Child Abduction: The Hague Convention on the Civil Aspects of International Child Abduction and National Law – Ad Hoc Central Authority for the Republic of SA v Koch NO 2024 (3) SA 249 (CC)

Abstract

In Ad Hoc Central Authority for the Republic of South Africa v Koch NO (2024 (3) SA 249 (CC) (AHCA v Koch), the Constitutional Court considered an appeal from the judgment of the Supreme Court of Appeal (SCA) (Koch NO v Ad Hoc Central Authority for the Republic of South Africa 2022 (6) SA 323 (SCA) (AHCA v Koch SCA)). The Constitutional Court delivered its judgment on 23 November 2023. It is a landmark case in international family law and child abduction. The case not only considers the broader context of international law but also illustrates the multifaceted challenges created by international child abduction. The main issue that the Constitutional Court was required to consider was the interpretation of article 13 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (South Africa ratified the Convention on 16 July 1995). Article 13 provides that a court is not under an obligation to order the return of a child if it is established that the person, institution or other body that opposes the return (a) had consented to or subsequently acquiesced in the removal or retention of the child; or (b) the return would “expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

The matter before the court concerned the return of a six-year-old child (hereafter referred to as “E”) from South Africa to the United Kingdom (UK) in terms of the Convention.

E’s mother was a South African by birth, but both she and E’s biological father held British citizenship. The biological parents of E were not married. After E’s mother became ill, a decision was taken that the three of them would return to South Africa to seek medical treatment for E’s mother. After receiving treatment, it became apparent that E’s mother was terminally ill and would not be able to return to the UK as originally envisaged. E’s father subsequently returned to the UK alone. E’s parents agreed that E and her mother would remain in South Africa and continue residing with E’s maternal aunt while E’s mother received further medical treatment. The parties agreed that, if the treatment was unsuccessful, E and her mother would return to the UK.

Notwithstanding this agreement, E’s mother unilaterally decided that E would remain in South Africa in the care of E’s maternal aunt in the event of her death. E’s mother informed E’s father of her decision on 7 November 2019.

E’s father demanded the return of E to the UK in terms of the Convention. He contended that E was being kept in South Africa without his consent. He proceeded to seek the assistance of the Central Authority in the UK for E’s immediate return. The Ad Hoc Central Authority (AHCA) emailed the attorney of E’s mother on 7 May 2020, enquiring whether the mother would agree to the voluntary return of E to the UK. E’s mother was not amenable to this request. On 20 June 2020, E’s mother and her maternal aunt, as the second applicant, brought an application to the High Court seeking that certain parental rights and responsibilities be conferred on the maternal aunt and that she would rear E in South Africa. E’s father opposed this application.

E’s father, with the assistance of the AHCA, brought an application for the return of E to the UK on 7 July 2020. At this time, E’s mother was still receiving medical treatment in South Africa and was unable to travel to the UK due to her frail medical condition.

E’s mother passed away on 8 December 2020. The judgment of the High Court was handed down three days after the death of E’s mother (AHCA v Koch supra par 5–15).

Before proceeding to discuss the Constitutional Court decision, the judgments of the High Court and SCA are discussed first.