S.T v N.P.S and Another (068777/25) [2025] ZAGPPHC 1076 (25 September 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2025 >> [2025] ZAGPPHC 1076 | Noteup | LawCite sino index ## S.T v N.P.S and Another (068777/25) [2025] ZAGPPHC 1076 (25 September 2025) S.T v N.P.S and Another (068777/25) [2025] ZAGPPHC 1076 (25 September 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2025_1076.html sino date 25 September 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy FLYNOTES: FAMILY – Children – Abduction – Father seeking return of child to Italy – Allegations of grave risk and emotional abuse – Not supported by credible or independent evidence – Child had not experienced harm in Italy and maintained strong familial bonds – Child’s express preference to remain in South Africa was influenced by mother – Retention of child in South Africa was unlawful – Failed to establish any applicable exceptions – Father’s conduct was consistent and child-focused –  Return of child to Italy ordered – Hague Convention, arts 12 and 13. IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case No. 068777/25 (1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED: YES DATE: 25 September 2025 SIGNATURE In the matter between: S…. T… Applicant and N... P... S... THE CHIEF FAMILY ADVOCATE First Respondent Second Respondent NEUKIRCHER J : 1]         On 15 May 2025 the applicant (ST) launched an urgent application in this court for the return of his son (MMT) to Turino, Italy. The application is brought in terms of the provisions of The Hague Convention on the Civil Aspects of International Child Abduction (the Convention). Although the application is opposed by the first respondent (NPS) [1] , the parties agreed to interim relief pending the final adjudication of the application, and on 3 June 2025 an order  was made in which ST was granted interim contact to MMT pending the finalisation of the application. Ms Fitzroy was also appointed as MMT’s legal representative: [2] “ 3.1      To investigate the best interests of the minor child in relation to this application, including the child’s views and wishes if ascertainable.” 2]         The application was set down for hearing on 9 and 10 September 2025. A case management meeting was held on 13 September 2025 to ensure that the application would be ripe for hearing. Time periods were set for the filing of further affidavits, the heads of argument and Ms Fitzroy’s report. 3]         By the time the matter proceeded on the date of set down, all the affidavits and reports had been filed. However, NPS’s argument was that, as Ms Fitzroy had not appointed an expert to asses MMT, his voice and views were not properly before the court – this despite the fact that she had been appointed as his legal representative. The argument was that this meant that MMT’s objection to his return to Italy was not properly articulated and the application should not be finalised until such time as this was done. For the reasons that will become apparent, I do not agree. 4]         I pause to mention two further aspects: a)         although the Chief Family Advocate is a party to the proceedings as the second respondent in this application [3] , there was unfortunately no appearance by them [4] ; b)         Article 11 of the Convention provides for a decision to be made within a period of 6 weeks of commencement of the proceedings. But this is not always practical or possible. In my view, this is recognised in Regulation 23 of the Children’s Act 38 of 2005 (the Children’s Act), which provides: “ (1)     Proceedings for the return of a child under the Hague Convention must be completed within six weeks from the date on which judicial proceedings were instituted in a High Court, except where exceptional circumstances make this impossible .” [5] 5]         The application was initiated on 27 May 2025 and the interim order was made, by agreement, on 3 June 2025. That order makes provision for the filing of certain processes within specified time periods and the application was set down for hearing as soon as my duty roster permitted. From initiation to date of hearing, a period of three-and-a-half months had lapsed. 6]         I have already stated that Ms Fitzroy was appointed as MMT’s legal representative in this matter. This was done in terms of s279 of the Children’s Act which reads: “ A legal representative must represent the child, subject to section 55, in all applications in terms of the Hague Convention of International Child Abduction.” 7]         Section 55 [6] of the Children’s Act resorts under the chapter that regulates the Children’s Court, its establishment, procedures and processes. Although Ms Fitzroy is not appointed in terms of s55, she is appointed by agreement between the parties. 8]         The objects of the Convention are: “ (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” 9]         With these objectives in mind, the Convention then provides: “ Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that- (a) the person, institution or other body 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 of 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. The judicial or administrative authority may also refuse to order the return of the child if it finds that 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 circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.” Common cause 10]       It is common cause before me that: a)         MMT was habitually resident in Turino, Italy; b)         MMT was unlawfully retained in South Africa without ST’s consent and in breach of his custody rights; c)         MMT’s return to Italy is peremptory unless NPS establishes a defence under Article 13 of the Convention; d)         NPS’s argument is that: (i)         there is a grave risk that MMT’s return would expose him to a psychological [7] harm or place him in an intolerable circumstance; and (ii)        MMT has voiced an objection to his return to Italy. 