7. Exceptions to the rule of peremptory return in terms of the Hague Convention and the Australian Regulations
7.1 Exception one: Article 12 of the Hague Convention and Regulation 16(2) of the Australian Regulations: Settled in a new environment
[1] Article 12 and Regulation 16(1)(b) and (c) provide the rule of peremptory return in South Africa and Australia respectively. This rule provides that if an application for the child’s return is launched within a year of the child’s wrongful removal or retention, the court, judicial or administrative body of the requested country is to order the child’s return unless one of the available exceptions/defences is raised and proven. However, if the application is launched more than one year after the child’s wrongful removal or retention, the court must then consider whether the child is settled in their new environment33 prior to ordering their return. If the aforementioned is satisfied, the court then maintains a discretionary power in terms of Article 18 of the Hague Convention and Regulation 16(5) of the Australian Regulations, even if an exception is proven, to refuse to order the child’s return or to order the return of the child subject to conditions and undertakings being imposed on the return order.34 In both countries the return is, however, not to the left-behind parent but to the state of the child’s habitual residence.35 Thus in both countries an opposing parent or party can raise the exception/defence that the application is outside the stipulated time period and that the child is now settled in their new environment.
31 Du Toit op cit (n10) 360; Article 16 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 prevents courts from determining issues of custody on the merits until it has been determined that the child is not to be returned under the Hague Convention, or if an application has not been lodged within a reasonable period of time.
Regulation 18(1)(c) and 19 of the Family Law (Child Abduction Convention) Regulations, 1986 provides the same. Articles 17 and 19 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 also apply here; Curtis op cit (n2) 631.
32 Curtis op cit (n2) 631; Article 1 and the Preamble of the Hague Convention on the Civil Aspects of International Child Abduction, 1980.
33 Article 12 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; Regulation 16(2)(b)-(c) of the Family Law (Child Abduction Convention) Regulations, 1986.
34 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe [1997] FamCA 45 at para [3.32]; State Central Authority v Ayob (1997) FLC 92-746 at para [80]. The cases of Ayob (supra), SCA & CR supra (n30) and State Central Authority & Hajjar supra (n30) at paras [200]-[205], were the only cases which found that the court’s did not maintain a discretion to order the return, however these shall not be considered as no further case law supports their expressed views and the Regulations and Hague Convention specifically provide for the courts discretion.
35 T Buck International Child Law (2005) 135; Heaton (2010) op cit (n10) 314; see generally Brown v Abrahams [2004] 1 All SA 401 (C), 2004 (4) BCLR 349 (C); Carmel Faye Gsponer and Peter Johnstone Appeal [1988] FamCA 21 at para [59];
F Bates ‘“Escaping mothers” and the Hague Convention – the Australian experience’ (2008) 41(2) CILSA 253-254; This view was also supported in the case of Murray v Director of Family Services, ACT [1993] FamCA 103; (1993) FLC 92-416;
16 Fam LR 982; Penello v Penello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA) at para [53] as the return of a child would be unlikely to be into the same situation from that which they were initially removed.
[2] In South Africa a two-step enquiry is followed.36 If both steps are satisfied then the court maintains a discretion to order or refuse the child’s return.37 In both countries the period of a year runs from the date on which the child was wrongfully removed and retained and not from the date judicial proceedings began.38 The enquiry regarding whether a child is in fact settled in their new environment is a factual one39 and the South African court should exercise its discretion in each case in light of the objectives of the Hague Convention in determining whether or not the child is settled.40 The courts must consider whether the child is physically and emotionally settled (e.g. established in the community as well as in their emotional environment which constitutes security and stability in a permanent manner for the child)41 and whether the child is socially integrated.42 It was considered that the settlement must be more than mere adjustment to the surroundings43 and the term ‘new’, in regards to the new environment, pertains to the moment at which the court considers the application, and not to the date of abduction.44 It subsequently refers to the child’s home, friends, school, activities and people and not to the relationship between the child and the abducting parent.45
[3] In terms of the Australian law, the case of Marriage of Graziano v Daniels (1991) 14 Fam LR, FLC 92 – 212 proposed the test that settlement should be more than a determination of whether the child was
36 Secretary for Justice (As the New Zealand Central Authority on behalf of TJ ) v HJ [2006] NZSC 97 at para [45]; Re N (Minors)(Abduction) [1991] 1 FLR 413; Nicholson op cit (n3) 234 & 242; Silberman op cit (n23) 246-247; JMT Labuschagne ‘”Human rights’ status of a court order, in terms of the Hague Convention, that a child, abducted by a parent and taken from one country to another, has to be returned’ (1998) 23 South African Yearbook of International Law 281;
CMA Nicholson ‘Can South Africa follow England’s example and apply a strict interpretation of Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction? (1999) 32(2) De Jure 250; Central Authority v B 2009 (1) SA 624 (W), at paras [7]–[8], followed this two-step enquiry: Hodson op cit (n28) 259.
