SOUTH AFRICA – SONDERUP – 2000 (Undertakings) SONDERUP v TONDELLI. The mother took the child to South Africa. The father applied for her return under the convention. The High Court ordered the return. The mother appeals to the Constitutional Court of South Africa. The court upheld the appeal in part. They issued a new order with undertakings. The child is to be returned if the warrant for her arrest is lifted by the Court in Canada. There were other undertakings. Rather extensive undertakings that would allow the mother to return with the child without fear of arrest.
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Sonderup v Tondelli (SA 2000)No CCR 53/00
13 International Abduction [SA 2000]
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 53/00
LISA TRACY SONDERUP (previously TONDELLI) Appellant
versus
ARTURO TONDELLI First Respondent
THE FAMILY ADVOCATE Second Respondent
Heard on: 23 November 2000
Decided on: 4 December 2000
JUDGMENT
GOLDSTONE J:
Introduction
[1] This appeal concerns a four-year-old girl, who was
brought to South Africa from Canada by her mother in June
2000 and who is still here with her mother. The question
which this Court has to consider is whether the mother is
acting in violation of the provisions of the Hague
Convention on the Civil Aspects of International Child
Abduction FN1 (the Convention). If so, further questions
arise including the constitutionality of the statute
incorporating the Convention into South African law..
[2] On 18 October 2000, Jennett J, sitting in the South
Eastern Cape High Court (the High Court), ordered that Sofia
Chilo Tondelli (Sofia) forthwith be returned to British
Columbia, Canada. FN2 The order was made pursuant to the
provisions of the Hague Convention on the Civil Aspects of
International Child Abduction Act FN3 (the Act). This Act
gives statutory recognition to the Convention which has been
ratified by many nations including Canada and South Africa.
The Act came into force on 1 October 1997. In terms of
section 2, the Convention, which is a schedule to the Act,
applies in South Africa and, in terms of section 231(4) of
the Constitution FN4 it has become law. It is the meaning
and effect of this Act which falls to be interpreted in this
case.
[3] There were competing applications in the High Court.
Lisa Tracy Sonderup, the mother of Sofia (the mother)
claimed an order granting her custody of Sofia. Arturo
Tondelli, the father of Sofia (the father), sought in a
counterclaim to have an order of the Supreme Court of
British Columbia awarding him custody of Sofia made an order
of the High Court, and to have Sofia returned forthwith to
British Columbia. The Chief Family Advocate FN5 (the Family
Advocate), who is designated by section 3 of the Act as the
Central Authority for the Republic, FN6 brought her own
application for the return of Sofia to British Columbia in
terms of Article 12 of the Convention. It was the
last-mentioned application that was granted by the High
Court.
[4] On 9 November 2000 the mother sought leave to appeal
directly to this Court in terms of rule 18 of the Rules of
the Constitutional Court. In considering the mother’s
application, we came to the conclusion that there is a
constitutional issue to be determined in the appeal and that
this Court therefore has jurisdiction to entertain the
matter. We were further of the view that it is in the
interests of justice and of Sofia that this litigation
should be finalised as soon as possible. The father and the
Family Advocate did not object. Accordingly this appeal was
set down for hearing in this Court on an expedited basis.
The father did not appear in this Court and filed a consent
to abide our decision. We are indebted to counsel appearing
for the mother and the Family Advocate for having filed
helpful argument in the short time available to them.
The Background
[5] The mother was born in South Africa and the father in
Italy. They were married to each other in South Africa on 19
June 1989. They lived for some years in Italy and in July
1997 they emigrated to Canada. They made their home at Owl
Ridge, Mount Currie in British Columbia. The marriage
foundered and during 1998 they separated.
[6] On 7 July 1999 a consent paper was made an order of the
Supreme Court of British Columbia. In terms thereof, the
mother was granted sole custody of Sofia and the father
rights of access to her. They were granted joint
guardianship and the father was ordered to pay maintenance
for the child. It was further provided that:
“. . . neither the Plaintiff (the father) nor the
Defendant (the mother) shall remove the Child from
the Province of British Columbia without further
Court Order or the written agreement of the parties
except that either party will be permitted to travel
outside of British Columbia with the child once per
year for a period not to exceed 30 days. . . . if the
Child is taken out of Canada for a period exceeding
30 days, without further court Order or written
consent of both parties permitting the same, the
child will have been wrongfully removed from the
Province of British Columbia, Canada, in
contravention of the Convention [on] the Civil
Aspects of International Child Abduction
(Convention).
. . . the state of habitual residence of the Child,
within the meaning of the Convention, is the Province
of British Columbia, Canada.”
[7] On 31 May 2000, the mother and the father were divorced
in the Supreme Court of British Columbia. The order of 7
July 1999 was left in place. In June 2000, the father sought
an urgent order from the Supreme Court of British Columbia
restraining the mother from removing Sofia from British
Columbia. The application was settled and by consent it was
ordered on 9 June 2000 that an investigation be conducted
into issues of custody of and access to Sofia and that they
be set for trial at the earliest date. It was further
ordered that:
“. . . the Defendant (the mother) be allowed to
travel to South Africa with the Child, for a
one-month period from June 12, 2000 and returning
July 14, 2000 on the following conditions:.
(a) the Plaintiff (the father) will have sole custody
of the Child in the event that the Child is not
returned to British Columbia by July 14, 2000;
(b) the Defendant will deposit the sum of $5,000.00
with her counsel to be held by him or her as security
for the return of the Child and be immediately paid
over to the Plaintiff or his counsel if the Child is
not returned to British Columbia on or about July 14,
2000.”
[8] The mother and Sofia left for South Africa where they
moved in with the mother’s family in Port Elizabeth. When it
became clear to the father that neither Sofia nor the mother
was returning to Canada, he approached the Supreme Court of
British Columbia and on 21 July 2000 obtained an order,
without notice to the mother, to the effect that he was
awarded sole custody and guardianship of Sofia, ordering the
mother forthwith to deliver Sofia to the father and
providing for the arrest of the mother in the event of her
breaching the order.
[9] Thereafter, the Family Advocate received a request, in
terms of the Convention, from the Central Authority of
British Columbia, for steps to be taken to ensure the prompt
return of Sofia to British Columbia.
The Convention
[10] According to its preamble, the purpose of the
Convention is to protect children from the harmful effects
of their wrongful removal or retention and to ensure their
prompt return to the state of their habitual residence. I
agree with L’Heureux-Dubé J’s comments in Thomson v Thomson
FN7 that:.