11]       NPS also argues that a court may refuse to order MMT’s return in terms of Article 20 of the Convention which states: “ The return of the child under the provision of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” 12]       It is not in dispute that given that it is admitted that MMT’s habitual residence prior to his retention was Italy, that ST’s has rights of established custody in Italy, that he did not consent to or subsequently acquiesce in the MMT’s retention in South Africa, the onus rests on NPS to establish the Article 13 defences on a balance of probabilities [8] . Background 13]       The parties met in the USA in 2003 whilst pursuing post-graduate studies. At that stage, NPS was living in South Africa. ST relocated to South Africa in 2007 and the parties were married in a traditional celebration on 23 March 2007. Shortly thereafter, and for reasons which are not relevant to the determination of the application, the parties were divorced [9] and then married again on 26 October 2007. At this time, NPS was working in South Africa and ST in Kigali, Rwanda. 14]       ST moved to Pretoria in October 2007 after he was transferred to South Africa. 15]       Two children were born of the parties’ marriage: a)         MAT (a daughter) was born on 4 August 2008). She is now 17 years old; and b)         MMT (a son) was born on 9 July 2013. He is now 12 years old. 16]       MAT resides in Italy. This being so, she is not the subject-matter of this application. Even were she to have been wrongly retained in South Africa, the Convention would not apply to her as Article 4 provides that “the Convention shall cease to apply when a child attains the age of 16 years.” 17]       Both children hold dual Italian and South African citizenship, as does NPS by virtue of her marriage to ST. She has also retained her South Africa citizenship. 18]       In December 2022, both parties and the children permanently relocated to Turino, Italy. They did not sell the matrimonial home in South Africa and instead, retained it and their movable property in Pretoria. It appears that NPS has a large family in South Africa [10] and she and MMT have visited South Africa on at least three occasions since the family’s relocation to Italy in 2022. 19]       It is common cause that NPS voiced a desire to return to South Africa. In particular, she expressed this in November/December 2024 and, according to ST, he “… indicated that while it could be a future possibility, MAT’s ongoing treatment and recovery in Italy were the immediate priority. MMT needed to complete his current school year, separating the siblings was not an option…” 20]       Unfortunately, the parties’ marriage did not survive the relocation to Italy. It is apparent from the affidavits that the parties had been experiencing marital difficulties prior to their relocation, but once in Italy their relationship soured even more. In late 2023 they decided to pursue a divorce. Each retained their own legal representative and they were in the midst of settlement negotiations when NPS wrongfully retained MMT in South Africa [11] . 21]       Added to their marital issues, it appears that their eldest daughter, MAT, suffers from severe mental health issues to the extent that she is on medication and requires frequent and extended periods of hospitalisation. A detailed account of MAT’s health issues is not necessary. Suffice it to state that NPS uses this, in addition to several other accusations that she places at ST’s door, to argue that the siblings do not share a close bond and therefore it would neither be a hardship nor sever the sibling bond were MMT to remain in South Africa without his sister. 22]       Most of NPS’s 225-page answering affidavit is spent repetitively detailing ST’s abusive behaviour from the time they met in 2003 and, anecdotally, long before that to the present date. According to her, his constant serious alcohol abuse, financial abuse towards her, racist and patriarchal behaviour [12] towards her and the children, his clear favouritism of MAT and his verbal abuse of her were constant and emblematic of their failed relationship and of his abusive and controlling nature. 23]       Added to this was the controlling nature and interference by her mother-in-law and it all resulted in the mental breakdown of MAT and her own breakdown which manifested itself in skin break-outs on her elbow, blackouts and frequent headaches and her constantly being ill “because of stress”. I interpose here to state that there is no medical evidence to support the latter allegations. 24]       I do not intend to detail NPS’s allegations chapter and verse. Nor do I intend to detail each and every complaint. Instead, I intend to deal with those that lend the most weight to NPS’s Article 13(b) defence. 25]       Ms Fitzroy has filed a comprehensive report in which she has detailed the discussions and consultations she had with various persons and experts, as well as with MMT. None of the allegations levelled by NPS against ST in these proceedings were either corroborated or confirmed by any of the sources [13] she spoke to. The Article 13(b) defence 26]       It is common cause that once it has been established by the leave behind parent that the child has been unlawfully retained in the contracting country, that this was done without his consent and that he has established rights of custody in the leave behind country, the onus rests upon the parent who unlawfully retained the child to prove, on a balance of probabilities [14] , that a 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.” 27]       It is also common cause that the requirements set by the Convention have been met by ST and that it is for NPS to establish the defences under Article 13(b) as well as the defence that MMT objects to his return and that he is of an age and degree of maturity where it is appropriate that this court takes into account his views. 