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When a child is wrongfully removed to South Africa or wrongfully retained here, the Hague Convention on the Civil Aspects of International Child Abduction may require the child’s prompt return to the country of habitual residence. A Hague return case is not a custody trial: the South African court determines whether the Convention applies, whether the removal or retention was wrongful and whether a recognised ground for refusing return has been established.
A return order does not mean that the parent seeking return has been found to be the better parent.
Nor does it finally determine where the child should live.
The purpose is ordinarily to restore the position before the wrongful removal or retention so that the appropriate court in the child’s country of habitual residence can determine longer-term questions of care, contact and residence.
The outcome can nevertheless depend on difficult questions involving habitual residence, rights of custody, whether those rights were being exercised, consent, acquiescence, delay, settlement in a new environment, grave risk of physical or psychological harm, protective measures, the child’s objections and the Convention relationship between South Africa and the other country.
This guide explains the South African framework for Hague Convention child-return applications.
| Question | General position |
What does the court decide? | Whether there was a wrongful removal or retention and whether a recognised exception to return applies. |
Is it a custody trial? | No. The return court does not finally decide primary residence, care or long-term custody. |
What is the usual remedy? | Prompt return to the child’s country of habitual residence where the Convention requirements are met and no applicable exception justifies refusing return. |
Can return be refused? | Yes, on the limited grounds recognised by the Convention where they are established on the evidence. |
Does the child’s welfare matter? | Yes, but within the Convention’s specialised return enquiry rather than a full best-interests custody trial. |
Does the child have a voice? | Yes. South African law requires the child to have an opportunity to raise an objection, with appropriate weight given according to age and maturity. |
Are proceedings urgent? | Yes. South African regulations contemplate completion within six weeks, except where exceptional circumstances make that impossible. |
Must the other country be covered by the Convention? | Yes. The applicable Convention relationship between South Africa and the other country must be confirmed. |
Chapter 17 of the Children’s Act 38 of 2005 gives domestic effect to the Hague Convention on the Civil Aspects of International Child Abduction.
Section 275 provides that the Convention is in force in South Africa and has the force of law, subject to the Children’s Act.
Section 276 designates the Chief Family Advocate as South Africa’s Central Authority for Convention matters.
The Convention is contained in Schedule 2 to the Children’s Act.
Its principal objectives are to:
The Convention applies to a child who was habitually resident in a Contracting State immediately before the breach of custody rights and ceases to apply once the child reaches the age of 16.
It is important to confirm that the Convention is actually in force between South Africa and the other country concerned. The fact that another country appears on a general list of Contracting Parties does not always answer the bilateral treaty question where accession and acceptance provisions are relevant.
This distinction is fundamental.
A South African court hearing a return application does not ordinarily determine:
Article 19 of the Convention expressly provides that a decision concerning return is not a determination on the merits of custody.
A return order is generally directed at returning the child to the relevant country or jurisdiction of habitual residence, not at awarding permanent custody to the parent who brought the application.
Long-term care and residence can then be dealt with by the court with the appropriate jurisdiction.
Not every international disagreement about a child is a Hague return case.
A return application may arise where a child has been:
The distinction between removal and retention can be important.
A child may, for example, travel lawfully from England to South Africa for a holiday.
If the agreed return date arrives and one parent then refuses to return the child, the alleged wrongful act may be the later retention rather than the original journey.
A proposed future relocation is different.
If a parent wants permission to move permanently from South Africa with a child and the move has not yet taken place, that is ordinarily a relocation dispute, not a Hague return application.
The Hague Convention becomes relevant where wrongful removal or retention has already occurred or is alleged to have occurred.
Article 3 of the Convention deals with wrongful removal and retention.
An applicant seeking return will ordinarily need to establish that:
The court therefore needs to identify:
If the necessary Article 3 requirements are not established, the Convention’s mandatory return mechanism is not triggered.
Habitual residence is one of the most important concepts in a Hague case.
It is not automatically determined by citizenship, nationality, domicile, place of birth, passport, immigration status or the country that one parent describes as “home”.
The enquiry is fact-specific and child-focused.
The court considers the practical reality of the child’s life immediately before the alleged wrongful removal or retention.
Relevant circumstances may include:
Parental intention is relevant, but it is not considered in isolation from the objective reality of the child’s circumstances.
In The Central Authority for the Republic of South Africa v MV and Another (1396/2024) [2025] ZASCA 197, the Supreme Court of Appeal concluded that Switzerland was the child’s habitual residence.
