South African court orders mother to return four-year-old son to Switzerland

A mother, who shares parental and responsibility rights with the father of her four-year-old child, has been ordered by the court to return to Switzerland with the toddler boy after she made a unilateral decision to stay in South Africa, where she holds dual citizenship. 

After the Italian couple attended a South African family wedding in 2022, the mother contracted Covid-19, and as a result, the father left alone for Geneva, Switzerland, with an arrangement in place that the mother and child would join later once she was cleared of the infection.

However, according to the court record, the relationship between the couple had become strained, and after recovering from the virus, the mother made several excuses to delay her return to Switzerland and stayed in South Africa, where she, as she contended in court, had a support system.

Acting Judge of the Supreme Court of Appeal (SCA), Thandi Norman, said while the visitation rights of the father were not infringed and he remained responsible for all expenses and maintenance relating to the minor child, keeping the child in South Africa without consent was wrongful.

“The retention of the minor child, L, in South Africa was a decision taken by (the mother) alone without the consent of (the father). She wanted to be closer to her family… Her other reason was that (the father) was not committing to marriage. 

“She retained the child without consulting (the father), who had custodial rights. She decided unilaterally to retain the child in South Africa. (She) has failed to offer a satisfactory explanation to dispel the presumption of wrongful retention of the minor child,” said Acting Judge Norman.

The father approached the Swiss Central Authority to process the minor child’s return to Switzerland. The Swiss Central Authority took action as provided for in Article 12 of the 1980 Hague Convention.

The SCA further ordered that the father purchase and pay for economy-class air tickets for their departure to Geneva. He will also pay 1,500 Swiss Francs per month as cash maintenance, and will pay the accommodation costs of the mother and child.

The SCA additionally ordered that the father will not institute or support any proceedings, whether criminal or contempt of court proceedings, for the arrest or punishment of the mother, or any member of her family, whether by imprisonment or otherwise, for any matter arising out of the retention of the minor child in South Africa. 

Among other directives by the court, it was also ordered that if the mother intends to remain in Switzerland, the father would take steps that he reasonably can to assist her in obtaining Swiss citizenship.

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