The
applicant
is seeking an order declaring the continued retention of their minor
child, Brett Morris (born 21 October 2004) by the respondent
unlawful; that the minor child be returned to the custody of the
applicant within seven days of the granting of the order; plus costs
of suit.
The
parties were married to each other in the United Kingdom in 2004 and
the marriage still subsists although the parties are on separation.
In her founding affidavit, the applicant states that on 24 June 2007
she and the respondent entered into an agreement in terms of the
Children Act 1989 of the United Kingdom in respect of the minor
child. The agreement permitted the respondent to take the minor child
to Harare pending the applicant's fulfillment of the conditions
attaching to it. A copy of the agreement was annexed to the founding
affidavit.
The
crucial part of the agreement provides that -
“AND
UPON the mother and father agreeing that Brett shall only reside with
his mother as set out below; once the mother is able to provide a
secure home for Brett which it has been agreed will be once the
mother has provided documentary evidence to the father that she has
obtained tax credits for Brett, found a nursery place for Brett,
found a two bedroom property to live in and found employment in the
local area and until this happens, and not before 1 September 2007 in
any event, Brett will continue to reside with the father.”
It
is worthwhile to highlight other notable features of the agreement.
It
states that both parties have parental responsibility for the minor
child. There is a provision on the binding nature of the agreement
and that it can only be varied by consent, in writing, or by order of
court. There is also provision for the respondent's access to the
minor child during school holidays.
In
her founding affidavit the applicant states that she has met the
stipulated conditions. Documentary evidence in support of the claim
that the conditions were fulfilled was attached to the application.
The documents consist of a letter from a nursery, a copy of a lease
agreement, and proof of employment as well as proof of earnings. She
further avers that despite having fulfilled the conditions the
respondent has refused to return the child to her. She thus contends
that the respondent's continued retention of the minor child
constitutes an unlawful retention in terms of the Child Abduction Act
[Chapter
5:05],
and, in particular, Article 3 to the schedule thereof.
In
her answering affidavit, the applicant made the additional averment
that both she and the respondent had joint custody prior to the child
being brought to Zimbabwe.
In
his opposing affidavit, the respondent contends that the child has
been in his sole custody since January 2007. He also contends that
the applicant has not fully complied with the obligations imposed by
the agreement. In particular, he points out that the applicant
jointly leases residential accommodation with a third party such that
if her relationship with the third party was terminated she might not
be able to afford the rent for the property. Apart from contending
that he is not in breach of the Child Abduction Act the respondent
also contends that he did not bring the child to Zimbabwe in terms of
the agreement with the applicant but he did so in his capacity as a
co-guardian and custodian parent. He is also not satisfied with the
contents of the annexures to the supporting affidavit. In addition,
the respondent also contends that it is not in the interests of the
minor child that it be returned to the applicant. The rest of the
opposing affidavit deals with the reasons thereto.
It
was submitted, on behalf of the applicant, that the retention of the
child is wrongful in terms of Article 3 of the Convention on the
Civil Aspects of International Child Abduction as such retention is
in breach of the applicant's rights of custody under English law.
An uncertified copy of the Children Act 1989 of the United Kingdom
was annexed to the applicant's heads of argument….,.
It
was also submitted that since the current proceedings were commenced
eight months after the wrongful refusal the applicant is entitled to
the prompt return of the child in terms of Article 12 of
the Convention on the Civil Aspects of International Child Abduction.
This is because in terms of Article 12, where proceedings are
commenced within one year of the wrongful act the judicial or
administrative authority shall order the child's return forthwith.
It
was also submitted that the respondent has to show that a high degree
of harm will result if the child's return is ordered or that a
highly intolerable situation will result.
Finally,
it was also submitted that the purpose of the present proceedings is
not to consider the best interests of the child as if the court were
determining the merits in a custody suit. Reference was made to the
case of Secretary
for Justice v Parker
1999 (2) ZLR 400 (H).
On
the other hand, it was submitted, on behalf of the respondent, that
since the child was not brought to Zimbabwe unlawfully, the applicant
has to prove that the retention of the child is in violation of
Article 3(a) of
the Convention on the Civil Aspects of International Child Abduction.
Since the purpose of the Convention is to return the child to the
country of habitual residence, it was also submitted that the
applicant has not proved that the child was habitually resident in
the United Kingdom.
