Consent – Art. 13(1)(a)
The Court found that on the facts the father had consented to the child living in South Africa permanently. The father may have harboured hopes that the mother would return to the United Kingdom despite the parties having agreed on separation and divorce, but this did not detract from the fact that they had agreed on the terms of the divorce and had confirmed these with the South African lawyer.
The Court noted that even if it were accepted that the parties had not agreed to separation, divorce and custody issues, the father had nevertheless been prepared to be apart from his son for at least six months. This was held not to be indicative of a close bond between the two.
Grave Risk – Art. 13(1)(b)
The Court further found that the child would be exposed to a grave risk of harm if returned to the father. The Court held that the father did not have the best interests of the child at heart, and there was undisputed evidence the child’s health had improved since being in South Africa.
Authors of the summary: Peter McEleavy and Erika du Plessis (Office of the Chief Family Advocate, South Africa)