- The Supreme Court of Appeal has overturned a previous High Court decision, ordering the prompt return of a minor to Switzerland under the 1980 Hague Convention.
- The court found both parents held joint custodial rights and that Switzerland was the child’s habitual residence, rejecting claims of consent or grave risk of harm.
- Detailed undertakings were imposed to ensure the welfare of both mother and child upon their return, including financial support and accommodation.
A protracted legal battle spanning three countries has reached a decisive point after the Supreme Court of Appeal of South Africa ruled that a four-year-old boy, known as L, must be returned to Switzerland.
The judgment reverses an earlier decision by the Pretoria High Court, which had refused the application by South Africa’s Central Authority for the boy’s return, and clarifies how international child abduction conventions are to be applied in complex cross-border custody disputes.
A family divided across borders
The facts in this case read like a modern family drama unfolding across Europe and Africa. Ms MV, a dual South African and Italian citizen, and Mr VL, an Italian national who later secured Swiss citizenship, met in Italy and later cohabited in Switzerland. Their son, L, was born in Italy but soon joined his parents in Geneva, where the family set up home.
As the court records, “They all lived together, with Mr VL being away sometimes due to work commitments. After the minor child, L’s birth, the parties travelled and stayed together with the minor child, L, on vacation, weekends, or paternity leave in Italy, France, and Switzerland.” The family’s move to Geneva, the child’s enrolment at a crèche, and the purchase of an apartment there were all cited as evidence of their intention to settle in Switzerland.
Retention in South Africa
In May 2022, the family travelled to South Africa for a family wedding. Ms MV and L remained behind after she tested positive for COVID-19, while Mr VL returned to Switzerland. The court found that, after her recovery, “Ms MV made several excuses to delay her return to Switzerland,” eventually cancelling her booked flight and deciding to remain in South Africa, where she had the support of her family.
Mr VL, upon realising that his son was not returning, sought legal remedies both in Italy and Switzerland, and the Swiss Central Authority formally requested the child’s return under the Hague Convention on the Civil Aspects of International Child Abduction.
Focus on marriage and harm
The High Court had refused to order the child’s return, emphasising the fact that the parents were not married and questioning whether Switzerland was truly the child’s habitual residence. The judge found that “removing the minor child, L, from Ms MV’s care would cause the minor child serious emotional harm” and that there was no evidence the boy was at grave risk if returned with his mother. The High Court also suggested that Mr VL’s conduct raised doubts about his willingness to comply with any conditions for the mother’s return to Switzerland.
Habitual residence and parental rights
The Supreme Court of Appeal found the High Court had misdirected itself by focusing on the parents’ marital status and not the factual circumstances of the child’s residence. “The correct facts show that the parties were settled in Switzerland, as correctly found by the high court,” Acting Judge Norman wrote. The court noted that both parents had exercised joint parental responsibilities and that Switzerland was the centre of their professional and personal lives before the dispute.
Crucially, the court held: “Once those parental responsibilities, including joint custody, were acquired under Italian laws, they were not relinquished or extinguished when the parties moved to Switzerland. They remained extant.” The court rejected Ms MV’s argument that Mr VL had consented to the child staying in South Africa or had acquiesced to the retention.
International law and the best interests of the child
The judgment thoroughly canvassed the requirements of the 1980 Hague Convention and applicable Swiss and Italian law, finding that the removal of the child was wrongful without the father’s consent. On the question of grave risk or intolerable situation as defences to return, the court stated: “The presence of mental challenges does not translate to the grave risk of harm contemplated in Article 13(b).”
The court also acknowledged the delay in proceedings and the impact on the child’s adjustment to life in South Africa but held that to reward the party who unlawfully retained the child would undermine the aims of the Hague Convention.
Practical measures and safeguards for return
Recognising the complexities of relocating a young child and his mother, the court imposed specific undertakings on the father. Mr VL was ordered to pay for flights, provide accommodation, cover maintenance and living expenses, and facilitate continued access to medical care and education.
He was also barred from instituting any criminal or contempt proceedings against Ms MV over the retention of the child. The court emphasised, “I do not doubt that if she chooses to accompany the minor child, L, the Swiss courts will make provision for her stay in Switzerland in such a way that, in exercising her parental rights, she will not be prejudiced.”
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