“. . . the necessity of international agreements with
regard to the abduction of children has been
abundantly demonstrated particularly in recent years.
The increase in rapid international transportation,
the freer crossing of international boundaries, the
continued decrease in documentation requirements when
entering foreign jurisdictions, the increase in
‘international families’, where parents are of
different countries of origin, and the escalation of
family breakups worldwide, all serve to multiply the
number of international abductions.”
[11] The Convention provides for a mandatory return
procedure whenever a child has been removed or retained in
breach of the rights of custody of any person or institution
“under the law of the State in which the child was
habitually resident immediately before the removal or
retention” and where those rights were actually being
exercised or would have been but for the removal or
retention. These rights, according to the Convention may
arise by operation of law, by judicial or administrative
decision or by an agreement having legal effect. FN8 The
Convention defines “rights of custody” to “include rights
relating to the care of the person of the child and, in
particular, the right to determine the child’s place of
residence.” FN9 In applying the Convention “rights of
custody” must be determined according to this definition
independent of the meaning given to the concept of “custody”
by the domestic law of any state party. Whether a person, an
institution or any other body has the right to determine a
child’s habitual residence must, however, be established by
the domestic law of the child’s habitual residence. As
L’Heureux-Dub‚ J correctly points out:.
“[h]owever, although the Convention adopts an
original definition of ‘rights of custody’, the
question of who holds the . . . ‘right to determine
the child’s place of residence’ within the meaning of
the Convention is in principle determined in
accordance with the law of the state of the child’s
habitual place of residence . . .” FN10 (Emphasis
added)
At all material times Sofia’s habitual place of residence
was British Columbia, and the law of that province
prohibited her from residing in any other place without the
authority of an order of court or written agreement between
the mother and the father.
[12] Where a child has been wrongfully removed or retained
in terms of Article 3, and a period of less than a year
after the wrongful removal or retention has elapsed, the
judicial or administrative authorities of the requested
state “shall order the return of the child forthwith.” FN11
Such judicial or administrative authority is granted a
discretion to refuse to order such return by the provisions
of Article 13. It reads as follows:
“Notwithstanding the provisions of the preceding
Article, the judicial or administrative authority of
the requested State is not bound to order the return
of the child if the person, institution or other body
which opposes its return establishes that-
a the person, institution or other body having the
care of the person of the child was not actually
exercising the custody rights at the time of removal
or retention, or had consented to or subsequently
acquiesced in the removal or retention; or
b there is a grave risk that his or her return would
expose the child to physical or psychological harm or
otherwise place the child in an intolerable
situation.
The judicial or administrative authority may also
refuse to order the return of the child if it finds
that the child objects to being returned and has
attained an age and degree of maturity at which it is
appropriate to take account of its views.
In considering the circumstances referred to in this
Article, the judicial and administrative authorities
shall take into account the information relating to
the social background of the child provided by the
Central Authority or other competent authority of the
child’s habitual residence.” FN12
A further ground for refusing to return a child is to be
found in Article 20. It provides that:
“The return of the child under the provisions of
Article 12 may be refused if this would not be
permitted by the fundamental principles of the
requested State relating to the protection of human
rights and fundamental freedoms.”
[13] Article 6 requires states parties to designate a
Central Authority to discharge the duties imposed by the
Convention. As already indicated, in South Africa the Act
designates the Family Advocate for this purpose. FN13 In
British Columbia, according to the papers before the Court,
the Attorney-General has been so designated. FN14
[14] Under Article 7 the Central Authorities are to
co-operate with each other and promote co-operation amongst
the competent authorities in their respective states to
secure the prompt return of children to achieve the objects
of the Convention. FN15 Thus, under the Convention, the
Family Advocate must act on behalf of the Central Authority
of the requesting state to facilitate the return of
children. Contrary to the neutral role that the Family
Advocate takes in domestic matters, the Family Advocate
may be obliged to adopt an adversarial role and oppose the
wishes of the parent opposing such return. FN16
[15] In addition, Article 7 requires the Central
Authorities, directly or through an intermediary, amongst
other things, “to exchange, where desirable, information
relating to the social background of the child”. FN17 This
requirement for co-operation between Central Authorities
suggests that the Family Advocate ought, where possible, to
liaise with the Central Authority of the requesting state,
here the Attorney-General of British Columbia, to obtain any
reports with relevant information. Reports containing the
objective assessment of facts that are in issue would
greatly assist the courts. Under the Convention, it is
reasonable to expect the Family Advocate to initiate the
exchange of information and provide the results of those
inquiries to the courts. It would also be most helpful for
the Central Authority of the requesting state to furnish a
court considering an Article 13 exemption with any relevant
information relating to the circumstances of the child. This
is envisaged by Article 13 itself, which states:
” . . .. In considering the circumstances referred to
in this Article, the judicial and administrative
authorities shall take into account the information
relating to the social background of the child
provided by the Central Authority . . . of the
child’s habitual residence”. FN18
The Proceedings in the High Court
[16] By agreement, the High Court considered only the urgent
application brought by the Family Advocate, in which she
sought an order for the return of Sofia to British Columbia
in terms of Article 12 of the Convention. It was accepted
that if the Family Advocate’s application was granted, the
mother’s application and the father’s counter-application
would fall to be dismissed.
[17] The mother challenged the application of the Family
Advocate, arguing that to order Sofia back to Canada under
the Convention would amount to making an order in conflict
with section 28(2) of the Constitution FN19 because such a
return would be against the child’s best interests. Jennett
J held that there is no conflict between the Convention and
section 28(2) of the Constitution, since under both
instruments, the interests of children are of paramount
importance in determining custody. He recognised, however,
that the central issue of the case before the court was not
to decide who should have custody but rather to decide which
court should consider the merits of custody. Jennett J
determined that the best interests of the child would be to
allow the court that could best dispose of the case to do
so. He held that the Convention is reconcilable with section
28(2) of the Constitution..
[18] Jennett J also decided that, given the evidence before
him, it was not inconsistent with Sofia’s best interests
that issues relating to the father’s access and custody be
considered by the Supreme Court of British Columbia.
Accordingly, he concluded it was in her best interests to
grant the Family Advocate’s application and order the return
of Sofia to British Columbia. In his order, he recorded the
terms of a number of undertakings given by the father. FN20
The Issues
[19] The issues before this Court are the following:
(a) Whether the provisions of the Convention apply in
the present case;
(b) If so, whether, as incorporated by the Act, they
are consistent with the Constitution;
(c) Whether these provisions require the return of
Sofia.