37 Du Toit op cit (n10) 361.
38 State Central Authority v Ayob supra (n34); Central Authority v B supra (n36) at 632A-C.
39 Du Toit op cit (n10) 361.
40 Article 1 of the Hague Convention on the Civil Aspects of International Child Abduction, 1980; Clark op cit (n1) at para [19].
41 Hodson op cit (n28) 264.
42 Secretary for Justice (As the New Zealand Central Authority on behalf of TJ) v HJ supra (n36) at para [55] – the reason the South African court may consider this foreign law is provided for in terms of section 39 of the Constitution of the Republic of South Africa, 1996 which allows the court’s in interpreting matters to consider foreign law herein; Du Toit op cit (n10) 361;
Director-General Department of Families, Youth and Community Care & Moore [1999] FamCA 284 at para [61].
43 Re N supra (n36); Section 39 of the Constitution of the Republic of South Africa, 1996 allows, when interpreting South African law, the consideration of foreign case decisions to assist herewith.
44 Hodson op cit (n28) 264-265; Director-General Department of Families, Youth and Community Care & Moore supra (n42) at para [64].
45 Loc cit.
considered as happy, secure and adjusted to their surrounding circumstances.46 This case held that the word ‘settled’ meant that of a physical element relating to or being established within a community and environment.47 This also denoted an emotional element of security and stability.48 It was also held by the court that the relevant environment was not made up of or constituted only by the mother but the relevant environment was considered to be a community in a geographically defined place and in order for the child to be considered as settled there, it must have significance for the child.49 The court must thus look beyond how the child is fitting into the society in general as well as outside of the home, including the making of friends; the development of ties with school and other matters of that kind.50
‘Settling’ was regarded as a matter of degree.51 This is thus similar to the test adopted by the South African courts.
However, the Australian case of Director-General, Department of Community Services v M and C52 refers to the case of De L v Director-General, New South Wales Department of Community Services where it was decided that, although in relation to a different Regulation, that no additional gloss was to be applied to the phrase.53 The court in the case of M and C held that ‘[t]he test, and the only test to be applied, is whether the children have settled in their new environment.’54 This was confirmed in
46 Young & Monahan (2009) op cit (n2) 346; F Bates ‘Undermining the Hague Child Abduction Convention: The Australian way …? (2001) 9(1) Asia Pacific Law Review 47. The view is similar to that expressed in the case of Re N supra (n36) at 417 where the Judge said that the abducting parent was required to establish the degree of settlement as more than that of a mere adjustment to the surroundings: Bates op cit at 51. This view is confirmed by the cases of Director-General of Community Services v M and C supra (n30) at paras [11] & [15] and De L v Director-General, New South Wales Department of Community Services supra (n2). This view was also supported by the case of State Central Authority and Ayob supra (n34);
Director-General Department of Families, Youth and Community Care & Moore supra (n42) at paras [64] & [66].
47 Young & Monahan (2009) op cit (n2) 346-347; Department of Child Safety & Kells [2009] FamCA 452 at paras [18].
48 Young & Monahan (2009) op cit (n2) 347; State Central Authority & Hajjar supra (n30) at para [168].
49 Young & Monahan (2009) op cit (n2) 347.
50 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n34) at paras [3.24] & [3.25] - [3.27] which considered the evidence regarding the child’s settlement into the environment and their inclusion in extra mural activities, friends, schooling etc: F Bates ‘Child abduction, the Hague Convention and Australian law – a specific overview’ (1999) 32 CILSA 79.
