REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 43352/21

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO

Date: 11 October 2021 E van der Schyff

In the matter between:

THE CENTRAL AUTHORITY OF

THE REPUBLIC OF SOUTH AFRICA 1ST APPLICANT

MVE 2ND APPLICANT

and

MVE RESPONDENT

ADVOCATE M STEENEKAMP INTERVENING PARTY

(In her capacity as the minor children's
Legal representative)
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JUDGMENT

Van der Schyff J

Introduction

[1] The second applicant, the respondent, and their five minor children relocated to
Germany during February 2019. The children are C (15 years old), M (13 years old),
L (10 years old), Z (7 years old) and R (4 years old). A dispute of fact exists as to
whether the second applicant and respondent intended to emigrate to and settle in
Germany permanently, or whether they intended to relocate but keep the option
open to return if things did not work out in Germany. On 16 October 2020, and in
order to visit her ill father for two weeks, the respondent and the five minor children
returned to South Africa. It is common cause that return flight tickets were purchased
prior to the respondent and the children’s departure from Germany, although it is
disputed as to whether the second applicant or the respondent’s father purchased
the tickets. On 30 October 2020, the respondent informed the second applicant that
she did not intend to return with the children to Germany. After a failed attempt to
negotiate the respondent and children's return, the second applicant approached the
first applicant to facilitate the children's return to Germany in terms of the Hague
Convention on the Civil Aspects of International Child Abduction, 1980 ('the
Convention') during May 2020.

[2] The application was issued on 27 August 2021. At the first case management
meeting, the parties agreed to Advocate M Steenekamp joining the proceedings as
an intervening party in her capacity as the children's appointed legal representative.

[3] Because the children voiced their objection to returning to Germany, and because it
was despite attempts by all concerned not practically possible to obtain the services
of a clinical psychologist as a matter of urgency, I issued an order on 16 September
2021 requesting the Principal Family Advocate, Gauteng, to nominate and appoint
an experienced Family Counsellor who (i) is registered as a social worker; (ii) would
be able to communicate with the minor children in their home language; and (iii) is

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not employed at the Pretoria Office of the Family Advocate, 1 to investigate the
alleged objections raised by the minor children in resisting being returned to
Germany. The following directive was issued regarding the scope of the investigation
to be conducted by the Family Counsellor:

i. The investigation is to be narrowly defined in respect of each individual child

and should be focused only on the following-
ii. Whether the minor child is of a sufficient age, maturity, and stage of
development to hold an independent and informed view regarding being
returned to Germany;
iii. Whether the child objects to return to Germany, and if so:
a. The basis for the child's objection;
b. Whether such objection may dissipate once the child returns to
Germany;
c. Whether the objection may dissipate if the respondent returns
to Germany with the minor children subject thereto that the
second applicant provides suitable alternative accommodation
to the respondent and the minor children;
d. Whether, on the information acquired, the Family Counsellor
can express an opinion as to whether there is a grave risk that
the minor child will be placed in an intolerable situation if he or
she is returned to Germany, and if so, the factual basis for the
opinion;
e. Whether, on the information acquired, the Family Counsellor
can express an opinion as to whether there is a grave risk that
the child will suffer psychological harm if ordered to return to
Germany, and if so, the factual basis for the opinion;
f. Whether, on the information acquired, the Family Counsellor
can express an opinion as to whether there is a grave risk that

1
The respondent and the intervening party objected to the children’s alleged objection been
investigated by a Family Counsellor from the Pretoria Office of the Family Advocate because the
deponent to the founding affidavit, and the Family Advocate representing the Central authority,
South Africa, is employed at the Pretoria Office of the Family Advocate.

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the child will suffer physical harm if ordered to return to

Germany, and if so, the factual basis for such opinion;
iv. To what extent the child was, in his or her view, integrated into life in general
in Germany, and the basis for such view, if any.

The investigation was only to involve the minor children. Neither the second
applicant nor the respondent was to be interviewed, and the respondent was not
to be present when the children were interviewed. The family counsellor was to
be provided only with the Notice of Motion without any affidavits, and the
children's legal representative's report. The parties were provided the opportunity
to supplement their papers within two court days after receipt of the Family
Counsellor's report. Neither of the parties utilised this opportunity.

The Hague Convention on the Civil Aspects of International Child Abduction ('the
Convention')

[4] The application is premised on article 12 of the Convention. Article 12 provides that:

'Where a child has been wrongfully removed or retained in terms

of Article 3 and, at the date of the commencement of the
proceedings before the judicial or administrative authority of the
Contracting State where the child is, a period of less than one year
has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the

proceedings have been commenced after the expiration of the
period of one year referred to in the preceding paragraph, shall
also order the return of the child, unless it is demonstrated that the
child is now settled in its new environment.

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Where the judicial or administrative authority in the requested

State has reason to believe that the child has been taken to
another State, it may stay the proceedings or dismiss the
application for the return of the child.'

