Defending an application for the return of a child to another country in Zimbabwe

Article 13 of the Hague Convention on the Civil Aspects of International Child Abduction sets the grounds for refusal to order the return of a child. It states that, a judicial or administrative authority of a requested State is not bound to order the return of a child if the person, institution or other body which opposes its return establishes that:

• (a) The person, institution or other having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
• (b) There is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

A child can be returned to Zimbabwe and remain in the custody of an abducting parent if it is in the best interests of the child. Such an order was made by an Israeli Court in an application for the return of a child to Zimbabwe in Kuperman v Posen 2001 (1) ZLR 208 (H).

It is interesting to note that refusal may also be ordered if the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

In considering the aforesaid circumstances, judicial and administrative authorities take into account information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence.

Article 20 of the Hague Convention provides further grounds for the refusal to order the return of a child. In terms of Article 20 of the Hague Convention the return of a child may be refused if this would be contrary to the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.