CONSTITUTIONAL COURT OF SOUTH AFRICA
The Ad hoc Central Authority for the Republic of South Africa and another v Heidi Nicole Koch N.O. and another
CCT 150/22 Date of hearing: 09 May 2023 ________________________________________________________________________
MEDIA SUMMARY
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The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 09 May 2023 at 10h00, the Constitutional Court will hear an application for leave to appeal against the judgment and order of the Supreme Court of Appeal, wherein that Court held that the respondents had successfully proved that returning the minor child (Emily) to the United Kingdom (UK) would expose her to the risks of psychological harm or otherwise place her in an intolerable position as contemplated in Article 13(b) of the Hague Convention on the Civil Aspect of International Child Abduction 1980 (the Convention). Both South Africa and the UK are parties to the Convention.
The first applicant is the Family Advocate, who acts in its representative capacity as the delegated Central Authority for South Africa (SA) in respect of the Convention. The second applicant is Paul Bell, Emily’s father, a British national who ordinarily resides in the UK. The respondents are Heidi Koch, Emily’s maternal aunt. She acts as the first respondent in a representative capacity on behalf of Emily’s deceased mother, Claire Colyn (a South African national who held UK citizenship), and as the second respondent in her personal capacity.
At the heart of this matter is whether the respondents meet the stringent test of Article 13(b) of the Convention. The facts are summarised as follows: Emily was born in the UK on 6 July 2017 to parents Paul Bell and Claire Colyn. Paul and Claire never married. Claire was diagnosed with colorectal cancer and underwent treatment in the UK. After exhausting all treatment options in the UK, she, together with Paul and Emily returned to South Africa on about 5 September 2019 to investigate alternate treatment options. They were all scheduled to return to the UK on 2 October 2019.
Claire underwent surgery on 26 September 2019 in South Africa, after which she was unable to return to the UK. During their time in South Africa, Paul and Claire’s relationship deteriorated. Paul returned to the UK on 2 October 2019. Emily remained in South Africa with her ill mother, Heidi and her maternal grandmother. Paul’s understanding was that Emily would remain with her mother while she underwent treatment after which they would return to the UK. Claire’s wish was that when she died, Emily would remain in South Africa with Heidi. Paul did not agree to this.
Once Paul heard that Claire wished for Emily to stay in South Africa permanently, he approached the Central Authority for England and Wales and submitted a request for the return of Emily from South Africa to the UK on the grounds that Emily’s retention in South Africa by her mother without his consent was in breach of the terms of the Convention.
In July 2020, Paul, assisted by the Family Advocate, brought an application under the Convention seeking an order that Emily was being wrongfully retained in SA contrary to Article 3 of the Convention and that she be returned to the UK. The respondents raised the Article 13(b) defence. Article 13 (b) provides, inter alia, that the state is not bound to order the return of the child to the state of habitual residence, if it is established that there is a grave risk that the return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The Article 13(b) defence was that if Emily were to return to the UK there would be a “grave risk that her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”
On 8 December 2020, Claire passed away after losing her battle with cancer. On 11 December 2020, Saldanha J delivered a judgment in which he ordered Emily to be returned to the. The High Court held, in summary, that the respondents had failed to show that if Emily was ordered to return to her habitual state of residence, she would be faced with the risk of grave psychological and physical harm or that she may otherwise be placed in an intolerable situation. The Court held that there was nothing to indicate that Emily would not be provided with appropriate accommodation in the UK were she to return. The Court held that on the contrary, it was demonstrated that there were mechanisms in the UK to assist Emily and mitigate the risks alluded to in the various witness reports, after the loss of a parent.
In the Supreme Court of Appeal, the respondents sought to introduce the evidence of Ms Pettigrew, an educational psychologist specialising in child forensic psychology. Ms Pettigrew’s opinion was based on the child’s functioning after the death of her mother. She commented on the likely psychological and emotional impact on the child of being removed from her aunt and her home and placed in the care of her father in the UK. The applicant opposed the admission of this evidence on various grounds, including that the new evidence was not material to the issue for determination, namely, whether the appellant could establish that there was a grave risk that the return of the child to the UK would expose her to psychological harm or alternatively place her in an intolerable
situation. The Court held that there were exceptional circumstances justifying the admission of Ms Pettigrew’s expert opinion including the fact that it commented on the child’s functioning after her mother’s passing which assessment could not have been conducted while Claire was still alive, during the High Court application. The Court then considered whether the High Court’s rejection of the mother’s defence under Article 13 of the Convention and ordering the child’s return to the UK, was correct. In this regard, the Court held that the removal of the child from her primary attachment figure (the aunt) and the current safe and secure environment would expose the child to psychological harm or otherwise place her in an intolerable situation. Moreover, the Court concluded that there was compelling evidence that the mechanisms in place in the UK were not sufficient to ameliorate the psychological and emotional harm to which the child would be exposed upon her return. The Court held that the High Court erred in rejecting the mother’s evidence supported by that of Professor Berg, which showed that the return of the child to the UK would expose her to the risk of grave psychological and physical harm or otherwise place her in an intolerable situation.
