SCA orders mother to return child to father in Canada
In a case which concerns the global phenomenon of child abduction and involves an application premised on the provisions of The Hague Convention on the Civil Aspects of International Child Abduction, the SCA has ruled a boy – now three years old – had to be returned to Canada where his father lived.
A Pretoria News report says the father turned to the SCA as he appealed an earlier order by the Gauteng High Court (Pretoria) that the boy could remain with his mother in Pretoria.
In ruling in favour of the father, the SCA commented that this matter brings to the fore the difficult task faced by courts whenever they are called upon to decide whether to return an abducted or retained child to his or her home country as contemplated in The Hague Convention.
It said the task of a court in deciding such a matter was rendered difficult due to the fact that the convention requires the court on the one hand to make a decision about the interests of a particular child in a specific case in the context of a factual situation that is more often than not charged with emotion and expectation.
On the other hand, a court has a duty to abide by The Hague Convention, to which SA is a signatory.
The SCA pointed out that the primary purpose of The Hague Convention was to secure the prompt return (usually to the country of their habitual residence) of children wrongfully removed to or retained in any contracting state, notes the Pretoria News report.
The court said the underlying premise is that the authorities best placed to resolve the merits of a custody dispute are the courts of the state of the child’s habitual residence and not the courts of the state to which the child has been removed, or in which the child is being retained.
The court found that since the accusations and counter-accusations made by the parents against each other regarding alleged flaws in their respective parenting styles are aspects that are directed at the merits of a custody or primary care dispute, the authorities best placed to determine those issues are the Canadian domestic courts.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