51 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n34) at para [3.24]; Bates op cit (n46) 48.
52 Director-General, Department of Community Services & M & C & Child Representative supra (n30) at para [91]; see also Director-General, Department of Families, Youth and Community Care v Moore (supra (n42)); Townsend & Director- General, Department of Families, Youth and Community [1999] FamCA 285 at paras [30] & [33]-[35].
53 Young & Monahan (2009) op cit (n2) 347; Department of Child Safety & Kells supra (n47) at para [18]; Townsend &
Director-General, Department of Families, Youth and Community supra (n52) at paras [28]-[29].
54 Director-General, Department of Community Services v M and C supra (n30) at 192; Young & Monahan (2009) op cit (n2) 347; Northern Territory Central Authority & Gambini supra (n30) at para [95]; Department of Child Safety & Kells supra (n47) at paras [18]; Townsend & Director-General, Department of Families, Youth and Community supra (n52) at paras [28]- [29]; State Central Authority & Hajjar supra (n30) at para [156].
Townsend v Director-General, Department of Families, Youth and Community Care (1999) 24 Fam LR 49555 which also rejected the test in Graziano. Therefore the test is different to that used in South Africa.
Townsend also agreed that the word ‘settled’ should be given its ordinary and natural meaning and not a restrictive meaning.56 In terms of Townsend the test is:
‘[T]he test for whether a child is “settled in his or her new environment” requires a degree of settlement which is more than mere adjustment to surroundings, or that the word “settled” has two constituent elements, a physical element and an emotional constituent, it represents a gloss on the legislation and should not be regarded as accurately stating the law. We agree with the Full Court in M and C (the correctness of which was not challenged before us) that “The test, and the only test to be applied, is whether the children have settled in their new environment”.’57
In the case of Moore it was also held that whether children are settled within the meaning of the Regulations, it is necessary to look not only at the past and present situation, but also into the future.58 The case of SCA v CR held that in order for the child to be settled in the new environment, they must be
‘adjusted’ to the new environment and appear to be happy and content.59
55 Young & Monahan (2009) op cit (n2) 347; Townsend & Director-General, Department of Families, Youth and Community supra (n52) at paras [30] & [33]-[35]; Bates op cit (n46) 51; Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n34) at 84, 669; Northern Territory Central Authority &
Gambini supra (n30) at para [93].
56 Townsend v Director-General, Department of Families, Youth and Community Care supra (n52) at paras [28]–[31];
Young & Monahan (2009) op cit (n2) 347; Northern Territory Central Authority & Gambini supra (n30) at para [95]; see also Secretary, Attorney-General’s Department v TS supra (n30) as per Nicholson CJ, at para [106], and SCA v CR supra (n30) at paras [36]–[37]; Bates op cit (n46) 51; Director-General, Department of Community Services & M & C & Child Representative supra (n30) at para [52]; See also De L v Director General NSW Department of Community Services supra (n2) at 655-657; Director General, Dept of Families, Youth and Community Care v Moore supra (n42) at paras [68]-[69];
State Central Authority & Hajjar supra (n30) at para [156].
57 Northern Territory Central Authority & Gambini supra (n30) at para [94]; see also Director General, Department of Community Services v M and C & Child Representative supra (n30) & Secretary, Attorney General’s Department v TS supra (n30); Townsend & Director-General, Department of Families, Youth and Community supra (n52) at paras [30] & [33]-[35].
The emphasis has been removed from the quote. Director-General Department of Families, Youth and Community Care &
Moore supra (n42) at paras [68] & [70].
