The Constitutional Court has spoken the last word on the fate of a now 6-year-old child whose mother died, following a tug-of-war between the child’s aunt and her father.
The child’s mother came from Britain to South Africa for cancer treatment, but she died while being here. Her last wish was that her daughter be taken care of by her (the mother’s) sister.
The father, however, wanted his child to be returned to him in Britain.
The tug-of-war between the aunt and the father dragged on for several years, after the high court at first ordered the child’s return to the UK. This ruling was overturned on appeal, but the Constitutional Court has now ordered that the child be returned.
Up to now the child, identified as E, lived with her maternal aunt in South Africa. She was born in the UK to parents who were British nationals. Her parents were not married. E’s mother was originally from South Africa.
The child travelled from the UK to South Africa with her parents in September 2019. At the time, E was two years old. Her mother was diagnosed with cancer in April of that year. The family came to South Africa so the mother could consult doctors here regarding the possibility of further medical treatment for her cancer.
If there were no treatment options for the mother in South Africa, E and her parents were to return to the UK in October 2019. They made their travel arrangements accordingly. Upon their arrival in South Africa, E and her parents stayed with E’s maternal aunt and her grandmother.
E’s mother consulted with a medical practitioner and she was scheduled to undergo surgery during the latter part of September. After she had undergone surgery, she was unable to return to the UK with E and her father as they intended. E’s father left as planned in October 2019, leaving E behind with her mother.
By the time of the father’s return to the UK, the relationship between him and E’s mother had deteriorated.
Before her death the mother realised that she would not recover and that she had to make arrangements for E’s care after her death. She did not believe that E’s father would be in a position to raise the child and provide her with the necessary stability and security. She informed the father that she was going to remain in South Africa with E, and that her sister must raise E after her death.
The father was opposed to the mother’s unilateral decision and he insisted that E must be returned to the UK.
The father subsequently approached the UK Central Authority under the Hague Convention and sought their assistance in securing the immediate return of E to the UK. His request was on the basis that he had not given consent for E to remain in South Africa indefinitely.
E’s mother refused the request. She and aunt brought an application in the Western Cape High Court, wherein they asked that E be raised in South Africa.
The mother died before the high court could deliver its verdict, in which it ordered the return of the child to the UK. The SCA in turn ordered her stay here.
The Central Authority of South Africa, however, turned to the Constitutional Court to have another look at the issues.
In a majority judgment, Judge Steven Majied said that on the evidence, there were adequate support services and systems in place in the UK to deal with fears arising from the child not coping there.
The aunt was concerned that the child had by now become settled in South Africa because the legal proceedings regarding her custody had taken so long, but Judge Madjiedt said that on the basis of this argument, anyone with an interest in wrongfully retaining a child in another country could an draw out litigation proceedings to enable the child to settle and so escape the reach of the Hague Convention.
“Delay would become a strategic tool to evade the convention’s objectives, not only to protect children from the harmful effects of international child abduction and retention by a parent, but also to secure the prompt return of the abducted or retained children to their state of habitual residence,” the judge said.
Pretoria News