Rights of Custody – Art. 3
The mother sought to argue that the father did not possess any rights of custody. She relied on the decision of the US Court of Appeals for the Second Circuit in Croll v. Croll that a non-removal clause does not found a right of custody. The Constitutional Court noted that the latter decision was contrary to the weight of authority, it further drew attention to the dissenting judgment of Sotomayor J. which stated that a non-removal clause fitted comfortably within the category of rights the Convention seeks to protect. The Constitutional Court held in any event that the facts of the two cases were different, given that in the instant case the parents had agreed that the child would be returned to Canada on a specific date. The Constitutional Court concluded that the retention of the child in South Africa did breach the father’s rights under the agreement.
Grave Risk – Art. 13(1)(b)
The Constitutional Court noted that recognition should be accorded to the role that domestic violence plays in inducing mothers, especially of young children, to seek to protect themselves and their children by escaping to another jurisdiction. It accepted that where there is an established pattern of domestic violence, even if not directed at the child, it may be that a return could place the child at a grave risk of harm. Evidence was presented that the mother had suffered several instances of violence at the hands of the father. It was also put forward that the mother had no support network in British Columbia and risked being arrested upon her return. The Constitutional Court acknowledged that a matrimonial dispute almost always has an adverse effect on the children of a marriage and that this is aggravated where custody is contested. It accepted that the mother was in a hostile situation. However, it concluded that the child would not face any physical harm if returned, while the psychological harm it was alleged she would suffer was not of the serious nature contemplated by Article 13. The Court held that this harm was the natural consequence of her retention and of a contested custody dispute. It further stated: ‘That is harm which all children who are subject to abduction and court ordered return are likely to suffer, and which the Convention contemplates and takes into account in the remedy that it provides.’ The Court held that the return order should ensure that the mother could return to Canada without risk of arrest. It ruled that if the mother was to accompany her daughter she should not be required to leave South Africa until there was an order of the Supreme Court of British Columbia to the effect that criminal proceedings were no longer pending. The Court exacted an undertaking from the father that he obtain such an order. The Court noted that the father would be able to obtain assistance from the South African and British Columbian Central Authorities.
The Court exacted significant undertakings from the applicant father. These related not only to the dropping of criminal charges against the mother, but also custody, maintenance and other ancillary expenses the mother and child were likely to face upon their return. The father also had to obtain an order from the Supreme Court of British Columbia in the same terms as the undertakings he had given.
Human Rights – Art. 20
The mother argued that a return order would conflict with Article 28(2) of the South African Constitution which provides that a child’s best interests are of paramount importance in every matter concerning the child. Without deciding the matter, the Court was prepared to assume that a child’s short term interests may not always be met by an immediate return. To that extent the Court was prepared to accept that the Act might be inconsistent with Article 28(2). However, the Court drew attention to Article 36 of the Constitution where by constitutional rights may be limited where the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. It noted that the extent of the assumed limitation was substantially mitigated by the exceptions provided by Articles 13 and 20. The Court also drew attention to the possibility of shaping a protective order to ensure the limitation was narrowly tailored to achieve the important purposes of the Convention. On this basis the Court concluded that the Act incorporating the Convention is consistent with the Constitution.
The mother was ordered to pay the father’s costs. It may also be noted that less than 5 months elapsed between the wrongful retention and the decision of the Constitutional Court of South Africa.