Authored By: Sibongile Tshabalala
Introduction
Global mobility, transnational families, and the increase in cross-border custody disputes have resulted in an increasing number of international parental child abductions. The 1980 Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention ) was implemented to address the increasing prevalence of parents who unlawfully remove or retain children across international borders in an effort to secure a more favorable custody outcome. The Convention establishes a system of prompt return, which mandates the return of abducted children to their state of habitual residence. This allows the courts with primary jurisdiction over the child to resolve custody disputes, rather than determining them.[1]
The Convention’s implementation has sparked significant legal debate in jurisdictions that constitutionally recognize the rights of children, despite its objective to discourage international child abduction and encourage international cooperation. The Children’s Act 38 of 2005 in South Africa incorporates the Convention into domestic law, and section 28(2) of the Constitution stipulates that the best interests of a child are of the utmost importance in all legal matters involving the child.[2] In difficult cases, this constitutional imperative appears to conflict with the Convention’s objective of ensuring the expeditious return of abducted children. The tension is especially pronounced when allegations of domestic violence, psychological harm, or objections by mature children are brought forth under Article 13 of the Convention.
This article contends that the current jurisprudence in South Africa is inconsistent in its application of Article 13 exceptions, despite the fact that the courts have attempted to reconcile the prompt-return mechanism of the Convention with the constitutional principle of the best interests of the child. It is contended that the absence of a structured analytical framework has led to judicial outcomes that are inconsistent and uncertain. As a result, South African courts require more specific guidance on how to incorporate constitutional child-rights principles into Hague Convention proceedings while maintaining the Convention’s international goals.
The discussion begins by reviewing the international and domestic legal frameworks that govern international parental child abduction. It then examines the leading South African decisions interpreting the Hague Convention before critiquing the current approach. Finally, the article examines comparative developments in selected foreign jurisdictions and proposes a principled framework for increasing consistency between the Convention’s prompt-return mechanism and the constitutional requirement that the child’s best interests be prioritized.
Main Body
The Legal Framework Governing International Parental Child Abduction
The Hague Convention on the Civil Aspects of International Child Abduction, 1980, which creates a uniform international mechanism for addressing the wrongful removal or retention of children across international borders, is the primary law governing international parental child abduction. Adopted in response to the growing number of cross-border family disputes, the Convention aims to protect children from the damaging consequences of international abduction by promptly returning the child to their State of habitual residence and restoring the status quo ante. The Convention does not specify which parent should have custody, in contrast to laws governing custody or parental responsibilities. Instead, it seeks to ensure that custody disputes are resolved by the courts in the child’s habitual residence, discouraging forum shopping and unilateral self-help by parents.[3]
The primary goals of the Convention are stated in Article 1, which is to ensure the prompt return of children wrongfully removed to or retained in any Contracting State, as well as to ensure that rights of custody and access under one Contracting State’s law are respected in other Contracting States.[4]The Convention thus reflects the principle that the interests of children are generally served by restoring the jurisdictional status quo, leaving substantive custody disputes to be decided by the courts best suited to assess the child’s well-being. Prompt return also serves as an important deterrent, reducing incentives for parents to abduct children in the hope of obtaining a more favorable custody decision elsewhere.[5]
Article 3 defines the concept of wrongful removal or retention, which is central to the Convention’s operation. A removal or retention is wrongful if it violates custody rights granted by the law of the child’s habitual residence and those rights were actually exercised, either jointly or alone, immediately prior to the removal or retention.[6] As a result, the Convention recognises and protects existing custody rights under the domestic law of the child’s habitual residence rather than creating new ones.
The obligation to order the child’s return is not absolute. The Convention contains a few exceptions intended to protect children from situations in which return would be unjust or harmful. The most significant exception appears in Article 13(b), which permits a court to refuse the return of a child if there is a grave risk that the return will expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.[7] Other exceptions include situations in which the applicant consented to or later acquiesced to the removal, when proceedings are initiated more than one year after the wrongful removal and the child has settled in the new environment, or when a child of sufficient age and maturity objects to being returned.[8]
These exceptions reflect the Convention’s recognition that prompt return should not come at the expense of children’s basic welfare. Nonetheless, they were intentionally drafted narrowly to prevent courts from conducting a full investigation into custody under the guise of determining whether an exception applies. As Pérez-Vera explains in the Explanatory Report, the Convention was designed to prevent the requested State from substituting its own custody determination for that of the courts with primary jurisdiction.[9] As a result, courts must distinguish between determining whether an exception has been established and conducting an unlawful welfare investigation into the merits of custody.
