- Three children aged 17, 14 and 12 can stay in South Africa while the Supreme Court of Appeal considers their mother’s appeal.
- The majority found the father had not shown that he would suffer irreparable harm if their return was delayed.
- A dissenting judge said delaying their return would undermine the Hague Convention and prolong the harm caused by removing them from Australia.
Three children who were brought to South Africa by their mother, without their father’s knowledge or consent, can stay in the country while the Supreme Court of Appeal (SCA) looks at an appeal against an order sending them back to Australia.
The High Court in the Western Cape, sitting as a Full Bench, upheld the mother’s appeal against an order that would have required the children to return right away, even though the appeal process was still underway.
In a judgment delivered on 6 November 2026, Judge ED Wille, with Judge JI Cloete agreeing and Judge SD Kusevitsky disagreeing, said the father had not shown the exceptional circumstances and irreparable harm required under section 18 of the Superior Courts Act 10 of 2013.
Children have lived in South Africa since March
This case is about three children aged 17, 14 and 12, who were born to parents who separated for good in August 2020. The children mostly lived with their mother from birth. From June 2023, they stayed with both parents under a shared, week-about arrangement.
In March 2026, just before school holidays, the mother brought the children to South Africa without the father knowing or agreeing. They have stayed with her in South Africa ever since.
The father went to court to try and get them sent back to Australia under the Hague Convention on the Civil Aspects of International Child Abduction. With the oldest child already 16 when the case began, his application was brought under the Children’s Act 38 of 2005.
The mother fought the application, arguing under Article 13(b) for the two younger children. She said sending them back to Australia would put them in an intolerable situation. She also raised concerns about the father’s alleged past assaults and his psychological health.
The court first found she had not proven her Article 13(b) argument and ordered the return of all three children. For the oldest child, the court ordered his return based on what was best for him and an order from the Family Court of Western Australia.
When the mother’s application for leave to appeal was dismissed on 31 July 2026, the court allowed the father to immediately enforce the return order under Section 18(3) of the Superior Courts Act. The mother challenged that order. In the meantime, she asked the SCA for leave to appeal the return order, and leave was granted. That appeal is set for 8 December 2026.
Father failed to establish exceptional circumstances
The big question for the full bench was whether the father’s request to enforce the return order straight away met the requirements of Section 18 of the Superior Courts Act.
The law says that when an order is being appealed, it usually cannot be carried out until the appeal is finished. A court can change this only if there are exceptional circumstances, and the person asking for immediate execution proves he will suffer harm if there is a delay, while the other side will not suffer harm if the order is carried out.
Judge Wille said exceptional circumstances have to be shown based on the facts in each case. Just because it is a Hague Convention application does not mean the test is met. He said the father had not given enough evidence to show that the children needed to be sent back straight away while the SCA appeal was still pending.
The children had been in South Africa for more than six months and had adjusted to their new environment, according to independent evidence from their school. They had also made it clear they wanted to stay in South Africa with their mother.
The judgment said an expert report showed the children were coping in their new environment and were not in any immediate danger or suffering psychological harm while staying in South Africa. The court also looked at the oldest child, who was 17 and had clearly said he wanted to stay with his mother.
He signed an affidavit saying his views had not been heard and that he would not go back to Australia, no matter what. Judge Wille pointed out that the Hague Convention only applies to children under 16. So the situation for the oldest child had to be looked at separately under the Children’s Act, which means taking into account a child’s views, age and maturity.
The judge also wondered what would happen if the return order was carried out before the SCA decided the appeal. If the children were sent back to Australia and the SCA later overturned the order, they might have to move internationally again.
The judgment said this kind of repeated disruption could cause them real psychological harm. The court also noted that there were no protective measures in place for the children if they had to go back to Australia.
Judge rejects argument that Hague matters automatically qualify
The father argued the children needed to get back to their lives in Australia, including their schools, friends and familiar therapists. He also said the mother was manipulating them and that what they said they wanted did not reflect how they really felt.
Judge Wille found these were disputed issues the court could not decide in this limited procedural appeal. He rejected the argument that the urgency of Hague Convention cases meant there were automatically exceptional circumstances under Section 18. The judgment said, “A Hague Convention matter is not per se exceptional.”
It also explained that the usual delays that come with appeals do not on their own justify carrying out an order straight away. The judge said the father had not shown he would suffer real harm if the children stayed in South Africa until the SCA made a decision.
The court also said the possible harm to the children and their mother if they were forced to return could not just be ignored.
Dissenting judge says delay undermines Hague Convention
Judge Kusevitsky disagreed with the majority. He argued that different rules should apply when courts are asked to enforce return orders from Hague Convention cases. He said the Convention was meant to make sure children who are wrongfully removed from their home country are returned quickly and that delays could undermine that goal.
In his dissent, Judge Kusevitsky said the mother’s actions took away the father’s existing right to see his children and put the children in a terrible position between their parents. He also disagreed that sending the children back would always make the appeal pointless, citing the United States Supreme Court’s Chafin v. Chafin case, which said returning a child under the Hague Convention does not automatically make an appeal moot.
Judge Kusevitsky warned that letting children stay in a country after being wrongfully taken could encourage similar actions in future cases. The dissent also said the longer the children stayed in South Africa, the harder it would be to send them back later. But in the end, the majority’s view won.
The Full Bench agreed with the mother’s appeal, set aside the order for the immediate return of all three children to Australia, and said they should stay in South Africa while the SCA decides on the appeal. The question of costs will be decided during the appeal.
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