Litigation: Family first despite the law – SCA ruling

It is second time lucky for a mother who had abducted her daughter (4) from Luxembourg, where she and the child’s father lived, and brought her to SA. The Mercury reports that last year, Gauteng High Court (Pretoria) Judge Colleen Collis ordered that she immediately had to return her daughter to Luxembourg. The mother, however, won her case on appeal before the High Court. The father turned to the SCA, requesting the child to be returned. However, he also lost this round. While the court said it was not disputed that the removal of E – as the child is identified – from Luxembourg was unlawful, it was in her best interests to stay with the mother in SA.

It was also said that her return to Luxembourg would cause the child severe trauma, as she is very attached to her mother. While not condoning the fact that the mother had abducted the child, the SCA found that the mother had established that there was a risk that E’s return to Luxembourg would expose her to psychological harm. SCA Judge Neil Tuchten said if he ordered in favour of the father, a functioning family unit would be disrupted, and its members dispersed. He said it would deprive the child of her constitutional rights, which include the right to nurturing and support from her immediate family group, if she was ordered to return to her father. The judge also pointed out that if he ruled in favour of the father, it would present the mother with ‘agonizing choices’, as she had to oversee the ‘dismemberment of her family’. He said the effect would be that the mother either had to leave her new husband and her son or her daughter.

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