The High Court in Johannesburg has ordered the immediate return of a six-year-old boy to Denmark after finding that his mother wrongfully removed him from his country of habitual residence without the father’s consent.
Judge L.R. Adams delivered judgment on 3 November in a case brought under the Hague Convention on the Civil Aspects of International Child Abduction, finding in favour of the father and ordering the child’s return within ten days.
The case involved a South African father working in Denmark and a Zimbabwean mother who removed their son from Denmark to South Africa on 5 August. The couple, married in South Africa in May 2018, had been living in Denmark with their son since his birth in July 2019.
At the heart of the dispute was whether the father had consented to the child’s removal. The mother claimed her husband had agreed in a 3 August email that she could travel to South Africa to give birth to their second child, which she did in Sandton on 23 September. She argued the plan was always to return to Denmark four to five months later.
The father vehemently denied this version, alleging there was no such agreement and that his wife had absconded with their son during a period of marital strife.
Judge Adams found the mother’s version “inherently improbable and far-fetched,” noting significant inconsistencies in her account. The court pointed to evidence showing the couple was at loggerheads during the period when consent was allegedly given, including a police callout on 27 July and discussions with municipal authorities about domestic problems.
Crucially, on 1 August, the Danish Family Court had issued a notice of guidance against foreign travel and child abduction to both parents pending a custody case. The mother’s departure was described as “clandestine and stealthy” occurring in the “middle of the night” without the father’s knowledge.
The mother also argued that returning the child would expose him to grave risk or place him in an intolerable situation, as contemplated by Article 13(b) of the Hague Convention. She claimed the father, diagnosed with bipolar disorder and traveling extensively for work, was incapable of caring for their son.
The court rejected this defence. Judge Adams noted that the curator ad litem’s report revealed the child was “very unhappy” in South Africa and “longs for his home in Denmark.” The judge found the father to be “a responsible and trustworthy individual quite capable of nurturing his six-year-old son,” pointing to evidence of his social, occupational, and academic status.
Significantly, the child himself had expressed a preference for returning to Denmark to be with his father.
The court ordered comprehensive protective measures, including that the father must pay for the mother’s return to Denmark with their second child after five months, provide accommodation, cover medical expenses, and ensure access to financial support services. The father also undertook not to pursue criminal proceedings against the mother for wrongfully retaining the child.
The judgment confirms that the minor child will live with his mother upon her return to Denmark, with the father having reasonable time until the Danish Family Court makes parenting orders.