Before this Court, the applicants submit that this Court has jurisdiction because the matter raises a constitutional issue and an arguable point of law of general public importance. The constitutional issue is, according to the applicants, the best interests of the child in section 28(2) of the Constitution. The arguable points of law are, according to the applicants: first, what constitutes the proper standard or test in the application of an Article 13(b) defence.
Second, where to strike the balance between the short- and long-term best interests of a child in Convention matters. Third, whether there are exceptional circumstances justifying a departure from the peremptory provisions of Article 12, in circumstances where the retaining party has no rights of custody and access to the minor child under the Convention, and the parent seeking the return of the child to her state of habitual residence has such rights. Fourth, it questions the proper approach to be adopted by a court in circumstances where, due to the unique facts presented by a case, the exercise of a discretion against the return of a minor child effectively amounts to a custody determination, which is inimical to the Convention.The applicants submit that the matter is of public importance taking into account the growing number of international child abductions globally; that the points of law raised are arguable; and that there are reasonable prospects of success.
The applicants argue that courts in, inter alia, England, Canada, Australia and the United State of America have emphasised that the threshold to be crossed when an Article 13(b) is raised is a high one and difficult to surmount. That the risk must be grave, and the harm must be serious.
The applicants submit that this Court decided that it was justified to limit the best interests of the individual child involved in a Convention matter in order to protect the best interests of children in general. The applicants support their argument by stating that this approach set out by this Court in Sonderup was followed by Spilg AJ in Chief Family Advocate v G.
The applicants pray for an order upholding the appeal: that the minor child return to her state of habitual residence in accordance with the Convention, subject to safeguards as this Court deems appropriate.
The respondents contend that this Court’s constitutional jurisdiction is not engaged: the best interests of the child are paramount in every matter involving a child and this fact alone cannot trigger this Court’s constitutional jurisdiction. They argue that any consideration of section 28(2) in this matter could only have limited application to other Convention applications.
The respondents contend, inter alia, that the applicants do not raise any new principle in respect of the Convention that this Court has not previously ruled on or that warrants a ruling from this Court. In support of this, the respondents make reference to Sonderup, in which Goldstone J considered the constitutionality of the Convention and the effect of section 28(2) on its application. According to the respondents, Goldstone J specifically considered the extent of the limitation placed by the Convention on the rights contained in section 28(2) and held that such limitation was substantially mitigated by the exemptions provided for in Articles 13 and 20 of the Convention.
In response to the first purported legal question raised by the applicants, “What constitutes the proper standard or test in the application of an Article 13(b) defence?”, the respondents refer to a host of decisions by our courts that demonstrate a consistent understanding of and approach to this question. These cases include Sonderup and KG v CB. In particular, reference was made to KG v CB, wherein Van Heerden JA considered the existence and application of the Article 13(b) defence and aligned herself with the approach adopted by the UK Supreme Court in Re E. In response to the second purported legal question raised by the applicants, “Where to strike the balance between the short- and long-term best interests of a child in Convention matters”, the respondents contend that there is a significant body of international and local precedent which exists in respect of this question. In support of this contention, they once again make reference to the remarks made by this Court in Sonderup.
In response to the third purported legal question raised by the applicants: “Whether there are exceptional circumstances justifying a departure from the peremptory provision of Article 12,” the respondents argue that courts are “obliged to place in the balance the desirability, in the interests of the child, of the appropriate court retaining its jurisdiction, on the one hand, and the likelihood of undermining the best interests of the child by ordering his or her return to the jurisdiction of that court.” The respondents say that it is not in the interests of justice for the matter to be heard by this Court. They contend that this matter is no different from other Convention cases. They contend that, in all Convention cases where an Article 13(b) defence has been raised, the court was required to consider whether there was a grave risk to the child and whether the return of the child to the habitual residence would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
