MATHONSI J: This is an application in terms of the Hague Convention
on the Civil Aspects of International Child Abduction. That Convention is applicable to Zimbabwe by
virtue of the Child Abduction Act, [Chapter 5:05].
The Applicant seeks the
immediate release of the minor children Liam Peacock, aged 10 years and Jordan
Paul Peacock, aged 9 years. The two boys
are enrolled in grades 4 and 3 respectively at Grey Junior School in Port
Elizabeth South Africa. They were taken
from school by their mother, the Respondent, at the beginning of the school
holiday ostensibly to spend some time with them during the holiday which ended
on 12 July 2010.
At the end of the school
holiday the Respondent did not return the children to school. Instead she has argued that she is entitled
to retain their custody as she is the sole legal guardian and custodian of the
children by Zimbabwean law given that the children are illegitimate.
The genesis of the matter is
that the Applicant is a South African citizen while the Respondent is a
Zimbabwean citizen. The two met in 1998
and had a relationship. They cohabited
until 2002 when they broke up but not before their relationship had resulted in
the birth of the two boys outside wedlock.
At that time the children were aged 2 and 1 respectively. Since then the parties have virtually shared
custody of the children they having alternated between each of the parents over
the years for one reason or the other.
After the parties broke up
the Applicant continued providing material support for both the Respondent and
the children. Their arrangement to share
custody culminated in a concrete agreement at the beginning of year 2009 in
terms of which the parties agreed the Applicant would take the children to
South Africa, where he is based and enrol them in a boarding school there. They further agreed that the Applicant would
provide for the children while they are in South Africa and that during the
school holidays he would facilitate their return to Zimbabwe for them to be
with their mother.
That arrangement worked very
well for both the parties and the children as it is only during one of the 6
school holidays since they went to South Africa, that they did not return to
their mother. It would appear that
problems arose when Applicant started dragging his feet about facilitating the children's
travel to Zimbabwe for the school holiday and insisting that the Respondent
should also play at part by footing the travel bills and also collecting the
children from school. This did not
impress the Respondent who, after collecting the children in June 2010, decided
not to return them to South Africa for the opening of schools on 12th
July 2010.
Currently the children are
not at school but have been put at a little school called Foggy Pont to receive
tuition while awaiting formal enrolment.
The Applicant then made this
application which was brought on a certificate of urgency because the Applicant
is seeking the release of the children for them to return to Grey Junior School
before they are further prejudiced by non-attendance at school.
There is no doubt that the
children went to school in South Africa by agreement of the parents, that
whilst there the Applicant had full custody and responsibility over them by
agreement of the Respondent and that the said agreement was reached for the
benefit of the children. I therefore
find that the children were lawfully in South Africa to attend school and were
clearly habitually resident in that country only returning to Zimbabwe for
holiday. I also find that Respondent
never surrendered her custody right to the Applicant but only agreed to share
that right with the Applicant to facilitate the children's attendance at
school.
It is also clear that the
children have been well looked after in South Africa as shown by even the Respondent's
admission and happiness expressed in correspondence with Applicant's wife where
on 26 June 2009 she wrote:-
“Hi there Nats (for Natalie Applicant's wife). How you all doing? Finally managed to get all sorted out with
yoafrica so ended up with stakes of emails, fabulous. Loved all the pictures wow they are so
awesome. Those pics of Mike are gorgeous
and Jords playing rugby are fabulous going to print some of them for their
room. Thank you Nats for always keeping
me up to date with the boys and well just for being a great mom to my
boys. Lots of love to all those fabulous
kiddies, kisses and cuddles to all.”
Having said that, the first
issue to be determined is whether this matter falls under the provisions of the
Hague Convention which has in Zimbabwe, the force of law by virtue of section 3
of the Child Abduction Act [Chapter 5:05].
For the matter to come under the ambit of the Convention its article 3
must be satisfied.
