The SCA has ruled against a woman who unilaterally removed three children, of whom she had shared custody with her former husband, from Thailand and brought them to SA in December 2019. The court dismissed her application for leave to appeal against an order made by the Western Cape High Court in October last year, which ordered the children's return to Thailand. The woman, a South African citizen, and the father, a British national, were married in the US in February 2007. Three children – twins aged nine and another aged 12 – were born of the marriage. The family resided in Thailand from 2016 and the couple was divorced in June 2018, in accordance with Thai law.
In terms of the agreement which regulated the divorce, joint custody of the children was agreed, with the children residing with the woman while the man had visitation rights. However, during December 2019, the woman unilaterally, without the knowledge and consent of the former husband, removed the children from Thailand and brought them to SA. The man then approached the Office of the Attorney-General in Thailand to secure the prompt return of the children under The Hague Convention on the Civil Aspects of International Child Abduction, and the High Court ordered the return of the children to Thailand.
In opposing his application before Judge Siraj Desai, the woman claimed there was a grave risk the children would be exposed to physical or psychological harm should they return to Thailand. She claimed that the father had sexually molested one of the children, notes TimesLIVE. In a unanimous judgment written by Justice Halima Salduker, the SCA said it did not intend to deal with the allegations of sexual molestation except to say they were raised in extremely vague terms by the woman and were denied in substantial detail by the former husband. ‘This because the appropriate forum in Thailand will be confronted with this issue and it is inappropriate to make any determination on the papers in the manner they have been raised,’ Salduker said. Salduker said parents have a responsibility to their children to allow the law to take its course and not to attempt to resolve their disputes by resorting to self-help. ‘Any attempt to do so inevitably increases the tension between the parents and that regrettably adds to the suffering of the children,’ Salduker said.