The Applicability of the Convention
[20] The mother denies that the father possesses any “rights
of custody” as defined in the Convention and thus asserts
that neither the removal of Sofia from British Columbia nor
her retention in South Africa are wrongful. Consequently, so
she claims, the Convention has no application in this
matter.
[21] As stated above, the Convention defines “rights of
custody” to include, in particular, “the right to determine
the child’s place of residence”. FN21 In this case there
was a non-removal (“ne exeat”) provision in the order of the
Supreme Court of British Columbia of 7 July 1999. FN22 It
has been held by courts in several jurisdictions that such a
non-removal provision can, depending on the circumstances,
confer a right of custody within the meaning of the
Convention. FN23
[22] In urging this Court to find that the Convention does
not apply, the mother relies on the recent case of Croll v
Croll FN24 in which the United States Court of Appeals for
the Second Circuit held, contrary to the weight of
authority, that a non-removal provision does not found a
right of custody.
[23] In the court a quo, Jennett J dismissed this argument,
preferring to follow the approach taken in the dissent of
Sotomayor J. In his judgment, Sotomayor J said that:
“rights arising under a ne exeat clause include the
‘right to determine the child’s place of residence’ .
. . A parent’s ne exeat rights fit comfortably within
the category of rights the Convention seeks to
protect”. FN25
This followed, according to Sotomayor J, because when a
parent takes a child abroad in violation of ne exeat rights,
that parent effectively nullifies the custody order of the
country of habitual residence – exactly the mischief the
Convention seeks to avoid.
[24] In any event, the facts in Croll are not identical to
those in the present case. Here, we are not dealing only
with a non-removal provision in a final custody agreement.
In this case we have an interim agreement between the
parties that Sofia would be returned to her country of
habitual residence by a particular date, and that “the
issues of custody and access be set for trial at the
earliest dates . . . available for counsel and the court
registry”. FN26 That agreement was made an order of the
Supreme Court of British Columbia.
[25] The “rights of custody” as defined in the Convention
may, according to Article 3, arise either by court order or
by agreement having a legal effect under the law of the
requesting state. It is not in dispute in this case that
both the agreement and the order incorporating it
constituted the basis upon which the mother was to retain
custody of Sofia and upon which the father was entitled to
exercise rights of access to her. In effect the mother was
entitled to exercise her rights of custody (in the sense of
caring for the daily needs of Sofia) only in British
Columbia, save for the period from 12 June 2000 to 14 July
2000. Her failure to return to British Columbia with the
child on the latter date was a breach of the conditions upon
which she was entitled to exercise her rights of custody and
a concomitant breach of the father’s rights under the
agreement and order. It therefore constituted a wrongful
retention by her of Sofia outside British Columbia as
contemplated by Article 3 of the Convention. FN27 I
conclude therefore that the Convention is applicable. FN28
The Constitutionality of the Act and the Effect of Section
28(2)
[26] It is now necessary to consider the submission on
behalf of the mother that the Act is inconsistent with the
Constitution. The only basis upon which this submission was
made was that the Act obliges our courts to act in a manner
which does not recognise the paramountcy of the best
interests of the child.
[27] That the Constitution is our supreme law is made clear
from section 2 which provides that:
“This Constitution is the supreme law of the
Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed by it must be
fulfilled.”
As was stated by Mohamed CJ:
“This inquiry must crucially rest on the Constitution
of the Republic of South Africa Act . . . It is
supreme-not Parliament. It is the ultimate source of
all lawful authority in the country.” FN29 (Emphasis
in the original)
It follows that if the Act or any of its provisions are
inconsistent with a provision of the Constitution,
such inconsistency would have to be justifiable under the
provisions of section 36 of the Constitution FN30
in order for the Act to be constitutionally valid.
[28] The Convention itself envisages two different processes
– the evaluation of the best interests of children in
determining custody matters, which primarily concerns
long-term interests, and the interplay of the long-term and
short-term best interests of children in jurisdictional
matters. The Convention clearly recognises and safeguards
the paramountcy of the best interests of children in
resolving custody matters. It is so recorded in the preamble
which affirms that the states parties who are signatories to
it, and by implication those who subsequently ratify it, are
“[f]irmly convinced that the interests of children are of
paramount importance in matters relating to their custody.”
As was stated by Donaldson MR in Re F: FN31
“I agree with Balcombe LJ’s view expressed in Giraudo
v Giraudo . . . that in enacting the 1985 Act [giving
effect to the Convention], Parliament was not
departing from the fundamental principle that the
welfare of the child is paramount. Rather it was
giving effect to a belief-
‘that in normal circumstances it is in the interests
of children that parents or others shall not abduct
them from one jurisdiction to another, but that any
decision relating to the custody of the children is
best decided in the jurisdiction in which they have
hitherto been habitually resident.’
[29] What, then, of the short-term best interests of
children in jurisdictional proceedings under the Convention?
One can envisage cases where, notwithstanding that a child’s
long-term interests will be protected by the custody
procedures in the country of that child’s habitual
residence, the child’s short-term interests may not be met
by immediate return. In such cases, the Convention might
require those short-term best interests to be overridden. I
shall assume, without deciding, that this argument is valid.
To that extent, therefore, the Act might be inconsistent
with the provisions of section 28(2) of the Constitution
which provide an expansive guarantee that a child’s best
interests are paramount in every matter concerning the
child. I shall proceed therefore to consider whether such an
inconsistency is justifiable under section 36 of the
Constitution, FN32 which requires a proportionality analysis
and weighing up of the relevant factors.
[30] In conducting this proportionality analysis, section 36
enjoins this Court to consider the importance of the purpose
of the limitation, and the relationship between the
limitation and its purpose. FN33.
The purpose of the Convention is important. It is to ensure,
save in the exceptional cases provided for in Article 13
(and possibly in Article 20), FN34 that the best interests
of a child whose custody is in dispute should be considered
by the appropriate court. It would be quite contrary to the
intention and terms of the Convention were a court hearing
an application under the Convention to allow the proceedings
to be converted into a custody application. Indeed, Article
19 provides that:
“A decision under this Convention concerning the
return of the child shall not be taken to be a
determination on the merits of any custody issue.”
Rather, the Convention seeks to ensure that custody issues
are determined by the court in the best position to do so by
reason of the relationship between its jurisdiction and the
child. That Court will have access to the facts relevant to
the determination of custody.
[31] Given the appropriateness of a specific forum, the
Convention also aims to prevent the wrongful circumvention
of that forum by the unilateral action of one parent. In
addition, the Convention is intended to encourage comity
between states parties to facilitate co-operation in cases
of child abduction across international borders. These
purposes are important, and are consistent with the values
endorsed by any open and democratic society.