28]       In Ad Hoc Central Authority, South Africa and Another v Koch NO and Another [15] (Koch) Majiedt J explained the concepts of ‘grave risk” and “intolerable circumstance” as follows: “ [158]   The art 13(b) defence plainly lies at the heart of this case. The aunt had to prove on a balance of probabilities that there is a grave risk that E’s return to the UK would expose her to physical or psychological harm or otherwise place the child in an intolerable situation. In G v D the Court cited Re E (Children ), where the UK Supreme Court set out the principles applicable in art 13(b) defences. These are… (a)  … (b)  … (c)   The risk to the child must be ‘grave’. It is not enough for the risk to be ‘real’. It must have reached such a level of seriousness that it can be characterised as ‘grave’. Although ‘grave’ characterises the risk rather than the harm, there is in ordinary language a link between the two. (d)  The words ‘physical or psychological harm’ are not qualified, but do gain colour from the alternative ‘or otherwise’ placed ‘in an intolerable situation’. ‘Intolerable’ is strong word, but, when applied to a child, must mean ‘a situation which this particular child in these circumstances should not be expected to tolerate.’ “ 29]       It is with this in mind that NPS’s Article 13(b) defence must be assessed. The Police Investigation 30]       On 16 January 2025 NPS filed a complaint with the Office of General Prevention and Public Aid in Turino, Italy. The “subject” is described as “Report of ST Behaviour” and it lists NPS’s complaints in respect of events that occurred between August 2023 and 16 January 2025. In my view this complaint is relevant to the Article 13(b) defences raised by NPS in opposing the return of MMT to Italy.  The complaint states: “… Specifically, the person constantly humiliates me, makes me feel like a useless woman, insults me using words like ‘you disgust me’, and says I am not capable to taking care of our children… Following our constant arguments, he often shouts, especially when he’s drinking, and continuously threatens to take the children away from me in an intimidating manner. Because of this stressful situation, our older daughter MAT, on several occasions, inflicted self-harm by cutting her arms using a razor blade … ST abuses alcohol and was advised to seek help from SERT (addiction services), which he has not done. I did not call the police immediately, but I went directly to the hospital. He doesn’t beat me, but during arguments he sometimes becomes violent and pushes me. This has happened to the children as well on some occasions. At the moment, I am not asking to be placed in a protected shelter with my child. However, the man has taken away all my bank cards and given me one with a spending limit. I cannot make any transactions freely. For any need, I have to ask him, and this situation makes me feel deeply humiliated. Currently, I cannot access any psychological support because I do not have the financial means . I contacted the ASL (local health authority)…but was unable to communicate due to language barriers .” (emphasis provided) 31]       ST states that these allegations have not been raised by NPS at all during the parties’ divorce proceedings in Italy. In fact, ST states in his replying affidavit: “ 25.      I was also not aware of this report until I received her answering affidavit. Crucially, as confirmed by my Italian lawyer, ASF, the First Respondent’s own Italian layers were never informed of any allegations of abuse during out extensive divorce negotiations, nor were they aware of her intention to relocate to South Africa…” 32]       A confirmatory affidavit, duly apostilled, has been provided by ASF who is a member of the Bar Association of Attorneys of Biela, Italy, and ST’s attorney in Italy. She states, inter alia , the following: “ 4.        I handled the negotiations on behalf of ST regarding his divorce in Italy from NPS… 5.         I confirm that during the course of these extensive and in-depth negotiations, neither NPS not her lawyers…have ever raised, mentioned or averred any accusation of domestic abuse, violence or ill treatment on the part of ST. 6.         I furthermore confirm that the negotiations regarding the consensual divorce have not been finalised in Italy, mainly due to financial reasons… 7.         Based on my professional discussions with [NPS’s attorney] I can furthermore confirm that he was not aware that NPS had ever filed a complaint with the police, nor submitted a sworn affidavit containing accusations of abuse on the part of ST. 8.         In fact, confirmation that no accusations of abuse by the husband towards the wife had ever been made,…on the 9 th of April 2025 [16] , in the offices of [NPS’s attorney], a meeting was held between the couple in the presence of their respective lawyers, during which extensive discussions took place regarding the possible resolutions of the consensual divorce, and NPS never once mentioned violence or abuse by her husband, nor mentioned him abusing alcoholic beverages, and the only aspect on which both spouses agreed was that MAT…would be placed in the care of her father, and MMT would continue to live in Turino in two separate homes, which ST undertook to find in close proximity to each other,  so that the latter could love for half of the week with his father and the other half with his mother...” (my emphasis) 33]       It is not for this court to pre-determine the outcome of the police investigation, which I am given to understand is ongoing, and thus the fact of the complaint is accepted simply for what it is: a complaint made by NPS against ST which has yet to be finalised. It does not rise to the level of proven allegations merely because it has been filed. But it is a factor to be considered with adjudicating the Article 13(b) defence. Alcohol abuse 34]       NPS has, in minute detail, chronicled ST’s alleged abuse of alcohol which includes driving under the influence, being so under the influence that he did not know where he was, falling whilst carrying a child, disguising alcohol in a green golf bottle and pretending that it was Coke, being so drunk that he broke a glass shelf in their house whilst reaching for alcohol, being severely intoxicated around the children, and generally being emotionally and verbally abusive towards her whilst under the influence and otherwise. 