Thinking of Emigrating With Your Minor Child

We can all agree that the current political, social and economic status of South Africa has been rather uncertain lately and I am sure many people have considered emigrating. However, divorced families who wish to leave the country need to adhere to the law when taking their children away from a custodial parent and must not take the law into their own hands.

Currently, South Africa is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. The aim of the convention is to ensure the prompt return of children back to their country of habitual residence, in cases where they have been wrongfully removed (article 3 of the convention).

What do you do if your child is wrongfully removed from South Africa by the other parent?

Firstly, the following conditions need to exist;

•  Your child must have been habitually resident in South Africa and has been removed by the other parent to another country;
•  Your child is 16 years and younger;
•  You have sole or joint custody of the child (article 5 of the convention);
• At the time of removal, you were exercising your custodial rights;
• The country to which the child has been removed is signatory to the convention.
• The countries which are signatories to the convention are found at https://www.hcch.net/en/instruments/conventions/status-table/?cid=24

 

If all the above conditions exist, you need to approach the office of the designated Central Authority (CA) in the country where the child has been abducted to or the CA in South Africa, which is the Office of the Chief Family Advocate (OCFA).

The OCFA will request you furnish them with certain documents. If the child has been taken to a signatory country and all legalities have been satisfied, the CA will compile a bundle and forward the application to the foreign countries CA requesting prompt and voluntary return of the child. In the event that voluntary return fails litigation will have to be resorted to.

Be mindful of the fact that the abducting parent may raise certain defences under article 13 of the convention; such as

• The removal was not wrongful because you were not exercising your custodial rights at the time of removal or retention or that you agreed to the removal or retention.
• There is grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
• The child is old enough and has a sufficient degree of maturity to knowingly object to being returned.
• That return of the child would subject the child to violation of basic human rights and fundamental freedoms.
• Where the child has been removed for more than one year, and where evidence indicates that the child is settled in the new environment, then the court has a discretion to order/refuse the return.

If the abductor has taken your child to a country which is not a signatory to The Hague convention, you will have to obtain an order through the normal civil procedures which declares the removal/retention of the child unlawful and a breach of your parental rights. Further you must obtain an order for the enforcement in the foreign country which also orders the return of the child. This route is very expensive as it involves the instruction of lawyers in both South Africa and the foreign country.

It is clear that the primary purpose of the convention is to secure the speedy return of children who have been wrongfully removed, so that custody and/or similar issues in respect of the children can be dealt with by the court of the country where the child is habitual resident.