[5] Article 12 can, however, not be read and applied in isolation. From the preamble to
the Convention, it is evident that the Convention has its genesis in the signatories'
desire to protect children from the harmful effect of their wrongful removal or
retention and to establish procedures to ensure their prompt return to the State of
their habitual residence, as well as to secure protection for rights of access. The
states signatories to the Convention resolved to conclude the Convention and have
agreed on the provisions of the Convention because they were:

'Firmly convinced that the interests of children are of paramount

importance in matters relating to their custody.'

Against this backdrop the objects of the Convention are:

'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 of access under the law of
one Contracting State are effectively respected in the other
Contracting States.'

[6] In Sonderup v Tondelli and Another,2 the Constitutional Court explained the purpose
of the Convention:

'… the Convention seeks to ensure that custody issues are

determined by the court in the best position to do so by reason of

2
2001 (1) SA 1171 (CC) at 1185G-H.

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the relationship between its jurisdiction and the child. That Court
will have access to the facts relevant to the determination of
custody.'

[7] The recognition of the child's interests as paramount when applications in terms of
the Convention are considered, is echoed in the Children’s Act, 38 of 2005 ('the
Children's Act' or 'the act'). Chapter 17 of the Children's Act is dedicated to give
effect to the Convention and to combat parental child abduction. Section 275
provides that the Convention is in force in the Republic and that its provisions are
law in the Republic, subject to the important proviso that the Convention's provisions
are subject to the provisions of the Children's Act. The importance and relevance of
this proviso are that in determining this application, this court remains statutorily
obliged to in terms of s 6 to, amongst others:

'(2)(a) respect, protect, promote and fulfil the child's rights set out
in the Bill of Rights, the best interests of the child standard set out
in section 7 and the rights and principles set out in this Act, subject
to any lawful limitation;
(b) respect the child's inherent dignity;
(c) treat the child fairly and equitably '

Section 7 of the Children's Act is relevant as it sets out the factors to be considered
when a court is required to determine the best interest of the child standard.

[8] The Constitutional Court confirmed in Sonderup, supra3 that:

'The paramountcy of the best interests of the child must inform our
understanding of the exemptions without undermining the integrity
of the Convention. The absence of a provision such as s 28(2) of
the Constitution in other jurisdictions might well require special
care to be taken in applying dicta of foreign courts where the

3
2001 (1) SA 1171 (CC) at 1185G-H.

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provisions of the Convention might have been applied in a narrow

and mechanical fashion.'

Notwithstanding, comity between state parties need to be respected and

upheld, and Goldstone J held:

‘A South African court seized with an application under the

Convention is obliged to place in the balance the
desirability, in the interests of the child, of the appropriate
court retaining its jurisdiction, on the one hand, and the
likelihood of undermining the best interests of the child by
ordering her or his return to the jurisdiction of that court. As
appears below, the court ordering the return of a child under
the Convention would be able to impose substantial
conditions designed to mitigate the interim prejudice to such
child caused by a court ordered return. The ameliorative
effect of art 13, an appropriate application of the Convention
by the court, and the ability to shape a protective order,
ensure a limitation that is narrowly tailored to achieve the
important purposes of the Convention. It goes no further
than is necessary to achieve this objective,and the means
employed by the Convention are proportional to the ends it
seeks to attain.'

[9] When an application for the return of a child is considered in terms of article 12 of
the Convention, and in the context of the child's interest in matters relating to their
custody being paramount, a court is obliged to keep in mind that:
i. The removal or retention of a child is to be considered wrongful where:
'a) it is in breach of rights of custody attributed to a person,
an institution or any other body, either jointly or alone, under
the law of the State in which the child was habitually resident
immediately before the removal or retention; and

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b) at the time of removal or retention those rights were

actually exercised, either jointly or alone, or would have been
so exercised but for the removal or retention';4

ii. The Convention applies only to a child who was habitually resident in a
Contracting State immediately before the breach of custody or access rights
and ceases to apply when a child attains the age of 16;5

iii. Despite article 12 providing that a court must 'forthwith' order the return of a
child if the proceedings for the child's return is commenced with within one
year of the child's wrongful removal or retention, article 13 provides that:

'the judicial or administrative authority of the requested State

is not bound to order the return of the child if the person,
institution or other body which opposes its return establishes
that -

a) 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; or
b) 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.

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.'

4
Article 3 of the Convention.
5
Article 4 of the Convention.

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iv. After receiving a notice of wrongful removal or retention, the court is not to
decide on the merits of rights of custody until it has been determined that the
child is not to be returned under this Convention, 6 and a decision under this
Convention concerning the return of a child shall not be taken to be a
determination on the merits of any custody issue;7

v. The child's return may be refused if this would not be permitted by the
fundamental principles of the requested State relating to the protection of
human rights and fundamental freedoms.8

[10] Since the Convention only applies to a child who was habitually resident in a
Contracting State immediately before any breach of custody or access rights, the
first question to be determined is whether the children were habitually resident at
Rosenstrasse 15, Hütschenhausen, Germany, before the alleged breach of custody
and access rights occurred. Only if this question is answered affirmatively need the
question of whether the children were wrongfully removed from their habitual
residence be considered. If the second question is also answered in the affirmative,
the final aspects that need to be determined are (i) whether there is a grave risk that
the children will be exposed to physical or psychological harm, or (ii) whether the
children will otherwise be placed in an intolerable situation if it is ordered that they
return.