35]       Whilst ST does not deny that he partakes in alcohol socially, he denies that he abuses it. He alleges that NPS also drinks socially. He conceded to Ms Fitzroy that “at some point he did drink ‘more’ but he currently has completely stopped drinking.” 36]       On 19 August 2025 Ms Fitzroy asked ST to take a carbohydrate deficient transferrin and liver function test. The results, dated 22 August 2025, are attached to her report and state: “… the tests dated 19 August 2025 [17] are normal and these tests do not indicate that ST is a regular consumer of alcohol.” 37]       It is unsurprising that NPS contests the outcome and probative value of these tests, but she is not an expert on this issue and there is no report from any expert to refute the test results. 38]       MMT has questioned his father’s truthfulness regarding the alcohol abuse. He recounted to Ms Fitzroy that his sister questioned ST about the content of a plastic bottle he kept in his motor vehicle which ST insisted contained Coke. But when she opened it, MAT discovered it contained alcohol. [18] Ms Fitzroy asked MMT whether his sister told him this and he stated “No, but I think it was beer.” Ms Fitzroy then states: “ The undersigned sought clarification by asking, ‘How do you know there was alcohol in it?’ To which MMT responded, “Because my mom told me when we were on a walk when I was 11.” 39]       Ms Fitzroy consulted with Mrs S who worked as a live-in helper to the family between 2014 and 27 May 2024. She continued to work in their Pretoria home after the family relocated to Italy. She cared for MMT since was 7 months old until the relocation. 40]       Ms Fitzroy states: a)         “When MMT experienced challenges while completing his homework with his mother, Mrs S would frequently intervene, helping to calm him down and provide the support needed for him to finish his assignments successfully”; b)         that MMT had “a good relationship with his father and a very close bond. The children would sometimes prefer to be with their father and she assumed it was because he travelled a lot and they missed him when he was away from home.” c)         that Mrs S confirmed that both parents consume alcohol but she never saw them intoxicated; d)         that Mrs S stated that “as long as the children stay with their father the children will be safe” but she was not prepared to elaborate; e)         that Mrs S stated that the two children were “ very close ” and that MMT “is very concerned about his sister”. (my emphasis) 41]       Both ST and Ms Fitzroy point out that Mrs S is reluctant to become involved in the legal proceedings. Ms Fitzroy states: “ Mrs S was very hesitant to consult with the undersigned and was willing to provide limited information since she is fearful of the possible consequences of providing her views in this matter.” 42]      This is also borne out by the WhatsApp messages exchanged between ST and Mrs S that are attached to the founding affidavit where, in one, she states: “ I know she loves going out and then what about the child. Do you think you can take him? To me the kids are better off with you even if you are travelling with your work…” 43]       I do not mention this to voice an opinion on which of the parents should be granted primary care and residence – that is not a decision a court hearing a Convention application has authority to make. [19] Instead, it rather provides a balance to the serious allegations of alcohol and other abuse levelled by NPS to support her Article 13(b) defence. 44]       In my view, at present there is no evidence to support NPS’s allegations: the blood alcohol test is negative; MMT’s observations are not his own but rather those of his sister and are also those that NPS told him a year ago; Mrs S’s view expressed in her WhatsApp messages and to Ms Fitzroy also demonstrate the contrary. But even more importantly, ST’s excessive alcohol consumption has not been raised at any stage during the ongoing divorce proceedings. 45]       Dr Berra, who is MMT’s psychologist in Italy and who has been seeing him regularly for therapy since May 2023, also informed Ms Fitzroy that MMT was unable to recall or describe any instance related to his father’s drinking or any associated incidents. 46]       Thus, even were I to accept that these allegations to have been true in the past, they do not appear to ring true now. Economic abuse 47]       NPS alleges that ST has exposed her and the children to serious economic abuse and hardship: a)         she alleges that he has confiscated her $5 000 credit card and has reduced the debit order on his card from €4 000 to €1 500 whilst she is in South Africa “totally disregarding our needs, such as medical emergencies, that may arise”; b)         in her answering affidavit NPS appears to contradict this time line: (i)         she states that the financial abuse started in February 2023 when she voiced an intent to separate; (ii)        in July 2024, ST reduced her debit card allowance from €4 000 to €1 500; (iii)       ST refused to apply for her for spousal dependency support from the World Health Organisation (WHO) after they moved to Italy which left her vulnerable; (iv)       he withheld money from her even though she was unemployed. 