Divorce and Family Law

 

 

Yes, while the Convention aims for prompt return, there are limited exceptions (defenses) under Article 13 that may allow a court to refuse a return order. These include a "grave risk" of physical or psychological harm to the child, the child's objection (if they are mature enough), or if the requesting parent consented to or acquiesced in the removal.

You make an application to the High Court, which must be approved by the Office of the Chief Family Advocate (South Africa's Central Authority for the Hague Convention). You will need to provide evidence that the child was wrongfully removed or retained, and that the child is under 16 years old. Speed is crucial, as applications are generally more successful if lodged within one year of the abduction.

Yes, absolutely. Section 18(3)(c) of the Children's Act 38 of 2005 explicitly states that the consent of all persons holding guardianship is required for a child's departure or removal from South Africa, as well as for applying for a passport.
 

While the Children's Act doesn't explicitly mandate consent for internal (inter-provincial) relocation, it does require co-holders of parental responsibilities and rights to consult and consider each other's views on decisions significantly affecting the child. If there's an existing court order or parenting plan, its terms must be adhered to. Generally, for a significant move, obtaining written agreement or a court order is advisable to avoid future disputes, as the move will affect the non-relocating parent's contact.

The paramount consideration is always the best interests of the child. Courts consider factors such as:

* The reasons for the relocation (must be bona fide and reasonable).
* The impact on the child's relationship with the non-relocating parent.
* How the child's emotional, physical, and educational needs will be met in the new location.
* The proposed living conditions, schooling, and support systems in the new environment.
* The child's wishes, depending on their age, maturity, and developmental stage.
* The ability of the relocating parent to facilitate contact with the non-relocating parent.
* The impact on the non-relocating parent (while the child's interests are paramount, parental rights are also considered).
 

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Relocation and Abduction of Minor Children

When "Home" Changes - Navigating Child Relocation with Expertise and Empathy

Navigating the complexities of relocation with minor children can be one of the most emotionally charged and legally challenging aspects of family law. When a parent wishes to move with a child, whether within South Africa or across international borders, it raises critical questions about balancing parental rights, maintaining meaningful relationships, and, most importantly, safeguarding the child's well-being.

At VDM Attorneys, we understand the profound impact these decisions have on families. Our dedicated team of family law specialists is here to guide you through every step of this intricate process, offering clear, compassionate, and effective legal solutions.

Relocation of Minor Children: This refers to a situation where a parent, typically the primary caregiver, wishes to move their minor child(ren) to a new geographical location, whether within South Africa or internationally, which significantly impacts the child's established relationships and the parental rights of the other parent.
Abduction of Minor Children: In the context of family law, this generally refers to the wrongful removal or retention of a minor child by a parent or caregiver without the consent of the other parent or legal guardian, or in breach of a court order regarding care and contact. This can occur domestically (within South Africa) or internationally. International child abduction is specifically addressed by The Hague Convention on the Civil Aspects of International Child Abduction

The Court's Compass - How South African Law Approaches Child Relocation

South African courts adopt a pragmatic approach to relocation matters. They will carefully assess various factors, including:

  • The reasons for the proposed relocation Is the decision to move bona fide (made in good faith) and reasonable in the family's circumstances? The court will often examine the relocating parent's motivation.
  • The impact on the child's relationship with both parents How will the move affect the child's ability to maintain a strong bond with the parent who is not relocating? This includes considering practicalities like contact visits and communication methods, and how associated costs will be handled.
  • Whether the relocation will enhance or detract from the child's overall welfare This includes their emotional, physical, and educational needs, as well as the proposed new circumstances, such as employment, schooling, and living conditions.
  • The child’s needs What specific requirements does the child have that might be affected by the move?
  • The environment the child will live in Is the proposed new home suitable and stable?
  • The wishes of the child The Children’s Act acknowledges the importance of a child’s voice. The child’s views and wishes must be taken into account, in accordance with their age, maturity, and developmental stage. In some cases, the court may order psychological evaluations of the children or parents to assess the impact of the proposed relocation on the children’s wellbeing.

