Smith v. Smith 2001 (3) SA 845

INCADAT legal file Hague parental abduction

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The children, both boys, were 1 _ and 4 months at the date of their retention in South Africa. It was conceded at trial that they were habitually resident in the United Kingdom and that their retention by the mother in March 1999 breached rights of custody held by the father.
The father initiated Convention proceedings from the UK. His application was received by the South African Central Authority on 30 April.
In early May the father travelled to South Africa. He received legal advice from 3 different attorneys. The father said he was informed that he would not succeed in his return application and / or be granted custody of his young children. As a result of this he discontinued his return application.
Sometime thereafter the return application was re-activated.
On 17 September the Cape Provincial Division dismissed the application finding that Article 13(1)(b) had been made out to the standard required under the Convention. Argument under Article 13(1)(a) was rejected. In October the father filed for leave to appeal. Leave was granted in March 2000.

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