48]       But NPS contradicts herself as is clear from par 47(b)(ii) supra . Also, insofar as par 47(b)(iii) supra is concerned, ST has attached the children’s Italian Health Care cards to his affidavit. Insofar as the WHO spousal dependency support is concerned, an email from the WHO dated 22 March 2022 clearly states that it rejected the application because NPS was working at the time and her earnings exceed the limit. This was later revised and a certificate from the WHO dated 4 December 2024 states that NPS: “… is currently a participant in the World Health Organisation (WHO), Staff Health Insurance (SHI) covers the reimbursement of the major portion of medical expenses related to accident or illness, within the limits laid down and the SHI Rules.” 49]       Thus, not only does NPS receive support of at least, on her own version, €1 500 per month, but she is in fact covered by the WHO program and she is now employed in South Africa. 50]       There is also no evidence that whilst they lived in Italy, MMT was not fully emotionally supported by ST, nor that his education was not covered in full by his father, nor that any medical treatment for him and MAT was not paid for by ST – in fact, the contrary evidence has been provided by ST. 51]       At present, and even though MMT is enrolled at Crawford College in Pretoria [20] , he remains enrolled at WINS [21] in Italy which is paid for by ST. Save for PE, Art, Music and Design all other courses have continued for MMT online whilst he has been in South Africa and MMT has successfully passed his end-of-year WINS examinations. [22] 52]       Thus, the economic abuse element of the Article 13(b) defence is without merit. Racism and patriarchy 53]       This issue was not argued at the hearing but is rather dealt with as the court was informed that the fact that argument is not made on a particular issue does mean that NPS has abandoned it. 54]       NPS accuses ST, Italian society and the Italian legal system of racism and patriarchy. She argues that she and MMT have been constant victims of both subtle and overt conduct and that to return him to Italy would be detrimental to his well-being. 55]       According to NPS, MMT has experienced racism in Italy. The incidents of racism include: a)         a schoolmate asking him if he was coloured; b)         that he experienced that “people looked at him differently because he was brown”; c)         that MMT “believes Applicant shouted and pointed fingers at me (being NPS) because I am brown”. 56]       She states that she has also experienced racism in Italy inter alia that: a)         “…[l]ack of integration in Italy is a known fact, ranging from soccer fans calling a soccer start a Monkey. I was not necessarily called monkey, but I was reduced to a nameless, faceless object, I was referred to as ‘lady’ by the Applicant’s lawyer…while the Applicant was called Mr T. I was reduced to being a maid and a singer by the Applicant… b)         she has been accused of being an unfit mother due to her cultural values; c)         the applicant believes his culture is superior to hers. Interestingly however, she states that at a meeting with one of MAT’s doctors “the Applicant tried to argue that my cultural way of raising children is unaffectionate, a claim that one of the doctors disputed, stating that his culture might also not be appropriate.” This is a clear indication to the contrary of NPS’s broad and sweeping assertions; d)         she struggled to learn Italian as she associated it with a person who was “constantly” abusing her and she was expected to learn Italian nonetheless; e)           “the justice system is patriarchal and racist, and unlikely to favour me.” 57]       Whilst it may be so that the above is the subjective view of NPS, at issue is whether MMT has been exposed to this alleged racism and behaviour. If so, the question would then be whether his return would expose him to this again and whether that would constitute a grave risk of psychological harm or would place him in an intolerable situation. 58]       MMT expressed to Ms Fitzroy “… I have to admit the people here are way different from Italian people. And even in conversation we said [23] that Spanish and Italian people are really racist. Especially racist to people like me and my mom.” 59]       Ms Fitzroy states: “ 99.      MMT explained that the people inside of his school in Italy are very nice people and they’re not racist. He enjoyed school but he enjoys Crawford better. He explains that there’s nicer people in South Africa and less bullies.” 60]       In my view, the answer lies in the view of Dr Berra. She informed Ms Fitzroy that MMT had never reported any racism directed towards him in Italy. Given that MMT has consulted with Dr Berra for over 2 years, and that he has a good relationship with her and trusts her [24] it is highly unlikely that, had he experienced any racism or bullying, this would not have come up in his therapy sessions. 61]       Importantly, he also informed Ms Fitzroy that the people in his school are not racist and, according to her, from her discussions with him, there is no indication that MMT understands the concept of racism. 62]       This being so, I cannot find that MMT has been exposed to racism and it appears his “experiences” and understanding of the concept are informed by what NPS has told him. This being so, I cannot find that his return to Italy would expose him to any grave risk or intolerable circumstance. The grandparents 63]       NPS describes the relationship between ST and his mother as “dysfunctional”. She goes to pains to describe their volatile relationship and has detailed events and instances which lead one to assume that ST’s mother is controlling and interfering in their marriage, dismissive of NPS and incapable of properly caring for MMT were he to be left in his care which he frequently has been in the past [25] . 