It's important to note that the Children's Act 38 of 2005 does not have a specific section dedicated to relocation. Instead, these matters are decided based on the court's jurisdiction and the fundamental principle of the child's best interests, often requiring the High Court to intervene. While the court may not automatically order the return of a child in an unlawful relocation, due process should always be followed.

Guardianship and the Need for Consent

Central to any relocation, especially across international borders, is the concept of guardianship. Section 18 of the Children's Act outlines parental responsibilities and rights, which include:

  • Care Providing for the child's physical, emotional, and intellectual needs.
  • Contact Maintaining a personal relationship with the child.
  • Maintenance Financially supporting the child.
  • Guardianship Administering and safeguarding the child's property and interests, and giving or refusing consent on significant matters concerning the child, such as their departure from South Africa or obtaining a passport. This is distinct from custody (care).

If both parents are joint guardians, both must consent to the child's removal from South Africa. Should one parent withhold consent, the relocating parent can approach the High Court to dispense with that consent. The court will then make a decision based on what is in the child's best interests, and can override a parent's refusal if it's deemed unreasonable (Section 18(5)). Occasionally, guardianship is granted to one parent only or to someone who is not the biological parent, typically if the parents are unable to care for the child. The guardian is responsible for protecting the children’s interests, and their consent may be required for certain types of relocation.

The Relocation Process in South Africa

If both parents agree to the relocation and it is clearly in the children’s best interests, the process is relatively straightforward. However, if one parent opposes the move, you may need to obtain a court order permitting the relocation.

  1. Proper Notice The parent wishing to relocate must provide proper notice to the other parent well in advance of the proposed move. This notice should include the reasons for the relocation, the proposed new location, and a provisional updated parenting plan.
  2. Mediation South African law encourages parents to use mediation to resolve disputes related to children before going to court. Mediation can help parents reach agreement regarding the relocation, potentially avoiding a court appearance.
  3. Court Application If agreement cannot be reached, the matter may proceed to court.

Parenting Plan Updates - The parenting plan outlines how parents will exercise their rights and responsibilities regarding the children. Any proposed relocation should be considered and incorporated into the parenting plan. If the court permits the relocation, the parenting plan is likely to need to be amended to accommodate the new arrangements, particularly regarding contact visits, holidays, communication, and travel.

International Child Abduction and The Hague Convention

If your child has been taken overseas without your consent, or has gone on holiday with your permission but has not returned, the situation is clearer from a legal perspective. This is considered international child abduction, and it is governed by The Hague Convention on the Civil Aspects of International Child Abduction. South Africa ratified the Convention in 1996, and it came into effect in 1997, subsequently incorporated into the Children’s Act.

The Convention is a multilateral treaty that seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The purpose of a speedy return is to place the child in the jurisdiction of a court that is better appraised to deal with the merits of the parental dispute.

How The Hague Convention Works

If you suspect your child has been abducted internationally, there is a defined process to follow:

  1. Application to the Hague Convention You make an application, which will be heard in the High Court and must be approved by the Family Advocate, although your own family lawyer may also represent you. Crucially, the child must be under the age of 16 for the Convention to apply.
  2. Inter-State Cooperation If both countries involved (i.e., the child’s original residence and the destination country) are members of the Hague Convention, the member countries must cooperate in finding the child.
  3. Speed is of the Essence Cases are usually completed within six weeks, but an application can be brought up to a year after a child has been abducted. The faster you act, the greater the chance of finding the child, as time favours the abductor and the child's influence on the "absent" parent will wane in a prolonged separation
  4. Central Authority Each member country has a central authority responsible for tracing the child and securing their safe return. In South Africa, the central authority is the Chief Family Advocate. The Central Authority assists in both 'outgoing' cases (when a child has been wrongfully taken from South Africa to a foreign country) and 'incoming' cases (when a child has been wrongfully brought to, or retained in, South Africa).
  5. Proof of Wrongful Removal You must provide evidence to the High Court that the child was wrongfully removed. Proof might include your original letter of consent for a holiday with dates, a copy of your parenting plan describing holiday arrangements, and/or a copy of the return air ticket.