The evidence included the family’s established life there, the child’s attendance at crèche and the parents’ practical arrangements before the child was retained in South Africa.
The SCA rejected the argument that an asserted later intention not to remain permanently in Switzerland displaced the objective circumstances demonstrating a settled life there.
Return was ordered.
In Ad Hoc Central Authority for the Republic of South Africa and Another v D.L.M (Appeal) (A129/2025) [2026] ZAWCHC 240, the court a quo had dismissed a return application after finding that habitual residence in Germany had not been established.
The Full Court overturned that decision.
It held that parental intention had to be considered together with the objective reality of the children’s daily lives.
Their schooling, healthcare, friendships, activities and family life demonstrated that Germany had become the functional centre of gravity of their lives.
The children were ordered returned to Germany.
These decisions demonstrate why habitual residence cannot be determined merely by asking what one parent subjectively intended.
The Convention gives “rights of custody” a specialised meaning.
They include rights relating to the care of the child and, in particular, the right to determine the child’s place of residence.
The relevant custody rights are determined under the law of the state in which the child was habitually resident immediately before the alleged removal or retention.
A South African court may therefore require evidence of foreign law.
Depending on the case, that evidence may address:
A parent does not necessarily need to have day-to-day physical care of the child to possess Convention rights of custody.
Article 12 contains the Convention’s principal return mechanism.
Where a child has been wrongfully removed or retained and proceedings begin within one year of the wrongful removal or retention, the court must ordinarily order the child’s return forthwith, subject to the Convention’s recognised exceptions.
Where proceedings begin after more than one year, return must still ordinarily be ordered unless it is demonstrated that the child is now settled in the new environment.
The passage of one year does not therefore automatically defeat a return application.
The court must identify the date on which the removal or retention became wrongful and, where settlement is relied upon, examine the evidence supporting that exception.
Delay remains important. It can affect the Article 12 enquiry, settlement, available evidence, the child’s relationships, the practicality of return and protective arrangements.
A parent should not assume that allowing time to pass will automatically create a successful defence to return.
The Convention recognises limited circumstances in which return may be refused.
Depending on the facts, these can include:
Establishing an Article 13 exception does not necessarily compel the court to refuse return.
The Convention provides the court with a discretion in the circumstances contemplated by Article 13.
Consent and acquiescence are related but different.
Consent ordinarily concerns agreement given before or at the time of the relevant removal or retention.
Acquiescence concerns subsequent acceptance of the wrongful removal or retention after it occurred.
Relevant evidence can include:
Discussions about a possible relocation in the future do not necessarily amount to consent to permanent relocation.
In K.T.D v Z.K (2026/020335) [2026] ZAWCHC 77, two children who had been living in the United Kingdom travelled to South Africa.
The evidence established that their stay was temporary and that the discussions between the parents about a possible future relocation had not resulted in an agreement for permanent relocation.
The court found that the children were habitually resident in the United Kingdom and had been wrongfully retained in South Africa.
Consent, acquiescence and the Article 13(b) grave-risk exception were not established.
The children were ordered returned to the United Kingdom.
The case demonstrates the importance of distinguishing between discussions about relocation and actual agreement to permanent relocation.
Article 13(b) provides that the court is not bound to order return where the person opposing return establishes that there is a grave risk that return would expose the child to physical harm, expose the child to psychological harm, or otherwise place the child in an intolerable situation.
“Grave” denotes a serious risk.
Ordinary inconvenience, disruption, anxiety or unhappiness that may accompany an unwelcome international return does not by itself establish Article 13(b).
The enquiry is fact-specific and forward-looking.
The court considers the risk the particular child would face if returned.
The Constitutional Court considered Article 13(b) extensively in Ad Hoc Central Authority for the Republic of SA and Another v Koch N.O. and Another (CCT 150/22) [2023] ZACC 37; 2024 (3) SA 249 (CC).
The case confirms important principles.
The person opposing return bears the burden of establishing the Article 13(b) exception on a balance of probabilities.
The court examines the alleged risk to the particular child.
Article 13(b) should be applied according to its actual wording rather than converted into a general custody or best-interests enquiry.
Where allegations are sufficiently substantial, the court must also consider whether appropriate and effective protective measures can address the identified risk.
The Constitutional Court ultimately ordered the child’s return to England and Wales subject to protective arrangements.
Koch is therefore central to the modern South African approach to Article 13(b).
