Pretoria - Parents have a responsibility to their children to allow the law to take its course and not to attempt to resolve their disputes by resorting to “self-help”.
Any attempt to do so inevitably increases tension between the parents and that regrettably adds to the suffering of the children. This is according to the Supreme Court of Appeal, which has said the country’s courts were bound by the Hague Convention on the Civil Aspects of International Child Abduction.
Only in extreme cases where it was clear the lives of children would be in danger if returned to the country where they lived would a court intervene.
The best interests of a child who has been removed from the jurisdiction of a court in the circumstances contemplated by the convention are ordinarily served by requiring the child to be returned to that jurisdiction so that the law can take its course, the Supreme Court has said.
In a case before the court, a mother abducted her three children – a 12-year-old and 9-year-old twins – from Thailand, where she and her husband lived until their divorce. The mother is a South African citizen and her husband British, but they lived in Thailand.
When they obtained a divorce in a Thailand court, both parents were awarded custody of the children, although they lived with the mother.
A month after the divorce, the mother flew back to South Africa with her children, without telling her now former husband. He turned to the attorney-general in Thailand to secure the prompt return of the children under the convention. The South African authorities were then contacted to act in terms of the Hague Convention and to order the children’s return.
A South African court earlier ordered the mother to return with or without the children. She refused and turned to the Supreme Court to appeal the ruling. The mother called on the exception clause in the convention – that the children’s lives would be in danger if they returned.
The applicant’s opposition was based on allegations that the father had sexually molested one of the children and of domestic violence and economic abuse perpetrated against her by her husband.
The Supreme Court said the sexual abuse claims were raised in “extremely vague terms”, but if this was in any way true, this and the mother’s other objections should be raised before the courts in Thailand and not in South Africa.
Judge H Saldulker, who wrote the Supreme Court judgment, said the high court, which ordered the return of the children earlier, had built in safeguards to ensure the safety of the children. These included that the children must stay with the mother there and an English speaking therapist must be appointed in Thailand to consult with the family, especially the children. Turning down the mother’s appeal, the Supreme Court said the saga could be vented before the Thailand courts, but it was the duty of the South African government to adhere to the Hague Convention to which South Africa is a signatory.
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