EL v The Director: The Department of International Relations And Co-Operation 2010 JDR 1479 (ECP)

INCADAT legal file Hague parental abduction

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The application related to a child born in South Africa in August 2005. The parents had married in South Africa in September 2003. Difficulties arose between them shortly thereafter, which the mother attributed to cultural differences (the father was Chinese). In February 2006, the mother discovered that the father was involved in certain criminal activities. The father warned her that if she reported his criminal activities to the police, he would make sure she would never see their child again.
In February 2008, the family travelled to China to meet the paternal family. The father told the mother that he intended to purchase a house there and it was the paternal grandmother’s wish that the child should live in China. The mother advised that she would not agree to such an arrangement.
The family returned to China in March 2008 and the father repeated his wish that the child live there permanently. The family visited the paternal family again in May 2009. For financial reasons the child travelled on a one-way ticket.
On 11 May 2009, the mother signed documents to allow the child to attend school in China. She was not given an opportunity to read the documents and was threatened that if she refused to sign she would never see the child again. The documents, together with child’s passport, were given to the paternal grandmother. The documents provided that the paternal grandmother was to be foster carer for the child until he reached 18 years of age.
On 2 June 2009, the father returned to South Africa. The mother remained in China with the child, who attended school. Relations between mother and maternal grandmother became difficult. The mother sought assistance from the South African Embassy and Consulate in China, but to no avail because she could not communicate with them properly.
On 16 October 2009, the paternal grandmother left to visit her niece, taking the child with her. The mother was not allowed to accompany them and did not see the child again. The mother returned to South Africa on 23 October 2009 and lived with the father. The father told the mother that she had no say in the child’s life.
On 2 April 2010, the father travelled alone to China; he refused to pay for a ticket for the mother. On 4 May 2010, the mother telephoned the father who told her to leave the matrimonial home and that she would never see the child again. The mother then moved to live with her parents. The child’s visa expired on 13 May 2010. The mother had no contact with the child after July 2010.
The mother sought help from the South African Police Service, Interpol, the Department of International Relations and Co-operation, and the Office of the Family Advocate. A Deputy-Director of the Department of International Relations and Co-operation indicated that if a South African Court granted her interim custody and requested the Chinese authorities to return the child to South Africa, such order and request would be conveyed to Chinese authorities through diplomatic channels.
The mother therefore applied for a without notice order providing, inter alia, that she had the right to have primary care of the child in South Africa, and that the South African Department of International Relations and Co-operation be requested to assist her to seek the co-operation of the People’s Republic of China for the return of the child to South Africa and to place the child in her primary care.