27 May

Surrogacy Matters: Practical Legal Advice for Commissioning Parents

The affidavit of a surrogacy agreement should contain the following:

All factors set out in the Act together with documentary proof where applicable. The affidavit should contain the information on how the commissioning parents came to know the surrogate mother and why she is willing to act as a surrogate for them. The surrogate mother’s background as well as her financial position should be investigated and set out in the affidavit. Furthermore a comprehensive report by psychologist is essential to assess the suitability of the surrogate mother. This should deal in particular with her background, psychological profile and the effect that the surrogacy and the giving up of the baby will have on her. Full medical reports should also be obtained regarding her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement.

Whether there have been any previous applications for surrogacy; the division in which the application was brought, whether such an application was granted and/or refused. If it was refused the reasons for the refusal should be set out;

A report by a clinical psychologist in respect of the commissioning parents and a separate report in respect of the surrogate and her partner;

A medical report regarding the surrogate mother which must include her physical condition to indicate whether surrogacy pose any dangers for her and/or the child. In our view the medical report should deal with the HIV status of the mother, as well as any disease that could be transferred from her to the child in order to protect the child and to allow the court to exercise its discretion properly in confirming the agreement;

Details and proof of payment of any compensation for services rendered, either to the surrogate herself or to the intermediary, the donor, the clinic or any third party involved in the process;

All agreements between the surrogate and any intermediary or any other person who is involved in the process;

Full particulars, if any agency was involved, any payment to such agency as well as an affidavit by that agency containing the full particulars regarding that agency should be revealed. An affidavit by the agency should also be filed containing the following:

(a) the business of the agency,

(b) whether any form of payment is paid to or by the agency in regard of any aspect of the surrogacy,

(c) what exactly the agency’s involvement was regarding the:
(i) introduction of the surrogate mother,
(ii) how the information regarding the surrogate mother was obtained by the agency and

(d) whether the surrogate mother received any compensation at all from the agency or the commissioning parents.

Whether any of the commissioning parents have been charged with or convicted with a violent crime or a crime of a sexual nature

A clearance certificate by the police of the commissioning parents.

27 May

Confirmation of Surrogacy Agreement

It is important to note that a court may not confirm a surrogate motherhood agreement unless –

The commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible;
The commissioning parent or parents –

(i) Are in terms of this Act competent to enter into the agreement;

(ii) Are in all respects suitable persons to accept the parenthood of the child

that is to be conceived; and

(iii) Understand and accept the legal consequences of the agreement and this

Act and their rights and obligations in terms thereof;

The surrogate mother –

(i) Is in terms of this act competent to enter into the agreement;

(ii) Is in all respects a suitable person to act as surrogate mother;

(iii) Understands and accepts the legal consequences of the agreement and

(iv) Is not using surrogacy as a source of income;

(v) Has entered into the agreement for altruistic reasons and nor for

commercial purposes;

(vi) Has a documented history of at least one pregnancy and viable delivery;

and

(vii) Has a living child of her own.

The agreement included adequate provisions of the contact, care and upbringing and general welfare of the child that is to be born in a stable home environment, including the child’s position in the event of the death of the commissioning parents or one of them, or their divorce or separation before the birth of the child;
In general, having regard to the personal circumstances and family situations of all the parties concerned, but above all theinterest of the child that is to be born, the agreement should be confirmed”.

21 May

What to Do If Your Child Is Abducted by Your Partner to Another Country

What to do when you find that your child has been abducted by your partner to a country outside South Africa and your partner refuses to return the child.

You return from work one day only to find that your partner has left you a note advising you that she has removed your child / children from their home and is now living in London with her mother. She advises you that she does not intend returning to South Africa with the child/children. How do you go about bringing an application for the return of the children to South Africa?

Section 18 of the Children’s Act 38 of 2005 provides that no parent can remove their minor child/children from the national borders of South Africa without first obtaining the written consent of the other parent.

You have a right to launch a court application for the return of the child/ children who have been wrongfully removed in terms of the Hague Convention on the civil aspects of international child abduction to which South Africa is a party. It is suggested that you would arrange an urgent consultation with an attorney to investigate the circumstances giving rise to the wrongful removal of the child/children and whether the country where the child/ children are residing is a member to the Hague Convention. One needs to take note that certain countries are not members to the Hague Convention such as Zimbabwe, Namibia and Lesotho and Kenya only to mention a few. Speed is of the essence.

If you agreed to the child being removed then you would fail in a court application to have the child returned.

Examples of agreeing to a child being removed are:

Written consent
An informed acceptance by the wronged party of the removal of the child such as a verbal acceptance, an acceptance through e-mail or a consistent attitude.

In Central Authority v B 2009 (1) SA 624 (W) – the court states “It has authoritatively been laid down that consent or acquiescence on such an important matter should not be lightly inferred from a party’s conduct. It concerns the state of mind of the person involved and only conduct or expressions unequivocally consistent with consent or acquiescence would suffice.”

Another common defence that is often put forward is that the child was removed because there is a grave risk that the child’s return would expose him to psychological harm or place the child in an intolerable situation. An example of an intolerable situation would be where the child has no permanent home, is living an overcrowded home, the child is not fed or cared for or the child is neglected. An example of psychological harm would be exposing the child to emotional abuse.

Other requirements to be complied with are that:

The child is younger than 16 years of age; and
The child has been “wrongfully removed or retained” and that the rights of the parent applying for the return of the child, such as his rights to contact, care an access to the child have been violated.

Upon approaching an attorney you will be requested to fill in an application form for the return of a child wrongfully removed/ retained in another country. You will be required to fill in your details, the details of the attorney representing you and the details of the child whose return you are requesting. Furthermore the details of the person who has taken or retained the child wrongfully are required. The most vital information on the form is details of the place where the child is thought to be.