[11] Having identified the primary issues to be determined, it is significant to note that
article 13 provides that when it is found that a child who objects to being returned
has attained an age and degree of maturity at which it is appropriate for the court to
take account of the child's views, such objection on its own may constitute sufficient
grounds to refuse to order the return of the child. Since the age of the five minor
children concerned varies broadly between fifteen years and four years, I am of the
view that the primary issues need to be addressed first to the extent that the factual

6
Article 16 of the Convention.
7
Article 19 of the Convention.
8
Article 20 of the Convention.

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findings require each of the three questions to be dealt with, before the aspects
contained in article 13 are addressed.

[12] In order to secure the return of a child in terms of the Convention the onus rests on
the applicant to prove that the child was habitually resident in the requesting state
prior to its wrongful removal or retention. The onus of resisting the return of the
children relying on the provisions of article 13 of the Convention rests on the
respondent to prove. In both instances the respective parties must prove the relevant
elements on a balance of probabilities.9

Were the children habitually resident in Germany when they returned to South Africa
in October 2020?

[13] The term 'habitual residence' is not defined in the Convention. Erasmus J held in
Senior Family Advocate, Cape Town and Another v Houtman, 10 that 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. The learned judge held with reference to the
'Explanatory Report on the 1980 HCCH Child Abduction Convention' by E Pèrez-
Vera, 1982, that:

‘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

9
Senior Family Advocate, Cape Town and Another v Houtman 2004 (6) SA 274 (C) at paras [6]
and [15]; Smith v Smith 2001 (3) SA 845 (SCA) at 815A.
10
Note 9, supra.

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have established that a possible prerequisite for 'habitual

residence' is some 'degree of settled purpose’ or 'intention'.11

[14] Relying on foreign case law, the learned judge explained:

‘A settled intention or settled purpose is clearly one which will not

be temporary. However, 'it is not something to be searched for
under a microscope. If it is there at all it will stand out clearly as a
matter of general impression.’ Where there is no written
agreement between the parties and where the period of residence
fails to indicate incontrovertibly that it is habitual, it is accepted that
the Court may look at the intentions of the person concerned. In
practice, however, it is often impossible to make a distinction
between the habitual residence of a young child and that of its
custodians - it cannot reasonably be expected that a young child
would have the capacity or intention to acquire a separate habitual
residence. In Re F (A Minor) (Child Abduction) [1992] 1 FLR 548
at 551 Butler-Sloss J stated 'a young child cannot acquire habitual
residence in isolation from those who care for him.' Consequently,

'although it is the habitual residence of the child that must be

determined, the desires and actions of the parents cannot be
ignored. . . . The concept of habitual residence must . . . entail
some element of voluntariness and purposeful design.'

It then becomes necessary to analyse the parents' shared

intentions regarding the child's residence. Where there is contrary
expressed parental intent, as in this instance, it then becomes
necessary to determine whether the child has a factual connection

11
At para [9].

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to the state, and knows something of it, culturally, socially and

linguistically.’ (Footnotes omitted).12

[15] Opperman J explained in CB v LC that:13

‘Three basic models of determining habitual residence of a child

have developed from judicial interpretation of habitual residence,
namely the dependency model, the parental-rights model and the
child-centred model. In terms of the dependency model, a child
acquires the habitual residence of his or her custodians whether
or not the child independently satisfies the criteria for acquisition
of habitual residence in that country. The parental-rights model
proposes that habitual residence should be determined by the
parent who has the right to determine where the child lives,
irrespective of where the child actually lives. Where both parents
have the right to determine where the child should live, neither may
change the child's habitual residence without the consent of the
other. In terms of the child-centred model, the habitual residence
of a child depends on the child's connections or intentions, and the
child's habitual residence is defined as the place where the child
has been physically present for an amount of time sufficient to form
social, cultural, linguistic and other connections. South African
courts have adopted a hybrid of the models in determining habitual
residence of children. It appears to be based upon the life
experiences of the child and the intentions of the parents of the
dependent child. The life experiences of the child include enquiries
into whether the child has established a stable territorial link or
whether the child has a factual connection to the state and knows

12
At para [10].
13
Central Authority for the Republic of South Africa and Another v C (20/18381) 2021 (2) SA 471
(GJ).

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something culturally, socially and linguistically. With very young

children the habitual residence of the child is usually that of the
custodian parent.’ (Footnotes omitted).