It
was also submitted that the applicant must be bound by what she
stated in her founding affidavit as she only raised the issue of
joint custody in her answering affidavit.
As
regards custody of the child whilst in the United Kingdom, it was
submitted that it is the respondent who had custody during the week,
with the applicant only exercising custody during weekends. Reference
is made to the agreement which spells out the specific details of the
respective custody rights of the parties.
The
applicant's reliance on the English Children Act has been attacked
on the ground that the statute was not adduced in accordance with
Article 12 of
the Convention on the Civil Aspects of International Child Abduction.
According to this argument, expert evidence is required before any
reliance can be placed on the foreign statute. There was also the
contention that the applicant failed to prove that the child was
habitually resident in the United Kingdom at the time the cause of
action arose. As such, the argument was that the Convention does not
apply to the facts of this case.
In
respect of the terms of the agreement, two arguments were advanced on
behalf of the respondent;
(a)
The first one was that the applicant did not provide the tax credits
in favor of the child.
(b)
Secondly, it was contended that the applicant did not provide a
secure home for the child. This is because the lease agreement is not
in the applicant's sole name.
(c)
Thirdly, it was also argued that the applicant did not secure
employment 'in the local area' as required by the agreement.
There
was also the additional argument that it has to be shown that the
agreement has legal effect in the jurisdiction of the child's
habitual residence for purposes of compliance with Article 3 of
the Convention on the Civil Aspects of International Child Abduction.
In this respect, it was submitted that the applicant failed to prove.
After
arguments had been presented in this matter I directed the respective
counsels to file additional heads of argument on the issue of whether
the application is properly before the court.
This
has been adequately answered by the respondent's counsel. Although
she did not file supplementary heads of arguments, in her note to the
Registrar she pointed out that the issue is covered by Article 29 of
the Convention on the Civil Aspects of International Child Abduction.
I am indebted to counsel for pointing out that provision which states
that -
“This
convention shall not preclude any person, institution or body who
claims that there has been a breach of custody or access rights
within the meaning of Article 3 or 21 from applying directly to the
judicial or administrative authorities of a Contracting State,
whether or not under the provisions of this Convention.”
The
Child Abduction Act [Chapter 5:05] gives effect to the Convention on
the Civil Aspects of International Child Abduction. The Convention is
incorporated as a schedule to the Child Abduction Act. Article 3 of
the Convention provides that -
“The
removal or the retention of a child is to be considered wrongful
where -
(a)
It is in breach of the 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; and
(b)
At the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised
but for the removal or retention.
The
rights of custody mentioned in 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
am not persuaded by the argument advanced by the respondent's
counsel that for purposes of resolving the present dispute it must be
accepted that the country of habitual residence of the minor child is
Zimbabwe.
The
agreement between the parties clearly states that they had joint
custody of the minor child. Those rights of custody would have
continued to be exercised jointly in the United Kingdom had the child
not been brought to Zimbabwe. In this respect see Article 3(b) of the
Convention on the Civil Aspects of International Child Abduction.
I
agree with counsel for the applicant's submission that the term
habitual residence must be accorded its ordinary meaning. I also
agree with his submission (in the context of the facts of the present
case) that it does not follow that where one leaves one's country
of habitual residence then one loses that residence. It cannot
follow, therefore, that the habitual residence of the child is
Zimbabwe for purposes of determining whether the child has been
wrongfully retained in terms of Article 3 of the Convention on the
Civil Aspects of International Child Abduction.
I
agree with the submission that the issue for determination here is
not the custody rights of the parties. That issue is for the
jurisdiction of the country of habitual residence of the child. As I
understand it, the purpose of the present proceedings is to secure
the prompt return of the child to a Contracting State if it is proved
that the child has been wrongfully retained. In this respect see
Articles 1 and 3 of the Convention on the Civil Aspects of
International Child Abduction.
The
matter cannot be determined on the basis of the best interests of the
child. In this respect I agree with the reasoning of DEVITTEE J in
the case of Secretary
for Justice v Parker
1999 (2) ZLR 400 (H). Having made reference to Article 1 of the
Convention on the Civil Aspects of International Child Abduction, the
learned judge had this to say…,;
“The
clear purpose of the Convention, as the preamble and Article 1
indicate, is to provide a mechanism to deal with situations where
children are wrongfully removed from a jurisdiction in which they are
habitually resident. I am bound, therefore, to endeavor to give
maximum force to the purposes of the Convention.”
