How a family visit to South Africa turned into a cross-border 'child abduction' ruling

A four-year-old boy will be returned to Switzerland after his mother unlawfully kept him in South Africa, the Supreme Court of Appeal has ruled.

The decision overturns a Pretoria High Court ruling and highlights the application of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which treats the wrongful retention of a child across borders as a form of international abduction.

The child, born in Italy in May 2021, lived with his parents in Geneva for almost two years.

His father, an Italian national who later obtained Swiss citizenship, covered all expenses for the child and the mother while the family was staying in the Alpine nation, including housing, travel, and childcare.

The three judges also noted that the child, who cannot be named as he is a minor, was entitled to Swiss citizenship and its social benefits because his father secured citizenship.

In the ruling, the judges noted that the boy was enrolled in a Swiss crèche and registered with local authorities, cementing Switzerland as his primary and habitual place of residence.

The dispute arose after a family trip to South Africa in May 2022 for a wedding. After his mom contracted Covid-19, his father returned to Switzerland, expecting the mother and child to follow.

Instead, the mother delayed returning and eventually chose to stay in South Africa, citing the support of her local family. The father opposed her decision and sought the child’s return to Switzerland.

The mother argued she had sole custody under Swiss law as an unmarried parent and that the child’s primary and habitual place of residence had never been established. The Supreme Court rejected these claims.

It found that the father had full parental responsibilities under Italian law, which continued to apply in Switzerland.

His dad had exercised these rights prior to the child being retained in South Africa, and the mother’s decision to keep the child there was unilateral and unlawful, it found.

The court confirmed that Switzerland – not Italy – was the child’s primary and habitual place of residence based on their living in that country, the child’s enrolment in a crèche there, and the fact that they had planned to return after the South African wedding.

It also emphasised that the primary and habitual place of residence reflects where a child lives with their custodians and their “settled purpose,” even if the stay is of limited duration.

The father’s employment and family life in Switzerland established a clear and stable link.

The ruling reinforced the purpose of the 1980 Hague Convention: to protect children from the harmful effects of international parental abduction or wrongful retention, and to ensure they are returned promptly to their primary and habitual place of residence, where custody can be properly determined.

The court noted that the child’s time in South Africa could not be used to justify keeping him here, as this would undermine the Convention.

The Supreme Court’s order sets out detailed arrangements for the boy’s return to Switzerland. If the mother chooses to accompany him, the father must cover flights and provide furnished accommodation in Geneva.

The father must also ensure the child’s continued well-being by paying maintenance, covering medical aid and necessary childcare costs, and providing a car or reasonable transport support if the mother returns to Switzerland.

Both parents are required to cooperate with South African and Swiss authorities to determine long-term custody and contact arrangements.

Until the child departs, the mother is prohibited from permanently removing him from Gauteng and must keep authorities informed of her whereabouts.

If she chooses not to accompany the child, South African authorities are authorised to arrange his safe return under the father’s care.

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