AFFAIRE

Texte complet non disponible

Nom de l'affaire

Central Authority v. H. 2008 (1) SA 49 (SCA)

Référence INCADAT

HC/E/ZA 900

Juridiction

Pays

Afrique du Sud

Nom

Supreme Court of Appeal (Cour suprême)

Degré

Instance Suprême

États concernés

État requérant

Pays-Bas - Royaume en Europe

État requis

Afrique du Sud

Décision

Date

4 June 2007

Statut

Définitif

Motifs

Consentement - art. 13(1)(a) | Engagements | Questions liées au retour de l'enfant | Questions procédurales

Décision

Recours rejeté, retour ordonné

Article(s) de la Convention visé(s)

13(1)(a)

Article(s) de la Convention visé(s) par le dispositif

13(1)(a)

Autres dispositions

-

Jurisprudence | Affaires invoquées

-

Publiée dans

-

INCADAT commentaire

Exceptions au retour

Consentement
Établissement du consentement

Mise en œuvre & difficultés d’application

Mesures facilitant le retour de l’enfant
Assurer un retour sans danger / Ordonnances miroir
Engagements
Questions procédurales
Preuve présentée oralement
Retards du parent demandeur après l'introduction de la procédure

RÉSUMÉ

Résumé disponible en EN | FR | ES

Facts

The application related to a boy born in May 2002 to a Dutch father and a South African mother. The parents were married and shared equal custody rights in respect of the child.

In September 2003 the mother took the child to South Africa with the consent of the father. The parents subsequently presented different views as to the purpose of this trip. For the father it was intended to be an extended vacation of three month's duration, for the mother it was the first step in a planned emigration, with the father rejoining the family once affairs were wound up in the Netherlands.

In January 2004 the mother informed the father that she would not be returning. In February 2004 the father contacted the Dutch Central Authority and proceedings were issued in the Pretoria High Court in June. On 14 June 2005 the High Court ordered that the child be returned. However, the order specified that this was for the purpose of attending a custody hearing and if the latter was postponed the child could return to South Africa.

On 27 September the Haarlem District Court held that it did not have jurisdiction to deal with the parents' separate applications concerning the custody of the child. On 28 September the mother was refused leave to appeal to the Full Court of the High Court.

On 23 February 2006 the South African Supreme Court of Appeal granted the mother leave to appeal, subject to an appeal against the Haarlem District Court succeeding. On 23 March the Amsterdam Court of Appeal struck out the judgment of the District Court, which led to the South African appeal proceeding. On 17 May 2007 the Supreme Court of Appeal heard the mother's appeal.

Ruling

Appeal dismissed and return ordered subject to a mirror order being obtained in the Netherlands; the retention was wrongful and the allegation that the applicant father had consented had not been proved.

Grounds

Consent - Art. 13(1)(a)

The Court noted that the central dispute related to whether the father had expressly or tacitly consented to the continued residence of the child in South Africa on a permanent basis. In this it quickly concluded that there was no sustainable ‘defence’ on the basis of Article 13(1)(a). There were inconsistencies in the mother’s written evidence whilst her conduct prior to departure supported the father’s version of events; in particular she had travelled with only two suitcases and had participated in the purchase of bulky items of furniture in the weeks prior to leaving the Netherlands.

Undertakings

Whilst the Supreme Court of Appeal was prepared to order the return of the child this was made subject to a long list of conditions concerning such matters as the provision of accommodation, transport and maintenance for the mother and child in the Netherlands pending the determination of the issue of custody. Moreover the return order was stayed until the father had obtained an order from a court in the Netherlands in equivalent terms.

Issues Relating to Return

Return Order The Court held that the trial judge’s conditional return order did not comply with the terms of Article 12 and had to be set aside.

Procedural Matters

Oral Evidence As neither party had applied for oral evidence to be heard the matter had to be decided on the basis of uncontested affidavit evidence. Nevertheless the Court noted that where such disputes existed it might be necessary to have recourse to oral evidence if there was no other way of deciding the issue. Were this to happen though the reference to oral evidence would have to be strictly circumscribed by the essential elements of the defence and the hearing would have to take place as a matter of urgency. Delays The Court criticised the unacceptable delays which had occurred in the time since the father’s petition had been issued. Attention was drawn to the obligations of Central Authorities under the Convention and a copy of the judgment was sent to the South African Minister for Justice and Constitutional Development.

