PEACOCK v STEYN 2010 (2) ZLR 254 (H)

Flynote

Family law — child - abduction - child born out of wedlock - mother agreeing to share custody of child with father - mother refusing to return children to father in breach of such agreement - father entitled to order under Child Abduction Act [Chapter 5:05]

Headnote

The applicant, a South African citizen, and the respondent, a Zimbabweancitizen, had cohabited for a number of years. Two children had resulted from their union. After the parties separated, they virtually shared custody of the children, who alternated between each of the parents over the years for one reason or another. The applicant continued providing material support for both the respondent and the children. The arrangement to share custody culminated in a concrete agreement at the beginning of year 2009, in terms of which the parties agreed that the applicant would take the children to South Africa, where he was based, and enrol them in a boarding school there. They further agreed that he would provide for the children while they were in South Africa and that during the school holidays he would facilitate their return to Zimbabwe for them to be with their mother. For a while the arrangement worked well, but at the end of one school holidays the respondent refused to return the children to South Africa. The applicant applied in terms of the Hague Convention on the Civil Aspects of International Child Abduction for an order that the children be released to him. The respondent argued that she was entitled to retain their custody as she was the sole legal guardian and custodian of the children by Zimbabwean law, given that the children were born out of wedlock. The evidence showed that the children were well looked after when they were in South Africa and generally the respondent had been happy with the arrangement. The

A issue was whether the matter fell under the provisions of the Hague Convention which has, in Zimbabwe, the force of law by virtue of s 3 of the Child Abduction Act [Chapter 5:05]. In terms of the Convention, the removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person under the law of the State in which the child was habitually resident immediately beforethe removal or retention. Such rights 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 that State. Held, that the clear purpose of the Convention, as appears in the preamble and art 1, is to provide a mechanism to deal with the situation where children are wrongfully removed or retained from the jurisdiction of their habitual residence. It is only in very exceptional circumstances that the court will have a discretion to refuse to order their immediate return as the Convention has in mind a high degree of harm to the child and a high level of intolerability. By relinquishing custody rights to the applicant while the children attended school in South Africa, the respondent could not unilaterally vary or terminate that arrangement. The applicant was therefore entitled to be consulted before the children could be retained in Zimbabwe. While, under Zimbabwean law, the father of an illegitimate child has no inherent right over such child, here the father was already enjoying rights of custody. The retention of the minor children was therefore wrongful in terms of art 3 of the Convention. The issue was not the custody of the children, merely the enforcement of the Convention. Custody had already been determined by the agreement of the parties and the respondent had not lost her right over the children.