[16] A comparative perspective regarding the interpretation of the meaning attributed to,
and determination of habitual residence is beneficial. In an informative article by
Holley C,14 reference is made to the fact that the Court of Justice of the European
Union (CJEU) established in Mecredi v Chaffe15 that a child’s habitual residence
‘corresponds to the place which reflects some degree of integration by the child in a
social and family environment.’ The Court elaborated:

‘An infant necessarily shares the social and family environment of

the circle of people on whom he or she is dependent.
Consequently, where ... the infant is in fact looked after by her
mother, it is necessary to assess the mother's integration in her
social and family environment. In that regard, the tests stated in
the court's case law, such as the reasons for the move by the
child's mother to another member state, the languages known to
the mother or again her geographic and family origins may
become relevant. (para 55)’

The Court added:

‘.. in order to distinguish habitual residence from mere temporary

presence, the former must as a general rule have a certainduration
which reflects an adequate degree of permanence. However, the
Regulation does not lay down any minimum duration. Before
habitual residence can be transferred to the host state, it is of
paramount importance that the person concerned hasit in mind to
establish there the permanent or habitual centre of his

14
Holley, C. ‘Comment, Habitual residence: Perspectives from the United Kingdom’ Journal of the
Academy of Matrimonial Lawyers, 2017, vol 30, 233- 239.
15
Mercredi v Chaffe (C-497/10 PPU) [2012] Fam 22.

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interests, with the intention that it should be of a lasting character.

Accordingly, the duration of a stay can serve only as an indicator
in the assessment of the permanence of the residence, and that
assessment must be carried out in the light of all the
circumstances of fact specific to the individual case’

[17] The UK Supreme Court held in AR v RN16 that parental intention is relevant but not
determinative in establishing habitual residence. The Court held in para [17] of its
judgment:

‘As Lady Hale observed at para 54 of A v A, habitual residence is

therefore a question of fact. It requires an evaluation of all relevant
circumstances. It focuses upon the situation of the child, with the
purposes and intentions of the parents being merely among the
relevant factors. It is necessary to assess the degree of integration
of the child into a social and family environment in the country in
question. The social and family environment of an infant or young
child is shared with those (whether parents or others) on whom
she is dependent. Hence it is necessary, in such a case, to assess
the integration of that person or persons in the social and family
environment of the country concerned. The essentially factual and
individual nature of the inquiry should not be glossed with legal
concepts which would produce a different result from that which
the factual inquiry would produce. ‘

[18] The Supreme Court of the United States referred to AR v RN when it held in 2019 in
Monasky v Taglieri.17 important principles confirmed in this case are that:

i. The Convention does not define ‘habitual residence’, but, as the Convention’s
text and explanatory report indicate, a child habitually resides where she is at

16
(Scotlan) [2015] UKSC 35.
17
No. 18-935 https://www.supremecourt.gov/opinions/19pdf/18-935_new_fd9g.pdf

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home. This fact-driven inquiry must be ‘sensitive to the unique circumstances

of the case and informed by common sense.’
ii. Acclimation of older children and the intentions and circumstances of
caregiving parents are relevant considerations, but no single fact is
dispositive across all cases. The treaty’s ‘negotiation and drafting history’
corroborates that habitual residence depends on the specific circumstances
of the particular case.
iii. Where a caregiving parent is coerced into remaining in a certain country, this
should be taken into consideration in the determination of a child’s habitual
residence.

[19] National and foreign case law emphasise that a child’s habitual residence is
determined by reference to the circumstances of each case.18 It is a question of fact
and depends on the totality of the circumstances specific to the case. It focuses on
the situation of the child, with the purposes and intentions of the parents among the
relevant factors for consideration. The physical presence of the child in a
geographical area, the duration of the stay, the reasons therefore, the parents’
intention to settle with the child where that intention is manifested by tangible steps,
and the degree of integration or acclimatization to the new environment are
collectively to be considered when a child’s habitual residence is determined. Where
a dispute of facts exists, the well-known Plascon Evans rule is to be applied.19

A facts-based analysis

[20] If the duration of a child’s presence in a contracting state was the sole determinant
factor for determining habitual residence, this would have been the end of the
enquiry regarding the children’s habitual residence. It is common cause that the
respondent and the children were resident in Germany for a period of one year and

18
Houtman at para [11]; Central Authority for the Republic of South Africa and Another v LC 2021
(2) SA 471 (GJ) at para [55]; Central Authority (South Africa) v A 2007 (5) SA 501 (W) at paras [17]
and [19]; Monasky, supra.
19
LC at para [55]; Penello v Penello (Chief Family Advocate as amicus curiae) 2004 (3) SA 117
(SCA) at 121A, 138 at para [40], [41].

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8 months before they left to visit her parents in South Africa. This is a substantial
period of time and affords substance to the second applicant’s case that the children
were habitually resident in Germany.

[21] The respondent, however, maintains that she and the minor children did not reside
in Germany out of their own free will and would have relocated if they were afforded
the opportunity to do so. The High Court of England held in B v H (Habitual
Residence: Wardship) [2002] 1 FLR 388, that where a mother and minor children
were coerced under false pretences to leave England and travel to Bangladesh, and
then prevented to return because, inter alia, their traveling documentation was
confiscated by the father, the father’s unilateral decision did not cause the children’s
habitual residence in England to be lost. The principle set in this judgment is sound.
It is indicative that the duration of the stay in the contracting state is not the sole
determinant factor in determining habitual residence and necessitates a detailed
analysis of the facts with which this court is presented in the present application.

