The Supreme Court of Appeal (SCA) has ordered that a four-year-old boy at the centre of a protracted international custody battle be returned to Switzerland, overturning an earlier high court ruling that allowed his mother to keep him in South Africa.
In a strongly worded judgment delivered on December 18, the SCA ruled that the child, identified only as L, was wrongfully retained in South Africa by his mother, Ms MV, after a family trip in 2022, and that Switzerland was the child’s habitual residence.
The appeal was brought by South Africa’s Central Authority under the Hague Convention on the Civil Aspects of International Child Abduction, following a request by Swiss authorities.
The case stems from what was meant to be a short family visit to South Africa for a wedding.
The child’s parents, Ms MV, a dual South African-Italian citizen, and Mr VL, an Italian national who later obtained Swiss citizenship, were living together in Geneva, Switzerland, where Mr VL worked for the UN.
In May 2022, the couple travelled with their then one-year-old son to attend Ms MV’s brother’s wedding in South Africa.
They were due to return to Switzerland days later, but plans collapsed when Ms MV tested positive for Covid-19.
Mr VL returned alone, believing his partner and child would follow once she recovered. They never did.
Instead, Ms MV decided to remain in South Africa permanently with the child, citing relationship problems, lack of family support in Europe, and Mr VL’s reluctance to marry her.
Habitual residence
The Pretoria High Court initially dismissed an application for the child’s return, finding that Switzerland was not the child’s habitual residence and that returning him would cause emotional harm. But the SCA disagreed.
Judge Norman, writing for the court, found that the high court had “misdirected itself” by placing undue emphasis on marriage issues and conducting a full best-interests inquiry, which is not permitted in Hague Convention cases.
“The focus must be on restoring the status quo and returning the child to the country of habitual residence,” the court ruled.
The SCA found overwhelming evidence that Switzerland was the child’s home before his retention in South Africa.
The family lived together in Geneva; the father bought an apartment there, the child was enrolled at a crèche, and return flights had been booked.
“The retention of the child in South Africa was a unilateral decision taken without the father’s consent and was therefore wrongful,” the court held.
The judges also rejected claims that the father had consented to or accepted the child remaining in South Africa, noting that he had promptly contacted legal authorities in Italy and Switzerland once it became clear the child would not return.
Psychological harm
The mother had argued that returning the child would expose him to psychological harm, pointing to the father’s past mental health struggles.
The court dismissed this, finding no evidence of a “grave risk” as required under the Hague Convention.
Importantly, the court ordered extensive protective measures should the mother choose to return to Switzerland with the child, including accommodation, monthly maintenance of 1 500 Swiss francs, medical cover, transport, and childcare costs, all to be paid by the father.
The SCA ordered that the child be returned to Switzerland “forthwith”.
If the mother refuses to accompany him, South Africa’s Central Authority is authorised to ensure the child is returned to the father’s care.
“The unlawful retention of a child cannot be rewarded,” the court warned, adding that delays in finalizing the case should not be used to justify keeping the child in South Africa.
The court made no order as to costs, directing that each party pay their own legal fees.