South Africa became a Contracting State to the Hague Convention and incorporated its provisions into domestic law through Chapter 17 of the Children’s Act 38 of 2005, specifically Section 275, which states that the Convention has legal force in the Republic.[10] The Children’s Act also designates the Chief Family Advocate as South Africa’s Central Authority, in charge of coordinating with foreign Central Authorities, facilitating return applications, and assisting courts in Convention proceedings.[11] South Africa’s adoption of the Convention demonstrates its commitment to international cooperation in protecting children from international parental child abduction.
However, the domestic implementation of the Convention must be understood in the context of South Africa’s constitutional framework. According to Section 28(2) of the Constitution, “[a] child’s best interests are of paramount importance in every matter concerning the child.”[12]Unlike many jurisdictions, where the best interests principle is primarily a statutory consideration, South Africa has constitutionalized the principle, making it a binding constitutional norm applicable in all legal proceedings involving children. Section 9 of the Children’s Act reinforces this constitutional protection by requiring that the child’s best interests be the most important consideration in all matters involving the child.[13]
South Africa’s constitutional commitment aligns with its international obligations under the United Nations Convention on the Rights of the Child (UNCRC). According to Article 3(1) of the UNCRC, in all actions involving children taken by courts, administrative authorities, or legislative bodies, the child’s best interests must be “a primary consideration.”[14] Although the wording differs from section 28(2) of the Constitution, both instruments acknowledge that children are independent rights holders whose welfare requires significant legal protection.
The interaction of these legal instruments generates the central challenge addressed in this article. The Hague Convention encourages the immediate restoration of the pre-abduction status quo by returning children to their courts of habitual residence, whereas South African constitutional law requires courts to ensure that every decision affecting a child prioritizes that child’s best interests. While these goals frequently overlap, they may differ in cases involving allegations of domestic violence, coercive control, psychological harm, or serious risks associated with return. The legal question is therefore not whether one instrument takes precedence over the other, but rather how South African courts should reconcile these overlapping obligations in a way that respects both international treaty commitments and constitutional rights. The following section focuses on this judicial balancing exercise, which has sparked considerable debate in South African jurisprudence.
Case Law Analysis: Judicial Balancing of Prompt Return and the Best Interests of the Child in South Africa
South African courts have consistently acknowledged that the Hague Convention and the Constitution serve complementary purposes. Nonetheless, the practical application of these instruments has revealed a persistent tension between the Convention’s goal of ensuring the prompt return of abducted children and the constitutional requirement that the child’s best interests be prioritized. As a result, courts have had to decide not only whether a child was wrongfully removed or retained, but also whether the Convention’s exceptions justify refusing a return order. The resulting jurisprudence demonstrates a gradual shift away from strict adherence to the Convention’s objectives and toward a more nuanced, child-centered approach, though significant inconsistencies persist.
Sonderup v Tondelli: Constitutional Accommodation of the Hague Convention
The Constitutional Court’s decision in Sonderup v Tondelli and Others remains the authoritative source on the application of the Hague Convention in South Africa.[15] The case involved a child who had been wrongfully removed from Canada to South Africa by the mother without his father’s consent. The father sought the child’s return under the Hague Convention, but the mother claimed that the Convention violated section 28(2) of the Constitution by failing to prioritise the child’s best interests.
The Constitutional Court rejected this argument, concluding that the Convention was constitutionally valid. Goldstone J explained that the Convention was founded on the long-term welfare of children, as international parental child abduction frequently causes significant emotional, psychological, and developmental harm.[16] As a result, restoring the child to the jurisdiction of habitual residence generally benefits the child by discouraging unilateral removals and ensuring that custody disputes are resolved by the court best suited to do so.