[32] There is also a close relationship between the purpose
of the Convention and the means sought to achieve that
purpose. The Convention is carefully tailored, and the
extent of the assumed limitation is substantially mitigated
by the exemptions provided by Articles 13 and 20. FN35
They cater for those cases where the specific circumstances
might dictate that a child should not be returned to the
State of the child’s habitual residence. They are intended
to provide exceptions, in extreme circumstances, to protect
the welfare of children. Any person or body with an interest
may oppose the return of the child on the specified grounds.
[33] The nature and extent of the limitation are also
mitigated by taking into account section 28(2) of our
Constitution when applying Article 13. The paramountcy of
the best interests of the child must inform our
understanding of the exemptions without undermining the
integrity of the Convention. The absence of a provision such
as section 28(2) of the Constitution in other jurisdictions
might well require special care to be taken in applying
dicta of foreign courts where the provisions of the
Convention might have been applied in a narrow and
mechanical fashion.
[34] Moreover, in the application of Article 13, recognition
must be accorded to the role which domestic violence plays
in inducing mothers, especially of young children, to seek
to protect themselves and their children by escaping to
another jurisdiction. FN36 Our courts should not trivialise
the impact on children and families of violence against
women. In S v Baloyi FN37 this Court quoted the following
statement with approval:
“Domestic and family violence is a pervasive and
frequently lethal problem that challenges society at
every level. Violence in families is often hidden
from view and devastates its victims physically,
emotionally, spiritually and financially. It
threatens the stability of the family and negatively
impacts on all family members, especially the
children who learn from it that violence is an
acceptable way to cope with stress or problems or to
gain control over another person.”
Where there is an established pattern of domestic violence,
even though not directed at the child, it may very well be
that return might place the child at grave risk of harm as
contemplated by Article 13 of the Convention.
[35] A South African court seized with an application under
the Convention is obliged to place in the balance the
desirability, in the interests of the child, of the
appropriate court retaining its jurisdiction, on the one
hand, and the likelihood of undermining the best interests
of the child by ordering her or his return to the
jurisdiction of that court. As appears below, the court
ordering the return of a child under the Convention would be
able to impose substantial conditions designed to mitigate
the interim prejudice to such child caused by a court
ordered return. FN38 The ameliorative effect of Article
13, an appropriate application of the Convention by the
court, and the ability to shape a protective order, ensure a
limitation that is narrowly tailored to achieve the
important purposes of the Convention. It goes no further
than is necessary to achieve this objective, and the means
employed by the Convention are proportional to the ends it
seeks to attain.
[36] For the above reasons I am satisfied that the
limitation is manifestly reasonable and justifiable in an
open and democratic society based on human dignity, equality
and freedom. Therefore, I conclude that the Act
incorporating the Convention is consistent with the
Constitution.
[37] It was argued on behalf of the mother that the
provisions of Article 20 require the provisions of section
28(2) of the Constitution to be applied as a further
exception to the obligation to return the child to the state
of habitual residence. In the light of the above analysis
the argument based on Article 20 takes the matter no
further.
The Reliance on Article 13
[38] Within the parameters of the Convention, the mother
submitted that there should not be an order for the return
of Sofia because she would be at grave risk of psychological
harm and would be placed in an intolerable situation should
she be returned. The factual matrix upon which the mother’s
claim is based is to be found in the affidavits and
documentary material placed before the High Court. Much of
it is disputed by the father and none of it has been tested
by viva voce evidence.
[39] Counsel for the mother, in argument in this Court,
relied upon the following allegations of the mother:
(a) A physical assault upon her by the father on one
occasion during June 1998. (An allegation by the
mother of an earlier assault was not relied upon by
counsel. It occurred soon after the Tondellis took up
residence in British Columbia, and resulted in the
mother having a bruised thigh.) The June 1998
incident resulted in a peace bond being placed upon
the father. It was issued on 30 July 1998 and was the
consequence of the father, during an argument, having
“grabbed my arm and [thrown] me onto the kitchen
counter”;
(b) A second peace bond was issued on 11 May 2000 and
was the consequence of alleged threatening behaviour
on the part of the father. In her affidavit in the
High Court, the mother alleged that the peace bond
was granted in the light of the following conduct by
the father (who is referred to as the First
Respondent):
“23.1 Over the period 1 November 1999 to 25 March
2000 [he] verbally and psychologically abused and
intimidated me. Explanations thereof are the
following:
23.1.1 First Respondent informed me that if I
wouldn’t live with him, I would not live with any
other man.
23.1.2 He informed me that there wouldn’t be a
divorce until I did things the way he wanted me
to do them.
23.1.3 First Respondent followed and watched me
and phoned me incessantly. He once queried me
where my car was and who was driving it, and
stated that he saw my car outside my home.
23.1.4 First Respondent’s tone of voice and body
language towards me was often threatening and
intimidating. On occasion he did not want to
leave my shop and I was compelled to call in the
assistance of the police to do so.
23.2 [He] was inclined to insult hunters, whom he
never liked. First Respondent informed me that he on
occasion sabotaged a hunter’s summer house by sealing
all the locks and bolts of the door with super glue,
so that the hunters had to break the door down to get
into the house.
23.3 [He] informed me that he had thrown light bulbs
filled with brake fluid on hunters’ cars that were
parked near our property. He told me that he threw
the light bulbs on the cars because the brake fluid
would eat the paint on the cars. First Respondent
used a syringe and injected the brake fluid into the
bulbs.”;
(c) During the proceedings for the second peace bond,
the judge who heard the matter commented adversely on
the father’s conduct in court. She said:
“Mr. Tondelli, unfortunately, appears to have no
insight into the effect his actions have on others.
Today in the courtroom he clearly displayed anger,
frustration and hostility. I understand he is upset
at the present state of his access to his daughter,
but at times he appeared to be barely in control.”;
(d) In her replying affidavit the mother refers to
incidents where the father allegedly lost control of
himself and broke a kitchen tap, threw framed
photographs on the floor and broke them and hit his
fist through the top of a washing machine;
(e) While watching a movie, the father made a remark
approving of the physical and verbal abuse of a
woman;
(f) The father cut the telephone lines of a woman
with whom he had had an argument;
(g) Statements allegedly made by the father to a
newspaper journalist during the proceedings in the
High Court to the effect that “I don’t care if she
[the mother] gets arrested [on her return to Canada]
or not although it will be to the detriment of little
Sofia. I will fight this matter to the bitter end.”;
(h) The mother’s strong objection to returning to
Canada where she was desperately unhappy, alone and
isolated. She has “no real friends and family there”
and no support system;
(i) The father “has been telling all those concerned
that [the mother] was either paranoid or
schizophrenic and that [she has] a great mental
instability. . .”;
(j) Sofia is a special needs child who requires
constant supervision and treatment. She is receiving
such treatment in Port Elizabeth. In Owl Ridge, on
the other hand, there are no comparable facilities;
(k) Sofia’s condition improved after she came to Port
Elizabeth and has again deteriorated after the
father’s arrival there to contest the High Court
proceedings;
(l) If she is forced to return with Sofia to Canada,
she will be completely dependent upon the father for
the financial needs of herself and Sofia.
