CAPE TOWN - A mother’s dying wish has been fulfilled, following a two-year battle to have her four-and-a-half-year-old daughter live with her sister in South Africa instead of returning to the UK with the father.
The Supreme Court of Appeal this week dismissed the father’s application for the return of the child in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980’ with costs.
Previously the Western Cape High Court had rejected the defences advanced by the late mother and ordered the return of the child to the UK.
The mother was diagnosed with colorectal cancer on April 8, 2019 while still living in the UK and decided to come to South Africa to pursue available treatment options.
The understanding was that both mom and child would return to the UK after her successful medical treatment in South Africa.
When the child’s mother realised that her chances for recovery were non-existent, she expressed the wish that should she become too ill to take care of the child, 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 under any circumstances.
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 under the convention on the grounds that the child’s retention in South Africa by her mother without his consent was wrongful.
On December 8, 2020 the child’s mother died.
On December 11, 2020, the Western Cape High Court ordered the child be returned to the UK.
However the child’s aunt was also granted leave to appeal.
In his ruling, Judge Dumisani Zondi acknowledged that the facts of the case were “complex and exceptional”.
“The person who brought the child to this country in September 2019 when she was 26 months old is now deceased.
“It appears from the evidence that the mother has always been the child’s primary caregiver.
“The mother cared for and provided for the child whilst they were in the UK.
“Her father, due to various personal challenges he faced in life, was unable to provide for her,” Judge Zondi said.
He said the evidence showed that the mother had been the toddler’s primary caregiver, the one who provided the child with a “predictable presence” both in the UK and South Africa.
“As the mother’s presence in the child’s day-to-day life diminished due to her illness, she transitioned into the appellant’s (aunt) care.
“The appellant became her primary carer and she became attached to her.
“Returning to the UK would mean entering a completely new environment for the child.
“Because of the young age at which she left the UK, the child is unlikely to remember it as her ‘home’.
“In addition, and importantly, there is much uncertainty about the quality of care she would receive.
“This would compound the loss of her mother.”
Cape Times