13(1)(a)

The court held that consent or acquiescence involves an informed consent to or acquiescence in breach of the left behind parent's rights.  This does not require full knowledge of the precise nature of those rights and every detail of the taking parent's conduct.  What is required is at least knowledge that the removal or retention of the child is wrongful under the Convention and that there is a remedy against such wrongful conduct.

In this case the mother’s argument under Article 13 (a) was not found to be clear and unequivocal.