Authored By: Ntando Madonsela
North West University
Abstract:
This article critically analyses the implementation and constitutional dimensions of the Hague Convention on the Civil Aspects of International Child Abduction within South Africa’s legal system. It assesses the Convention’s incorporation under the Children’s Act 38 of 2005, examines the judiciary’s interpretation of the peremptory obligations, and evaluates their consistency with the Constitution of the Republic of South Africa, 1996.
Through doctrinal analysis, reference to judicial precedent, and comparative insights, the article argues that while the Convention facilitates the prompt return of wrongfully removed children and encourages international cooperation, its inflexible peremptory provisions may conflict with South Africa’s constitutional prioritisation of the best interest of the child.
The article concludes that domestic application requires contextual balancing between international obligations and constitutional imperatives to safeguard both the rule of law and child welfare.
Introduction
The Hague Convention on the Civil Aspects of International Child Abduction (hereafter “the Hague Convention”) serves as a foundational instrument in international family law. Its primary objective is to facilitate the prompt return of children who have been wrongfully removed or retained across international borders.1 South Africa became a party to the Convention in 1996, incorporating its provisions through Chapter 17 of the Children’s Act 38 of 2005.2 The Convention aims to discourage parents from abducting children internationally and searching for better legal jurisdiction. Its core goal is to reinstate the situation that existed before the abduction.3
However, the peremptory nature of the Convention and its emphasis on immediate return have raised complex questions regarding its compatibility with South Africa’s constitutional framework. The principle of the paramountcy of the best interest of the child as outlined in section 28(2) of the Constitution 4 sometimes clashes with the Convention’s narrow exceptions to return, resulting in tensions between international uniformity and constitutional individuality.
This article explores these tensions by examining the legal framework of the Convention in South Africa, judicial interpretation of its key provisions, and its interaction with constitutional values. It argues that while the Convention represents an essential instrument of international cooperation, its strict return mechanism must be interpreted through a transformative constitutional lens to uphold the paramountcy of the best interest of the child.5
Doctrinal Framework: The Convention and Domestic Incorporation
The Hague Convention was concluded in 1980 and came into force in South Africa on 1 October 1997.6 Its core objective, as expressed in Article 1, is to secure the prompt return of wrongfully removed or retained children to their state of habitual residence and to protect rights of custody and access.7
In South Africa, Chapter 17 of the Children’s Act 38 of 2005 gives the Convention the force of law. Section 275 provides that the Convention “shall have the force of law in the Republic”, giving it direct effect.8 The Central Authority for the Republic of South Africa bears responsibility for processing applications, liaising with foreign authorities, and facilitating the child’s prompt return.9
This direct incorporation renders the Convention mandatory as Courts are generally bound to order the return of the child unless one of the narrow exceptions in Articles 12, 13, and 20 applies.10 These exceptions concern cases where the child has settled in a new environment, where return poses a grave risk of psychological or physical harm, or where fundamental human rights and freedoms would be violated.11
The Peremptory Rule and Application
The peremptory character of the Convention’s return mechanism has been repeatedly affirmed by South African courts. In Pennello v Pennello (2004) ZASCA 36, the Supreme Court of Appeal underscored that the Convention is “predicated upon prompt and automatic return,” and that domestic courts must not re-litigate custody issues already determined in the state of habitual residence.12 The Supreme Court Appeal held that judicial discretion under the Convention is narrow and should not be exercised to reconsider the merits of custody unless one of the specific exceptions applies.13
However, In Senior Family Advocate, Cape Town v Houtman 2004 2 All SA 642 (C), the court observed that the Convention’s mandatory return provision must be reconciled with section 28(2) of the Constitution.14 The judgment emphasised that while the Convention prescribes uniformity and comity among contracting states, domestic courts cannot disregard the best interests principle, which is an irrevocable constitutional right.15 This means that the rule has not escaped constitutional scrutiny.
