Father loses court bid to have 3 children returned to him in the USA

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  • A mother succeeded in convincing the court that her three minor children should not return to their father in the USA. 
  • The court dismissed the father's application to have the children return. 
  • The court was not "persuaded that there are sufficient safeguards in place to prevent the children [from] being placed in an intolerable situation if they are returned".

A South African-born American man has lost a bid to have his three minor children returned to him from South Africa.

The man was dealt a blow last week after the Gauteng High Court in Johannesburg dismissed his application.

"I conclude that there is clear and compelling evidence that there is a substantial and severe risk that the children will be placed in an intolerable situation if they are returned to the USA," said Judge Fiona Dippenaar.

"I am further not persuaded that there are sufficient safeguards in place to prevent the children [from] being placed in an intolerable situation if they are returned."

The man's children - aged seven, nine, and 11 - left San Antonio, Texas, for South Africa in July last year.

The father had given consent for travel during the period 14 July to 31 December 2021, but the children never went back.

In September last year, while in South Africa, the children's mother instituted divorce proceedings and notified her husband that she would not be returning to the USA with the children.

This resulted in the man revoking his consent for travel and, in turn, instituted divorce proceedings in the USA.  

According to the judgment, mediation proceedings were unsuccessful.

The woman and her children are currently in South Africa in Bedfordview, Gauteng, on a property owned by her parents.

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The father, who wants his children back, filed an application under article 12 of Chapter III of the Hague Convention on the Civil Aspects of International Child Abduction Act1, which is incorporated in section 275 of the Children's Act2.

According to the judgment, between 2010 and 2018, the family were based in Austin, Texas.

The father frequently travelled for work and his family often accompanied him.

In 2018, he lost his job, resulting in the family condominium in Austin being sold, and the family moved to Chihuahua, Mexico, during or about July 2019.

The mother sought her husband's consent for the children to travel to South Africa to visit her family. 

In her judgment, Dippenaar said the mother had painted a picture of a family without roots.

The mother also contended that her family had lived a nomadic existence, often travelling with the father to different cities in the USA.

The judge said: 

The life experiences of the children indicate that they were all born in the USA and had a family base in Texas until 2018. The undisputed facts point to the family thereafter living mostly a nomadic existence rather than having a stable family base, considering that certain of their furniture and belongings were stored in the garage of [the father's brother] home in Texas, whilst certain of their possessions and some of the children’s toys were left in Chihuahua, Mexico, when the respondent and the children left there during about June 2021.

The mother accused the father of being "manipulative, domineering and controlling person, who abused [her] both physically and emotionally, and excessively controlled and dominated the children".

The mother also claimed she and her children lived in fear of the father.

She said her husband had "insisted on controlling their lives and making choices about the children's hairstyles and clothing, and was obsessive about none of them gaining weight".

"The [mother] relied on the nomadic lifestyle led by the parties…resulting in a lack of stability and the children being exposed to gruelling car trips and living with family members, and in hotels and motels rather than in a stable home environment," the judgment read.

"The [mother] further relied on the [father's] failure to provide for the financial needs of his family, his erratic employment record, his verbal and physical abuse, the military-style exercises he obliged the children to do, his obsessions with hoarding, religion and male dominance in the family, his refusal to allow the children to attend school and his insistence on home schooling.

"She further relied on the [the father's] isolating her from family and friends, preventing her obtaining employment or the necessary qualifications to obtain employment in the USA and his secrecy about his financial affairs."

The judge found there was no evidence that the children's nomadic lifestyle, with its concomitant challenges, would not continue if they were returned to Texas, USA.

She also said the father's protestations to the contrary, his promises, and his expressed best intentions were not corroborated by objective evidence.

Dippenaar said: 

In the present instance, an order cannot, in my view, be shaped to mitigate any prejudice to the minor children, absent the assurance that the second applicant will [be] able to financially afford and otherwise comply with his undertakings, failing which any order will simply be a brutum fulmen [an ineffectual legal judgment].

The father's application was, therefore, dismissed.  

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