64]       This notwithstanding, Ms Fitzroy states: “ 111.    The minor child explained that his paternal grandfather is “Very chilled, a kind person and he’s a simple person. Even though he needs help getting out of bed [26] , yeah, because he’s really old, but he’s a very nice person.” He complains that his grandmother constantly kisses him but he loves her. He said “I love her. It’s just, she doesn’t have to kiss me, She’s annoying me a little bit. Also, she hasn’t told me yet, but my mom says that my grandma had a beef with my mom. I think she’s been a racist and fighting with my mom. That’s why my mom is never coming back to their house.” (my emphasis) 65]       In my view, the complaints that NPS has about the grandparents cannot be elevated to circumstances where his return to Italy would pose any grave risk or intolerable circumstance. Whilst it may be so that NPS has a fraught relationship with the grandmother, it appears that MMT has a good and loving relationship with both of them. MMT’s relationship with MAT 66]       It is clear from all the affidavits and reports filed that MAT is emotionally very fragile and has been for many years. At present, she is institutionalised and receiving treatment in Turino and so her care (for the moment) is ongoing and monitored by professionals, including social services. ST visits her regularly and pays for her care. Part of ST’s objection to the family relocating to South Africa is that MAT cannot be moved right now. He also argues that it is not in the interests of the siblings to be separated as they share a close bond. 67]       NPS denies that the latter is still the case. She alleges that because of ST’s conduct towards MAT the relationship between the siblings is fractured. This includes that he allowed MAT to do as she pleases, allowed her to vape, gives her whatever gifts she wants, allows her access to sharp objects [27] , and in general gives in to her every whim, whilst he is stricter with MMT. 68]       She states that MAT has not called MMT once since their arrival in South Africa and “ I had sent her pictures of her brother cooking scrambled eggs on Mother’s Day. Her response was ‘Oh cute’. She did not even ask me to pass on the greetings.” 69]       She also denies that ST facilitates calls between the siblings as he alleges. 70]       In fact, NPS alleges that: a)         MAT “play[s] out her drama to get what she wants”; b)         the “visible bond that once existed between the siblings vanished, and the Applicant continued to fuel our son’s resentment towards his sister through his favoritism treatment of her…”; c)         MMT resents MAT; d)         MMT started asking if MAT was faking her sickness. 71]       But this fractured sibling relationship is not borne out in the conversations between MMT and Ms Fitzroy where he told her he misses MAT and she states that “…when I enquired whether he and his sister used to have a good relationship, he immediately stopped me and corrected me stating that ‘I still have a very good relationship with my sister’.” 72]       According to Dr Berra: “ 132.    MMT maintained a very strong bond with his sister, frequently mentioning her during therapy sessions. He openly recognised that their bond was unique and expressed his eagerness for her to return home.” 73]       Given MMT’s unequivocal statement to Ms Fitzroy, as well as Dr Berra’s opinion, I cannot find that the siblings have a fractured relationship nor that MMT harbours any resentment towards his sister. Given the objective evidence, this ground does not meet the threshold required by Article 13(b). ST’s abusive behaviour 74]       It is clear that the parties’ relationship was a volatile one. In fact, so much so that MMT informed Ms Fitzroy “that the circumstances in Italy in their family home has become unbearable”. He stated “I mean, usually they don’t fight, but it is pretty common for a fight to happen over simple things and it is usually him that starts it…” 75]       Ms Fitzroy also states: “ 88.      The minor child started to list all his father’s wrongdoings spontaneously and whenever the undersigned requested him to elaborate, he responded: ‘I will explain later’ or ‘I think that is all I have to talk about’.” In other words, he could not mention one event of physical or emotional abuse directed towards him. 76]       It appears that the allegations of abuse are those directed towards NPS and there is no proof that ST has acted in an abusive manner towards MMT. 77]       In any event, were I to order MMT to return to Italy, he would not be exposed to the frequent occurrence of the parties’ volatile relationship as: a)         I was informed by Mr Haskins [28] at the outset, that even were this court to order MMT to return to Italy, NPS would not return with him; b)         Ms Fitzroy informed me that she had also, that morning, had a discussion with NPS who had confirmed this to her; c)         even were NPS to return to Italy, the parties would not reside together as ST had, during the divorce negotiations, undertaken to provide NPS with alternative accommodation. This tender is repeated in a draft order handed up to me during argument by Mr Nel [29] . 78]       NPS’s stance notwithstanding, she is still entitled to change her mind. It is also not for this court to determine whether or not the financial support tendered by ST is reasonable – the point is that there is a tender and that MMT will not be exposed to the parties’ volatile relationship on an ongoing basis as they will no longer be residing together. 