Importantly, the Court refused to treat the Convention as superseding constitutional rights. Instead, it ruled that Convention proceedings must always be viewed through the lens of Section 28(2) of the Constitution. Goldstone J emphasized that the Convention’s exceptions, particularly Article 13(b), provide sufficient flexibility to protect children in situations where return would expose them to serious harm.[17] As a result, South African courts were required to strike a balance between fulfilling international treaty obligations and safeguarding constitutional rights.
Although Sonderup established an important constitutional accommodation between international and domestic law, the decision did not provide a structured methodology for determining how the best interests principle should be applied to Article 13 inquiries. This omission has resulted in divergent judicial approaches in subsequent cases.
Pennello v Pennello: Reaffirming the Convention’s Objectives
In Pennello v Pennello, the Supreme Court of Appeal considered the relationship between the Hague Convention and the best interests principle.[18] The dispute arose when a child was removed from Italy to South Africa in violation of the father’s custody rights. The mother opposed the return application, arguing that remaining in South Africa was better for the child’s welfare.
The Supreme Court of Appeal has reiterated that Hague Convention proceedings are not custody proceedings. The Court emphasized that South African courts should avoid conducting a comprehensive investigation into the child’s welfare because that function is properly reserved for the courts of the child’s habitual residence.[19] Instead, the investigation should be limited to determining whether one of the Convention’s recognized exceptions has been met.
The decision reaffirmed South Africa’s commitment to the Convention by stating that section 28(2) of the Constitution cannot be interpreted in a way that undermines the Convention’s international goals. Nevertheless, the Court acknowledged that the best interests principle is still relevant when determining whether an Article 13 defence has been established. Pennello effectively reinforced the convention’s summary nature while acknowledging that constitutional considerations continue to influence the interpretation of its exceptions.
Although the decision promoted legal certainty and international cooperation, some commentators argue that it did not pay enough attention to the practical realities of domestic violence and coercive control, which frequently accompany international parental child abduction cases.[20]
Developing Jurisprudence on Article 13(b)
Subsequent South African decisions have increasingly focused on the interpretation of Article 13(b), especially when allegations of domestic violence or psychological harm are made.
In Central Authority v B, the High Court reiterated that the grave-risk exception should be interpreted narrowly to ensure the Convention’s effectiveness.[21] The Court acknowledged that not every allegation of hardship or emotional distress warrants denying a return order. Instead, the respondent bears the burden of demonstrating that return would expose the child to a level of harm substantially exceeding the ordinary disruption associated with relocation.
At the same time, the Court acknowledged that domestic violence against the abducting parent may indirectly cause serious psychological harm to the child. This approach reflects a significant shift in South African jurisprudence by acknowledging that harm to the primary caregiver cannot always be separated from the child’s welfare.
More recent Supreme Court of Appeal decisions have further refined the interpretation of Article 13(b). Rather than accepting risk allegations at face value, courts have increasingly looked into whether the requesting State’s protective measures, such as undertakings, mirror orders, or supervised contact arrangements, can mitigate identified risks.[22] These mechanisms aim to uphold the Convention’s prompt-return objective while also protecting vulnerable children and caregivers.
However, the jurisprudence has revealed inconsistencies. Some courts place a high value on undertakings provided by the requesting parent, while others question their practical enforceability once the child returns to the foreign jurisdiction. As a result, similar factual circumstances have produced varying outcomes depending on the court’s assessment of future protective measures.
Emerging Judicial Trends
Several themes emerge from South African law.
First, courts have consistently recognized that the Hague Convention is not a mechanism for determining custody. Rather, it delegated jurisdiction to the courts in the child’s habitual residence. This principle has been consistent from Sonderup to subsequent appellate decisions.
Second, South African courts are increasingly recognizing that the child’s best interests cannot be ignored during Convention proceedings. However, disagreements persist about how thoroughly those interests should be investigated before ordering a return. While some decisions apply a narrow interpretation of Article 13(b), others conduct a more thorough examination of welfare concerns.
Third, the jurisprudence shows increasing sensitivity to allegations of domestic violence. Earlier decisions tended to make a clear distinction between the harm suffered by the abducting parent and the child. More recent decisions recognise that exposure to domestic violence may cause psychological harm to the child, justifying a more nuanced application of Article 13(b).