[40] The mother’s counsel relied also on the report of Mr
Ian Meyer, a clinical psychologist practising in Port
Elizabeth. Based upon the information furnished to him by
the mother and her parents, he expresses the view that the
evidence is overwhelmingly in favour of the mother remaining
the sole custodial parent. He states further that the
continuation of the status quo in Canada would have a
severely compromising effect on the healthy psychological
development of Sofia.
[41] Finally, counsel referred to the likelihood of the
mother being arrested upon her return to Canada for being in
contempt of the order granted by the Supreme Court of
British Columbia on 9 June 2000. FN39 He also drew
attention to the ex parte order made by the Supreme Court of
British Columbia on 21 July which took away her rights of
custody and co-guardianship of Sofia. FN40 He submitted
that it would be unfair and unjust to expect the mother to
return to live in Canada.
[42] The question we have to decide is whether, on her
allegations, the mother has established, under Article 13 of
the Convention, that there is a grave risk that Sofia’s
return to Canada will expose her to psychological harm or
otherwise place her in an intolerable situation.
[43] A matrimonial dispute almost always has an adverse
effect on children of the marriage. Where a dispute includes
a contest over custody, that harm is likely to be
aggravated. The law seeks to provide a means of resolving
such disputes through decisions premised on the best
interests of the child. Parents have a responsibility to
their children to allow the law to take its course and not
to attempt to resolve the dispute by resorting to self-help.
Any attempt to do that inevitably increases the tension
between the parents and that ordinarily adds to the
suffering of the children. The Convention recognises this.
It proceeds on the basis that the best interests of a child
who has been removed from the jurisdiction of a court in the
circumstances contemplated by the Convention are ordinarily
served by requiring the child to be returned to that
jurisdiction so that the law can take its course. It makes
provision, however, in Article 13 for exceptional cases
where this will not be the case.
[44] An Article 13 enquiry is directed to the risk that the
child may be harmed by a court ordered return. The risk must
be a grave one. It must expose the child to “physical or
psychological harm or otherwise place the child in an
intolerable situation.” The words “otherwise place the child
in an intolerable situation” indicate that the harm that is
contemplated by the section is harm of a serious nature. I
do not consider it appropriate in the present case to
attempt any further definition of the harm, nor to consider
whether in the light of the provisions of our Constitution,
our courts should follow the stringent tests set by courts
in other countries. FN41
[45] I accept that the mother finds herself in a most
difficult situation. The relationship between her and the
father is clearly hostile. In addition the mother’s
difficulties are exacerbated by the absence of a family or
support system in British Columbia. On her allegations, her
reasons for leaving British Columbia are not difficult to
understand. That, however, is not the issue. The question is
whether the mother has established the elements for
exemption under Article 13.
[46] There is no suggestion that Sofia will suffer physical
harm if she is returned to British Columbia. The
psychological harm which it is said that Sofia will suffer
if she is returned to Canada is not harm of the serious
nature contemplated by Article 13. It is in the main harm
which is the natural consequence of her removal from the
jurisdiction of the courts of British Columbia, a court
ordered return, and a contested custody dispute in which the
temperature has been raised by the mother’s unlawful action.
That is harm which all children who are subject to abduction
and court ordered return are likely to suffer, and which the
Convention contemplates and takes into account in the remedy
that it provides.
[47] I have thus come to the conclusion that the facts are
insufficient to support a finding that the return of the
child to British Columbia involves the grave risk of the
harm referred to in Article 13. I base this view upon the
following specific considerations:
(a) There are no allegations at all which suggest
that the father has abused Sofia either physically or
psychologically. Mr Meyer refers in his report to the
father having “taken a more involved role with his
daughter, albeit predominantly subsequent to the
parties separating. He clearly has a keen love for
his daughter and interest in her progress.” The
return of Sofia to the proximity of her father does
not in itself pose a grave risk of harm to her;
(b) The problems which Sofia may experience are the
consequence of the tension and trauma which is
associated with the relationship between her mother
and father. There is nothing to suggest that if Sofia
and her mother return to British Columbia the mother
and father need associate with one another;
(c) The mother nowhere suggests that she fears for
her physical safety when she is not in physical
proximity with the father;
(d) The child’s special needs can adequately be
catered for in British Columbia;
(e) This Court can make an appropriate order to
address some of the concerns of the mother with
regard to her possible arrest on her return to
British Columbia, her needs and those of Sofia
pending a determination of the custody and
guardianship of Sofia by the Supreme Court of British
Columbia, and ensuring that finality with regard
thereto should be reached expeditiously;
(f) The order which I propose we should make will
render enforceable the undertakings of the father
which were recorded in the order of the High Court;
(g) Although there is evidence that Sofia is
adversely affected by the interaction between her
parents, it has not been established that if returned
to British Columbia, Sofia will suffer psychological
harm of a serious nature or that she will otherwise
be placed in an intolerable situation. I have come to
this conclusion on the basis of accepting at face
value the relevant allegations made by the mother.
[48] Accordingly, I am of the opinion that the mother has
not satisfied the grave risk requirement and that it is in
the best interests of Sofia that the Supreme Court of
British Columbia should determine questions relating to her
future custody and guardianship. That court is already
seized of the matter, and the relevant incidents took place
within its jurisdiction. It is clearly in a better position
than a South African court to resolve the serious disputes
of fact between the mother and the father. It could also
consider an application by the mother for the permanent
removal of Sofia to South Africa.
The Form of the Order
[49] The following order was made by Jennett J in the High
Court:
“1. It is ordered and directed that the minor child,
Sofia Tondelli, be forthwith returned to the
jurisdiction of the Central Authority, British
Columbia, Canada.
