International child abduction is an escalating global issue that demands urgent attention and coordinated international efforts. South Africa has been an active participant in addressing this challenge through its ratification of the Hague Convention, which is integrated into South African law via the Children's Act 38 of 2005, specifically through Section 275. 

The Hague Convention provides a legal framework for the prompt return of abducted children to their country of habitual residence. The Convention aims to protect children from the harmful effects of wrongful removal or retention across international borders. While the Hague Convention primarily focuses on the expeditious return of the child, it does recognize certain exceptions where the return may not be mandated. However, it's important to note that the Hague Convention is not concerned with the merits of any underlying child custody disputes. 

Key Principles of the Hague Convention 

The three primary grounds for ordering a child's return under the Hague Convention are: 

1. Wrongful Removal or Retention: The first and foremost ground is establishing that the child has been wrongfully removed or retained; this usually involves proving that the removal or retention is in breach of the rights of custody attributed to a person or institution under the law of the state in which the child was habitually resident immediately before the removal or retention. 

2. Habitual Residence: The Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The court of the country where the child has been taken will usually order the return of the child to their country of habitual residence unless one of the limited exceptions applies. 

3. Age and Maturity: The Convention applies to children under the age of 16. However, suppose the child has attained an age and degree of maturity at which it is appropriate to take account of their views. In that case, some jurisdictions may consider the child's wishes in determining whether to order a return. 

These are not "grounds for return" in the sense that they are factors that must be proven by the parent seeking the return. Instead, they are foundational elements that establish the framework within which the Hague Convention operates. Once wrongful removal or retention and habitual residence are established, the default expectation is that the child will be returned unless the parent opposing the return can establish one of the limited exceptions set forth in the Convention. 

Exceptions Against the Return of a Child 

The Hague Convention provides for a few limited exceptions under which a court may decide not to order the return of a child who has been wrongfully removed or retained across international borders. These exceptions are outlined primarily in Articles 12, 13, and 20 of the Convention. The key exceptions include: 

1. Settled in New Environment: If the application for return is made more than one year after the wrongful removal or retention, and it is demonstrated that the child is now settled in its new environment, the court may refuse to order the return (Article 12). 

2. Consent or Acquiescence: The court may refuse to return the child if the person opposing the return establishes that the person having the care of the child had consented to or subsequently acquiesced in the removal or retention (Article 13a). 

3. Grave Risk of Harm: The court may deny the return if there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation (Article 13b). 

4. Child's Objection: If the child objects to being returned and is of an age and degree of maturity at which it is appropriate to take account of its views, the court may consider this objection as a ground for not returning the child (Article 13). 

5. Violation of Fundamental Principles: The return of the child may be refused if it is not permitted by the fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms (Article 20). 

6. Rights of Custody Not Exercised: The court may refuse the return if it is demonstrated that the rights of custody were not actually exercised at the time of removal or retention or would not have been so exercised if the child had not been removed or retained (Article 13a). 

7. Well-being of the Child: Some jurisdictions interpret the Convention in a way that allows for a more general "best interests of the child" exception. However, this is a subject of ongoing legal debate and varies by jurisdiction. 

The Role of South African Courts 

In South Africa, the judiciary serves as the "upper guardian of children" under common law, emphasizing the child's best interests as the overriding principle in all legal matters concerning minors. This commitment aligns with the Hague Convention's objectives, which aim to secure the prompt return of abducted children to their country of habitual residence and to protect their rights. 

Conclusion 

By harmonizing the principles of the Hague Convention with its domestic laws, South Africa aims to provide a comprehensive legal framework that addresses the complexities of international child abduction while safeguarding the best interests of the child. Strengthening judicial efficiency and international cooperation will further enhance South Africa's commitment to protecting children from the harmful effects of international abduction. 

Robyn Shepherd | SchoemanLaw Inc  

Family Law Specialist 

https://schoemanlaw.co.za/our-services/family-law/