High Court of South Africa Western Cape Division, Cape Town
1 March 2021
Superior Courts Act s18
The parents lived together in the United Kingdom and had one child, born July 2017. The mother was a South African national. The parents separated but remained in contact and the father saw the child regularly.
In April 2019 the mother was diagnosed with cancer. Later that year both parents went to South Africa so that the mother could receive further medical treatment.
The father returned to the UK in October 2019 (the date at which the parents had provisionally intended to return together). They agreed that the mother and child would stay in South Africa for so long as there was a prospect of her treatment being successful. In the event that there was no further treatment available, they would return to the UK with the child.
In November 2019 the mother informed the father that she wanted the child to remain in South Africa and, in the event of her death, to live with her family in Cape Town.
The father made an application for the return of the child under the 1980 Hague Convention. In December 2020 an order was made for the child to be returned to the United Kingdom within 30 days of the mother’s death. The mother died in December 2020.
The child’s family in South Africa appealed the return order. The current application was brought to seek the immediate implementation of the return order, notwithstanding the appeal to the Supreme Court of Appeal of South Africa (SCA).
The court held that it would be detrimental to the child’s best interests for the return order to be enforced before the appeal before the SCA was decided.
The application was not strictly brought under the Hague Convention but was clearly related to it and aimed to enforce the rights protected and granted under the Convention.
The Court found they were obliged to consider the short-term interests of the child and held that it would be potentially detrimental to the child should the return order be enforced before the appeal before the SCA was decided.
The Court also took into consideration that enforcing the return order would require a long flight in the context of the COVID-19 pandemic and for the child to quarantine in a hotel room alone with her father for at least 10 days upon her arrival in the UK.