2. In the event of applicant being willing to accompany
the minor child Sofia Tondelli on her return to
British Columbia, which willingness applicant must
communicate to both first and second respondents on
or before Wednesday 25 October 2000 it is ordered
that the minor child Sofia Tondelli will remain in
the de facto custody of applicant pending the final
adjudication and determination of the Supreme Court
of British Columbia, Canada of the issues of custody
and care of and access to the said child which
adjudication and determination applicant and first
respondent, or either of them, must request
forthwith.
3. In the event of 2 above i.e. Applicant being willing
to accompany the minor child Sofia Tondelli on her
return to British Columbia, the following
undertakings given by First respondent are recorded:
–
a) He will not seek to enforce against respondent
the Order of the Supreme Court of British
Columbia dated 21 July 2000 in terms of which he
was granted custody of Sofia and he will not seek
to remove Sofia from the day to day care of
applicant save for the purpose of exercising his
rights of reasonable access to Sofia.
(b) He will not institute or support any proceedings,
whether criminal or contempt of court
proceedings, for the punishment of applicant or
any member of her family, whether by imprisonment
or otherwise, for any matter arising out of the
removal by applicant of Sofia from British
Columbia and her retention therefrom on or after
14 July 2000. In particular he will not proceed
with any charges against applicant in respect of
her breach of any of the previous Orders of the
Supreme Court of British Columbia and he will
take all steps that he reasonably can for the
withdrawal of any criminal charges pending
against her in this regard.
(c) He will arrange separate accommodation for
applicant and Sofia in British Columbia, close to
an appropriate school for Sofia and he shall
contribute 500 Canadian dollars per month to
applicant’s expenses pertaining to such
accommodation. He will also pay maintenance for
Sofia from the date of her arrival in British
Columbia until the final adjudication of the
issue of the custody and care of Sofia by the
Supreme Court of British Columbia at the rate of
500 Canadian dollars per month and he will
contribute towards the cost of schooling for
Sofia and also the cost of all her reasonable
educational and extramural requirements.
(d) He will provide for the use by applicant of a
roadworthy motor vehicle from the date of
applicant’s arrival in British Columbia for a
period of 2 months or until the adjudication of
the custody issue, whichever may be the later,
and he will share the expense of running such
vehicle equally with applicant.
(e) He will pay for any medical expenses
reasonably incurred by applicant in respect of
Sofia and in the event of her receiving therapy
he will bear the costs of such therapy.
(f) He will co-operate fully with the Ministry of
Children, British Columbia and with any
professionals who conduct an assessment in order
to determine what future custody, care and access
arrangement will be in the best interests of
Sofia.
(g) He will contribute, if so required and so
notified as provided in paragraph 2 hereof,
towards the cost of air tickets and if necessary,
also rail and road tickets for the return of
applicant and Sofia from Port Elizabeth to
British Columbia. Details of the travel
arrangements in this regard will be made by first
respondent and specified to applicant’s attorneys
no later than 3 working days before the date of
departure of the flight upon which applicant and
Sofia are to depart from Port Elizabeth.
(h) He will upon receipt of this Court Order, at
his own expense, take all steps necessary to
cause this order to be made an order of the
Supreme Court of British Columbia, Canada,
insofar as that is possible, and he will take
such other steps as are necessary to ensure that
this order is enforced in the Province of British
Columbia, Canada and to provide proof thereof to
applicant’s attorneys and to this Court as soon
as such Order of the said Canadian Court has been
granted, that such necessary steps have been
taken.
4. In the event of Applicant requiring first respondent
to implement his undertaking in paragraph 3(g) above
applicant is ordered to return the minor child Sofia
Tondelli to British Columbia, Canada on the tickets
provided and the flights and other means of transport
specified.
5. In the event of applicant failing to notify first and
second respondents of her willingness to accompany
the minor child Sofia Tondelli on her return to
British Columbia, Canada, it is to be accepted that
applicant is not prepared to so accompany the said
minor child in which event second respondent is
authorised to make such arrangements as are necessary
to ensure that the minor child, Sofia Tondelli, is
safely returned to the custody of the Central
Authority, Columbia, Canada and to take such steps as
are necessary to ensure that such arrangements are
complied with.
6. Pending the return of the minor child Sofia Tondelli
to British Columbia, Canada as provided for in this
Order, applicant shall not remove Sofia from the
district of Port Elizabeth and she shall until then
keep first respondent’s attorney informed of her
physical address and contact telephone numbers in
Port Elizabeth.
7. Pending the return of the minor child Sofia Tondelli
to British Columbia, Canada first respondent is to
have reasonable access to the said minor child, such
access to be under the supervision of a suitably
independent person nominated by Ian Meyer, Clinical
Psychologist, which access will be exercised in
accordance with such person’s reasonable
requirements.
8. The costs of second respondent in this
counter-application are to be paid by applicant.
9. No order is made on applicant’s application or on
first respondent’s counter-application but applicant
is ordered to pay the costs of both first respondent
and second respondents in opposing applicant’s
application, which cost in the case of first
respondent are to include the costs of employing two
counsel.”
[50] I agree that there should be an order for the return of
Sofia to British Columbia. However, as the mother appears to
be intent on accompanying Sofia, it is in Sofia’s interests
that her mother be given greater protection than that
provided by the order of the High Court. On the evidence
before this Court, I cannot find that the mother is acting
unreasonably in not being content to rely upon the
undertakings of the father.
[51] Section 38 of the Constitution provides that, where
anyone approaches a court alleging that a right in the Bill
of Rights has been infringed, that court may grant
appropriate relief. FN42 Pursuant to section 38, read with
section 28(2), FN43 this Court is entitled to impose
conditions in the best interests of Sofia. Such conditions
should be consistent with, and not hamper, the objectives of
the Convention, and in particular, should not unnecessarily
delay the return of the child to the proper jurisdiction.
FN44
[52] The order should ensure that the mother can return to
British Columbia without the risk of arrest. If she
accompanies Sofia, she and Sofia should not be required to
leave South Africa before there is an appropriate order of
the Supreme Court of British Columbia to the effect that
criminal proceedings are no longer pending against the
mother for her failure to comply with the order of that
court dated 9 June 2000. Such an order is consistent with
the undertakings given by the father in the High Court. In
the implementation of this order, the father will no doubt
be able to rely on the co-operation of the Family Advocate
who, in turn, can obtain the assistance of the Central
Authority in British Columbia.
