Pretoria - It is second time lucky for a mother who had abducted her 4-year-old daughter from Europe, where she and the child’s father lived and brought her to South Africa.
The Gauteng High Court, Pretoria, last year ordered that she immediately had to return her daughter to Luxembourg, Europe.
The mother, however, won her case on appeal before the high court.
The father turned to the Supreme Court of Appeal as he wants his child to be returned. However, he also lost this round.
While the court said it was not disputed that the removal of E – as the child is identified – from Luxembourg was unlawful, it was in her best interests to stay with the mother in South Africa.
Experts expressed the opinion to the court that the child would be uprooted if she now had to move back abroad. She is attending school here and happily living with her mother and stepfather.
It was also said that her return to Luxembourg would cause the child severe trauma, as she is very attached to her mother.
While not condoning the fact that the mother had abducted the child, the SCA found that the mother had established that there was a risk that E’s return to Luxembourg would expose her to psychological harm.
The father initially obtained an order in his favour that the mother had to return the child so that the courts in Luxembourg could decide on her fate.
Gauteng High Court, Pretoria, Judge Colleen Collis instructed that should the mother refuse to comply, the Sheriff of the Court will be entitled to remove and hand her child over to the office of the family advocate.
The child’s father, who is a resident in Luxembourg, has agreed to pay towards her maintenance and put her and her mother up in a hotel.
Judge Neil Tuchten earlier ruled on appeal in favour of the mother, who had meanwhile married while in South Africa and had another child, a son.
He said if he ordered in favour of the father, a functioning family unit would be disrupted and its members dispersed.
He said it would deprive the child of her constitutional rights, which include the right to nurturing and support from her immediate family group, if she was ordered to return to her father.
The judge also pointed out that if he ruled in favour of the father, it would present the mother with “agonising choices”, as she had to oversee the “dismemberment of her family”.
He said the effect would be that the mother either had to leave her new husband and her son or her daughter.
The Supreme Court agreed with Judge Tuchten and turned down the father’s appeal.
In this case, the mother took her daughter away from the father with whom she had lived but was not married to, out of the country when they separated, and settled in Centurion, south of Pretoria.
The father insisted the mother return his daughter and approached the relevant authorities in Luxembourg to contact the South African Central Authority to institute proceedings here to have his daughter returned.
The couple met in Belgium in 2011 while both were working for a South African company there.
Shortly after the woman gave birth to their daughter, she obtained a better position in Luxembourg. She lived there with her daughter while her partner continued to work and live in Belgium.
He later also moved to be with them in Luxembourg.
After they separated, the father continued to have a relationship with his daughter, seeing her often.
The mother is French, and the father has Belgian citizenship, and thus the child has dual nationality.
When the mother got a job in South Africa, the father did not want her to take the child with her.
Courts in Luxembourg also forbade it, but the mother, in desperation, fled to South Africa with her.