[2023] ZACC 37

Hearing Date: 09 May 2023

Judgement Date: 27 November 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Monday, 27 November 2023, at 10h00, the Constitutional Court handed down two judgments in an application for leave to appeal against an order of the Supreme Court of Appeal. The first judgment was authored by Van Zyl AJ (Madlanga J, Rogers J and Theron J concurring), the second was authored by Majiedt J (Zondo CJ, Makgoka AJ, Kollapen J, Potterill AJ concurring). The second judgment is thus the majority judgment.

The central issue is the interpretation and application of Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction (Convention). The overarching aim of the Convention is to address international child abduction, stipulating in broad terms that an abducted child is to be expeditiously returned to their country of habitual residence, with only specific exceptions outlined in Article 13(b). This provision allows the judicial or administrative authority in the state hearing the application for the return of the abducted child to refuse to order the child’s return if it finds that there is a grave risk that their return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

This case concerns a six-year-old girl, E, resident in South Africa under the care of her maternal aunt, the second respondent. E was born in the United Kingdom (UK) to parents with British citizenship. E’s mother, originally from South Africa, died post-commencement of proceedings for the return of E. A complex situation arose when E’s parents came to South Africa for her mother’s medical treatment. E’s mother, originally from South Africa, had undergone surgery and, her condition being terminal, was unable to return to the UK with E and the father (second applicant) as intended. E’s father returned to the UK without E. The relationship between E’s parents deteriorated. E’s mother unilaterally decided that E would remain in SA with her aunt after her death. Opposed to E’s mother’s decision, the father sought the assistance of the UK Central Authority for E’s immediate return. He did so on the basis that he had not given consent for E to remain indefinitely in SA. The Ad Hoc Central Authority in South Africa requested E’s mother to immediately return E to the UK, failing which it would approach the court for appropriate relief. E’s mother refused the request and instead proposed a posthumous assessment of E’s best interests. This was rejected by the South African Central Authority. E’s mother died post-commencement of proceedings for the return of the child.

Before legal proceedings under the Convention could proceed, on 25 June 2020 E’s mother and aunt filed an application in the High Court of South Africa, Western Cape Division, seeking parental rights for the aunt. The father, along with the Central Authority, opposed this and initiated Convention proceedings on 20 July 2020 by way of a counter-application. In accordance with Article 16 of the Convention, the parties agreed to stay the application for parental rights pending the outcome of the Convention proceedings. The parties further agreed to allow E to remain with her aunt in the interim. This was included in an order issued on 21 July 2020 and the Convention application was consequently postponed to 7 September 2020.

On 11 December 2020, the High Court delivered its judgment, ordering E’s return to the UK. The High Court reasoned that there were no substantial objections in relation to the father’s ability to take care of E. The High Court found that the risks related to her transition and adjustment in the UK were mitigated by the availability of social support services, and her psychological well-being would be sufficiently attended to in the UK. The aunt subsequently applied for leave to appeal and was granted leave to appeal to the Supreme Court of Appeal. The aunt also applied to adduce new evidence in the form of a report by educational psychologist Ms Leigh-Anne Pettigrew.

The Supreme Court of Appeal granted leave to admit this evidence due to the exceptional change in circumstances caused by the mother’s death and the possible impact should E’s return to the UK be ordered following her mother’s death. On the basis inter alia of the new evidence, the Supreme Court of Appeal conducted a rehearing of the matter. It considered and dealt with two issues: the first, the mother’s defence under section 13(a) that the retention of E in SA was not wrongful as the father had consented thereto or acquiesced to her retention; and second, the applicability of Article 13(b), namely whether there was a grave risk of psychological harm to E or an intolerable situation for E if her return was ordered. The Supreme Court of Appeal rejected the mother’s defence of consent and acquiescence, but, relying on Article 13(b), found that E’s return posed a grave risk of psychological harm. The Supreme Court of Appeal thus upheld the appeal and dismissed the Convention application.

In this Court, the Central Authority submitted that this Court’s jurisdiction was engaged on the basis that the matter raised a constitutional issue and arguable points of law of general public importance. The constitutional issue was the best interests of the child in section 28(2) of the Constitution. The arguable points of law relate to how the court should conduct an enquiry as envisaged in Article 13(b) of the Convention. These points encompass the nature of the test for determining a grave risk of harm or an intolerable situation; the balance between the short and long-term interests of the child; and the weight to be given to the absence of existing custody or access rights by the party resisting the child’s return. The Central Authority challenged the reports of Professor Astrid Berg, a child and adolescent psychiatrist, arguing that they did not support the notion of a grave risk to E’s mental health upon her return to the UK. The Central Authority contended that the Supreme Court of Appeal failed to adequately consider evidence regarding social services in the UK, emphasising the importance of E’s continued relationship with her only remaining biological parent, and ultimately supported the High Court’s determination that the ordered return would not leave E unprotected from potential consequences. The Central Authority submitted that the consequences of E’s return, as outlined by Professor Berg, were the inevitable disruptions inherent in a court-ordered return of an abducted child.