INCADAT comment

Establishing Consent

Different standards have been applied when it comes to establishing the Article 13(1) a) exception based on consent.

United Kingdom - England & Wales
In an early first instance decision it was held that ordinarily the clear and compelling evidence which was necessary would need to be in writing or at least evidenced by documentary material, see:

Re W. (Abduction: Procedure) [1995] 1 FLR 878, [INCADAT cite: HC/E/UKe 37].

This strict view has not been repeated in later first instance English cases, see:

Re C. (Abduction: Consent) [1996] 1 FLR 414 [INCADAT cite: HC/E/UKe 53];

Re K. (Abduction: Consent) [1997] 2 FLR 212 [INCADAT cite: HC/E/UKe 55].

In Re K. it was held that while consent must be real, positive and unequivocal, there could be circumstances in which a court could be satisfied that consent had been given, even though not in writing.  Moreover, there could also be cases where consent could be inferred from conduct.

Germany
21 UF 70/01, Oberlandesgericht Köln, [INCADAT cite: HC/E/DE 491].

Convincing evidence is required to establish consent.

Ireland
R. v. R. [2006] IESC 7; [INCADAT cite: HC/E/IE 817].

The Re K. approach was specifically endorsed by the Irish Supreme Court.

The Netherlands
De Directie Preventie, optredend voor haarzelf en namens F. (vader/father) en H. (de moeder/mother) (14 juli 2000, ELRO-nummer: AA6532, Zaaknr.R99/167HR); [INCADAT cite: HC/E/NL 318].

Consent need not be for a permanent stay.  The only issue is that there must be consent and that it has been proved convincingly.

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

Consent could be express or tacit.

Switzerland
5P.367/2005 /ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 841];

5P.380/2006 /blb; Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile),[INCADAT cite: HC/E/CH 895];

5P.1999/2006 /blb, Bundesgericht, II. Zivilabteilung ) (Tribunal Fédéral, 2ème Chambre Civile), [INCADAT cite: HC/E/CH 896];

The Swiss Supreme Court has held that with regard to consent and acquiescence, the left behind parent must clearly agree, explicitly or tacitly, to a durable change in the residence of the child.  To this end the burden is on the abducting parent to show factual evidence which would lead to such a belief being plausible.

United States of America
Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT cite: HC/E/USf 808].

There must be a subjective assessment of what the applicant parent was actually contemplating. Consideration must also be given to the nature and scope of the consent.

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.

Oral Evidence

To ensure that Convention cases are dealt with expeditiously, as is required by the Convention, courts in a number of jurisdictions have restricted the use of oral evidence, see:

Australia
Gazi v. Gazi (1993) FLC 92-341, 16 Fam LR 18; [INCADAT cite: HC/E/AU 277]

It should be noted however that more recently Australia's supreme jurisdiction, the High Court, has cautioned against the ‘inadequate, albeit prompt, disposition of return applications', rather a ‘thorough examination on adequate evidence of the issues' was required, see:

M.W. v. Director-General, Department of Community Services [2008] HCA 12, [INCADAT cite: HC/E/AU 988].

Canada
Katsigiannis v. Kottick-Katsigianni (2001), 55 O.R. (3d) 456 (C.A.); [INCADAT cite: HC/E/CA 758].

The Court of Appeal for Ontario held that if credibility was a serious issue, courts should consider hearing viva voce evidence of witnesses whose credibility is in issue.

China - Hong Kong
S. v. S. [1998] 2 HKC 316; [INCADAT cite: HC/E/HK 234];

United Kingdom - England & Wales
Re F. (A Minor) (Child Abduction) [1992] 1 FLR 548; [INCADAT cite: HC/E/UKe 40];

Re W. (Abduction: Procedure) [1995] 1 FLR 878; [INCADAT cite: HC/E/UKe 37].

In the above case it was accepted that a situation where oral evidence should be allowed was where the affidavit evidence was in direct conflict.

Re W. (Abduction: Domestic Violence) [2004] EWCA Civ 1366, [2005] 1 FLR 727; [INCADAT cite: HC/E/UKe 771]

In the above case the Court of Appeal ruled that a trial judge could consider of his own motion to allow oral evidence where he conceived that oral evidence might be determinative of the case.

However, to warrant oral exploration of written evidence as to the existence of a grave risk of harm which was only embryonic on the written material, a judge must be satisfied that there was a realistic possibility that oral evidence would establish an Article 13(1) b) case.