Protective measures can become important where a genuine risk is alleged but protection may be available in the country of habitual residence.
Depending on the circumstances and the powers of the relevant authorities, measures may include:
The issue is not simply whether a protective measure can be written into a South African order.
The court must consider whether the proposed protection is sufficiently practical and effective in the circumstances of the case.
In C.A.R v The Central Authority of the Republic of South Africa and Another (737/2023) [2024] ZASCA 103, the Supreme Court of Appeal rejected the Article 13(b) case advanced against return to Canada.
The SCA ordered the child’s return subject to protective arrangements.
In N M v Central Authority for the Republic of South Africa and Another (1078/2024) [2024] ZASCA 178, the SCA likewise upheld a return to Australia after finding that Article 13(b) had not been established.
The SCA also emphasised the urgency of Convention proceedings and criticised substantial delays that risk undermining the Convention’s purpose.
Allegations of domestic violence must be taken seriously in a Hague return case.
They do not operate as an automatic answer either for or against return.
The relevant question remains whether, on the evidence, returning the child would expose that child to the grave risk or intolerable situation contemplated by Article 13(b).
Relevant considerations may include:
The source of the alleged risk is not the decisive question.
The focus remains the risk to the child on return.
Article 13 separately permits a court to refuse return where the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child’s views.
South African legislation strengthens the child’s procedural participation.
Section 278(3) of the Children’s Act requires the court considering a Hague return application to afford the child an opportunity to raise an objection and to give due weight to that objection, taking the child’s age and maturity into account.
Section 279 further provides for legal representation of the child, subject to section 55, in Hague Convention applications.
An objection is not necessarily the same thing as a preference.
The court may consider:
Even where this exception is established, the court retains a discretion concerning return.
Where return proceedings commence more than one year after the wrongful removal or retention, Article 12 permits reliance on evidence that the child has become settled in the new environment.
Settlement may involve evidence concerning stable accommodation, school, friendships, family relationships, community, language, activities, emotional stability and the practical circumstances of the child’s day-to-day life.
Settlement is not automatically established simply because the child has spent time in South Africa.
The enquiry remains fact-specific.
Central Authority of Republic of South Africa and Another v C.M (2023/077002) [2025] ZAGPJHC 99 provides an example of a return application being refused on its particular facts.
The father sought the child’s return to Israel.
The High Court accepted evidence that he had consented to the child’s move to South Africa.
Proceedings were instituted more than a year after the move and the court found that the child had become settled in South Africa.
The court also accepted an Article 13(b) case based on the particular evidence concerning the child and concluded that return would expose her to grave risk or an intolerable situation.
The application was dismissed.
C.M should not be read as creating a general rule that a child who has lived in South Africa for a particular period may never be returned.
Its outcome depended on the evidence and the combination of issues arising in that case.
A parent seeking the return of a child may approach a Central Authority for assistance.
In South Africa, the Central Authority is the Chief Family Advocate.
The Central Authority can perform the functions assigned to it under the Convention, including cooperation with the corresponding foreign Central Authority and assistance directed at securing the child’s return.
The Department of Justice publishes Form 10 – Application for the Return of a Child Wrongfully Removed/Retained for Convention applications.
Article 29 of the Convention also preserves the ability of a person claiming a breach of custody rights to approach the competent judicial authority directly.
A direct application should nevertheless be approached carefully because Hague proceedings are specialised, urgent and subject to the Convention, the Children’s Act, applicable regulations and High Court procedure.
A Hague return application concerns the child’s immediate future but is not a conventional custody trial between two parents.
Section 279 of the Children’s Act provides that a legal representative must represent the child, subject to section 55, in applications under the Hague Convention.
The child’s participation and representation should therefore be addressed at an early stage of the proceedings rather than treated as an afterthought.
Article 11 requires Contracting States to act expeditiously in return proceedings.
South African regulation 23 goes further by providing that proceedings for the return of a child under the Convention must be completed within six weeks from the date on which judicial proceedings were instituted in the High Court, except where exceptional circumstances make that impossible.
This is not a guarantee that every contested Hague case will actually conclude within six weeks.
Appeals, factual disputes, foreign-law evidence, expert evidence and arrangements for a safe return can cause delay.
But expedition is a central feature of the Convention.
The SCA in N M v Central Authority specifically criticised delay because it can undermine the purpose of the Convention and alter the circumstances against which the return application must be determined.
Parents should therefore seek advice promptly.
