- The court found that two British children were wrongfully retained in South Africa and ordered their immediate return to the United Kingdom under the Hague Convention.
- Judge L Lekhuleni rejected claims of consent, acquiescence and grave risk of harm, holding that no settled relocation agreement had been reached.
- The ruling confirms that cross border disputes under the Hague Convention are resolved by restoring the status quo.
A parent cannot simply turn a holiday into a permanent relocation. That is the finding of the High Court in the Western Cape, where Judge L Lekhuleni ordered the immediate return of two young boys to the United Kingdom after determining that they had been wrongfully retained in Cape Town.
At its core, the case required the court to determine where the children were habitually resident under the Hague Convention on the Civil Aspects of International Child Abduction and whether their continued stay in South Africa amounted to wrongful retention.
The evidence showed that the children’s lives were rooted in the United Kingdom. They were born there and are thus British citizens. They attended school and nursery there and received medical care in that country. Their beds, toys, clothing and primary home remained there.
The judge stated that “it is incontestable that the children’s habitual residence is in the UK.” He emphasised that habitual residence must be determined by examining the circumstances of the child’s life and the parents’ shared intention. Referring to authority, he reiterated that “habitual residence must be determined by reference to the circumstances of each case.”
Although the parents had discussed the possibility of relocating to South Africa, those discussions did not result in an agreement. The mother had no secured employment in South Africa, no established home, and no immigration changes had been made for the children. She commenced new employment with the UK Government in November 2025.
The court stated that “the first step towards acquiring a new habitual residence is to form a settled intention to abandon the one left behind.” That had not occurred.
Consent must be clear and unequivocal
The father argued that the mother had consented to the younger child remaining in South Africa. He relied on Article 13(a) of the Convention, which permits a court to refuse a return if the left behind parent consented to or subsequently acquiesced in the retention.
Judge Lekhuleni rejected this argument after reviewing the communications between the parties. The court referred to international authority stating that acquiescence requires “a convincing written renunciation of rights or a consistent attitude of acquiescence over a significant period of time.”
There was no such renunciation. The mother communicated her intention to collect the children and travelled to South Africa to do so. The judge concluded that the respondent had not established that she created an expectation that the children would remain permanently.
Grave risk means serious harm
The father also relied on Article 13(b), contending that returning the child to the United Kingdom would expose him to psychological or physical harm.
The court restated that the risk must amount to a “grave risk” or place the child in “an intolerable situation.” Judge Lekhuleni held that the respondent “has not proved the art 13(b) defence” and that he was “not satisfied on a balance of probabilities” that the child would face such harm.
The judge noted that there were “adequate support services and systems in place in the UK to address any concerns.”
Why urgency matters
The father’s counsel argued that the application was not urgent and that the children required psychological preparation before returning. The court rejected this submission. Judge Lekhuleni stated that “matters involving the Hague Convention are urgent in nature” and must be addressed in accordance with the Convention’s objectives.
He stated that “the welfare of the children is best promoted by reversing the effect of abduction as quickly as possible.”
The court ordered the children’s immediate return and directed the handover of their travel documents.
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