Re F. (Abduction: Child's Wishes) [2007] EWCA Civ 468, [2007] 2 FLR 697; [INCADAT cite: HC/E/UKe 906]

Here the Court of Appeal affirmed that where the exception of acquiescence was alleged oral evidence was more commonly allowed because of the necessity to ascertain the applicant's subjective state of mind, as well as his communications in response to knowledge of the removal or retention.

Finland
Supreme Court of Finland: KKO:2004:76; [INCADAT cite: HC/E/FI 839].

Ireland
In the Matter of M. N. (A Child) [2008] IEHC 382; [INCADAT cite: HC/E/IE 992].

The trial judge noted that applications were heard on affidavit evidence only, except where the Court, in exceptional circumstances, directed or permitted oral evidence.

New Zealand
Secretary for Justice v. Abrahams, ex parte Brown; [INCADAT cite: HC/E/NZ 492];

Hall v. Hibbs [1995] NZFLR 762; [INCADAT cite: HC/E/NZ 248];

South Africa
Pennello v. Pennello [2003] 1 All SA 716; [INCADAT cite: HC/E/ZA 497];

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

In the above case the Supreme Court of Appeal noted that even where the parties had not requested that oral evidence be admitted, it might be required where a finding on the issue of consent could not otherwise be reached.

United States of America
Ferraris v. Alexander, 125 Cal. App. 4th 1417 (Cal. App. 3d. Dist., 2005); [INCADAT cite: HC/E/USs 797]

The father argued that the trial court denied him a fair hearing because it determined disputed issues of fact without hearing oral evidence from the parties.

The Court of Appeal rejected this submission noting that nothing in the Hague Convention entitled the father to an evidentiary hearing with sworn witness testimony. Moreover, it noted that under California law declarations could be used in place of witness testimony in various situations.

The Court further ruled that the father could not question the propriety of the procedure used with regard to evidence on appeal because he did not object to the use of affidavits in evidence at trial.

For a consideration of the use of oral evidence in Convention proceedings see: Beaumont P.R. and McEleavy P.E. 'The Hague Convention on International Child Abduction' OUP, Oxford, 1999 at p. 257 et seq.

Under the rules applicable within the European Union for intra-EU abductions (Council Regulation (EC) No 2201/2003 (Brussels II a)) Convention applications are now subject to additional provisions, including the requirement that an applicant be heard before a non-return order is made [Article 11(5) Brussels II a Regulation], and, that the child be heard ‘during the proceedings unless this appears inappropriate having regard to his or her age or degree of maturity' [Article 11(2) Brussels II a Regulation].

Delays by the Applicant Parent After Initiating Return Proceedings

Whilst rare there have been examples of left behind parents initiating proceedings only then to not to continue, or of left behind parents succeeding in obtaining a return order only then not to take steps to secure enforcement.  The response to situations is governed by the procedural rules of the Member State concerned.


Failure to Continue With Application

United Kingdom - England & Wales

A left behind parent who filed a return petition but then waited 10 months before taking any further steps had the application struck out as an abuse of process.

Re G. (Abduction: Striking Out Application) [1995] 2 FLR 410, [INCADAT cite: HC/E/UKe 170].


Failure to Seek Enforcement of a Return Order

Australia

The Family Law (Child Abduction Convention) Regulations 1986, Reg 19A provides:

(1) If a court makes a return order, the responsible Central Authority, the Article 3 applicant or a respondent to the proceeding may apply to the court, in accordance with Form 2D, for the discharge of the order.

(2) The court may make an order discharging a return order, or a part of a return order, only if it is satisfied that:

(a) all the parties consent to the return order being discharged; or

(b) since the return order was made, circumstances have arisen that make it impracticable for the order to be carried out; or

(c) exceptional circumstances exist that justify the return order being discharged; or

(d) the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

New Zealand
In B. v. Secretary for Justice, 26 February 2008 [INCADAT cite: HC/E/UKe 965] the High Court (Christchurch) held that there was no jurisdiction under New Zealand law to strike out a return order where the left behind parent had failed to act to secure its enforcement.  The judge held that had such jurisdiction existed he would have struck out the return order, as an 8 month delay was extreme.

The ruling of the High Court was upheld by the Court of Appeal: Butler v. Craig [2008] NZCA 198.