79]       But even were this not to be so, I am still of the view that the facts do not bear out the alleged emotional abuse as: a)         NPS has left MAT in Italy alone in ST’s care despite MAT’s extremely fragile emotional state; b)         she has informed MAT that she has no intention of returning to Italy; c)         it is common cause that when MAT is discharged from the care facility, she will be discharged into ST’s care – this is the same person whom NPS alleges is an emotionally abusive person who is unsuited to care for their children; d)         in the divorce negotiations, she was willing to grant primary care and residence of MAT to ST and to share residency of MMT with him. 80]       Thus, her version is contradictory and does not support the Article 13(b) defence raised on this ground. The child’s objection 81]       Over and above the Article 13(b) defences raised by NPS, she alleges that MMT has voiced an objection to his return – this is for all the reasons already raised by her supra . 82]       In Central Authority of the RSA and Another v B [30] , Meyer J stated: “ Even though the part of art 13 which relates to the child’s objection to being returned is not separately numbered, it is separate from paras (a) and (b) and constitutes a separate defence. 83]       He thus concluded [31] that it is therefore unnecessary to conclude that the child’s objection must “import […] a requirement to establish a grave risk that the return of the child would expose her to psychological harm, or otherwise place her in an intolerable situation.” 84]       Mr Haskins argues that, when considering not just the Article 13(b) defences but also the child’s objection, a court is obliged to take into account the provisions of the Children’s Act and in particular s10 which states: “ Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.” 85]       But one must also take into account the provisions of s278(3) of the Children’s Act, which reside under Chapter 17 of the Children’s Act specifically dealing with the application of The Hague Convention and the abduction of children, and which reads as follows: “ (3)      The court must, in considering an application in terms of this Chapter for the return of the child, afford that child an opportunity to raise an objection to being returned and in so doing must give due weight to that objection, taking onto account the age and maturity of the child.” 86]       In my view, s10 of the Children’s Act is not dissonant with s278(3) of the Children’s Act and, specifically, Article 13 of the Convention which specifically provides that a court may refuse to order the return of a child “… if it finds that 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.” 87]       He also argues that it is necessary for a court to consider the best interests of the child as was done in Central Authority v MV (Intervening) [32] and Central Authority of the RSA and Another v B [33] . 88]       Although Sonderup v Tondelli and Another [34] was decided 14 years ago, and prior to the enactment of the Children’s Act, the Constitutional Court found that Art 12 of the Convention was consistent with s28(2) [35] of the Constitution. In Central Authority for the RSA and Another v LC [36] the court found that the “… argument that the Children’s Act alters this position is, in my view, unfounded and has been found to be wrong. [37] There is no inconsistency or need for one to trump the other – they complement each other.” 89]       In fact, when considering the three provisions [38] side-by-side they both speak to the court taking into account the child’s views if the child is of sufficient age and maturity. The court, in applying s28(2) of the Constitution as well as s10, s278(3) and s279 of the Children’s Act and Article 13 of the Convention, provides a platform in which the child is given an opportunity to voice its views and objections. In this way, the court applies the ‘best interests’ principle. 90]       In my view, there are no hard and fast rules to apply in this consideration. Each case would depend on its own facts. Two of those factors are already given voice in the sections: they are the age of the child and the level of his/her maturity. Some other factors to be considered would be, for example, whether the child has been influenced by either parent, whether the parent who has wrongfully retained the child has alienated him/her from the leave behind parent; whether the child’s views find substantiation in the facts and any expert report that may have been filed [39] and the findings and recommendations of the child’s appointed legal representative or curator ad litem . Ultimately, each case must be decided on its own facts. What may be afforded more weight in one matter, may not necessarily be afforded the same weight in another. 91] In casu it is common cause that, even prior to his retention in South Africa, and whilst in Italy, MMT had voiced a desire to return to South Africa. He informed Ms Fitzroy that he wants to stay in South Africa “ 98.      …Because it’s just a place where I belong and since I was born here. Its not only because the people here are very nice. I have to admit, the people here are way different to the Italian people. And even in a conversation we said , that Spanish and Italian people are really racist. Especially racist to people like me and my mom.” 92]       Ms Fitzroy explained that although MMT enjoyed his Italian school “he enjoys Crawford better” as “there’s nicer people in South Africa and less bullies.” 93]       Interestingly, no specific bullying incident has been mentioned in the myriad of accusations made by NPS, nor did MMT complain of bullying to Dr Berra. No incident is mentioned by Ms Fitzroy. 94]       And as part of his objection he states that were he to be returned to Italy he would feel “ 106.    ….Disappointed, sad, unhappy and really mad. I’m not going to change into the person I was, but I am definitely not going to be happy there. First of all, because I’m being taken away from my mom. And I don’t even know what he is going to do with me at that point because all he was doing was just to prove that my mom was a bad person and to prove that she was not a good parent.” 