Nearly three years ago a SA mother took the desperate step of absconding with her toddler daughter, because she believed the legal system in Belgium was failing her.
But, after more than 30 months on the run, ducking the police and private investigators, and Belgian and SA authorities – she feels that the SA courts did not back her this week, when Western Cape High Court Judge Siraj Desai ordered that the child, now five, be returned to the country of her birth.
The mother and child – Weekend Argus has elected not to reveal their identity – were finally found earlier this year, living in a Garden Route town.
The child’s name had been changed.
The mother, an SA citizen and professional ice skater, has admitted that she took the child, but said she did it because she believed it was not in her daughter’s best interests to have contact with a father whom she characterised as neglectful and intimidating.
Believing the legal system in Belgium had failed her, she claimed she decided to flee to her home country in a bid to call upon her rights under SA law.
But those hopes were dealt a devastating blow when Judge Desai found that – in terms of the Hague Convention, to which SA is a signatory – the removal of the child was unlawful.
After finding that Belgium was the little girl’s habitual residence, Judge Desai was forced to order that she be returned there, so that authorities could properly determine her custody arrangement.
The mother this week applied for leave to appeal against the decision, but the application was refused.
In court papers, it emerged that the child was born in Belgium in February 2007.
She and her parents lived in Turkey, Germany and Belgium, and also moved to SA for a short period in 2008.
In November 2008, after returning to Belgium from SA, the couple’s marriage started to deteriorate and divorce proceedings were later instituted.
A Belgian court granted the father visitation and access rights regarding his daughter.
However, this contact came to an abrupt halt in November 2009 when the mother fled with their daughter – a move that prompted a massive manhunt.
The father claimed in an affidavit that he had spent R1.5 million trying to locate the child, and had held two benefit events in Belgium to raise funds.
Then, in January 2010, the issue came to a head when Belgian authorities wrote, requesting official assistance from the chief family advocate in Pretoria, the designated central authority for SA.
In Cape Town, family advocate Shameemah Salie immediately attempted to establish the child’s whereabouts.
She said in an affidavit that she contacted the mother’s father, who lived on the Garden Route, and he confirmed that the pair had come to SA, but said he had no knowledge of their whereabouts.
Salie continued to investigate, eventually establishing that the child and her mother were in fact living in the southern Cape, and that they had entered SA on a temporary visa via Dubai.
By that time it was already November 2011.
The central authority and the father lodged the High Court application to have the child returned to Belgium in terms of the Hague Convention.
The father alleged in his papers that Belgium was the child’s habitual residence, and therefore her removal from that country was illegal in terms of the Hague Convention.
The mother admitted that she removed the child without her father’s consent, but said she had several reasons for doing so, including that:
* The father allegedly neglected the child.
* The child feared her father.
* She did not feel it was in the best interests of the child to have contact with him.
* She was struggling financially, and Belgium’s legal and welfare structures were unable to assist her and her daughter.
* She felt that the system in Belgium had failed her and her daughter’s needs.
In addition, she contended that the Hague Convention was only applicable if it could be shown that the child was wrongfully removed from her habitual residence.
The mother claimed the couple never intended to remain in Belgium.
“(My daughter) was not habitually resident in Belgium at the time when I removed her from that country.
“We moved to Belgium with the specific purpose of (my husband) investigating and setting up structures to enable him to start his own business in SA.”
She also submitted that a court could refused to return a child if there was a grave risk that her return would expose her to physical or psychological harm, or place her in an intolerable situation.
But the father has denied the allegations.
“I have never and would never do anything to emotionally or physically harm my daughter. I dearly love her and only want the opportunity to be a parent to her.”
He also denied that he and his former wife had intended to live in SA permanently.
In making his ruling earlier this month, Judge Desai said there were no indications that the child would not be properly cared for by her father and his mother.
He added that the mother’s suggestion that SA was their habitual residence was not supported by the fact that she went into hiding for two years, and resorted to extreme measures to frustrate the father’s rights of access.
He said the conclusion was clear that the child was habitually resident in Belgium before she was removed and, therefore, her removal was wrong in terms of the Hague Convention.
Judge Desai added that Belgian authorities were aware of the concerns raised, and had undertaken to put safeguards in place for the child’s return.
Speaking to Weekend Argus from her home this week, the mother said she intended to take the matter further, and that her legal team was working around the clock to file papers at the Supreme Court of Appeal.
However, the matter has become urgent because the father intends to go to the High Court again next week to ask that the order be executed immediately.
She wept as she spoke of her ordeal.
“It’s like sitting and waiting for a train to hit me. I don’t know how to protect her. And if I can’t, then I don’t know who can.
“I don’t know why my right as a mother has been taken away from me. There’s a pit in my stomach that hurts so badly 24 hours a day.”
A Belgian court has convicted the mother, in her absence, on a charge of abduction and sentenced her to five years in jail, a portion of which was deferred.
Authorities in Belgium have undertaken not to implement the sentence if the child is returned.
But the mother does not trust this undertaking. And she fears that if her daughter is taken to Belgium without her, the child will be traumatised.
“I have to have faith in my legal team.”
The legal process had also left her in dire financial straits, and she had had to rely on her parents’ retirement annuity payout.
“I need as much support as I can get.”
She said a local church had started a prayer group for her and her daughter.