British father battles in ConCourt over ‘child abduction’ case

A British father argued at the Constitutional Court that returning his South African child to the UK would not be harmful, despite the Supreme Court of Appeal (SCA) ruling otherwise. His daughter had been “wrongfully” removed from him for years by her South African mother.

Paul Ball, a UK citizen, argued on Thursday about his nearly 6-year-old daughter, Emily, remaining with her maternal aunt, Heidi Koch, in SA. Those keeping his daughter in SA are violating The Hague Convention on Child Abduction, to which both SA and the UK are parties, he argued.

Koch convinced the SCA that returning Emily to the UK would pose a “grave” risk of harm to the child. Ball appealed to the Constitutional Court. 

Background

Emily was born in the UK in 2017 to Ball and Claire Colyn, an SA national and UK citizen. Colyn and Ball never married. After a cancer diagnosis and treatment, Colyn returned to SA with Emily and Ball in 2019. They were meant to return to the UK a month later. However, Colyn underwent surgery and could not return. Ball did return, leaving Emily with Colyn and her family.

During this time, says Ball’s lawyers, Ball and Colyn’s relationship became “strained”, but he nevertheless “remained concerned about Emily” and constantly asked about his daughter’s return. Colyn told Ball that in the event of her death, she had decided Emily would remain in SA and be raised by Koch.  

High court says child should be returned to the UK

In 2020, Ball launched proceedings, under the Convention on Child Abduction, in the Western Cape High Court.

In terms of the Convention, removing children from their habitual residence — in this case, Emily’s birthplace, the UK — is wrongful if it violates the parent’s rights. 

However, Colyn argued Ball had consented and that should Emily be returned, Emily faced a grave risk of harm, per expert reports.

Judge Vincent Saldanha disagreed in his judgment, handed down three days after Colyn’s passing. He ordered Emily’s return to the UK.

The SCA finds ‘grave risk of harm’

Koch appealed to the SCA. The SCA held that, in its analysis of the evidence, there was a grave risk should Emily return, because of the psychological difficulties she had experienced at a young age, per expert reports. 

The SCA was unconvinced the mechanisms noted by Ball’s experts, such as UK services, would ameliorate harm to Emily. The SCA also held Emily is more attached to Koch, given Ball’s residing in the UK.

Arguments before the ConCourt

In the Constitutional Court on Thursday, counsel for the applicants, advocate Ncumisa Mayosi, argued that findings by the SCA were not supported by the experts’ evidence “when considered in their entirety”. For example, one expert, relied on by the SCA, said the services offered by the UK could actually assist Emily. The SCA, said Mayosi, “made a material mischaracterisation” in how it summarised this same expert’s evidence by ignoring this kind of concession. 

She also noted the respondents were relying on self-created consequences. After all, Mayosi noted, Emily had been kept from the UK through a decision to which Ball says he did not consent. Now the respondents are using the consequences of their retention to keep Emily. 

Mayosi also stressed the high court, upon finding no grounds for defence in the Convention, was obliged to order Emily’s return. Ball’s attempts to engage with the child were sometimes “rebuffed” by the applicants. 

Janet McCurdie, for the respondents, stressed the SCA was correct in its approach. The matter is not about who is the “better” parent. She noted the experts’ reports focus correctly on this, and noted “grave” risk of harm was about the move, not Ball’s abilities.

While it is true that the “general assumption” is that it’s in the child’s best interests to be returned to the country of habitual residence, Emily is now approaching 6 and has established a life, family bonds and security in SA, McCurdie said.  

Chief justice Raymond Zondo took issue with McCurdie about the situation within which Ball found himself. “He has done nothing wrong,” Zondo noted, “Yet it seems as if he’s being punished.” McCurdie disagreed, noting again it was not a question of parental ability, but whether the evidence suggested a child’s return would pose a “grave” risk.

moosat@businesslive.co.za