Pretoria - The Supreme Court of Appeal has honoured a mother’s wish for her now 4-year-old daughter not to return to the child’s father in the UK after her death.
The child, who may not be identified, was born in the UK in 2017.
Her mother is a South African citizen, who also holds a British passport. The father is a British national. The couple were never married but lived together in the UK.
The mother was diagnosed with colorectal cancer in April 2019 while still living in the UK. She decided to come to South Africa primarily for the purpose of enabling her to pursue available treatment options.
The understanding was that the child’s mother would return to the UK with her after her successful medical treatment in South Africa, or alternatively, if nothing further could be done to treat her cancer.
With this understanding, the child’s father accompanied them when they travelled to Cape Town. The mother began consulting with a medical specialist soon after they arrived in South Africa and underwent surgery in September 2019.
It became clear from her medical condition that she would not be able to return to the UK as planned.
The child’s father left South Africa for the UK, but the child remained in South Africa with her mother and was being cared for by her maternal aunt and grandmother.
As things turned out, the child’s mother realised that her chances from recovery were non-existent. She then expressed the wish that should she become too ill to take care of the daughter, and in the event of her death, she would like the child to remain in South Africa and be raised by the aunt.
The child’s father did not agree to the child remaining permanently in South Africa. He approached the Central Authority for England and Wales and submitted a request for the return of the child from South Africa to the UK. This was under the Hague Convention on the grounds that the child’s retention in South Africa by her mother without his consent was wrongful.
The mother opposed the return of the daughter to the UK on the grounds that the father had consented to the child remaining with her in South Africa for as long as she was undergoing treatment for cancer.
In the alternative, she opposed the application on the grounds that there was a grave risk that the child’s return to the UK would expose her to psychological harm and also place her in an intolerable situation.
With the help of the UK authorities, the father turned to the Western Cape High Court for an order forcing the dying mother to send the child back to him.
He later had a change of heart and said he would allow the child to remain with the mother until the the mother passed away.
Three days after the mother had died, after losing her battle against cancer, the court delivered its judgment, ordering the child’s return.
The child’s aunt, however, turned to the Supreme Court to fight for custody of the child.
Counsel acting for the father presented evidence that the child would receive sufficient counselling in the UK to assist her emotionally once she was there.
But the court said in its view there was compelling evidence that the mechanisms in place in the UK were not sufficient to ameliorate the psychological and emotional harm to which the child would be exposed on her return to that country.
The court said there was merit in the views expressed by an expert who gave evidence on behalf of the aunt that returning to the UK would mean entering a completely new environment for the child, considering that she was only 26 months old when she left and settled in South Africa.
She was unlikely to remember the UK as her “home” and there was uncertainty about the quality of care she would receive, the court said in ruling in favour of the aunt.
Pretoria News