The applicant may need evidence concerning:
The person opposing return may need evidence concerning:
The evidence should address the Convention test.
The proceedings should not become an attempt to conduct the entire future custody case within the Hague application.
The Convention also operates where a child habitually resident in South Africa is wrongfully removed to or retained in another country with which the Convention is in force.
A parent in South Africa should act promptly.
Relevant steps can include:
The foreign court will apply the Convention through its own procedural framework.
South African advice may be required concerning the child’s South African habitual residence, parental responsibilities and rights, existing orders and supporting evidence.
A parent opposing return should also act immediately.
Important early steps can include:
Arguments should be directed at a recognised Convention issue.
The fact that a child appears happy in South Africa or that one parent believes they can offer the better home does not convert the return application into a custody trial.
The South African court is generally not deciding the child’s final primary residence.
It does not. Habitual residence is determined from the child’s circumstances and practical integration.
A proposed future move and an alleged wrongful removal or retention are legally different disputes.
Consent must be established from the evidence. K.T.D v Z.K illustrates why preliminary discussions about a move should not automatically be treated as agreement to permanent relocation.
Article 13(b) requires a grave risk of the serious harm or intolerable situation contemplated by the Convention.
Where grave risk is genuinely raised, available and effective protection in the requesting country may become central to the analysis.
Delay can affect the Article 12 position, evidence, settlement and practical return arrangements.
A reported judgment may record allegations by both parties. The allegations must be distinguished from the facts actually accepted by the court, the court’s reasoning and the final order.
Hague Convention matters are technically different from ordinary children’s disputes.
The issues may include:
Each issue should be separated and proved with appropriate evidence.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving international child removal and retention and Hague Convention return proceedings.
Depending on the matter, this may include:
Where another country’s substantive or procedural law must be determined, advice should be obtained from a practitioner appropriately authorised in that jurisdiction.
No. A Hague return application generally decides whether a child should be returned to the country of habitual residence. It does not finally determine custody, care or primary residence.
No. The Convention is concerned principally with return to the appropriate country or jurisdiction, not with awarding permanent custody to the applicant parent.
Yes. The Convention contains recognised exceptions, but they must be established on the evidence and are applied within the specialised Convention framework.
The exact scope of the agreement matters. Consent to a holiday or temporary visit is not necessarily consent to permanent relocation or indefinite retention.
The allegations must be assessed carefully under the applicable Convention test. Where Article 13(b) is relied upon, the question includes whether return would expose the child to a grave risk and whether adequate protective measures can address that risk.
Yes. The Convention contains a child-objection exception and section 278(3) of the Children’s Act expressly requires the child to have an opportunity to raise an objection, with weight given according to age and maturity.
Immediately. Hague proceedings are intended to be dealt with expeditiously, and South African regulations contemplate completion of High Court return proceedings within six weeks except where exceptional circumstances make that impossible.
That does not automatically end the case. Where the Article 12 requirements are met, the court considers whether the child has become settled in the new environment and the other relevant Convention issues.
A Hague Convention child-return application is not an ordinary custody dispute.
The court must determine whether the Convention applies, where the child was habitually resident, whether custody rights were breached and whether a recognised exception to return has been established.
South African courts have repeatedly emphasised both the urgency of these cases and the need to avoid turning the return enquiry into a full custody trial.
Recent decisions including Koch, C.A.R., N M, MV, D.L.M. and K.T.D. demonstrate that the outcome depends on careful analysis of the evidence against the specific Convention requirements.
Where a child has been brought to South Africa, retained here or removed from South Africa in circumstances that may engage the Convention, advice should be obtained promptly.
If your child has been removed to or retained in another country, or you are facing a Hague Convention return application in South Africa, a Strategy Session can be used to identify the applicable Convention issues, urgent procedural steps and evidence required.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys Inc. | Over 20 years’ experience in divorce and family law
Legal review: 20 September 2026
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice.
Hague Convention child-return proceedings are fact-specific and highly time-sensitive. The legal position may depend on the countries concerned, the Convention relationship between those countries, foreign custody law, the child’s habitual residence, existing court orders, the timing of the removal or retention and the evidence available.
Martin Vermaak Attorneys Inc. is a South African law firm and advises on South African law. Where advice concerning another country’s law or procedure is required, advice should be obtained from a practitioner appropriately authorised in that jurisdiction.
Copyright © 2026 Martin Vermaak Attorneys. All rights reserved.
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