Finally, South African courts have increasingly used protective mechanisms like mirror orders and undertakings to reconcile conflicting legal obligations. Although these measures are significant innovations, their effectiveness is dependent on cooperation among foreign courts and the requesting State’s practical ability to enforce them quickly.
Taken together, these decisions show that South African jurisprudence has progressed significantly since Sonderup. Nonetheless, the courts have not developed a consistent analytical framework for reconciling prompt return with the constitutional principle of the child’s best interests. As a result, the jurisprudence remains ambiguous regarding the threshold for establishing Article 13 exceptions and the appropriate weight to be given to competing constitutional and international obligations. These unresolved issues form the basis for the critical evaluation that follows.
Critical Evaluation and comparative perspectives
South African courts have attempted to reconcile the Hague Convention with the constitutional principle that the child’s best interests are paramount. However, despite the guidance provided in Sonderup v Tondelli, the jurisprudence is still inconsistent. This inconsistency exists not because the Hague Convention and the Constitution are fundamentally incompatible, but because courts lack a clear and consistent framework for balancing the Convention’s prompt-return goal with constitutional protections for children’s rights.
The Hague Convention is based on the principle that the timely return of wrongfully removed or retained children generally serves their welfare by restoring the status quo and allowing custody disputes to be decided by the courts of the child’s habitual residence.[23] In contrast, Section 28(2) of the Constitution requires that the child’s best interests be prioritized in all matters affecting the child.[24] While these goals frequently complement one another, they may clash in situations involving domestic violence, psychological harm, or other unusual circumstances.
The most difficult challenge is the application of Article 13(b), which allows a court to refuse the return of a child if there is a serious risk of physical or psychological harm.[25]Although intended to be interpreted narrowly, South African courts have taken different approaches to this exception. Some decisions have emphasized the Convention’s effectiveness by requiring a high level of proof, whereas others have prioritized the child’s welfare, particularly when domestic violence or coercive control is alleged.
Another source of concern is the emphasis on undertakings and mirror orders. These mechanisms attempt to reduce risks by requiring the requesting parent to provide assurances of safety upon the child’s return. Although they support the Convention’s goal of prompt return, their effectiveness is contingent on their enforceability in the requesting State. As a result, they should not be used as a substitute for a thorough assessment of whether adequate child protection exists.
Comparative jurisprudence offers valuable guidance. The European Court of Human Rights emphasizes that return orders should be based on an individualized assessment of the child’s circumstances rather than a mechanical application of the Convention. [26]Similarly, courts in the United Kingdom have increasingly recognised that domestic violence directed at a parent may expose a child to psychological harm, thereby justifying the application of Article 13(b).[27] These developments demonstrate that.
It is proposed that South African courts take a more structured approach when considering Hague Convention applications. Before considering any Article 13 defence, courts should determine whether there was a wrongful removal or retention. When a grave-risk defence is raised, courts must distinguish between the ordinary disruption caused by relocation and truly exceptional circumstances that endanger the child’s welfare. Evidence of domestic violence, the practical effectiveness of protective measures, and the reasons why refusing a return order is in the best interests of the child should all be given more consideration.
A structured balancing framework would promote greater consistency in judicial decision-making while upholding South Africa’s constitutional commitment to children’s rights and international obligations under the Hague Convention. Such an approach would increase legal certainty and ensure that the child’s best interests are prioritized without undermining the Convention’s purpose.
Conclusion
International parental child abduction is one of the most difficult aspects of family law, requiring courts to balance competing domestic and international legal obligations. This article has demonstrated that, while the Hague Convention on the Civil Aspects of International Child Abduction promotes the prompt return of wrongfully removed or retained children, South African courts must also uphold the constitutional principle that the child’s best interests are paramount. Although these goals are typically complementary, they may clash in cases involving allegations of domestic violence, psychological harm, or other unusual circumstances.
The analysis of South African jurisprudence, particularly Sonderup v Tondelli and Pennello v Pennello, shows that courts have made significant progress in reconciling the Convention with constitutional values. However, the application of Article 13(b) is inconsistent, resulting in uncertainty and varying outcomes in similar cases. The lack of a structured judicial framework has exacerbated this inconsistency, which may jeopardize both legal certainty and effective protection of children’s rights.