[22] The respondent’s denial that she and the minor children were habitually resident in
Germany needs to be evaluated in the factual matrix provided by the evidence
before the court, as contained in the parties’ affidavits.

[23] It is common cause that the parties agreed that the second applicant seek
employment abroad. He unsuccessfully applied to various English-speaking
countries and expanded his search. He eventually obtained employment in
Germany. The parties sold their household furniture and items in South Africa (the
evidence does not indicate that the parties owned any immovable assets).

[24] The second applicant stated that:

i. The emigration process’ appeared to have been conducted inter alia by virtue
of the fact that he and the children had Dutch passports;
ii. The family emigrated during February 2019, the second applicant refers in a
letter to the respondent the parties ‘registered as residents’ when they moved

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to Germany (although no formal documentation confirming the as much, or

shedding any light on the emigration process, were attached);
iii. The children C, M, L and Z were registered at a school;
iv. The second applicant and the respondent had a ‘clear intention’ to be
habitually resident in Germany.

[25] The aspect of the family’s alleged inability to integrate into the German community
is addressed in the founding affidavit, and the second applicant attributes it to the
fact that the respondent stopped taking her anti-depression medication in June 2019.
He states that the respondent became more depressed and anxious as a result
hereof and he arranged for her to consult with a psychiatrist in Germany. Shortly
before attending the appointment the respondent indicated that she was notprepared
to attend the appointment. The respondent, in answer, confirms that she stopped
taking the depression medication during May 2019. However, she denies that she
was depressed as a result of ‘tapering down on medication.’ She is silent, however,
on the issue as to whether the second applicant arranged for her to see a psychiatrist
and her subsequent refusal, and in applying the Plascon Evans rule the second
applicant’s version in this regard must be accepted.

[26] In the answering affidavit, the respondent alleges that:

i. She initially supported the second applicant in seeking employment abroad

and that the aim for relocating was to attempt to create a better life,
specifically for the children;
ii. The parties first wanted to relocate to Canada because it was an English-
speaking country, but an opportunity arose for the second applicant to obtain
employment in Germany;
iii. She voiced her concerns about moving to a country where neither she, nor
the second applicant nor the children could speak the language;
iv. She accepted the fact that the second applicant did not find employment in
an English-speaking country reluctantly, but was willing to see how Germany
treated the family;

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v. The children did not particularly want to move to Germany and the eldest
child, C, ‘was not happy with the move at all’;
vi. She ‘resided in Germany with the intention of determining if the family could
adapt or not, and at all times reserved the right to relocate’ if they could not
adapt;
vii. She (and the children) believed that it was the understanding of everyone that
they as a family would ‘try out’ Germany and see how it goes. ‘It was most
definitely not set in stone that the family had to reside in Germany forever’;
viii. When she arrived in South Africa with the children and saw the positive
change in her children, she made the ‘final decision’ not to send the children
back to Germany;
ix. All the children except the youngest attended school in Germany.
x. Within three months of the family moving to Germany, C, started complaining
that she was struggling to adapt and pleaded with the second applicant to
consider having the family return to South Africa;
xi. The living conditions were difficult. After an initial stay in a bed-and-breakfast
facility, the family rented a two-bedroom apartment with one bathroom and a
living area in the same building. One bedroom was temporarily closed for
about a month to be renovated. Until their departure their sons slept in the
living area;
xii. The family lived solitary lives and rarely left the house for day trips or outings
or to travel around Germany.

[27] The respondent further states that she was emotionally bullied and abused by the
second applicant. He adopted a ‘totalitarian’ stance and insisted that the children
and she always obtain his permission to go anywhere even a play park. When she
wanted to take the car keys, she had to explain to the second applicant why she was
leaving the house. She provided an example where the second applicant refused
the family to visit Paris because they ‘misbehaved’ while visiting his brother in the
Netherlands during a visit. In reply, the second applicant does not specifically deal
with this averment except for denying that he controlled, bullied and abused the
respondent and minor children and adding that the respondent had a bank card
linked to the parties joint’ account.

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[28] The respondent denies that the children successfully integrated into the German
lifestyle. She explains that C, then 14, presented with signs of depression as early
on as three months after moving to Germany. The second applicant informed C that
if the family could not adapt, they could always sell their belongings and return to
South Africa and requested C to put some effort into adapting. From the 6 th month in
Germany C expressed suicidal intentions to the second applicant who was
dismissive thereof. Although the second applicant denies in reply that C showed
signs of depression or that she had a discussion with him where he assured her that
she could return to South Africa if the family could not adapt, he states that the
respondent made no effort to encourage the minor children to accept their home life
and conditions in Germany but attempted to ‘align the minor children with her
personal desire to return.’ The second applicant avers that he encouraged the minor
children to adjust to their life in Germany, but it needs to be mentioned that there is
no inkling on the papers as to how he attempted to assist them to adapt, or to
integrate into the German environment. He conceded the respondent’s requests to
return to South Africa and that (at least some) of the children wanted to return to
South Africa. However, he attributes the children’s request to return to the
respondent’s expressed desire to return and her manipulation of the children.
Although the second applicant denies in reply that he forbade the minors to pray, the
averment to which he replied was that he forbade them to ‘pray for South Africa or to
pray for their return to South Africa’.

