The children, a boy and a girl, were aged 11 _ and 10 at the date of the alleged wrongful retention. They had lived in South Africa all of their lives.
The parents entered into an Islamic marriage in South Africa. Under South African law such marriages are not afforded recognition, consequently any children born of the union are considered illegitimate and custody is vested in the mother. The father has no rights of guardianship or custody unless he obtains orders to that effect from the High Court of South Africa.
In August 1997 the parties were divorced according to Islamic Rites, and the mother retained primary care of the children. In 1997 and 1998 certain Children’s Court inquiries were undertaken as a result of allegations by the father that the children were being physically abused by the mother and the girl sexually abused by a relative. However, no evidence was found, and it was recommended that the children remain in the care of the mother.
On 30 June 1999 the Police Child Protection Unit took the children into care after the son had been beaten by the mother. Thereafter, the father petitioned for guardianship and custody. His application was supported by affidavits sworn by the mother who only sought access rights. On 23 July 1999 the High Court awarded guardianship and custody of the children to the father.
In October 1999 the father and children left South Africa with the mother’s consent. The mother subsequently stated that she believed this was for approximately three months. The children rang their mother every two to three weeks until July 2000 when contact virtually ceased. In September 2000 the mother issued proceedings for the return of the children who were by then in New Zealand.
On 15 February 2001 proceedings were initiated in Rotorua. The court then sought an Article 15 declaration as to whether the retention of the children was wrongful. On 21 June High Court of South Africa ruled that the retention was wrongful.
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