It provides:-
“The removal or the retention of a child is to be
considered wrongful where-
(a) It is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly or alone, under the
law of the State in which the child was habitually resident immediately before
the removal or retention; and
(b) At the time of removal or retention, those rights were
actually exercised, either jointly or alone, or would have been exercised but
for the removal or retention.
The rights of custody mentioned is subparagraph (a)
above, may arise in particular by operation of law or by reason of a judicial
or administrative decision, or by reason of an agreement having legal effect
under the law of that State.”
I
have already said that the Applicant had joint custody of the children with the
Respondent to the extent that the children remained in South Africa and this
was by agreement of the parties. Mr. Majoko who appeared for Applicant
argued that what is being sought is the immediate return of the children who
were lawfully removed by agreement of the parties but are now being wrongfully
retained in breach of that agreement.
I
tend to agree with Mr. Majoko because
by relinquishing custody rights to the Applicant while the children attended
school in South Africa, Respondent could not unilaterally vary or terminate that
arrangement.
Once
the children were well settled at school in South Africa under his control the question
of accusations and counter accusations between the parties paled to
insignificance Kuperman v Posen
2001(1) ZLR 208(H) at 211 C-D. The
Applicant was therefore entitled to be consulted before they could be retained
in Zimbabwe. The matter then falls under
the provisions of the convention.
It
matters not that under Zimbabwean Law, the father of an illegitimate child has
no inherent right over such child Douglas
v Meyers 1991(2) ZLR (H) as argued by Advocate
Cherry for the Respondent. The
father was already enjoying rights of custody.
Therefore I make the finding that the retention of the minor children
was wrongful in terms of article 3 of the Convention.
In
trying to bring the facts of this case within the exception in article 13 of
the Convention, it was half heartedly argued in the opposing affidavit that
returning the children to South Africa would place the children in
psychological harm and put them in an intolerable situation merely because they
have to learn Afrikaans as a secondary language. That argument is not sustainable because it
is common cause that Grey Junior School is a good school and by Respondent's
own admission the children have been well taken care of in South Africa by the
Applicant and his wife Natalie. Advocate Cherry correctly did not pursue
that line of argument in his submissions.
The
clear purpose of the convention as appears on the preamble and article 1, is to
provide a mechanism to deal with the situation where children are wrongfully
removed, shall I add, retained, from a jurisdiction of their habitual
residence. Secretary for Justice v Parker 1999(2) ZLR 400(H) at 405 B-C. It is only in very exceptional circumstances that
the court will have a discretion to refuse to order their immediate return as
the convention has in mind a high degree of harm to the child and a high level
of intolerability, see Khumalo v Khumalo
2004(1) ZLR 248(H) at 253 F-G.
It
should also be understood that in this matter we are not dealing with the issue
of custody of the children but merely the enforcement of the Convention. Custody has already been determined by the
agreement of the parties and the Respondent has not lost her right over the
children. Therefore in giving effect to
the Convention the Applicant will have to comply with the agreement including
facilitating the return of the children to their mother during all school
holidays and also collecting them at the end of such holiday.
Accordingly
the application succeeds and the following order is made:
(1)
That
the Respondent should forthwith, and in any event not later than 48 hours from
the date of this order, release the children Liam Peacock and Jordan Paul Peacock
to the applicant to take the said children to school in South Africa.
(2)
In
the event that the Respondent, for any reasons, fails to comply with Clause 1
above, the Deputy Sheriff be and is hereby directed and authorised to remove the
children from the Respondent's control and custody and hand them over to the
applicant.
(3)
That
the Applicant is directed to facilitate the return of the children to the
Respondent at the end of every school term and to collect them at the end of
every school holiday and return them to school as long as they remain in school
in South Africa.
(4)
That
the Respondent shall bear the costs of this application.
Messrs. Majoko and Majoko, applicant's legal practitioners
Messrs Webb Low & Barry, respondent's legal practitioners
