May Boy Thwart Return to His Mother in the UK Under the Hague Convention?

Normally, a child custody dispute, whether local or international, is between two parents. Sometimes, it is between a parent and another relative (or guardian, or someone who has, in fact, been acting like a parent).

Now, a ten year old boy in South Africa is reportedly asking a South African court to recognize his legal standing to assert his wishes to remain in South Africa with his father, despite his mother’s application in the UK to have him returned to her custody in England, under international law codified in the Hague Convention.

The University of Pretoria’s Centre for Child Law is seeking permission to advise the court, as experts on the Hague Convention, as amicus curiae. The Centre will reportedly argue that the Hague Convention, as interpreted in cases, has increasingly upheld children’s rights over their parent’s rights.

The Hague Convention expressly allows as one possible defense the child’s objection to returning. But the court may also consider the age and maturity of the child expressing an objection.

According to the articles below, the boy only lived in England for one year. He reportedly stated in an affidavit for the South African court that he wasn’t happy in school there because the other children were rude and teased him.

The boy’s sister remains with their mother in England.

It is important to remember that the sole question to be decided in Hague Convention cases is jurisdiction: which nation will have the right to decide, in a second case, on the merits, which parent will ultimately get custody of the child.

Read more in The Mercury and The Star.