A mother of two small daughters aged five and one is facing the difficulty that the court ordered that the two children had to return to Germany – with or without the mother – after they came to South Africa for a holiday, but the mother refused to return to Munich where she and her now estranged husband lived.
The Central Authority of South Africa turned to the Gauteng High Court, Johannesburg, together with the father, in terms of the Hague Convention on the Civil Aspects of International Child Abduction, for the children to be returned.
The children came with their parents to South Africa on a two-month holiday from November last year until January 11, on the assumption that they would all return prior to the 5-year-old returning to school in Germany.
The husband had booked return flights for all of them, but on the day they were due to leave the mother refused to return the children to Germany. This, while the husband had not consented to the children remaining in South Africa.
The couple, who married in 2020, had disagreements during their stay in Germany and the relationship between them was strained. It appeared that after the birth of the children the wife suffered from depression.
She also accused her husband of infidelity and emotional abuse. While in South Africa, the relationship became even more strained. The court was told that the wife continued to accuse her husband of infidelity.
The parties underwent counselling in an effort to resolve their differences, but it did not help. The wife subsequently told the husband she wanted a divorce and that she and the children would remain in South Africa.
The husband tried to convince her to return to Germany, but she refused. He then submitted a request for the return of the children to the Central Authority in Germany and the matter was referred to its South African counterpart.
The office of the family advocate, meanwhile, investigated the best interests of the children with specific reference to whether returning them to Germany would expose them to harm or otherwise place them in an intolerable situation.
The wife, meanwhile, filed for divorce and asked for custody over the children. These proceedings have not yet been finalised.
Judge Maletsatsi Mahalelo noted that there are no facts alleged by the mother that the children are at risk of psychological harm in the event of an order for their return to Germany.
“There is nothing before me in respect of the circumstances of the minor children upon their return to Germany to demonstrate, on a balance of probabilities, that the circumstances will expose them to a ‘grave risk’ of harm”.
“I accept that if the respondent (mother) chooses not to accompany the children to Germany and to facilitate their resettlement in Germany, they will be upset. But I also take into consideration that the relationship between the second applicant (father) and the children remains intact,” the judge said.
The family advocate, while sympathetic to the mother’s marital struggles and inability to adjust to the German lifestyle, has concluded that no grave risk of harm or other intolerability exists and that the children should be returned to Germany.
The judge, meanwhile, said the mother had to indicate to the authorities if she intended to accompany the children back to Germany. If she refused to hand them over, the sheriff was ordered to see to it that the children returned to their father.
Pretoria News