Cape Town - A six-month-old girl at the centre of an international custody battle will remain in Cape Town for now, following a Western Cape High Court judgment this week.
The child was born in the US earlier this year, to an American father and South African mother. Her mother was in the US on a Fulbright scholarship, and her father is a university professor.
However, owing to the mother’s visa requirements, and the baby’s care requirements, the two travelled to Cape Town to live with the woman’s mother earlier this year.
The baby has a severe reflux disorder that results in severe pain, crying and projectile vomiting. She needs constant care since she needs to be held upright after each feeding.
In August, while in South Africa, the woman instituted divorce proceedings against the father of the child. She stated in her papers, however, that she intended to return to the US.
She is in the process of applying for a specialised O-1 visa in the US, and has a job offer at a university in that country.
The initial job offer required her to start in January, but the woman has pushed the start date until August next year.
The father, however, instituted legal proceedings under the Hague Convention, claiming that an agreement that the mother and the baby would return to the US by December 29 would be breached.
Acting Judge Judy Cloete ruled this week that the application was “premature since it is based on an anticipatory breach”.
She stated that an express agreement between the two parties about the December return date did not exist.
“It appears that although ideally he would have liked the respondent and the baby to return on December 29, 2012, there was no suggestion that if the respondent did not return with their daughter by that date, she would be in breach of any agreement between them,” the judge said.
“The picture that emerges is that the applicant’s conduct subsequent to August 21, 2012 [when divorce proceedings were instituted] was really a knee-jerk retaliation against the respondent for having issued divorce proceedings against him.”
Judge Cloete also states that “there is a grave risk that the baby’s return to the USA, at least without the respondent, would expose her to physical and/or psychological harm”. The judge ruled that “the applicant’s assertions of abduction are patently false”.
She ruled that “costs be paid on the scale as between party and party as taxed or agreed.”