[53] On the information before this Court, it seems likely
that sole custody of Sofia will be awarded by the Supreme
Court of British Columbia to the mother. I refer
specifically in this regard to the age of Sofia and the fact
that she has been in the constant daily care of her mother
all of her young life. FN45 Whether it is in the best
interests of Sofia that she should be allowed to live
permanently with her mother in South Africa is a matter on
which it is unnecessary for me to comment. It appears on the
information before this Court that the best interests of
Sofia dictate that she should remain in the sole custody of
her mother subject, of course, to reasonable rights of
access for her father until this matter has been finally
adjudicated by the courts of British Columbia. The order of
this Court should be formulated to achieve this.
[54] It is clearly also in the interests of Sofia that
certainty as to her custody and guardianship be settled at
the earliest possible time. It was primarily for this reason
that the appeal before this Court was expedited. For this
reason this Court requested the Family Advocate to make
inquiries from the Central Authority in British Columbia as
to the time it would take to have the custody and
guardianship proceedings commence in the Supreme Court of
British Columbia and the time which any appeal from such a
decision would require. In response, the Attorney-General of
British Columbia has assured the Family Advocate that an
urgent interim custody application could be heard within two
days of a request therefor and that a full expedited trial
could be heard in four to five months. An appeal would take
a further two months. The mother’s attorneys have informed
the Court that their inquiries indicate that a trial and
appeal would take from eleven to thirteen months. Having
regard to the fact that Sofia is to be returned to British
Columbia under the Convention, it can be assumed that the
judicial and administrative authorities there will ensure
that custody and associated matters regarding Sofia are
determined on an expedited basis.
Costs
[55] The mother has had limited but significant success in
this Court with regard to the order which is made. To that
extent the order of the High Court will have to be set aside
and replaced with the order which appears below. In these
circumstances I am of the view that we are at large to
consider the costs in the High Court. The father was
substantially successful in that court in obtaining an order
for the return of Sofia and there is no reason he should not
have been awarded his costs in that court. However, I can
find no warrant for the order that the mother should pay the
costs of the Family Advocate. The latter is a state official
acting in terms of an international Convention which
provides in Article 26 that each Central Authority should
bear its own costs in applying the Convention. In this Court
the Family Advocate has not sought an order for costs.
The Order
[56] The following order is made:
A The appeal is upheld in part.
B The order of Jennett J in the South Eastern Cape
High Court is set aside and it is replaced by the
following order:
1 It is ordered and directed that the minor
child, Sofia Chilo Tondelli (Sofia) be
returned forthwith, but subject to the terms
of this order, to the jurisdiction of the
Central Authority, British Columbia, Canada.
2 In the event of Lisa Tracy Sonderup (the
mother) indicating to the Family Advocate on
or before 9 December 2000 that she intends to
accompany Sofia on her return to British
Columbia the provisions of paragraph 3 shall
apply.
3 Arturo Tondelli (the father) shall,
within 30 days of service of this order on
his Port Elizabeth attorney of record, launch
proceedings and pursue them with due
diligence to obtain an order of the Supreme
Court of British Columbia in the following
terms:
(a) The warrant for the arrest of the
mother is withdrawn and she will not
be subject to arrest by reason of her
failure to return Sofia to British
Columbia on 14 July 2000 or for any
other past conduct relating to Sofia;
(b) The mother is awarded interim
custody of Sofia pending the final
adjudication and determination by the
Supreme Court of British Columbia of
the issues of custody and care of and
access to Sofia, which adjudication
and determination shall be requested
forthwith by the father;
(c) Until otherwise ordered by the
Supreme Court of British Columbia:
(i) the father is ordered to arrange
separate accommodation for the mother
and Sofia in British Columbia, chosen
by the mother, and the father is
ordered to contribute the sum of 500
Canadian Dollars per month towards
the cost of such accommodation;
(ii) The father is ordered to pay
maintenance for Sofia from the date
of her arrival in British Columbia at
the rate of 500 Canadian Dollars per
month;
(iii) The father is ordered to pay
for the reasonable costs of the
schooling of Sofia and also the costs
of her other reasonable educational
and extramural requirements;
(iv) The father shall provide for
the use of the mother a roadworthy
motor vehicle from the date of her
arrival in British Columbia until the
adjudication of the custody issue and
share equally with the mother the
reasonable expenses in respect of the
running of the vehicle;
(v) The father is ordered to pay any
medical expenses reasonably incurred
by the mother in respect of Sofia
which shall include the cost of
therapy Sofia may reasonably require;
(vi) The father and the mother are
ordered to co-operate fully with the
Ministry of Children, British
Columbia and with any professionals
who conduct an assessment in order to
determine what future custody, care
and access arrangements will be in
the best interests of Sofia;
(vii) The father is ordered to pay
for the costs of economy air tickets,
and if necessary road or rail costs,
for the return of Sofia and her
mother to British Columbia. Such
arrangements are to be made by the
mother;
(viii) The father is granted
reasonable access to Sofia which
access shall be arranged without the
necessity of direct contact between
the mother and the father.
4 In the event of the mother giving the
notice to the Family Advocate referred to in
paragraph 2, the order for the return of
Sofia shall be stayed until the Supreme Court
of British Columbia has made the order
referred to in paragraph 3 and when the
Family Advocate is satisfied that such an
order has been made, she or he shall so
notify the mother.
5 In the event of the mother failing to
notify the Family Advocate of her willingness
to accompany Sofia on her return to British
Columbia, it is to be accepted that the
mother is not prepared to accompany Sofia, in
which event the Family Advocate is authorised
to make such arrangements as are necessary to
ensure that Sofia is safely returned to the
custody of the Central Authority, British
Columbia and is to take such steps as are
necessary to ensure that such arrangements
are complied with.
6 Pending the return of Sofia to British
Columbia, as provided for in this order, the
mother shall not remove Sofia from the
District of Port Elizabeth and until then she
shall keep the father’s attorney informed of
her physical address and contact telephone
numbers in Port Elizabeth.
7 Pending the return of Sofia to British
Columbia, the father is to have reasonable
access to Sofia, such access to be under the
supervision of a suitably independent person
nominated by the Family Advocate. Such access
will be exercised in accordance with such
person’s reasonable requirements.
8 No order is made on the mother’s
application or on the father’s
counter-application.
9 The mother is ordered to pay the costs of
the father, which costs are to include the
costs of two counsel.
10 There is no order as to the costs of the
Family Advocate.
C The Family Advocate is directed to seek the
assistance of the Central Authority of British
Columbia in order to ensure that the terms of this
order are complied with as soon as possible.
D In the event of the mother indicating to the Family
Advocate, in terms of paragraph B2 that she is
willing to accompany Sofia to British Columbia, the
Family Advocate shall forthwith give notice thereof
to the Director of this Court, the Registrar of the
South Eastern Cape High Court, the Central Authority
of British Columbia and the father’s attorney.
