HARRIS v HARRIS 2010 (2) ZLR 127 (S)

Flynote

Family law - child- abduction - country of child's habitual residence - meaning - when change of residence can be said to have taken place - interests of child - relevance of

Headnote

D The appellant and respondent were husband and wife. They had married in the United Kingdom, where their child was born. The parties separated and the husband came to Zimbabwe, where his parents lived. By agreement with the wife, he brought the child to Zimbabwe. The agreement was detailed and in writing. It provided that the child would stay in Zimbabwe for approximately three months, then, provided certain conditions about the wife's accommodation and employment had been fulfilled, he would return to live with his mother in England. After the three month period was over, the mother demanded that the child be sent back. The appellant refused, claiming that the conditions had not been fulfilled. The respondent obtained an order from the High Court in terms of the Child Abduction Act [Chapter 5:05] for the return of the child. On appeal against the grant of the order, the appellant argued

• (a) that the retention of the child was not unlawful and that he had not breached the provision of the Hague Convention on Child Abduction;
• (b) that the child was not habitually resident in England immediately before the alleged wrongful retention; (c) that the High Court erred in making findings as to the current law of England by reference to a South African case decided in 2003 and that relevant English legislation was not proved in accordance with art 12 of the Convention; and finally (d) that it was not in the child's best interests to be returned to England, having been in Zimbabwe a long time.

Held, that under art 3 of the Convention, the removal or retention of a child is unlawful if it breaches the rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately before removal or retention and at the time of removal or retention those rights were actually exercised or would have been so exercised but for the removal or retention. The rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the State in which the child was habitually resident immediately before the removal or retention. Here, there was an agreement which authorised the removal of the child from the custody of the mother in England.

Held, further, that whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of the case. It is one thing to cease to be habitually resident in country and another to become habitually resident in country. A person may cease to be habitually resident in country A in a single day if he leaves it with a settled intention not to return to it but to take up long- term residence elsewhere. However, he cannot become habitually resident in another country in a single day: an appreciable period of time and a settled intention to remain will be necessary to enable him to become so. Here, the child was born in England and lived there up to the time of his removal to Zimbabwe. He must therefore be regarded as having been habitually resident in England until his removal and retention. He was not moved to Zimbabwe with the intention to make Zimbabwe his home for an indefinite period. He was going to be here with his father temporarily while his mother made the arrangements referred to in the agreement.

Held, further, that the agreement did not grant exclusive custody to the father.

Held, further, that the interests of the child cannot be used to resist the child's return where the issue of such interest arises because the father wrongfully retained him. Under art 12 of the Convention, where, at the date of the commencement of the proceedings before a judicial authority, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. In this case, the respondent made the application within the required time limit, so the question of delay in claiming the return of the child does not arise.

Held, further, that under art 12, proof of the foreign law is not subject to the normal evidential requirements.