[29] I do not consider it necessary to traverse all the factual issues in dispute. The second
applicant portrays a picture of a family having moved from South Africa with the
intention to settle permanently in Germany. On the respondent’s version the family
decided to ‘give it a go’ but to keep the backdoor open, in the event that the family
could not adapt. Although the evidence does not indicate that the parties expressly
agreed to the duration of a trial period, the facts that they sold their belongings in
South Africa, enrolled the eldest four children in school and the eldest three for
German-language classes, opened a joint bank account, obtained the necessary
authorisation to drive a vehicle, and registered as residents, do not only support a
finding that they had the intention to settle permanently. These facts and

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circumstances with equal force, allow for a finding that it all amounted to nothing
more than to ‘give it a go’.

[30] Opperman J referred in CB v LC to the work of Brigitte Clark in which it is explained

that habitual residence may be lost when a person leaves a country with a settled
intention not to return, but that there is a significant difference between ceasing to
be habitually resident in a country and acquiring habitual residence in a new country.
The intention to give Germany ‘a chance’ does not establish an intention to settle.
The second applicant, however, was habitually resident in Germany.

[31] Since article 4 provides that the Convention shall apply ‘to any child who was
habitually resident in a Contracting State immediately before any breach of custody
or access rights’ occurred, the finding relating to the parties’ respective intention to
relocate to Germany with an intention to settle permanently or ‘to give it a go’, is not
the only factor to consider in determining whether the children were habitually
resident in Germany. As alluded to above, it is a factor to be considered. With the
exception of M, there is no evidence to support a finding that the children established
any additional territorial link with Germany, save for the fact that their parents were
resident in Germany, and their enrolment in a school. Despite being resident in
Germany for a period of 19 months the children were not yet in command of the
German language, which had a profound and prejudicial impact on their ability to
socialise and integrate into society. Except for the strained relationship between the
children and the second applicant and their relationship with the respondent there is
no evidence of social connections or interaction with any other people, visits to
friends, excursions exploring the new environment, or participation in communal or
religious activities, except for M referencing that he had two friends. In addition to
laying the blame for the lack of integration at the respondent’s door, the second
applicant attributes the lack of integration to the restrictive conditions inevitably
brought about by the global COVID pandemic. Counsel for the respondent submitted
that the effect of COVID should be ignored when the children’s lack of integration in
the German environment is considered. I disagree. COVID created a barrier to
human interaction. The profound effect it would have had on the children’s ability to
integrate cannot be laid at the second applicant’s door, but the factual reality that it

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negatively affected and even prevented the children’s integration into society, cannot
be ignored.

[32] The present matter is unique in that the application relates to five children of
markedly different ages. The evidence indicates that C objected to moving to
Germany even before the family left South Africa. This objection, her age when the
family relocated, her undisputed continued insistence to return to South Africa and
the fact that the evidence does not prove that she acclimated to her surrounding, are
indicative that although she had no choice but to live in Germany, Germany cannot
be regarded to be her habitual residence. C did not cut emotional ties with South
Africa.

[33] It seems as if M is the only child who started to find his feet, despite his struggle with
the German language and being subjected to being bullied. He succeeded in making
two friends, American, whom he visited frequently in an attempt to escape the toxic
atmosphere at home. There is also no indication that he experienced the same
anxiety as his brother, L, regarding integration into the school, or that he like C did,
objected to moving to Germany like C. Considering the duration of his stay in
Germany, the fact that he ordinarily resided there and started to develop ties within
the community, M is regarded to have established habitual residence in Germany.

[34] The evidence does not indicate that L integrated in or acclimated to the new
environment. Considering, however, that L was barely 8 years of age when the family
left South Africa, and in the absence of any continued ties with South Africa, the only
logical deduction is that his habitual residence was linked to his parents’ habitual
residence. Although the evidence does not indicate that the respondent acquired
habitual residence in Germany after leaving South Africa, her intention to leave
South Africa was sufficiently permanent to lose habitual residence in South Africa.
The second applicant acquired habitual residence in Germany. A child cannot be
regarded to be without a habitual residence. Due to their young ages, and in lightof
the fact that the respondent lost her habitual residence in South Africa due to the
intention to relocate but has not since acquired a subsequent habitual residence

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before leaving Germany with the children, L, Z and R are considered to have
followed the habitual residence of their father, the second applicant.

[35] It is the respondent’s evidence that she decided to remain in South Africa only after
she arrived in the country when she and the children visited her parents. Counsel
for the respondent argued, that when she decided to remain in South Africa, she
acquired habitual residence in South Africa. This might be so, but a change in
habitual residence that coincides with the removal or retention of children is of no
concern in applications of this nature.

