Child to stay in SA under aunt's care

A mother’s dying wish was fulfilled, following a two-year battle to have her four-and-a-half-year-old daughter live with her sister in South Africa instead of returning to the UK with her father. The Supreme Court of Appeal (SCA) recently dismissed the father’s application for the return of the child in terms of The Hague Convention on the Civil Aspects of International Child Abduction with costs in the Heidi Nicole Koch N O and Another v The Ad hoc Central Authority for the Republic of South Africa and Another (188/2021) [2022] ZASCA 60 (26 April 2022) case.

The Western Cape High Court had earlier rejected the defences advanced by the late mother and ordered the return of the child to the UK. The father approached the Central Authority for England and Wales and submitted a request for the return of the child from SA to the UK under the convention on the grounds that the child’s retention in SA by her mother without his consent was wrongful. After the child’s mother died in December 2020, the Western Cape High Court ordered the child be returned to the UK. However, the child’s aunt was also granted leave to appeal.

In his ruling, SCA Judge Dumisani Zondi acknowledged that the facts of the case were ‘complex and exceptional’. ‘The person who brought the child to this country in September 2019 when she was 26 months old is now deceased. It appears from the evidence that the mother has always been the child’s primary caregiver. The mother cared for and provided for the child while they were in the UK. Her father, due to various personal challenges he faced in life, was unable to provide for her,’ Zondi said. He ruled the evidence showed that the mother had been the toddler’s primary caregiver, the one who provided the child with a ‘predictable presence’ both in the UK and SA. ‘As the mother’s presence in the child’s day-to-day life diminished due to her illness, she transitioned into the appellant’s (aunt) care. The appellant became her primary carer, and she became attached to her.’

In conclusion, the high court was not obliged to order the return of the child to the UK as the mother had succeeded to establish that the return of the child to the UK would expose her to the risks of psychological harm or otherwise place her in an intolerable situation as contemplated in 26 article 13(b) of the Convention.