YOU CANNOT JUST TAKE THE CHILD- AN IRAC LEGAL ANALYSIS OF The Central Authority of the RSA and Another v L (2025178969) [2025] ZAGPJHC

Its December season, and as a result of the duality of man, such a season does not spell festive and joyous for everyone. While other i setting up christmass lights and decoration outside their homes housed in a sectional title scheme ( note, please ensure that you adhere to the body corporate rules before turning your house into a Shibuya theme light spectacle) other are caught up in relationship set alight on fire due to two people not seeing eye to eye on most things regarding everything. And within that chaos, there exists a child who has no idea what is happening except for the wave of different emotions they experience due to the tense atmosphere of the environment they parents have created. With the acrimosity happening, its essential that parents dont take irrational, out of pocket or should i say, out out law decision. Decision like removing the child from their habitual residence without the proper consent and understanding of the other parent. Reacting to the situation instead of responding to it can cause more harm than what could have been expected and could result in an outcome that is contrary to the best interest of the child. Just because you are a parent, does not justify abduction. Unless ofcourse situation being left is undoubtedly to the best interest of the child and not merely an escape by one of the parents because they do not like how their spouse breaths.

In this one, we will take an IFRAC(ISSUE, FACT, LEGAL RULES, APPLICATION AND CONCLUSION) exploration in the judgment of The Central Authority of the RSA and Another v L (2025 178969) [2025] ZAGPJHC.

1. Summary of the Case and Background

This matter involves an application brought by the Central Authority of South Africa (First Applicant) and the father, RDC (Second Applicant), against the mother, LL (Respondent), for the return of their six-year-old son to Denmark.

The father is a South African citizen residing in Denmark, and the mother is a Zimbabwean national. They married in South Africa in 2018 and lived in Denmark from the child's birth in July 2019 until August 2025. The mother removed the minor child to South Africa on 5 August 2025.

The father contended the removal was wrongful and constituted abduction. The mother opposed the application, claiming the father had consented to the travel so she could give birth to their second child in South Africa (born via IVF in September 2025). She further argued that returning the child to Denmark would expose him to grave risk due to the father’s alleged psychiatric condition.

2. Main Legal Issues

The court had to determine three primary issues based on the Hague Convention on the Civil Aspects of International Child Abduction ("the Hague Convention"):

• Jurisdiction (Article 12): Whether the child was wrongfully removed from his place of habitual residence.

• Consent (Article 13(a)): Whether the father had consented to or acquiesced in the removal of the child.

• Grave Risk (Article 13(b)): Whether returning the child would expose him to physical or psychological harm or place him in an intolerable situation, specifically regarding the father's mental health and capacity to care for the child.

3. Court’s Reasoning and Final Order

Reasoning The court, per Adams J, ruled in favor of the applicants.

• Rejection of Consent: The court found the mother's claim that the father consented "out of the blue" to be inherently probable. Evidence showed the couple was in severe conflict immediately prior to her departure, involving police intervention and municipal authorities in Denmark. The court accepted the father's version that no agreement existed for her to give birth in South Africa, noting she left clandestinely.

• Rejection of Article 13(b) Defence: Relying on the precedent set in Sonderup v Tondelli and the recent N M v Central Authority matter, the court reiterated that the threshold for "grave risk" is high. The court found that the father, a gainfully employed civil engineer, was capable of caring for the child. The child himself had expressed a desire to return to Denmark. The court emphasized that custody disputes (long-term interests) must be resolved by the courts in Denmark, not South Africa.

Final Order The court ordered the immediate return of the minor child to Denmark. To mitigate hardship, the court issued extensive protective orders, including:

• The father must pay for flight tickets for the minor child, the mother, and the newborn second child.

• The father must provide/pay for suitable accommodation and medical expenses for the mother and children in Denmark.

• The father is effectively barred from pursuing criminal prosecution against the mother for the abduction.

4. Implications and Impact on Lived Realities

This judgment reinforces the strict application of the Hague Convention in South Africa.

• High Threshold for Defences: It clarifies that alleging a parent has a managed medical or psychiatric condition is insufficient to establish "grave risk." Courts will look at the objective capability of the parent and the stability of the environment.

• Financial Reality of Return: The judgment acknowledges the economic disparity often present in these cases. By forcing the left-behind parent (often the breadwinner) to fund the return and accommodation of the abducting parent, the court attempts to prevent the "intolerable situation" of the mother returning to destitution. This impacts lived reality by ensuring that the primary caregiver can physically accompany the child back without financial ruin.

• Separation of Inquiry: It reinforces the distinction that the Hague Convention inquiry is about jurisdiction (where the child should live), not the merits of custody (who is the better parent).

5. Potential Impact on Future Cases and Context

Context This case sits within a firmly established framework of South African constitutional law (specifically the Sonderup judgment) which balances the child's short-term best interests (returning to habitual residence) against long-term custody determinations. It highlights the role of the Central Authority (Family Advocate) in facilitating international cooperation under the Hague Convention Act 72 of 1996.

Future Impact

• "Mirror Orders": The extensive ancillary orders (points 8 through 13 of the order) set a robust precedent for "soft landings." Future courts will likely impose similar financial and legal obligations on left-behind parents to ensure the safe return of the abducting parent, neutralizing Article 13(b) defences based on financial hardship or fear of prosecution.

• Scrutiny of Consent: The court's dismissal of the "consent" defence based on the surrounding context of marital strife serves as a warning to future litigants: written consent (like the disputed email) will be scrutinized against the reality of the relationship dynamics at the time of removal

DISCLAIMER: THIS DOES NOT CONSTITUTE LEGAL ADVISE NOR ACT AS LEGAL AUTHORITY FOR THE SUBJECT DISCUSSED. THIS IS BASED ON AN IDEA, A CURIOSITY AND DOOM SCROLLING ON SAFLII. CONSULT YOUR ATTORNEY, PREFERABLY LOCAL ATTORNEY AND TAKE IT FROM THERE.