Article 1 of the Hague Convention defines its purpose and objective, namely:
a) To secure the prompt return of children wrongfully removed to or retained in any Contracting State, and b) To ensure that rights of custody and access under the law of one Contracting State are effectively respected in the other Contracting States.
The purpose of the convention was clearly and concisely articulated by the Constitutional Court in the minority judgment of Van Zyl AJ in Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another, as follows:
The Convention provides for an internationally agreed mechanism for dealing with the global phenomenon of child abduction. With limited exceptions, it provides for the prompt return of an abducted child to their home country (para. 220).
The Koch matter was decided on 27 November 2023 and, being a judgment of the Constitutional Court, it is the final word on the subject matter contained therein.
Koch also spells out, in incontrovertible terms, the purpose of the Hague Convention. Unfortunately, time constraints do not allow us to delve into the judgment in detail, but I do encourage you to traverse its 220 paragraphs for a detailed exposition of what the Hague Convention is (and is not) intended to achieve.
It is important to note that the Court has a limited discretion to decline to return the child to the jurisdiction of their country of habitual residence if the provisions of Article 13 of the Convention are engaged, namely that:
- The person, institution, or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention (13(a)); or
- There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (13(b));
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
The above factors are entirely fact-specific, and a determination must be made on the merits of each case.
In summary, the Hague Convention is not intended as a mechanism to make a final determination on custody issues. This is reserved for determination by the Court in the home country's jurisdiction. The Hague Convention, as articulated in Koch, merely provides for the prompt return of an abducted child to their home country, unless an Article 13 defence is established.
Key Principles to Understand in Terms of the Hague Convention
At present, there are 103 signatory states to the Hague Convention, including South Africa. To practice as a family professional in any of these states, it is critical to have a working understanding of the following four principles contained in the convention, namely:
- Central Authority
- Country of Habitual Residence
- Wrongful Removal
- Wrongful Retention
I will deal with each of these briefly in turn.
As an aid to understanding, I have summarized some of the key concepts, as they appear in the Hague Convention, to ease the explanation thereof. These explanations are meant to be simple, namely, Streamlined Information Made Learnable and Easy. They are simply my simplified explanations, nothing more and nothing less. Please, therefore, use your discretion in disseminating the information conveyed.
All of the principles explained herein, however, are clearly articulated within the 45 articles that comprise the Hague Convention. It is not heavy reading, and I encourage you to read through the entire convention at least once.
Central Authority
In terms of Article 6 of the Convention, each contracting state is obliged to designate a central authority that is responsible for discharging the duties imposed by the Convention.
Thus, in simple terms, a central authority is the designated governmental body in each contracting state responsible for implementing and coordinating the obligations outlined in the convention. The Central Authority facilitates cooperation between states, processes applications for the return of wrongfully removed or retained children, ensures the effective exercise of access rights, and assists with the administrative and legal processes necessary to achieve the objectives of the Convention.
In South Africa, the central authority is established in Section 276 of the Children’s Act, namely the Chief Family Advocate appointed by the Minister for Justice and Constitutional Development in terms of the Mediation in Certain Divorce Matters Act. This function may be delegated to any family advocate under Section 277 of the Act.
Country of Habitual Residence
The Hague Convention provides no crisp or definitive definition of the term “habitual residence”. However, we are aided in this regard by the judgment of Cloete J, in this very division of the High Court, in the matter of Ad Hoc Central Authority for the Republic of South Africa and Another v DM (18862/2023) [2024] ZAWCHC 170 (19 June 2024).
In DM, the Court examined a plethora of authorities from South Africa, and abroad, and succinctly stated, in paragraph 9 as follows:
However, the fact that there is “no objective temporal baseline” on which to base a definition of habitual residence requires that close attention be paid to subjective intent when evaluating an individual’s habitual residence. When a child is removed from its habitual environment, the implication is that it is being removed from the family and social environment in which its life has developed. The word “habitual” implies a stable territorial link; this may be achieved through length of stay or through evidence of a particularly close tie between the person and the place. A number of reported foreign judgments have established that a possible prerequisite for “habitual residence” is some “degree of settled purpose” or “intention”.
Therefore the country of habitual residence is the country where a child has established a significant degree of integration into a social and family environment (i.e., the country to which the child should be returned).
Wrongful Removal / Wrongful Retention
It is convenient to discuss the concepts of wrongful removal and wrongful retention together.
The Hague Convention may be invoked when a child has been wrongfully removed from their country of habitual residence. The Hague Convention may also be invoked when a child is wrongfully retained in a signatory country which is not their country of habitual residence.
Whether the removal or retention is wrongful is a factual determination.
Therefore wrongful removal is the act of taking a child from their country of habitual residence in violation of the custody rights held by another person, institution, or body under the law of that country. This act is considered wrongful if it breaches the custody rights that were being exercised at the time of removal or would have been exercised but for the removal. Wrongful retention is the act of keeping a child in a country other than their country of habitual residence beyond an agreed period or in violation of custody rights held by another person, institution, or body under the law of the child's habitual residence. This act is considered wrongful if it breaches custody rights that were being exercised at the time of retention or would have been exercised but for the retention.
A useful aid to understanding the notion of wrongful removal or retention is yet another judgment by Cloete J in this division, in the matter of MB v LC and Another (21586/2023) [2024] ZAWCHC 61 (29 February 2024). In this judgment, the Court delved deep into the issue of acquiescence – i.e., did the parent seeking return consent to the children being removed or retained? The Court found that the father had consented or acquiesced to the children not being summarily returned to Australia; the Hague application was therefore dismissed.
If you have any other questions about the Hague Convention, send us an email at [email protected].