It
was also submitted by the respondent's counsel that the foreign law
availed by the applicant has not been authenticated in accordance
with the provisions of the Child Abduction Act [Chapter 5:05]. She
submitted that this was the procedure that was followed in Secretary
for Justice v Parker
1999 (2) ZLR 400 (H) where the Lord Chancellor's Department
provided an authenticated copy of the relevant statute when an
application was made to the Secretary for Justice.
I
agree that no reliance can be placed on the uncertified copy of the
Children Act 1989 of the United Kingdom. However, to overcome this
handicap, counsel for the applicant sought to rely on sections 24 and
25 of the Civil Evidence Act. He submitted that in respect of section
24(3), the court can take judicial notice of any fact that is not the
subject of reasonable dispute. In this respect he cited Halbury's
Laws of England,
third edition as authority for the proposition that both the
applicant and the respondent had parental responsibility in respect
of the child in accordance with English law.
Counsel
for the applicant further submitted that the provisions of the Civil
Evidence Act should be read in conjunction with Article 14 of the
Convention on the Civil Aspects of International Child Abduction. He
further submitted that Article 14 should prevail over the provisions
of the Civil Evidence Act. In this respect, he submitted that the
Convention on the Civil Aspects of International Child Abduction is
concerned with the expeditious resolution of disputes concerning
children. Counsel for the applicant also submitted that in terms of
section 24 of the Civil Evidence Act, the court may take judicial
notice of certain matters that are not the subject of reasonable
dispute. Thus, he urged the court to take into account Halsbury's
Laws of England,
Third Edition in respect of the law in the United Kingdom regarding
custody rights.
The
first paragraph of the agreement clearly states that both parties
have parental responsibility over the child. This is a feature of
English law as stated in Halsbury's
Laws of England,
Third Edition.
In
the case of Chief
Family Advocate and Another v G
2003 (2) SA 599 (W) the parties were married according to South
African law. They had one child. They moved to Britain where they
subsequently separated, with the child staying with the father.
Without the mother's knowledge the father took the child back to
South Africa where he promptly enrolled it at a school. The mother
then obtained an order from the Family Law Division of the High Court
to the effect that the child remained a ward of the court. SPILG AJ
held that, according to the Children's Act 1989 of the United
Kingdom, each parent has parental responsibility over a child born of
their marriage. The learned judge also noted that, in the United
Kingdom, parent-child relations are no longer founded on the basis of
control but on the assumption of responsibilities. He further noted
that this was well set out in Halsbury's
Laws of England
Vol. 5 (3), 4th
Ed.
Although
the respondent contends that the applicant has not fully complied
with the conditions of the agreement, there appears to be no basis
for such argument. The agreement in respect of accommodation requires
the applicant to secure a two bed roomed property. It is immaterial
that the applicant shares the property with her partner. In any event
that is an issue for determination by the court that determines who
should have sole custody of the child should the dispute between the
parties take that route. As regards the condition that the applicant
must secure employment in the local area where she lives, the letter
from the applicant's employer states that she works from home on a
full time basis. In respect of child tax credit, the explanation is
that the applicant cannot claim that until she starts living with the
child. Apart from a generalized challenge, the respondent has not
rebutted that explanation by way of any other contrary proof.
The
return of a child may also be refused in terms of Article 13 of the
Convention on the Civil Aspects of International Child Abduction
which provides that -
“Notwithstanding
the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order
the return of the child if the person, institution, or other body
which opposes its return establishes that -
(a)
The person, institution, or other body having the care of the person
of the child was not actually exercising the custody rights at the
time of removal or retention, or had consented to or subsequently
acquiesced in the removal or retention; or
(b)
There is a grave risk that his or her return would expose the child
to physical or psychological harm or otherwise place the child in an
intolerable situation.
The
judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being
returned and has attained an age and degree of maturity at which it
is appropriate to take account of its views.
In
considering the circumstances referred to in this Article, the
judicial and administrative authorities shall take into account the
information relating to the social background of the child provided
by the Central Authority or other competent authority of the child's
habitual residence.”
The
respondent did not invoke this provision and confined himself to the
contention that the applicant did not comply with the terms of the
agreement they signed.
In
the circumstances, I am satisfied that the requirements of the
Convention on the Civil Aspects of International Child Abduction have
been met. The application is therefore granted in terms of the draft
order.