In challenging the constitutional jurisdiction of this Court, the aunt asserted that the best interests of the child, paramount in all child-related matters, have limited application beyond the scope of Convention applications. She contended that previous determinations by this Court, notably in Sonderup, have consistently guided lower courts and align with global judicial consensus. On the merits, the aunt, supported by Professor Berg and Ms Pettigrew’s evidence, argued that the Supreme Court of Appeal correctly found that E’s return to the UK would pose a grave risk of psychological harm and an intolerable situation under Article 13(b). Emphasising the insufficiency of UK support services to mitigate such risks, she submitted that past conduct is relevant in evaluating future outcomes, supporting the Supreme Court of Appeal’s reliance on E’s mother’s evidence regarding the father’s fitness to care for E upon her potential return to the UK.

The first judgment conducted an analysis of the legal principles underpinning the Convention, the paramountcy of the child’s best interest and the interpretation of Article 13(b), with guidance from principles elucidated in Sonderup. Central to the legal analysis was Article 12 of the Convention, which mandates the expeditious return of an abducted child. Where the application for return is made within the first year of removal, the court must order the return forthwith, subject only to the limited exceptions in Article 13.

Drawing from Sonderup, the first judgment analysed the interrelated nature of Convention provisions, especially in protecting children from the negative impacts of abduction. It emphasised that Article 13(b) requires a forward-looking assessment of the grave risk of harm upon the child’s return and provided guidance on the scope of this assessment. The first judgment comprehensively dealt with the interpretation of “grave risk” and “intolerable situation”. In this regard, the first judgment emphasised the need to interpret Article 13(b) within the framework of the Convention’s objectives and recognised the high threshold set by the term “grave risk”. It underscored that the risk must be serious, extending beyond the normal “rough and tumble” of growing up and requiring a qualitative description of “grave risk”. Relying on Sonderup, it held that the limited nature of the enquiry does not allow the court to otherwise turn the proceedings into a determination of custody and access.

The first judgment clarified that Article 13(b) focuses on the short-term interests of the child, aiming to protect against harm that is more than the ordinary challenges of growing up. The first judgment stressed the high threshold set by Article 13(b) and rejected the need for further restrictive interpretation beyond its plain wording. The first judgment further highlighted the importance of evidence in an Article 13(b) determination, requiring a person opposing the return to provide cogent evidence establishing the absence of adequate or effective protective measures in the child’s home country. The Court’s discretion to order the return of an abducted child despite establishing an Article 13(b) defence was underlined, provided the best interests of the child were paramount and protective measures were in place.

The first judgment, in addressing the burden of proof and the summary nature of Convention proceedings, held that Article 13(b) serves to temper the obligation of the court to return an abducted child to their home country, placing the onus on the party invoking the exception to demonstrate the existence of the factual situation contemplated. The first judgment underscored the summary nature of Convention proceedings, emphasising the need for expedited resolution in line with the Convention’s objectives. While acknowledging that factual disputes may arise, it disagreed with the Supreme Court of Appeal’s application of the Plascon-Evans rule, which typically governs ordinary motion proceedings. Convention proceedings are designed for prompt resolution, as articulated in Article 1 of the Convention and regulation 23 of the Regulations relating to Children’s Courts and International Child Abduction, mandating completion within six weeks, barring exceptional circumstances. The first judgment emphasises that Convention proceedings are inherently summary and require an overall assessment of all evidential material. It stresses the need for an inclusive evaluation.

Regarding the Court’s discretion to order a child’s return even if the circumstances in Article 13(b) are established, the first judgment emphasised that the discretion should be exercised judiciously, considering the Convention’s subject matter, scope, and purpose. The Convention, aiming to prevent child abductions and ensure prompt returns, recognises, in Article 13, exceptions when returning a child may not be in the child’s best interests. The first judgment stressed the need to balance the child’s welfare with the Convention’s deterrent policy. The discretion allows the court to consider various aspects of the Convention policy, the case’s circumstances, and the child’s welfare, without a rigid presumption favouring one over the other. The goal is to strike a balance that best serves the specific case and the specific child’s well-being.

The first judgment found that the Supreme Court of Appeal made several errors in its application of Article 13(b) to this matter. First, it improperly dealt with the evidence, giving undue weight to the aunt’s testimony while disregarding crucial evidence presented by the Central Authority. Second, it accepted the mother’s testimony about the father’s inability to care for the child, which was irrelevant to the issues under Article 13(b). Third, the Supreme Court of Appeal failed to consider the appropriate exercise of discretion once the exception in Article 13(b) was established. The Supreme Court of Appeal did not assess whether, in the exercise of its discretion, the child should be returned to the UK, and it neglected to balance the child’s interests with the Convention’s general purposes. Due to these errors, the matter to be reconsidered, necessitating a thorough examination of the evidence.

