International child abduction has increased exponentially in modern times and always will, due to a number of reasons such as the high incidence of dual nationality, the ease international air travel, relaxation of cross-border control and an upsurge in bi-national marriages. No country can say they have not experienced this selfish act by a parent, South Africa being one of them.
South Africa was on the list of the ‘Top 10’ Countries in 2013 for abductors to flee to, to avoid authorities.
South Africa is a party state of the Hague Convention on Civil Aspects of International Child Abduction, an international treaty aimed at preventing the removal of a child from the jurisdiction in which he/she normally resides by a parent or caregiver without the consent of the other parent or caregiver and to facilitate the return of the child wrongfully removed. South Africa ratified the Convention in 1996 and it came into operation on 1 October 1997.
Most European and Commonwealth countries, as well as the US, are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribe to the Convention. When a child is removed to a country that is not a party state to the Convention, the South African High Court, as the upper guardian of minor children, will have jurisdiction and the application should be made to such a court for the return of the child. The Convention only applies to wrongful removal/retention occurring after the treaty became effective between the involved countries.
Wrongful removal or retention of a child:
The removal or retention of a child is to be considered wrongful:
where it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
where, at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
In terms of South African law, the right to consent to or refuse the removal of a child from South Africa is entrenched in the concept of guardianship. In terms of the Children’s Act, 38 of 2005 (Children’s Act), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child, and a guardian must consent to the child’s departure or removal from South Africa. If a child has more than one guardian, all must consent before the child can be removed.
Article 3 of the Hague Convention sets out the jurisdictional prerequisites which an applicant is required to establish before a court can consider whether the removal or retention of a child is to be considered wrongful. These are that: (a) the child was habitually resident in the other State; (b) the removal or retention constitutes a breach of custody rights; and (c) the applicant was actually exercising such rights (either jointly or alone) at the time of removal or retention, or would have exercised such rights but for the removal or retention. It is furthermore important to take note of the fact that The Hague Convention can only be invoked if the child is under the age of 16 years.
The child in essence, must be returned to the state of habitual residence unless a defense is raised which is provided by article 13 of the convention that the person, institution or Article 13 provides that 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 applicant was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or 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 or (c) the judicial or administrative authority (i.e. the court) 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. All the above defenses are always subject to what is in the best interest of the child and the court can exercise a discretion whether to return the child or not.
Unmarried South African fathers should take note that the common law rights of custody and guardianship in respect of extra marital children no longer exclusively vests in the mother. The Children’s Act which came into operation in 2007 changed the position and rights unmarried fathers have in respect of their minor children and are thus at a more advantageous position. Section 21 of the Children’s Act confers full parental responsibilities on the biological father of an extra-martial child, if, at the time of the child’s birth, he is (a) living with the mother in a permanent life – partnership, or (b) consents to being identified or successfully applies in terms of Section 26 to be identified as the child’s father; or (c) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. Unmarried fathers are thus no longer excluded from having parental rights and responsibilities in respect of a child and are thus eligible to apply for an application under The Hague.
Recovering a child from a non-contracting state;
From a South African perspective, it is advisable that the left-behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left-behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction that also orders the return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under the Convention. Honestly, this will never happen and abducted children will continue to be neglected by the system.
In CARI’s experience dealing with clients from South Africa, the South African government very often turn a blind eye to this type of abduction, calling it a family issue! (like we haven’t heard that before) We have had clients come to us saying the South African courts even refuse to hear their case, even when their case falls within the remits of The Hague Convention. We have one SA client at the moment, and we can tell you the South African Central Authority need to reassess their staff and motives, because what we are experiencing with our client is nothing short of an embarrassment and disgrace……another word to describe some actions we and clients have seen is……..corruption!
The bottom line is South Africa is just another signature to The Hague, which rarely adheres and upholds the laws relating to International Parental Child Abduction.
DISCLAIMER: The information provided here is intended to give basic legal information. You should get legal assistance from a licensed and experienced lawyer/attorney at law while conducting legal transactions and not rely solely on the information in this post.