95]       He was of the view that his dad is a “bad father” and that he would be scared to return to Italy because “ 115.    …With this guy, the options for him is infinite. For what he can do to you, he has chased my mom, except for chasing my mom he has done nothing else. Shouting at me to go on a trip. When I’m alone with my father I feel fine. But that’s if I go to Italy, but I want to stay here.” 96]       MMT is 12 years old, but his age alone does not determine whether this court must give preferential weight to his views. In addition, the court must look at his level of maturity. 97]       Dr Berra expressed the view that not only was MMT emotionally immature, but she never got the impression that he had a bad relationship with his father: she saw them together on many occasions where the interaction was “spontaneous and playful” and he was happy in Italy. He also told Dr Berra that he is happier about the easier workload at school in South Africa. 98]       Mr Haskins has submitted that it was necessary for Ms Fitzroy to obtain an expert’s opinion on this issue [40] . Whilst it is so that in her interim report she did express this view, in her final report she explained why she deemed it necessary: firstly, to obtain an expert’s assessment and report in such a short period of time proved to be infeasible; secondly, she incorporated the views of Dr Berra (a psychologist) with whom MMT has a good relationship and who is able to give expert insight into MMT’s emotional state and level of maturity; thirdly, she incorporated Mrs S views and lastly those of MMT. 99]       I agree with Ms Fitzroy that it is unnecessary to obtain another expert’s views on this issue. Ms Fitzroy has voiced concerns that NPS’s conduct may well constitute parental alienation and that there is a possibly enmeshed relationship between mother and child. Whilst I take note of her concerns, I make no finding in this regard and my conclusions are not based on this. 100]    I also take into account the following: a)         it is not in dispute that an incident occurred on Sunday 3 August 2025 at 19h05 where MMT sent a series of messages to ST in which he inter alia stated: “ Papa, Mamy is not acting ok”; “ Call me now! Papa! Papa! Papa! Call me now!” b)         what precisely occurred is in dispute, but what is very clear is that MMT’s first thought was to call his father for emotional support, reassurance and comfort – this is the same person he labels as ‘a bad father’; c)         Ms Fitzroy states: “ 158.    The undersigned expresses reservations regarding the authenticity of the minor child’s stated preference to remain in South Africa. Upon careful consideration, it appears that the child’s sentiments may not be entirely independent. Instead, there is evidence to suggest that the minor child’s perspective has been shaped by significant maternal influence. Furthermore, the nature of the relationship between the minor child and his mother may be characterised by enmeshment, raising concerns about the degree of autonomy present in the child’s expressed wishes. 159.     MMT currently aligns himself with his mother. The undersigned is concerned about the information shared by the first respondent…”; d)         she also states: “ 166.    The removal of the minor child from his familiar environment, including Italy and his school, has disrupted his sense of security and stability. This upheaval may influence his overall emotional and psychological well-being.”; e)         it also appears, and this from his registered class and mathematics teacher at Crawford, that MMT struggles with concentration and focus “and that he is spaced out, staring outside the window”. According to her, he has one friend (R) who is his close friend, but she has not seen him with anyone else. He does not socialise with the other children and he is quiet and reserved; f)          lastly, Dr Berra informed Ms Fitzroy that: “ 127.    Since MMT has been in South Africa, he has been very avoidant in therapy and he is not sharing spontaneously what’s going on as in the past. He is very alert and when she enquired about it, he said that it is because he is online. It has been Dr Berra’s impression that MMT is controlled by his mother since MMT keeps on looking around whilst talking to her during virtual consultations. When he responds, it also appears as if he has been coached. Dr Berra is unable to confirm whether NPS is present when he has his sessions.” 101]    In my view there are too many contradictions in MMT’s expressed views and it appears from the evidence set out supra that much of what he perceives to be true is not actually formed by his own experiences, but rather those of his mother. He can also not provide any rationale for his views towards ST. Dr Berra and Ms Fitzroy are both of the view that MMT is immature for his age, and given all this, whilst I do take into account that MMT has expressed that he does not wish to return to Italy, I am of the view that his objection cannot carry the day. In my view, there is nothing to indicate that his return to Italy would not be in his best interests, and it is for that court to determine which of the parties is most suited to be awarded primary care and residence in MMT’s best interests. The Article 20 argument 102]    No case has been made out on NPS’s papers that supports a defence under Article 20 of the Convention. There is no argument or allegation that relates to an infringement of MMT’s rights and fundamental freedoms or that they would not be protected were his return ordered. In fact, all the facts point to the contrary: ongoing therapy, contact with MAT and his grandparents, support from ST overseen by social services and the Central Authority and his continued education, all point to the protection of MMT’s rights and freedoms. sino noindex make_database footer start