[36] It is accordingly my finding that M, L, Z and R were habitually resident in Germany

at the time they left Germany with their mother to visit family in South Africa.

Were the minor children wrongfully removed or retained in South Africa?

[37] It is common cause that when the respondent and the children left Germany, the
second applicant was under the impression that they would return after two weeks.
It is likewise common cause that the respondent unilaterally, and without having
regard to the second applicant’s parental rights, decided not to return to Germany
with the children. There is no merit in the contention that the second applicant was
not exercising his parental rights and responsibilities or custodial rights at the time
that the respondent left Germany. He provided for the family, the family lived in one
residence, they shared meals, he participated in transporting the children to school,
and based on the video clip attached to the papers by the respondent, he shared a
bed with the respondent.

[38] The respondent, undoubtedly aggrieved by the second applicant’s failure to share
her view that they ought to return, and desperate due to her failed attempt to engage
the chancellor of Germany in her plight, resorted to self-help when the opportune
moment arose. The Convention is primarily aimed at deterring self-help and provides
for the immediate return of children in such circumstances. The remedy against self-
help, although intended to have a deterrent effect, is subject to several exceptions

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for reasons that are self-evident, if regard is had to the question as to ‘what sacrifices
society can morally expect from an individual child for purposes of benefitting the
greater good, e.g. generally deterring abduction’.20

Exceptions to the remedy of immediate return.

[39] Article 13(b) of the Convention provides that a court need not return a child if the
return would pose ‘a grave risk that … would expose the child to physical or
psychological harm or otherwise place the child in an intolerable situation’. In
considering the defences a court should guard against forcing a child to endure
enormous distress and hardship as the process plays out.

[40] It is significant to note that the phrase ‘intolerable situation’ was added to the 1980
Convention to deal with exceptional cases where a court could not find a grave risk
of harm to the child, but where returning the child would have been ‘absurd as a
procedural matter’. 21 Weiner,22 quoted the notes of the drafting session where it is
recorded:

‘[I]t was necessary to add the words “or otherwise place the child
in an intolerable situation” since there were many situations not
covered by the concept of “physical and psychological harm.” For
example, where one spouse was subject to threats and violence
at the hands of the other and forced to flee the matrimonial home,
it could be argued that the child suffered no physical or
psychological harm, although it was clearly exposed to an
intolerable situation.’

20
Weiner, infra, 354.
21
Weiner, M.H., Intolerable Situations and Counsel for Children: Following Switzerland’s Example
in Hague Abduction Cases, American University Law Review, 2008, 58:2 -
https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1163&context=aulr accessed
9 October 2021.
22
Ibid.

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[41] Weiner highlights that at the Fifth Meeting of the ‘Special Commission to Review the
Operation of the Hague Convention of 25 October 1980 on the Civil Aspects of
International Child Abduction and the Practical Implementation of the Hague
Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and Measures
for the Protection of Children’, in a report summarising the proceedings it is noted
that experts-

‘emphasised that the concept ‘intolerable situation’ which was

included in article 13 of the Convention to address those situations
where the return of a child would not necessarily create a grave
risk, but where it would still be inappropriate to order the return.’

[42] The ‘intolerable situation’ defence is thus to be regarded as a separate defence to

the Convention’s remedy of return. It is not to be assumed to be coextensive with
the ‘grave risk of harm’ - defence.

[43] It is common cause that four of the children (C, M, L, Z) raised objections to be
returned to Germany. The children’s legal representative filed a report with this court
at the first case management meeting where the intervention application wasgranted
by agreement between all the parties. A family counsellor was subsequently
appointed to consult with the children to determine whether the respective children
have attained ‘an age and degree of maturity at which it is appropriate to take
account of their views’. This court is enjoined to obtain and consider the children’s
views and their motivation in support thereof.

(i) The children’s legal representative’s report

[44] Advocate Steenekamp reports that the children did not identify with Germany as
their country of habitual residence. Their experience was that of a hostile country
which was exasperated by the language problems I have referred to, which
inevitably resulted in isolation. The children experienced difficulties in making

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friends, L was bullied, and he felt like an outcast. They struggled to adjust at school.
They experienced feelings of helplessness and resentment. During her discussion
with the children, C and M raised concerning, and alarming remarks pertaining to
suicide. Where C already experienced feelings of suicide whilst in Germany, L
voiced that should he be returned, they might as well bury him in a shallow grave
and throw sand over him until he suffocates. C, M, L, and Z raised incidents of
assault by the second applicant, either experienced or witnessed by them
respectively. It should be noted at this point that the incidents referred to related to
the second applicant slapping C through the face on two occasions, pinning her to
the bed with his knee, pushing M against the wall with his hands around M’s throat,
and administered corporeal punishment to the boys. C, M and L also indicated that
they have now settled in South Africa and do not want to move back to Germany.