Following this, cases have sought to harmonise these obligations. In KG v CB 2012 ZAGPJHC 240, the High Court adopted a constitutional reading of the Convention, ruling that the best interests of the child should not be outweighed by procedural expediency.16 The court held that even though the Convention favours automatic return, “constitutional supremacy requires a purposive interpretation that situates the child’s welfare at the centre of all judicial determinations.”17
Constitutional Interface: Best Interest and International Comity
The Constitution of South Africa establishes transformative constitutionalism in which human dignity, equality, and freedom form foundational values. Section 28(2) explicitly mandates that the best interests of the child are paramount in all matters concerning children.18 This principle, as articulated in S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC), requires courts to consider the impact of every decision on children’s lives, even where competing legal duties exist.19
The main challenge in applying the Hague Convention stems from the friction between international comity and domestic constitutional supremacy. While the Vienna Convention generally forbids states from using their internal law to justify non-compliance with treaties,20 the South African Constitution mandates that all international agreements must first be enacted as national legislation in terms of section 231(4). This process ensures the agreements remain under constitutional control.21
The Constitutional Court in Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) clarified that international agreements must be interpreted in harmony with the Constitution but cannot override its provisions.22 Consequently, courts applying the Hague Convention must ensure that the imperative of prompt return does not unjustifiably limit constitutional provisions.23
Article 13(b) of the Convention functions as a critical safeguard, ensuring constitutional adherence by permitting the refusal of a child’s return when there is a grave risk of exposure to physical or psychological harm or an otherwise intolerable situation.24 Consistent with this function, South African courts has adopted a broad, purposive interpretation of this exception to robustly uphold the best interests of the child principle established in domestic constitutional law. In Central Authority v B (2018) ZAGPJHC 401, the court refused to order return after finding that the child’s reintegration in the habitual residence would expose them to harm. 25 The judgment aƯirmed that “constitutional obligations to protect the child’s dignity and security override formalistic adherence to international uniformity.”26
Comparative Insights: Balancing Uniformity and Welfare
Comparative experience offers instructive perspectives. In the United Kingdom, the Hague Convention was incorporated through the Child Abduction and Custody Act 1985. British courts have historically upheld the peremptory nature of return, as seen in Re H (Abduction: Custody Rights) (2000) 2 AC 291 (HL), but recent jurisprudence reflects growing sensitivity to welfare considerations.27 The Supreme Court in Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 held that the child’s welfare remains a central, though not paramount, consideration under Article 13(b).28
Similarly, the Court of Justice of the European Union in Case C-195/08 PPU Rinau emphasised the importance of mutual trust but warned that automatic enforcement without considering the child’s circumstances may breach fundamental rights under the EU Charter.29 These developments mirror South Africa’s constitutional balancing, demonstrating a global trend towards integrating human rights into the Convention’s application.30
Critical Evaluation: Peremptory Obligation vs Constitutional Flexibility
South Africa’s implementation of the Hague Convention exemplifies the ongoing negotiation between international uniformity and constitutional pluralism. The peremptory rule promotes certainty and deters abduction, yet its rigidity can marginalise the individual child’s voice and context.31
From a rule of law perspective, the Convention’s clarity advances legal predictability and aligns with the principle of legality.32 Yet, the supremacy of the Constitution, particularly the irrevocable rights in sections 10 and 28, demands interpretive flexibility.33 The Constitutional Court encourages a dialogic relationship between international and domestic law rather than hierarchical dominance.34