It is therefore proposed that South African courts take a more consistent and transparent approach when applying the Hague Convention. Greater judicial guidance on the interpretation of Article 13(b), careful consideration of domestic violence allegations, and a more rigorous assessment of protective measures such as undertakings and mirror orders would improve both the Convention’s effectiveness and children’s safety. South African courts can fulfil their international obligations by implementing a structured balancing framework that ensures the constitutional commitment to the child’s best interests remains the guiding principle in international parental child abduction proceedings.
References and Bibliography
Table of Cases
C.A.R. v Central Authority for the Republic of South Africa [2024] ZASCA.
Central Authority v B 2012 (2) SA 296 (GSJ).
Neulinger and Shuruk v Switzerland App no 41615/07 (ECtHR, 6 July 2010).
Pennello v Pennello 2004 (3) SA 117 (SCA).
Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144.
Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC).
Legislation
Children’s Act 38 of 2005.
Constitution of the Republic of South Africa, 1996.
International Instruments
Hague Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980, entered into force 1 December 1983) 1343 UNTS 89.
United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3.
Books
Beaumont P and McEleavy P, The Hague Convention on International Child Abduction (Oxford University Press 1999).
Currie I and De Waal J, The Bill of Rights Handbook (6th edn, Juta 2013).
Pérez-Vera E, Explanatory Report on the 1980 Hague Child Abduction Convention (Hague Conference on Private International Law 1982).
Schuz R, The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing 2013).
Journal Articles
Kruger T, ‘International Child Abduction: The Inadequacies of the Law’ (2011) 7 Journal of Private International Law 309.
Weiner MH, ‘International Child Abduction and the Escape from Domestic Violence’ (2000) 69 Fordham Law Review 593.
Reports and Other Sources
Hague Conference on Private International Law (HCCH), Guide to Good Practice under the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction: Part VI – Article 13(1)(b) (HCCH 2020).
United Nations Committee on the Rights of the Child, General Comment No 14: The Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Article 3, Paragraph 1) UN Doc CRC/C/GC/14 (29 May 2013).
[1] Hague Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980, entered into force 1 December 1983) 1343 UNTS 89 (‘Hague Convention’) arts 1–2
[2]section 28(2) of Constitution of the Republic of South Africa, 1996 ; section 275 of Children’s Act 38 of 2005
[3]Hague Convention (n 1) Preamble; Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention (HCCH 1982) paras 11–16
[4] Hague Convention (n 1) art 1
[5] Paul Beaumont and Peter McEleavy, The Hague Convention on International Child Abduction (OUP 1999) 17–21.
[6] Hague Convention (n 1) art 3
[7] ibid art 13(b)
[8] ibid arts 12 and 13
[9] Pérez-Vera (n 3) paras 16–19
[10] Children’s Act 38 of 2005 s 275
[11] Children’s Act 38 of 2005 ss 276–278.
[12] Constitution of the Republic of South Africa, 1996 s 28(2)
[13] Children’s Act 38 of 2005 s 9
[14] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 art 3(1)
[15] Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC)
[16]Sonderup (n 15) paras 29–33
[17] ibid paras 30–35
[18] Pennello v Pennello 2004 (3) SA 117 (SCA
[19] ibid paras 20–25
[20] Merle H Weiner, ‘International Child Abduction and the Escape from Domestic Violence’ (2000) 69 Fordham Law Review 593, 641–651
[21] Central Authority v B 2012 (2) SA 296 (GSJ)
[22] See, for example, C.A.R. v Central Authority for the Republic of South Africa [2024] ZASCA (recent Supreme Court of Appeal decision considering protective measures and Article 13(b))
[23] Hague Convention on the Civil Aspects of International Child Abduction (adopted 25 October 1980, entered into force 1 December 1983) 1343 UNTS 89 Preamble
[24] Constitution of the Republic of South Africa, 1996 s 28(2)
[25] Hague Convention (n 23) art 13(b)
[26] Neulinger and Shuruk v Switzerland App no 41615/07 (ECtHR, 6 July 2010) paras 131–146
[27] Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27, [2012] 1 AC 144