[45] The second applicant denies that he assaulted his children but readily concedes that
he resorted to corporeal punishment. It has already been held by the courts of this
country that corporeal punishment has no place in a constitutional state, and I will
not elaborate further on this aspect, save to deal with the averment by C,
substantiated by the respondent, that the second applicant struck C through the face
on more than one occasion. When a child, and specifically a girl child, is struck
through the face by an adult male, it is abuse. The second applicant, in reply denied
that he struck C, but he explained: ‘C would literally scream in the Second
Applicant’s face, with the Respondent standing behind C and encouraging her to
persist with her tirades. The Second Applicant attempted to remove C from his
personal space, which could have resulted in it being perceived as him striking her.’
I have no doubt that the family’s living environment was at times, at least, severely
stressed and I am also of the view that both the second applicant and the respondent
contributed to the tension.

[46] Advocate Steenekamp indicated in her report that C, M and L requested her
pertinently to raise their objection and their reasons for taking this stance. Z,
although not cognisant of the nature of the proceedings also raised objections. Z
indicated that his father drank a lot of alcohol and hit him. R is very young, but

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Advocate Steenekamp mentions that she enjoys a relaxed and spontaneous

relationship with her siblings.

(ii) The family counsellor’s report

[47] The family counsellor consulted twice with the children. I found her report clear, frank
and well substantiated. I must convey my gratitude for the assistance she rendered
in very limited time. The most important contribution of the family counsellor’s report
is that she confirms that C, M and L were assessed to be of sufficient age, maturity
and stage of development to hold an independent and informed view regarding being
returned to Germany.

[48] The family counsellor’s report confirmed the objections the children raised to their
legal representative, but she also elicited some additional information from the
children regarding their integration, or lack thereof, in Germany. Although the family
counsellor was not in a position to verify the allegations of abuse made by the
children, she stated that the mere facts that they perceived the second applicant’s
behaviour as abusive and experienced the second applicant as aggressive, are in
themselves sufficient to create an intolerable situation for them, were they be
ordered to return to Germany. She also pointed out that the facts indicate that the
children established strong cultural, social and linguistic ties in South Africa since
their return. She raised serious concerns regarding C’s expressed suicidal
tendencies, although she conceded that opinions regarding C’s mental health fall
outside her field of expertise. Treats of suicide must never be outrightly rejected but
parties should also understand that courts will not be held at ransom by adolescents’
threats. Those threats, when they are uttered, will be considered in the context of all
the evidence and if need be, subjected to expert scrutiny. Although the second
applicant denies that C ever expressed such notions to him, her undisputed
frustration with the circumstances she found herself in underscores the probability
of her fostering suicidal thoughts.

[49] The family counsellor is of the view that Z and R have not yet reached the level of
maturity and stage of development to hold independent views regarding their well-

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being. Objectively seen, however, she opined that an intolerable situation would
arise if Z and R are separated from their siblings, not only because sibling
relationships are generally important because it helps children achieve
developmental milestones and provide emotional support, companionship, and
comfort in times of change, but because she observed that the siblings share a close
bond with each other.

[50] I am of the view that the cumulative effect of the children’s past experience in
Germany, the absence of integration into the German community, the language
barrier, their respective ages and stages of development, their fear of the second
applicant’s aggressive behaviour, and their successful integration back into the
South African community since their return in October 2020, will render it unbearable
and thus intolerable for C, M and L to return. I will not even consider the separation
of the siblings, as being separated from their siblings will by itself create an
intolerable situation for all the children, including Z and R. This finding disposes of
the issue and I accordingly deem it unnecessary to deal any further with article 13(b)
of the Convention.

Miscellaneous

[51] I am of the view that both the second applicant and the respondent sometimes
‘stretched the truth’ in their affidavits, but due to the reasons for arriving at my
conclusion I do not propose to make any credibility findings. I am aware that
applications of this nature are extremely emotive and that parties will go to great
lengths to obtain or retain their children in their care.

[52] I accepted that both the second applicant and the respondent’s actions are dictated
by what they perceive to be in their children’s best interest, and that it is justified to
order that each party pays its own legal costs.

[53] Neither party addressed the court on structuring the second applicant’s interim rights
of access to the children in the event that the application is dismissed. It is, however,
in the children’s best interest that their right to have contact with their father, and his

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parental right to have contact with them, be formally structured. In order to facilitate
the structuring of contact rights at this stage, the parties are authorised, should they
wish, to approach the Deputy Judge President of this Division to appoint a case
manager.

ORDER

In the result, the following order is made:

1. The application is dismissed.

2. Each party is to pay its own costs.
3. The parties may approach the Deputy Judge President of this Division for the
appointment of a case manager.

E van der Schyff

Judge of the High Court, Gauteng, Pretoria

Delivered: This judgement is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. As a courtesy gesture, it will be sent to the parties/their legal
representatives by email. The date for hand-down is deemed to be 11 October 2021.

Counsel for the applicants: Adv. R. Ferreira

Instructed by: State Attorney, Pretoria
Counsel for the respondent: Adv. P. J. Nieman
Instructed by: Dreyer & Dreyer Attorneys
Counsel for the children: Adv. M Steenekamp
Instructed by: Legal Aid South Africa
Date of the hearing: 8 October 2021
Date of judgment: 11 October 2021

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