How can you prepare child relocation from or within South Africa? What if your child has been relocated without your consent?
South Africa is a member of the Hague Convention on Child Abduction.
We will explain what that means for your options.
Lawyers and mediators in South Africa
We provide a list of lawyers and mediators in South Africa who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: South Africa
The biological mother automatically has full parental responsibilities and rights.
The biological father automatically has full parental responsibilities and rights, if he was married to the mother at the time of conception, the child’s birth or any time in between.
Without marriage, the biological father can acquire full parental responsibilities and rights, if he was living with the mother in a permanent life-partnership at the time of the birth, or if he contributes of has attempted in good faith to contribute to expenses in connection with the maintenance of the child for a reasonable period, and consents to be identified as the father, and contributes to the upbringing of the child, of has in good faith attempted to do so.
You can find this in sections 18 to 21 of the Children’s Act 38 of 2005. This Act uses the concepts of ‘care’ and ‘contact’ rather then ‘custody’ and ‘access’.
In general both parents continue to have shared parental responsibilities and rights after divorce.
Traveling with children: South Africa
If you want to travel abroad with your child, you need the written consent from the other parent, if the other parent also has parental authority.
Also, if you wish to make an application for a new passport for your child, you need the written consent of the other parent who also has parental authority.
You can read this in section 18(3)(c) of the Children’s Act 38 from 2005.
If the other parent does not give permission for the child to travel abroad, you make an application to the High Court to get permission to travel abroad with the child. In that case, the parent who refused permission, will have to convince the court that there is a good reason not to give permission, such as:
- the travelling parent may not return with the children
- there is some other compelling reason why the children should not travel abroad with this parent.
The High Court will then consider:
- whether the travelling parent has indicated through pas behavior that they do not support the relationship between the child and the other parent;
- whether the country that the parent wishes to visit with the child is a signatory to the Hague Convention on Child Abduction;
- the ties that the travelling parent has to South Africa and the likelihood of him or her severing these ties.
Child relocation: South Africa
If a parent wants to move with the children and the other parent with custody refuses to give permission, the parent who wants to move can request permission from the High Court.
The child’s best interest are of paramount importance in every matter concerning the child (section 28(2) of the Constitution of the Republic of South Africa).
Section 7 of the Children’s Act mentions a number of factors that can be relevant:
- The nature of the personal relationship between the child and both parents, or a specific parent. This can be assessed by an expert mental health professional.
- The attitude of the parents towards the child and towards the exercise of parental responsibilities and rights.
- The capacity of the parent(s) to provide for the needs of the child, including emotional and intellectual needs.
- The likely effect on the child of a separation from a specific parent and/or any sibling the child has been living with.
- The child’s age, maturity, stage of development, background, physical and emotional security, and intellectual, emotional, social and cultural development.
- The need for the child to maintain a connection with extended family and his or her culture or tradition.
- The need for the child to be brought up in a stable family environment.
In the case Wolter v Bensch (22987/2015) guidelines for the courts to follow were summarized:
- The interest of children are the first and paramount consideration.
- Each case is to be decided on its own particular facts.
- Both parents have a joint primary responsibility for raising the child and where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained.
- Where a custodial parent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable.
- The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question.
From this case we can also see what factors courts will consider in a relocation case:
- The interests of the relocating parent, including the motivation for and purpose of the proposed relocation, taking into account this parent’s right to independence and freedom of movement.
- Whether the motivation is reasonable and whether the attempt to relocate is done in good faith (as opposed to being designed to frustrate the contact rights of the other parent).
- The interests of the non-relocating parent, in particular the ease, practicality and cost of continued contact with the child.
- Whether separation from the non-relocating parent will severely prejudice the child. The more of an involved relationship this parent has had with the child, the more likely it is that the child will suffer emotionally as a result of being deprived of the relationship with the parent in the same form as he or she had been used to in the past.
- The likely effect of the move on the physical, emotional and psychological well-being of the child.The likely effect of the court refusing relocation on the physical, emotional and psychological well being of the relocating parent.
- The gender issues. Historically, women were more often the primary carers of minor children. To a certain extent, in South Africa, this is still the general position. As such, the applicants in relocation matters have often been, and continue to be, women. Courts therefore must be mindful of the discriminatory impact that refusal of relocation applications could have on the constitutional prohibition of gender discrimination.
- All relevant factors of the specific matter, as well as individual justice.
- In appropriate cases, the views and wishes of the child concerned, depending on the age, maturity and stage of development of the particular child. The Children’s Act specifically gives the child the right to participate in any decision affecting him or her.
The procedure for relocation normally takes about 7 months, but in an urgent case, the court can take a decision within about 6 weeks.
The child’s view
Section 10 of the Children’s Act determines that every child who is of an age, maturity and stage of development to be able to participate in a matter concerning him/her, has the right to participate in an appropriate way, and the views expressed by the child must be given due consideration.
In relocation matters the Family Advocate (a governmental organisation) advises the court. They will assess the child and the family.
Besides that advice, psychologists or social workers can assess the child and report to the court.
And in more complex cases a curator ad litem can be appointed for young children, or a legal representative can be appointed for older children.
Child abduction: South Africa
The Hague Convention
South Africa is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in The Children’s Act 38 of 2005 and the Governments Notice R250: Regulations Relating to Children’s Court and International Abduction.
The Central Authority is a first point of contact if you want your children to return. They will contact the alleged abducting parent to seek voluntary return. They will set up a voluntary return negotiation meeting and offer mediation. Once it is clear that this is not succesful, the Central Authority sends the return application to the State Attorney, so the State Attorney can start a court procedure. You are not obliged to contact the Central Authority first. You can also contact a family lawyer immediately.
In South Africa all child abduction cases are heard by the High Courts and after appeal by the Supreme Court of Appeal. These courts are specialized in these cases. The High Courts in principle will take more then 12 weeks to give a judgement. The Court of Appeal will take 3 to 6 months to give a judgement. A special judge has been appointed, who can have judicial communications with judges from other countries if so desired in any case.
In each case the court will decide in what way the child can be heard. It depends on the age and level of understanding of the child. The court can ask for a report prepared for the court by an independent expert. The child can also have it’s own legal representative or a guardian ad litem can be appointed.
Mediation will be urged at all stages, also prior to the return application. In abduction cases the agreement must be confirmed by the High Court.
When a party appeals to the return order, the return order is automatically suspended pending the appeal.
You can ask the court to decide that the abducting parent must pay the expenses made in connection with the abduction and the return of the child.
If you think your child is in South Africa, but you do not know exactly where, the Central Authority can help you locate your child.
If you fear that your child will be abducted from the Netherlands to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child.
- issuing border and/ or port alerts
- temporary placement of child in institutional care.
A parent who does not live in South Africa but who does need a lawyer in South Africa, may be eligible for subsidized legal assistance, depending on his/her income and assets. The same goes for the alleged abducting parent. You can read more on the website of Legal Aid South Africa.
Criminal law : South Africa
There can only be a criminal act if one parent refuses the other parent access to the child or if refuses to exercise parental responsibilities and rights (this offence is mentioned in the Children’s Act).
Blogs about South Africa
No posted blogs published yet.
Relevant case law in South Africa
No posted blogs published yet.