SCA orders Gauteng mother to return four-year-old son to Italian father in Switzerland

The Supreme Court of Appeal (SCA) has ordered a South African mother who also holds an Italian citizenship to return to Switzerland with her four-year-old son.

The former couple met in 2019 in Italy; however, the father was employed by the city council of Lausanne, Switzerland. Shortly after their meeting, they got engaged and moved in together shortly after meeting.

The mother fell pregnant in 2020 and gave birth in 2021. The father changed jobs and worked for the United Nations High Commissioner for Refugees (the UNHCR).  The new job allowed him to work from home, and he was responsible for all the financial costs as his partner was unemployed.

In November 2021, while he was on a work mission in Chad, Africa. The relationship between the parties deteriorated and this led the father to end the relationship through a text message. Following the breakup, the mother and child left Switzerland to stay with her parents in Italy. However, they reconciled the following month when the father traveled to Italy.

In March 2022, the father was hospitalised due to mental illness, which he described as a burnout due to work-related pressures. After his recovery, his partner suggested that they attend a family wedding in South Africa. They attended the event, but their scheduled return to Switzerland encountered a glitch when the mother received a positive COVID-19 test result on the departure day. She stayed behind while her partner left the country.

After the recovery, the mother made several excuses to delay her return to Switzerland. At one point she purchased plane tickets and subsequently cancelled the booking. She decided not to return to Mr VL and opted to stay in South Africa, where she had a support system.

The father, however, was adamant; he demanded she return their son. He suggested she could visit the child during holidays or, alternatively, move to Europe to be closer to them. This was followed by a legal battle where the mother won in the North Gauteng High Court in Pretoria to have the child in her care.

Determined to get his son back, the father approached the Swiss Central Authority to process the minor child’s return to Switzerland. The Swiss Central Authority took action as provided for in Article 12 of the 1980 Hague Convention.

During the appeal, a submission was made at the SCA arguing that the high court had erred by unduly emphasising the issue of marriage, making it central to the case. The only question that should have been considered was whether the parents and the child were habitually residents in Switzerland when the mother retained the child in SA without the father's permission.

The father further argued that in terms of the registration of the child, he was born in Italy and the country granted both parties shared parental authority and custody rights. He asserted that parental responsibility, established under the law of the child’s habitual residence, continues even if that habitual residence changes to another State. Consequently, the parental rights granted to him under Italian law remained automatically vested in him when the mother kept the child in SA.

The mother, represented by her lawyer, countered that the father held no parental rights because they were unmarried. She asserted that under Swiss law, she, as the unmarried mother, was the child's sole custodial parent. Furthermore, she maintained that the father never requested their return to Switzerland but instead wanted her to return to Italy.

 Presiding over the appeal, SCA Judge Thandi Norman observed that evidence indicates both parties face certain mental challenges. These challenges, she noted, would be more appropriately addressed by the Swiss Court, which is tasked with determining the merits of parental and custody rights. The Swiss Court will also decide on the necessary measures to assist the parties with parental skills, should they be required.

Judge Norman said the child has stayed longer in SA due to her mother's actions; however, this does not mean that the child returning to Switzerland is not in his best interests and to refuse an order for the child to return to Switzerland would reward unlawful conduct. 

"I find that the high court erred in not ordering the prompt return of the minor child to Switzerland once it had found that there was no grave risk of harm," she said.

The judge said if the mother is willing to accompany the child to Switzerland, the father is ordered not to institute criminal or contempt of court proceedings against the mother as a form of punishment.

"He will take all steps that he reasonably can for the withdrawal of any criminal charges pending against the mother in this regard."

If the mother intends to remain in Switzerland, the father must take steps to assist her to obtain Swiss citizenship. He will provide accommodation, pay medical fees for both mother and child, pay for the child's school fees and also send a monthly 1,500 Swiss Francs (over R31,000) to the mother.

In addition, he has been ordered to provide the mother to a roadworthy car upon her arrival in Switzerland. Alternatively, provide her with reasonable transport expenses.

He has also been ordered to cover the travel costs back to Switzerland for mother and son.

sinenhlanhla.masilela@iol.co.za

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