I wasn’t going to write about this case, as it was actually decided last October, albeit that the judgment was only published (at least to my knowledge) a couple of weeks ago. However, there are some interesting points in the judgment, and I therefore decided it merited a post.
The case WM v JD (Hague Convention : Consent : Grave risk of Harm : Children’s objections), which concerned a mother’s application for the summary return of her children to South Africa, is interesting, both for its unusual facts and for the legal points that were argued.
The background to the case was that the parents are both South African. They married in 2005, and have three children: ‘L’, who at the date of the hearing was aged 11, ‘P’, who was aged 10 and ‘A’, who was aged 8. The parents separated and divorced in 2009, with the parents agreeing that they would share ‘joint custody’, and that the children would reside with their mother.
In 2010 the father met another woman, to whom he got engaged the following year. Her Honour judge Hillier, who was hearing the case, takes up the story:
“In July 2011 the father sent the mother a ‘bombshell’, pivotal email: “I hate writing this email but I want to give up all custody of the kids.””
After this, the father had no communication with the children, and stopped paying maintenance for them. He remarried later that year.
In early 2012 the mother sought to enforce the maintenance, and as soon as that happened the father and his new wife moved to the UK.
The father’s family assisted the mother, both financially and with childminding. However, this ended in 2015 when the paternal grandfather retired and moved away. At that point the father got back in touch with the mother.
To cut a long story short, the father worked his way back into the lives of the mother and the children, by various means including pretending to be a fictitious friend of the mother on Facebook encouraging her to “forgive and forget”. In 2016 he returned to South Africa and in June that year the mother agreed to the two older children L and P travelling to the UK with the paternal grandmother. They flew here in the following month, and stayed with the father. When contact with the mother was curtailed, the mother took legal advice and made an application under the Hague Convention on Child Abduction for them to be returned to South Africa.
The father raised three defences to the application: that the mother consented to the removal, that returning the children to South Africa would place them at grave risk at physical or psychological harm, or place them in an otherwise intolerable situation, and that the children objected to returning to South Africa.
The mother accepted that she did consent to the children coming here, but claimed that the agreement was that they would stay with their father until she immigrated with their brother to live nearby and to resume care of them. It was her case that the father and his wife planned all along to cut her out of the children’s lives once they were here, and as soon as she realised that that was happening she immediately sought their return.
As to the ‘harm’ defence, the mother accepted that she had physically chastised the children, but denied that returning them to South Africa would put them at grave risk at harm. And as for the children’s “objections” to return, these were no more than a preference to stay here.
Judge Hillier found in favour of the mother in relation to all three defences. The mother’s consent was vitiated by the father’s deceit – she found that he had never had the slightest intention of keeping to the agreement with the mother. As to the ‘harm’ defence, she accepted an undertaking from the mother, which would be recognised in South Africa, to refrain from physical chastisement of the children.
As to the ‘children’s objections’ defence, Judge Hillier found that the children did not, in fact, hold objections to returning to South Africa. In ‘indicating’ that they did they were merely expressing a preference to remain here. Judge Hillier also found that there was “unequivocal evidence” that the children had been influenced against their mother, in what she called “one of the worst cases one could imagine of parental alienation and influence.” That influence, she said, inevitably led to the failure of this defence.
Accordingly, she ordered that the children must return to South Africa as soon as possible.
You can read the full judgment here.