58 Director-General Department of Families, Youth and Community Care & Moore supra (n42) at para [67]; Director- General, Department of Community Services & M & C & Child Representative supra (n30) at para [88], referring Re N supra (n36) at 417-418 Here ‘her Ladyship said that the word ‘settled’ should be given its ordinary natural meaning. She said that it involved both a physical element of being established in a community and an environment and also an emotional constituent denoting security and stability ...’ [M & C at para [89]] This was also cited with approval in the case of Director General of the Department of Community Services (Central Authority) and Apostolakis 21 Fam LR 1 at para [90]. However at para [91]
it was held that ‘this statement does not represent the law so far as the Australian Regulations are concerned. As the majority of the High Court pointed out in De L v Director-General, NSW Department of Community Services (supra (n2))], it is the Regulations that must be applied. Nowhere in the Regulations are the words ‘long term’ to be found and there is in our view no warrant for importing them. The test, and the only test to be applied, is whether the children have settled in their new environment. That test is to be applied either at the time of the application being made or at the time of trial. It is unnecessary to consider which date is the relevant one in the context of this case, given the short period between the two dates.’’’
59 Northern Territory Central Authority & Gambini supra (n30) at para [95]; SCA v CR supra (n30) at para [52].
[4] In regards to the concept of a ‘new environment’ in terms of Australian law, it was held that the simple and ordinary meaning of the words should be employed and thus it is ‘an environment which is new to the child, meaning not the same as the previous environment.’60 It was held, however, that a new environment was not that from which the child was removed and that placing additional glosses on the meaning of those words in the Regulation would do them a disservice.61 However, in regards to a younger child, the paradox is that they may be easily shown as having been settled and that the needs to be in a settled lifestyle are firmly entwined around the principal caregiver.62 It was further suggested that in regards to a very young child that the corresponding home environment is of great importance to them and if they are settled, it would then appear that the situation which the Hague Convention foresees, occurs where the child should not be returned as having regard to the passage of time and thus the theoretical environment of the child must not be considered.63
[5] Although the Australian law proposes a different concept for determining whether a child is settled in their new environment, it is submitted that as there has been little opportunity for the courts to consider and interpret this defence due to the few issues it presents, that they continue to apply the established test in the South African borders as it is settled. Adopting the Australian approach could address the identified shortcoming of the South African approach discussed in Chapter [2]; at point [8.1(7)]. The South African courts can benefit from considering the methods of the Australian courts.
The Australian method should definitely be considered in regards to very young children as the South African courts have not had to consider such a situation in too much detail as yet. Despite the aforementioned it is submitted that the South African courts should continue to apply the test as it stands despite the fact that in terms of the Australian law it seems to add an additional unacceptable gloss to the
60 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n34) at para [3.19]. The judge in this case did not accept the view of the case of Director-General, Department of Community Services v Apostolakis supra (n58) which referred to the case of Re N supra (n36) at para [26] which considered the view ‘... that the word 'new' is significant in this context. Where a relevant child merely exchanges one environment for a similar one, as will often be the case where all that happens is that the child moves from one modern city to another, particularly if the language spoken remains the same, the fact that it can be demonstrated that the child is managing quite well in the more recent environment, may amount to no more than establishing that the child has adjusted to different but similar surroundings.’
Bates op cit (n50) 75. This case indicated that the word ‘new’ was significant and must include place, home, school, people, friends, activities and opportunities: Director-General, Department of Community Services & M & C & Child Representative supra (n30) at para [13]. The aforementioned is similar to the view adopted by the South African courts.
61 Director-General, Department of Families, Youth and Community Care And: Timothy Joseph Thorpe supra (n34) at para [3.20]. The meaning of the word ‘new’ in the case of Director-General, Department of Community Services v Apostolakis supra (n58) was considered unjustified. See Bates op cit (n50) 75 and this was supported by De L v Director-General, New South Wales Department of Community Services supra (n2); Bates op cit (n46) 51.
62 SCA & CR supra (n30) at para [3].
63 Secretary, Attorney-General's Department and TS supra (n30) at para [116].
meaning of the words. The defence has so far been adequately dealt with in terms of the South African law and it is submitted that deviating from this steady approach could have unpleasant and unjust consequences.
7.2 Exception two: Article 13(a) of the Hague Convention and Regulation 16(3)(a)(i) of the