Wrongful Removal or Retention of a Child

The removal or retention of a child is 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.

The rights of custody mentioned above may arise in particular by operation of law, by reason of judicial or administrative order, or by reason of an agreement having legal effect under the law of that state. The Convention applies to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights.

Opposing a Return Application under The Hague Convention

While the Convention aims for a speedy return, there are limited defenses available to the abducting parent. A court may refuse to order a child's return if:

  • There's a grave risk that returning the child would expose them to physical or psychological harm, or place them in an intolerable situation. Mere allegations will not suffice; the risk must be serious.
  • The child objects to the return and is deemed to have sufficient maturity to form their own viewpoint (their reasons will be carefully examined, often with expert assistance, to rule out undue influence).
  • The removal was not wrongful, or the left-behind parent was not exercising their parental rights at the time of removal, or had consented to or later acquiesced to the removal.
  • More than one year has passed since the wrongful removal, and the child has become settled in their new environment.
  • The return would be contrary to South Africa’s fundamental freedoms and principles relating to the protection of human rights.
  • The child is above 16 years of age, and therefore not covered by the Convention.

Countries Not Members of The Hague Convention

Unfortunately, most countries in Africa are not signatories to the Hague Convention, and another African country may well be the destination of your ex-partner and child. If your child has been removed to a non-signatory state, you will need to obtain an order through normal civil procedures declaring the abduction of the child unlawful and in breach of your parental rights. You then have to obtain a mirror order or an order for enforcement in the foreign country. There is no designated central authority outside of Hague Convention member states. This may be time-consuming and is likely to be an expensive process, as it involves instructing lawyers in foreign countries. You will need the assistance of experienced family law attorneys.

International Travel and Relocation

Before discussing permanent relocation, it's important to understand the requirements for international travel with minor children, as there are common features between the two. If both parents share equal parental rights and responsibilities, a parent seeking to travel with a minor child must obtain written consent from the other parent. This aims to prevent child abduction and ensures both parents are involved in major decisions concerning the child. The Immigration Act 13 of 2002 reflects this necessity. If consent cannot be obtained from the other parent, the travelling parent may approach the High Court for consent for the minor child to travel. Furthermore, if you and the child have different surnames, there may be additional documents needed for travel, such as the child’s original birth certificate.

Child Support

Child support or maintenance arrangements may need to be modified if there is a significant change in living arrangements or expenses due to the relocation. This should be addressed as part of the overall plan and documented in the written parenting plan.

VDM Attorneys - Your Trusted Partner in Relocation and Abduction Matters

Relocation disputes and international child abduction cases are incredibly sensitive and require specialized legal expertise. At VDM Attorneys, we pride ourselves on being one of South Africa's leading specialist providers of family law solutions, particularly in complex international matters.

We offer:

  • In-depth understanding Our team possesses a deep understanding of South African family law, the Children's Act, and international treaties like The Hague Convention.
  • Strategic guidance We provide practical, tailored solutions for your family's unique circumstances, whether you are seeking to relocate or are dealing with a child abduction.
  • Compassionate approach We combine our legal expertise with empathy, understanding the emotional toll these disputes can take on parents and children.
  • Proven track record Our experience includes navigating challenging cases and achieving favourable outcomes for our clients.

We are committed to shaping the law and changing lives, ensuring that your child's best interests remain at the forefront of every decision. If you are facing a relocation dispute or need assistance with cross-border parenting challenges or international child abduction, don't hesitate to Contact VDM Attorneys for expert guidance tailored to your specific situation.