In the case of Central Authority for RSA v DM [2024] ZAWCHC 170, the court examined the complex issue of habitual residence in the context of alleged child abduction under the Hague Convention on the Civil Aspects of International Child Abduction.
Case Background
The father and mother, unmarried parents of two minor children aged 10 and 8, had lived together in Cape Town, South Africa, for about 15 years before relocating to Germany in 2020. Following their separation in 2022, they shared custody, with the children alternating weeks between the parents. In 2023, during a visit to South Africa, the mother decided to stay, refusing to return the children to Germany. The father sought assistance from the Central Authority in Germany and initiated proceedings for the children’s return under the Hague Convention.
Court’s Analysis
The primary issue was whether the children were habitually resident in Germany immediately before their retention in South Africa. Habitual residence under Article 3 of the Hague Convention is a jurisdictional fact that the applicants (the father and the South African Central Authority) needed to establish.
Key Points from the Judgment:
1. Lack of Mutual Intent to Permanently Relocate:
– The mother disputed the father’s claim of a permanent move to Germany, stating her intent to return to South Africa during her visit with the children.
– The father’s action of hiding the children’s passports in Germany suggested a lack of mutual intent to stay permanently.
2. Absence of Steps to Secure Permanent Residence:
– There was no evidence that steps were taken to secure permanent residence for the mother in Germany, weakening the father’s claim of habitual residence.
3. Jurisdictional Fact of Habitual Residence Not Established:
– The father failed to discharge the onus of proving the children’s habitual residence in Germany before their retention in South Africa.
4. Article 13(b) Defense:
– The mother’s defense under Article 13(b), concerning the grave risk of harm, was not upheld as she failed to establish the defense.
5. Children’s Preferences:
– The children’s advocate reported no preference between South Africa and Germany, stating they felt at home in both countries.
Quote from the Judgment:
“Another factor militating against a finding in favour of the father on habitual residence is the absence of any evidence that steps were taken to secure permanent residence for the mother.” (para. 35)
Order
The application for the children’s return to Germany was dismissed. The interim contact arrangements were upheld, and the children’s passports remained with the Central Authority, to be released only for the father’s holiday contact in Germany or another agreed destination. Each party was ordered to bear their own costs.
FAQs
Q1: What constitutes habitual residence under the Hague Convention?
A: Habitual residence refers to the place where the child has been physically present for an extended period, with a degree of settled purpose from the child’s perspective. It requires examining the facts and circumstances, including the parents’ intentions and the child’s acclimatization to a new environment.
Q2: What is the significance of habitual residence in child abduction cases under the Hague Convention?
A: Establishing habitual residence is crucial as it determines the jurisdiction for resolving custody disputes. If a child is found to be habitually resident in a country, any retention or removal to another country may be deemed wrongful under the Hague Convention.
Q3: How does the court determine if there was mutual intent to relocate permanently?
A: The court examines evidence such as actions taken by the parents to settle in the new location (e.g., securing permanent residence, employment, housing) and any agreements or statements indicating their intent.
Q4: What happens if the habitual residence is not established?
Q5: Can the children’s preferences influence the court’s decision in abduction cases?
A: Yes, the children’s preferences may be considered, especially if they are of sufficient age and maturity to express their views. However, it is just one factor among many that the court will consider.
Conclusion
The case of Central Authority for RSA v DM highlights the complexities involved in determining habitual residence under the Hague Convention. The court’s thorough analysis and emphasis on mutual intent and factual evidence provide a nuanced understanding of how habitual residence is established and its critical role in international child abduction cases.