This interpretive dualism finds expression in Centre for Child Law v NN [2020] ZAGPPHC 187, where the court stressed that “treaty obligations must be honoured in good faith but always through the prism of the Constitution.”35 Hence, South African courts increasingly adopt a proportionality-based approach, ensuring that return orders are neither automatic nor arbitrary but contextually justified.36
Recommendations
To strengthen coherence and child protection under the Hague Convention framework, the following reforms are suggested:
Legislative Clarification
The Children’s Act should be amended to include explicit reference to the Constitution’s best-interests standard as a mandatory interpretive guide when applying the Convention.37
Judicial Guidelines
The Department of Justice and the Office of the Family Advocate should develop uniform judicial guidelines to ensure consistent application of Article 13(b) exceptions.38
Cross-Border Cooperation
Strengthening liaison mechanisms between the South African Central Authority and foreign counterparts can expedite proceedings while preserving due process.39
Conclusion
The Hague Convention remains an indispensable instrument in the transnational protection of children against abduction. In South Africa, its incorporation through the Children’s Act demonstrates the country’s commitment to international cooperation and the rule of law. However, as this analysis shows, rigid adherence to the Convention’s peremptory return mechanism can conflict with the Constitution’s transformative ethos and its prioritisation of the child’s best interests.40
The challenge, therefore, is not whether South Africa should comply with the Hague Convention, but how compliance should be reconciled with constitutional obligations. The future of international child abduction law in South Africa lies in a jurisprudence that harmonises international uniformity with constitutional humanity— ensuring that the law serves not merely order, but justice.41
Bibliography
Legislation
Constitution of the Republic of South Africa, 1996
Children’s Act 38 of 2005
Hague Convention on the Civil Aspects of International Child Abduction, 1980
International Co-operation in Civil Matters Act 75 of 1996
Cases
Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC) Centre for Child Law v NN [2020] ZAGPPHC 187
Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC) KG v CB [2012] ZASCA 17; 2012 (4) SA 136 (SCA)
International Instruments
Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) 1343 UNTS 89 United Nations Convention on the Rights of the Child (20 November 1989) 1577 UNTS 3 Secondary Sources
Central Authority for the Republic of South Africa, Annual Report on Hague Convention Applications (2023) Heaton J, The South African Law of Persons (5th edn, LexisNexis 2021)
Neethling P and Potgieter JM, Law of Personality (6th edn, LexisNexis 2022)
Spies A, ‘The Application of the Hague Convention in South Africa: A Constitutional Perspective’ (2020) South African Journal on Human Rights 36(2) 150–172
1 Hague Convention on the Civil Aspects of International Child Abduction (1980) art 1.
2 Children’s Act 38 of 2005 ch 17 s 275.
3J Heaton, The South African Law of Persons and Family Law (5the edn, LexisNexis 2021) 417.
4 Constitution of the Republic of South Africa, 1996 s 28(2).
5 Ibid.
6 Hague Convention (n 1) art 35; Governmnent Gazette No 18369 (1 October 1997).
7 Ibid art 1.
8 Children’s Act (n 2) s 275.
9 Ibid s 276.
10 Hague Convention (n 1) arts 12-13, 20.
11 Ibid.
12 Pennello v Pennello (2004) ZASCA 36 para 11.
13 Ibid para 15.
14 Senior Family Advocate, Cape Town v Houtman (2004) 2 All SA 642 (C) 648.
15 Ibid.
16 KG v CB [2012] ZAGPJHC 240 para 31.
17 Ibid para 37.
18 Constitution (n 4) s 28(2).
19 S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) para 15.
20 Vienna Convention on the Law of Treaties (1969) art 27.
21 Constitution (n 4) s 231(4).
22 Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) para 189.
23 Ibid para 195.
24 Hague Convention (n 1) art 13(b).
25 Central Authority v B [2018] ZAGPJHC 401 para 44.
26 Ibid para 48.
27 Re H (Abduction: Custody Rights) [2000] 2 AC 291 (HL).
28 Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 para 25.
29 C-195/08 PPU Rinau [2008] ECR I-5271.
30 L Skelton (n 5) 222.
31 P Neethling and JM Potgieter, Law of Personality (6th edn, LexisNexis 2022) 92.
32 AƯordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC) para 108.
33 Constitution (n 4) ss 10, 28.
34 Glenister (n 23) para 192.
35 Centre for Child Law v NN [2020] ZAGPPHC 187 para 33.
36 Ibid para 36.
37 Children’s Act (n 2) proposed s 275A.
38 Central Authority for the Republic of South Africa, Annual Report on Hague Convention Applications (2023) 14.
39 Ibid 16.
40 KG v CB (n 16) para 40
41 Centre for Child Law v NN (n 36) para 38.
