Defending Against a Hague Convention Application: When Can a Child’s Return Be Opposed?

Defending Against a Hague Convention Application: When Can a Child’s Return Be Opposed?

The Hague Convention on the Civil Aspects of International Child Abduction is designed to ensure the prompt return of children who have been wrongfully removed or retained in a foreign country. However, while the Convention strongly favours the return of the child to their habitual residence, there are limited defences available under Article 13 that allow a parent to oppose a Hague Convention return application.

In South Africa, the High Court adjudicates Hague Convention applications, and legal precedent plays a critical role in shaping defences against return orders. This article explores:

• The grounds for opposing a return application under Article 13
• Key South African court cases that have influenced Hague Convention litigation
• How Vermeulen Attorneys can assist parents defending against Hague return applications

Grounds for Opposing a Return Application Under Article 13

Article 13 of the Hague Convention provides specific exceptions that may prevent a child’s return to their country of habitual residence. However, these defences must be carefully substantiated, as the default position under the Convention is to order the child’s return unless a strong case is presented.

1. Grave Risk of Harm (Article 13(b))

A court may refuse to return a child if there is a grave risk that returning them would expose them to:

• Physical or psychological harm
• An intolerable situation in their country of habitual residence

The burden of proof is on the parent opposing the return to demonstrate that the risk is substantial and severe, rather than speculative or hypothetical. Courts generally require strong evidence, such as:

• Medical or psychological reports indicating past or potential harm
• Evidence of domestic violence or abuse in the requesting parent’s home
• Findings from previous court rulings in related custody disputes

2. Child’s Objection to Return (Article 13)

A return application may also be denied if:

• The child objects to being returned
• The child has attained an age and level of maturity where their views should be considered

The court has discretion in deciding whether a child’s objection is valid. Factors considered include:

• Whether the child expressed a strong and reasoned preference not to return
• The child’s age and level of understanding
• Whether the objection is independent or influenced by the opposing parent

3. Consent or Acquiescence (Article 13(a))

A return order may be denied if the left-behind parent previously consented to the child’s relocation or subsequently acquiesced to their continued stay.

• Consent: When the left-behind parent agreed in advance to the removal or retention.
• Acquiescence: When the left-behind parent did not take timely legal action or demonstrated acceptance of the new arrangement.

Courts will consider:

• Written agreements, messages, or emails that indicate consent
• Whether the left-behind parent delayed taking legal action for an extended period
• Actions that suggest implicit acceptance, such as continued financial support for the child in the new country

Key South African Court Cases That Set Legal Precedents

1. Ad Hoc Central Authority for the Republic of South Africa v Koch N.O. and Another [2023] ZACC 37

• Clarified that Hague Convention proceedings are not custody disputes.
• Reinforced that courts must focus on the child’s return rather than determining which parent should have custody.
• Emphasized that Article 13 defences must be supported by clear and convincing evidence.

2. MB v LC and Another (21586/2023) [2024] ZAWCHC 61

• Considered whether a father had acquiesced to his children remaining in South Africa instead of returning to Australia.
• The court ruled that his lack of immediate legal action and ongoing involvement in the children’s lives in South Africa amounted to acquiescence.

3. Ad Hoc Central Authority for South Africa v DM (18862/2023) [2024] ZAWCHC 170

• Clarified the concept of habitual residence and how courts should assess a child’s degree of integration into a country.
• Provided guidance on when a child’s habitual residence may have changed, influencing how wrongful retention claims are assessed.

How Vermeulen Attorneys Can Assist

Hague Convention cases are urgent and complex, requiring specialized legal expertise. Vermeulen Attorneys provides comprehensive legal assistance for parents defending against Hague return applications.

Our Legal Services Include:

• Assessing the merits of your defence and determining the best legal strategy
• Gathering strong evidence to support Article 13 claims
• Filing legal objections and representing clients in High Court proceedings
• Engaging expert witnesses, including psychologists and child specialists
• Cross-border coordination with legal representatives in foreign jurisdictions
• Handling appeals if a return order is granted

At Vermeulen Attorneys, we understand the high stakes involved in Hague Convention disputes. Our team works swiftly and effectively to build strong, fact-based defences for parents facing return applications.

Contact Vermeulen Attorneys Today

If you are facing a Hague Convention return application and believe you have valid grounds to oppose the return order, Vermeulen Attorneys can help.

Our international family law team has extensive experience in Hague Convention litigation and will provide expert legal representation to ensure the best possible outcome.

Schedule a consultation today to discuss your case and explore your legal options.