Hague Convention | International Child Abduction | Habitual Residence | Supreme Court of Appeal Judgment
On 18 December 2025, the Supreme Court of Appeal of South Africa (SCA) delivered a landmark judgment in The Central Authority for the Republic of South Africa v MV and Another (Case No: 1396/2024), confirming the strict application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction and reinforcing the principle that a parent who wrongfully removes or retains a child in South Africa will not be rewarded.
Our firm acted for the biological father and worked closely with the Central Authority for the Republic of South Africa, supporting the appeal which ultimately succeeded.
Background: International Child Abduction and the Hague Convention
The matter concerned the wrongful retention of a minor child in South Africa following a family trip from Switzerland, where the child was found to be habitually resident. After the child was not returned as agreed, the Central Authority instituted proceedings under the Hague Convention, seeking the child’s return to Switzerland.
The Gauteng Division of the High Court, Pretoria, dismissed the application. This decision was taken on appeal to the Supreme Court of Appeal.
Key Findings of the Supreme Court of Appeal
The Supreme Court of Appeal overturned the High Court’s decision and ordered the immediate return of the child to Switzerland, subject to comprehensive protective measures.
The SCA made several important findings of significance for international family law, child abduction cases, and cross-border custody disputes:
- Habitual Residence Is a Question of Fact, Not Convenience
The Court confirmed that the child’s habitual residence prior to the wrongful retention was Switzerland, based on objective factors including:
- A settled family life in Switzerland
- Employment, accommodation, and integration
- Return travel arrangements demonstrating an intention to return
A parent cannot unilaterally change a child’s habitual residence by remaining in South Africa.
- Custodial Rights of Unmarried Parents Are Protected
After a detailed analysis of Italian and Swiss law, the Court confirmed that:
- The biological father held custodial rights by operation of law
- Those rights subsisted despite relocation between countries
- Such rights are enforceable under the Hague Convention
This is a significant clarification for unmarried parents involved in international custody disputes.
- Illegal Retention of a Child Will Not Be Rewarded
The Court made it clear that:
Allowing a child to remain in South Africa after an unlawful retention would reward wrongful conduct and undermine the objectives of the Hague Convention.
Delays, even where a child becomes settled, cannot be used to legitimise an unlawful removal or retention.
- Best Interests of the Child Do Not Justify Abduction
While the best interests of the child remain paramount, the Court reaffirmed that in Hague Convention matters:
- Only short-term best interests are considered
- Courts must not conduct a full custody enquiry
- Long-term custody disputes must be determined by courts in the country of habitual residence
Protective Measures for the Returning Parent and Child
The Supreme Court of Appeal incorporated extensive protective measures, including:
- Allowing the mother to accompany the child back to Switzerland
- Provision for accommodation, maintenance, transport, and medical cover
- Protection against criminal proceedings relating to the retention
- A direction that Swiss courts determine long-term custody and care
These measures align with the Convention’s purpose: restoring the status quo without prejudicing either parent.
Costs and the Role of Curators ad Litem
The Court ordered that each party bear their own costs, noting:
- Excessive and unnecessary litigation
- The inappropriate expansion of proceedings into a full best-interests enquiry
- The need for courts to be cautious when appointing curators ad litem in Hague Convention matters due to cost, delay, and duplication
The judgment serves as a clear reminder that Hague Convention proceedings must remain focused, expeditious, and jurisdictionally appropriate.
Why This Judgment Matters
This decision provides authoritative guidance that:
- South Africa will strictly enforce the Hague Convention
- Parents cannot gain an advantage through illegal child removal or retention
- International cooperation between central authorities is essential
- Custody disputes must be resolved in the proper international forum
For parents, legal practitioners, and international families, the judgment reinforces legal certainty and the rule of law in cross-border child abduction cases.
Our Firm’s Role
Although the appeal was formally brought by the Central Authority for the Republic of South Africa, our firm:
- Acted for the biological father
- Supported and aligned with the Central Authority’s position
- Assisted in advancing the legal arguments that resulted in a successful appeal
We have extensive experience in international family law, Hague Convention return applications, and cross-border parental disputes.
Need Legal Advice on International Child Abduction or Hague Convention Matters?
If you require assistance with:
- International relocation disputes
- Wrongful removal or retention of a child
- Hague Convention applications in South Africa
- Cross-border custody and parental rights
Early legal intervention is critical.
Contact our firm for experienced and strategic advice in these highly sensitive matters.