Mom wins battle to keep son in SAComment on this story
Pretoria - The High Court in Pretoria has criticised officials for the way they handled an application to force an Mpumalanga mother to return her son to the United Kingdom.
Judge Eberhard Bertelsmann set aside a court order obtained in March last year which compelled the Middelburg mother to return her five-year-old son to his Zimbabwean father in the UK.
The mother launched a counter-application to set aside the court order.
She insisted it would not be in her son's best interest to return to the UK as her former boyfriend was an illegal alien in that country.
The boy was born in the UK in 2008 and lived in council flats in Birmingham with his parents until their relationship became stormy and they split up.
His parents were both unemployed and depended on social grants to survive. They were in the UK illegally after their asylum applications were turned down.
The mother obtained valid travel documents to return to South Africa in 2012, stating that she could not obtain the consent of the child's father and was the sole custodian.
Her former boyfriend laid a charge against her a month after she arrived in South Africa and approached the UK Central Authority for assistance to get his child back.
He succeeded in obtaining an order that the mother should hand over her child immediately, but it was not enforced.
The mother turned to the court for relief, saying even the family advocate agreed that her son's return to the UK was not advisable as it was fraught with potential harm to her son.
The court suspended the order and launched an inquiry, asking the parties to deal with a list of questions, including what fate would befall the child if his father was deported.
When the Central Authority failed to file answers or to turn up at court because their advocate said he was “too busy”, the court issued a warrant for the family advocate's arrest, but suspended it on condition that she returned to court.
The Central Authority thereafter withdrew its opposition and consented to the order being set aside.
Bertelsmann said the family advocate had clearly been aware that the father was a failed asylum seeker and had a duty to investigate and disclose the full facts to the court, but failed to do so.
“It would appear that the applicant (Central Authority) was hoping that if it and its legal advisers played possum ... the uncomfortable questions posed by the court would go away.
“As officers of the court they must have been fully aware that court orders have to be implemented, however irksome, irrational or wrong these orders may be, until (they) are revoked,” he said.
He described the officials' attitude towards the law as “lackadaisical” and said it was clear that they had tried to avoid the consequences of their ill-advised application by doing as little as possible.
“The heath and happiness of an innocent child was potentially jeopardised and both the court and the respondent (the mother) were put to unnecessary trouble and inconvenience.
“The respondent was caused unnecessary distress and forced to incur unnecessary costs ... all through the neglect of officers of the court employed by organs of state to properly fulfil their professional obligations.
“It is only fair that the applicant be ordered to pay all of the respondent's costs,” Bertelsmann said.