Legal Articles

In recent times, the number of international child abductions by a parent has risen as a result of different factors, which have made it easy for a person to travel abroad. 

When one parent abducts their child/children from the parent or legal guardian who holds the custodial rights, it can be very difficult for the custodial parent to exercise any of their rights in the country they are residing in. 

They would first need to find out where the child has been taken to and then make use of the systems in place in that country to resolve the matter. 

Hague Convention application

A parent who holds the rights of custody in their country of residence will need to make a Hague Convention application in the event that his or her child is taken across an international border without their consent. 

If the child is retained in or removed to a country that is a contracting state (or signed member) to the Hague convention then the application will ensure that the child is returned with haste to the holder of custodial rights. 

Parents who wish to exercise their custody rights need to take swift action with their Hague Convention application. 

While a case can be opened more than a year after the child has been abducted, at that stage it could be argued that the child has already settled down in its new home. 

Hague cases should thus be completed within six weeks to avoid such complications. 

Central Authority - Chief Family Advocate

In order to trace the abducted child and secure its return, a contracting state to the Hague Convention will establish a central authority. In South Africa the central authority is the Chief Family Advocate. 

The Chief Family Advocate is responsible for external cases where the child was taken from South Africa to a foreign country and internal cases where the child was brought to South Africa from another country. 

Wrongful removal or retention of a child

According to article 3 of the Hague Convention, before the court can consider the removal or retention of a child to be wrongful, the applicant needs to first establish certain jurisdictional prerequisites.

It needs to be established that:

• the child was a residing in the other State;
• the removal or retention of the child constitutes a breach of custody rights; and,
• The applicant was, in fact, exercising such rights at the time of the abduction, or would have done so if it weren’t for the child/children being abducted.

If these conditions are met without opposition then the child must be returned to the parent or guardian exercising their rights. 

Parents wishing to make use of the provisions of the Hague Convention should bear in mind that it only applies to children under the age of 16. 

Article 13 of the convention stipulates that the judicial or administrative authority of requested state is not obligated to order the return of the child if the opposing party can establish that:

• at the time of removal or retention the applicant wasn’t exercising custody rights, or had consented to or reluctantly consented to it without protesting;
• the return of child would expose him or her to physical or psychological harm or else place the child in an intolerable living situation,
• The child refuses to be returned and is of an appropriate age and level of maturity to comprehend the gravity of the situation. 

These defenses along with what is best for the child will be taken into consideration when the court decides whether or not to return the child.

Rights of unmarried fathers

The parental rights and responsibilities of unmarried fathers was changed as a result of the the Children’s Act. 

According to section 21 of the Act, the biological father of an extra-marital child will be granted full parental responsibilities if, at the time of the child’s birth, it can be proven that:

• He was living in a permanent life-partnership with the mother; or,
• He agreed to be identified as or, in terms of section 26 of the act, was successful in his application to be identified as the child’s father; or
• He has contributed or attempted to contribute to the best of his ability towards the child’s upbringing or contributed to the maintenance costs of the child for a reasonable period of time.

This provision allows unmarried fathers who are eligible to make a Hague Convention application to have their abducted child returned. 

Parents and legal guardians should note that the provisions of the Hague Convention don’t impose criminal sanctions on the parent who abducted the child, but rather help to secure the return of the abducted child. 

Non-signatory nations

The remedies are only applicable if the country is party to the Convention and cannot be used in non-signatory nations. 

If the child were to be abducted to a non-signatory nation, the process to resolve international child custody disputes with such nations is far more difficult and in some cases impossible.

In the event of a child being taken to such a country, a parent would need to avail of the services of a lawyer local to that country to pursue legal action along with approaching South African courts in order to apply for custody. 

As mentioned in a previous paragraph, this application should be concluded within six weeks. This is because prompt action is necessary to to ensure the return of an abducted child. 

It is also important for a parent or interested party to bear in mind the costs associated with such an application. 

As a result of the urgency of the matter, this application is expensive and there are various factors which will help the courts to decide whether or not to return the child. 

Van Deventer & Van Deventer Incorporated - Divorce lawyers Cape Town and Johannesburg

Make sure you are informed of your rights so that you can take necessary steps to ensure the safe return of your child in such an event.

Contact us for professional legal advice.