Siblings ‘should be sent back to South Africa with their mother’

The daughters of a divorced couple should return to South Africa with their mother, the High Court has ruled following a lengthy remote hearing.

I and L (Children) concerned a couple who married in South Africa in 2010. They moved back and forth between the UK and South Africa for the next few years. Their two daughters, now aged eight and six, were both born in South Africa and in 2015 they settled permanently in that country.

During the marriage the father struggled with alcohol. The wife alleged that he was abusive to her while under the influence. He denied this but did admit to struggling with drink and using it to self-medicate against anxiety and depression. He acknowledged that his addiction had affected his wife “for which I am very sorry”.

The couple split up in January 2017 and the father moved out. The mother began a new relationship with a man she later married. She travelled back to the UK without the father’s consent and enrolled the children at a school in Brighton. The father followed them back and the mother quickly decided to return to South Africa with the children, but he refused to agree to this.

She disregarded this and travelled back without his agreement, going into hiding once there. Unable to contact his children, the father was left with no choice but to begin proceedings under the Hague Convention on the Civil Aspects of International Child Abduction, a legal treaty which provides a means to return children who have been abducted abroad by a parent or guardian. The father eventually located her but when interviewed by a South African official in relation to the Hague Convention application, she initially provided false information on her then living arrangements.

In a recently published High Court judgement, Mr Justice Mostyn said of the mother:

“This was not creditable behaviour by the mother. Her delinquency was compounded by her actions in somehow changing the surnames of the children, in 2017 and 2018 respectively, from that of the father to her maiden name. The conduct of the father meted out to her during the marriage did not justify behaviour of this nature.”

He added:

“It is my clear judgment that up to this point both parents can be seriously criticised for their behaviour during the lifetimes of these girls.”

Eventually the couple reached an agreement. The mother would be the girls’ primary carer while the father would see them for extended periods. The plan was for this agreement to be made into a binding court order, but this was still awaiting approval by a South African judge when the mother and two girls travelled back to England for an extended holiday during which the children would stay with their father.

However, shortly after their arrival, the father made a sudden application in the High Court for his daughters to be made wards of court “until such time as their welfare can be considered”.

He also asked the Court to take temporary possession of the children’s passports and to prohibit the mother from “taking the children from my care until further order”. These two measures are legally known as a passport order and a ‘prohibited steps’ order. The latter can apply to any specific prohibition issued by a court.

The father’s applications relied on the claim that the children were ‘habitually resident’ in the UK. The legal concept of habitual residence is one of the principal criteria used to assess whether children taken abroad by a parent should be returned to the country in which they previously lived.

Mr Justice Mostyn considered the children’s welfare in a lengthy hearing conducted entirely via the video conferencing software Zoom due to the current pandemic restrictions. The Judge had previously concluded that neither party would be at a disadvantage in a video-based hearing.

The hearing included evidence from Cafcass, the government agency which works to protect the welfare of children involved in family disputes. The options before the court were the sisters remaining in the UK, living with their mother and seeing their father as he wished, or returning them to South Africa as originally planned. The first option would mean the mother living apart from her second husband unless he agreed to move to England too.

The Judge adhered to the fundamental legal principle in cases involving children that their welfare and best interests should be the “paramount” consideration. He rejected the father’s application, concluding that a return to South Africa was in the girls’ best interests. Both also said they wished to return. They had already been living in South Africa for a number of years and he suspected that the father had been motivated by a desire to avoid a Hague Convention application by the mother if he retained their children in Britain after the scheduled Christmas visit.

The Judge concluded:

“At the present time there are no flights between London and South Africa. South Africa has barred entry to foreign nationals and all visas have been temporarily revoked. Plainly, the mother will not be able to return to South Africa with the children until it has been deemed safe to do so by both the UK and South African governments. Therefore, my order will provide that the actual return date will be on a date to be fixed following the filing of further written submissions by the parties.”

Read the full ruling here.

Image by vemiya via Flickr (Creative Commons)