The father relied on Article 13 of the Hague Convention, arguing that the mother had consented to the children’s retention in South Africa.
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THE Western Cape High Court has mandated the return of two young brothers to the UK after determining they were wrongfully retained by their father in Cape Town.
Judge Dumisani Lekhuleni ruled that the children - aged 7 and 3 - must be immediately returned to their mother so they can go back to their habitual residence in the UK.
The urgent application was brought by their mother in terms of the Hague Convention on the Civil Aspects of International Child Abduction, which provides for the prompt return of children who have been wrongfully removed or retained outside their country of habitual residence.
The mother, a South African-born tax administrator now living in Croydon in the UK, argued that the children travelled to Cape Town in August 2025 for what was intended to be a temporary visit with their father. She said they were due to return by December 2025.
According to her, while there had been discussions about the possibility of relocating to South Africa, no agreement was ever reached. She maintained that she never consented to the children permanently moving to South Africa or remaining there without her.
The father, who lives in Woodstock, Cape Town, disputed this.
He claimed the parties had agreed that the youngest child would reside permanently with him in South Africa, while the mother would live nearby with the older child. He said he had been the primary caregiver since August 2025 and argued that the mother had consented to the arrangement.
When the mother arrived in South Africa in January 2026 to collect the children, the father refused to release them, prompting the urgent court application.
The court found that the children were habitually resident in the United Kingdom.
Both boys were born in the UK, are British citizens, and had lived their entire lives there prior to August 2025. They attended school and nursery in the UK and received all their primary medical care there. The mother continued to maintain their family home in the UK, covering rent and other living expenses while they were in South Africa.
Judge Lekhuleni held that although the parties had discussed relocation, there was no “settled or shared intention” to abandon the UK as the children’s habitual residence. The children’s visit to South Africa was found to be temporary.
“The suggestion that the parties agreed to permanently relocate the children to South Africa is not supported by the objective facts,” the court found.
The father relied on Article 13 of the Hague Convention, arguing that the mother had consented to the children’s retention in South Africa. He also claimed that returning the youngest child to the UK would expose him to a grave risk of harm.
He raised concerns about alleged neglect, including an earlier UK police investigation into claims that the older child had been abused by a neighbour. The mother denied any neglect and said she had reported the matter to authorities herself as a safeguarding parent. No findings were made against her.
The court found that the father had not established clear and unequivocal consent by the mother for permanent relocation. Nor had he proven that returning the child to the UK would expose him to grave physical or psychological harm.
Judge Lekhuleni said the alleged risks did not meet the high threshold required under Article 13(b) of the Convention. The court added that adequate support systems existed in the UK to address any concerns.
The court ordered that both children be returned immediately to their mother so that she can take them back to the UK. The father was directed to hand over all travel documents. If he fails to comply, the sheriff is authorised to seize the children’s passports.
The mother is entitled to remove the children from South Africa without the father’s further consent.
The father was also ordered to pay the legal costs of the application.