E In the event of the Supreme Court of British Columbia
failing to make the order referred to in paragraph
B3, the father is given leave to approach this Court
for a variation of this order.
F In respect of the appeal there is no order as to
costs.
G A copy of this order shall forthwith be transmitted
by the Family Advocate to the Central Authority of
British Columbia and served upon the father’s
attorney.
Chaskalson P, Langa DP, Ackermann J, Kriegler J, Mokgoro
Ngcobo J, O’Regan J, Sachs J, Yacoob J and Madlanga AJ
concur in the judgment of Goldstone J
For the appellant: PJ de Bruyn SC and BJ Pienaar instructed
by Smith Tabata Loon and Connellan Inc.
For the second respondent: GG Goosen instructed by the State
Attorney, Port Elizabeth.
Footnotes
========================
1 The Convention was adopted at The Hague on 25 October
1980.
2 Sonderup v Tondelli and The Family Advocate 18
October 2000, as yet unreported.
3 Act 72 of 1996.
4 Section 231(4) of the Constitution provides inter
alia that:
“Any international agreement becomes law in the
Republic when it is enacted into law by national
legislation . . . ”
5 The Family Advocate is appointed by the Minister of
Justice in terms of the Mediation in Certain Divorce
Matters Act 24 of 1987.
6 The Convention requires the appointment of a “Central
Authority” as the relevant official to ensure that
the provisions of the Convention are implemented. See
para 13 below.
7 (1994) 119 DLR (4th) 253 at 296.
8 Article 3 of the Convention.
9 Article 5a of the Convention.
10 W.(V.) v S.(D.) (1996) 134 DLR (4 th ) 481 at 496.
11 Article 12 of the Convention.
12 In the present case the mother relies on Article 13b,
claiming that the return of Sofia would expose her to
psychological harm or otherwise place her in an
intolerable situation.
13 Above para 3.
14 In Canada, the respective provinces have ratified the
Convention and the terms thereof are incorporated in
provincial legislation.
15 Article 7 of the Convention.
16 Article 7f-g of the Convention
17 Article 7d of the Convention.
18 It is not necessary to decide in this case the
precise implications of the language used in this
sub-paragraph of Article 13.
19 Section 28(2) of the Constitution provides:
“A child’s best interests are of paramount importance
in every matter concerning the child.”
20 Para 49 below
21 Above para 11.
22 Above para 6.
23 Australia: Director-General Department of Families,
Youth And Community Care v Julie Hobbs [1999] Fam CA
2059 at paras 68-69. Canada: Thomson, above n 7 at
278-80. England: B v B (abduction: custody rights)
[1993] 2 All ER 144 (CA) at 148-49; C v C (minor:
abduction: rights of custody abroad) [1989] 2 All ER
465 (CA) at 469, 472 and 473.
24 Croll v Croll 229 F.3d 133, 139 (2d Cir 2000)
25 Ibid at 146.
26 Order of the Supreme Court of British Columbia of 9
June 2000 in the matter of Tondelli v Tondelli No.
D110334.
27 In Re H and another (minors)(abduction: custody
rights); rights); Re S and another (minors)
(abduction: custody rights) [1991] 3 All ER 230 (HL)
at 238, Lord Brandon held that, within the context of
the Convention, retention is an event which occurs
once and for all on a specific occasion. He continued
at 240 that:
“. . . retention occurs where a child, which has
previously been for a limited period of time
outside the state of its habitual residence, is
not returned to that [state] on the expiry of
such limited period.”
28. It is unnecessary to consider whether the order of 21
July 2000 granting the father sole custody and
guardianship of Sofia has relevance in this matter.
29. Speaker of the National Assembly v De Lille and
Another 1999(4)SA863 (CC): 1999(11)BCLR 1339(SCA)
para 14.
30. Section 36(1) of the Constitution reads as follows:
“The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent
that the limitation is reasonable and justifiable in
an open and democratic society based on human
dignity, equality and freedom, taking into account
all relevant factors, including
(a) the nature of the right:
(b) the importance of the purpose of the
limitation:
(c) the nature and extent of the limitation:
(d) the relation between the limitation and its
purpose: and
(e) less restrictive means to achieve the
purpose.”
31. [1999] 3 All ER 97 (CA) at 99.
32. Above n 30.
33. See De Lange v Smuts 1998 (3) SA 785 (CC); 1998 (7)
BCLR 779 (CC) at paras 86-88 and S v Makwanyane and
Another 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 SA
(CC) at para 104.
34. See para 37 below.
35. Above para 12.
36. For a perspective on the failure of courts to apply
the Hague Convention with adequate concern and
information about domestic violence and gender
dynamics, see Kaye, “The Hague Convention and the
Flight From Domestic Violence: How Women and Children
Are Being Returned by Coach and Four” (1999) 13
International Journal of Law, Policy and the Family
191 at 195.
37. S v Baloyi (Minister of Justice and Another
Intervening) 2000 (2) SA 425 (CC); 2000 (1) BCLR 86
(CC) at para 11.
38. Below para 51.
39. Above para 7.
40. Above para 8.
41. Australia: Laing v The Central Authority (1999) 24
Fam LR 555 at para 29, Gsponer v Johnstone (1989) 12
Fam LR 755 at paras 45-51. Canada: Thomson above n 7
at 285-86. England: Re C (abduction: grave risk of
psychological harm) [1999] 1 FLR 1145 at 1154, Re L
(abduction: pending criminal proceedings) [1999] 1
FLR 433 at 440, Re A (a minor)(abduction) [1988] 1
FLR 365 at 372. Germany: Korowin v Korowin-Schreiner
(District Court of Horgen) LS 138036 (1992) a
translation of which was furnished to the Court by
counsel for the Family Advocate. United States:
Friedrich v Friedrich 78 F.3d 1060, 1067-68 (6 th Cir
1996), Nunez-Escudero v Tice-Menley 58 F.3d 374,
376-77 (8th Cir 1995).
42. Section 38 provides that:
“Anyone listed in this section has the right to
approach a competent court, alleging that a right in
the Bill of Rights has been infringed or threatened,
and the court may grant appropriate relief, including
a declaration of rights. The persons who may approach
the court are –
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person
who cannot act in their own name;
(c) anyone acting as a member of, or in the
interest of, a group or class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of
its members.”
43. Above n 19.
44 See Thomson, above n 7, at 294.
45. These remarks are not intended in any way to
influence any decision taken by the courts in Canada.