The first judgment evaluated the evidence presented by Professor Berg and Ms Pettigrew concerning the potential psychological harm to E. Professor Berg’s evidence, based on the child attachment theory, suggested that E might develop a grief disorder and, in the long-term, depression and suicidal thoughts. However, the first judgment found that Professor Berg’s evidence did not meet the threshold of establishing a grave risk of harm as required by Article 13(b) of the Convention. Ms Pettigrew’s evidence, on the other hand, provided a more detailed analysis that specifically addressed E’s state of mind following her mother’s death. Ms Pettigrew opined that E had formed a secure bond with her aunt, acting as her primary caregiver and that being separated from her would be akin to a second maternal death for E. Ms Pettigrew expressed concern about E’s ability to form a secure bond with her father if returned to the UK and predicted a significant risk of psychological damage, including psychosis. Unlike Professor Berg, Ms Pettigrew’s evidence focused on E’s changed circumstances after her mother’s death and addressed the lack of measures to mitigate the harm. The first judgment found that Ms Pettigrew’s evidence, standing uncontroverted, established a high probability of E suffering grave psychological harm if returned to the UK. This evidence went beyond the typical disruption or anxiety associated with a child’s return and addressed specific factors such as E’s age, her attachment to her aunt, and the absence of a bond with her father. The first judgment concluded that the evidence satisfies the requirements of Article 13(b) and, as a result, the child should not be returned to the UK, despite the general principle of respecting the Convention’s objectives.

In determining whether E should be returned to the UK, the first judgment considered whether the deterrent purpose of the Convention should outweigh E’s interests. The first judgment acknowledged the argument that refusing a return could reward unlawful conduct but emphasised that the weight given to this consideration depends on the case’s facts. E’s mother did not abduct her; she stayed in SA due to her mother’s illness. The aunt, E’s primary caregiver, merely fulfilled the mother’s wishes to raise E. Refusing the return, in this context, does not undermine the Convention’s integrity, considering E’s best interests and the lack of culpability on the aunt’s part.

Regarding E’s best interests, the first judgment evaluated three factors. First, the time elapsed since E’s retention in SA, emphasising that the Convention’s hot pursuit policy is less applicable now, given the inordinate delay of E’s return. Second, E’s settlement in SA, emphasising the importance of stability in her environment. Third, the finding of a grave risk of psychological harm in the UK, without evidence of protective measures. Balancing these factors, the first judgment concludes that the discretion envisaged in Article 13 does not favour E’s return.

In regard to costs, the first judgment held that the Supreme Court of Appeal erred in awarding costs. It found that a more equitable outcome would be for each party to bear their own costs.

The second judgment sees the issue differently. It agreed that the Court’s jurisdiction is engaged, but would uphold the appeal. The second judgment was not persuaded that, on a balance of probabilities, E would face a risk of grave psychological and physical harm or that she may otherwise be placed in an intolerable situation, in the event that she is ordered to be returned to the UK. Article 13(b) of the Convention sets a high threshold: the harm must be grave and of a serious nature. Harm that is the natural consequence of the removal or court-ordered return would not meet this threshold. The risk of harm in E’s case is not harm of sufficient severity so as to require her to avoid returning to the UK. Instead, it is precisely the kind of harm that is ordinarily expected to follow a child’s court-ordered return. This harm can be created by anyone that wrongfully retains a child in another country, a scenario that the Convention serves to discourage.

The second judgment reached this conclusion by approaching the evidence differently to the Supreme Court of Appeal and the first judgment. It notes that Professor Berg did not express the opinion that the risk of E’s mental health would be grave in the event of her return to the UK. The disruptive consequences described by Professor Berg are the kind that naturally flow from a court-ordered return to the jurisdiction of the court of an abducted child’s habitual residence. The second judgment accepted the accuracy of Ms Pettigrew’s evidence. But it concluded that the harm described by Ms Pettigrew was not grave enough to satisfy Article 13(b). The second judgment disagreed with the Supreme Court of Appeal and the first judgment’s emphasis on Ms Pettigrew’s evidence and concomitant failure to consider the harm E would likely suffer from her father’s absence. The harm described by Ms Pettigrew flows from the retention and is the result of the inordinate delay in finalising this case.

The second judgment observed that the Supreme Court of Appeal and the first judgment failed to holistically consider the evidence of the support systems in the UK. The second judgment traversed the evidence in this regard and found that there are adequate support services and systems in place in the UK that would mitigate the alleged risk of harm and impact of E’s return to the UK. In any event, the high standard of effective therapy is not what is required to mitigate potential harm. Rather, what is required is a court system in the country of habitual residence that can deal with the harm, which the UK has.

Finally, the second judgment turned to the consequences of E’s three-year retention in SA. This ought to be evaluated in light of the Convention’s primary objective. This objective is to ensure an expeditious restoration of the status quo ante in cases of unlawful retention or removal. Accepting the inordinate delay in this case as a justification for E’s retention, as the first judgment did, would enable the use of delay in litigation proceedings as a strategic tool to evade the Convention’s objectives. The second judgment accordingly held that the delay occasioned by the litigation cannot be permitted to impede the objectives of the Convention. Accordingly, the second judgment held that E will be returned to the jurisdiction of the Central Authority for England and Whales (CAEW) in the UK. The second judgment held that there would be no costs orders in this Court, the Supreme Court of Appeal or the High Court..


The Full judgment  here