A sworn affidavit by the Applicant with regard to the occurrences that led up to the unlawful removal needs to be attached together with recent photographs of the child, the applicant as well as the respondent in the matter. Certified birth certificates of the child are also required to be attached to the Application as well as any relevant parenting plan or parenting agreement that has been signed by the parties.

These documents are then delivered to the Family Advocate in South Africa who will contact the Family Advocate in the country where the child has been removed and the Family Advocate will then contact the parent who has wrongfully removed the child if the address is known. If his/her address is not known the abducting parent and the children will first have to be traced by the Family Advocate so that notice can be given to them of the application for the return of the child. Once the abducting parent and the children have been located and given notice the Family Advocate will further appoint an attorney in that country and that attorney will liaise with the attorney and client in South Africa.

Once the parent has been contacted, if she does not intend to return the child to South Africa she will file a sworn statement setting out the reasons why she does not intend to return the child.

The person making an application for the return of the child can then make an affidavit in reply.

If there is a dispute the matter is then set down for hearing in the foreign court.

Even if one acts immediately once it is ascertained the parent does not intend to return the child to South Africa it will in my experience take at least 5 months for the matter to be heard in a court.

The matter can either be finalised at this stage or may, in some instances, take several months to be finalised.

Because of the complex nature of Hague it is suggested that the layman utilises the services of an attorney.

21 May

How Loud Is the Voice of an Abducted Child?

How loud is the voice of a child who has been wrongfully removed from his/her usual place of residence and taken overseas by one of his/her parents in terms of the Hague Convention?

Usually parents whose children live with them and are under 16 years of age do not seek the opinion of their children even when making decisions that pertain to them. So when one parent with whom they live packs their bags and those of the child and tells them “we are going to go and live with granny in England” the child is very unlikely to protest.

However, in cases where a child has been wrongfully removed from his/her home by a parent and taken overseas without the permission of the other parent, the courts will hear the opinions of the child who has been wrongfully removed “unless it appears inappropriate”.[1]

For a child’s opinion to have weight in the eyes of the Judge children need to be of a sufficient age in terms of The Hague Convention[2] as well as possessing degree of maturity.

What is sufficient age? “Sufficient age” has not beea defined in the Hague Convention however the older the child the more weight which can be given to his/her opinion. In the

In an English case of Re D (A Child)[3] a Judge stated that “the views of the child should have been canvassed after he had attained the age of seven as by then he ‘had reached an age where it could no longer be taken for granted that it was inappropriate for him to be given the opportunity to be heard’.” The Court listens to any opinions or objections the child may have to be returned to their home, however it is finally the Judge’s decision whether to use such opinions/objections in coming to a decision.[4]

In the United Kingdom there are three ways which a child can express their views to a court. These are:

Interview with a Cafcass officer
Speaking to the Judge
Speaking through a legal representative to put their views forward.

In most legal proceedings an interview between a Cafcass officer and the child is sufficient.[5]

The best interests of the child are always of the utmost importance in any court proceedings where children are involved.

Who are Cafcass Officers?

CAFCASS stands for Children and Family Court Advisory and Support Service. It is an independent body from the courts and other social services. They act as advisors to the Family Courts and put forward the wishes of the children to the courts and ensure that the best interests of children are upheld in all matters. They also provide support and advice to children and their families in adoption and divorce matters.

Dangers of allowing children’s opinions to be heard

Although the wishes of the children are taken into account courts have also warned against children becoming too involved in case. In the case of Re LC (Reunite: International Child Abduction Centre Intervening)[6] the Judge highlighted the fact that children entering into the “arena” of a court case could cause them to adopt a directly confrontational attitude toward the parent applying for the return of the child. It was further mentioned that this could disrupt family relationships which could also the resolution of the main issue being whether the child should be returned to their usual place of residence.

Certain circumstances where a child’s objections will not be thought to be sufficient by the Judge are the following:

“Where it is apparent that the child is merely parroting the views of a parent and does not personally object at all;
Where the objection is not an objection to the right thing;
Where the asserted objection is not an objection at all, but rather a wish or preference.” [7]

What happens when siblings have been abducted and one wishes to return but the other does not?

In the case where siblings are involved there are many conflicting opinions as to what to do. It is not thought to be in the best interests of the children to split them up. In all cases it is thought that it will be intolerable for the non- objecting child to be split from the objecting child.[8]

In the case of Zaffino v Zaffino (Abduction: Child’s Views)[9] it was stated that “the exercise of discretion cannot… properly be made by treating each child in isolation. The child’s place within the family, and the consequences of the exercise of discretion on that child, must be considered.”

In another case of In Re S (A Child) (Habitual Residence and Child’s Objections)[10] it was held that “ the court had been entitled to conclude that the separation of a 12 year old girl from her brother, aged 10, was mitigated by the fact that they were at an age where they would increasingly lead their own lives and that they would in future be able to communicate with each other via Skype.”

It becomes apparent from the above that yet again the court has the discretion to decide whether or not to split up siblings. Although they try to avoid this, when children are older it may be more permissible to split them up as it is very easy for children to communicate with one another as technology has developed so drastically.

Conclusion

From the above it is obvious that the courts have a very wide discretion to take into account or not to take into account a child’s objections. Courts will mainly focus on the nature and strength of the objections, whether the child’s opinion seems to have been influenced by a parent or third party, and whether what the child is requesting or suggesting is indeed in their best interests.

The Court needs to focus on whether the child’s objection is indeed an objection to be returned to their country of habitual residence and not just a general objection. A child’s capacity to judge what is in their medium and long- term interests is relevant to the exercise of the courts discretion.[11] If the only reason for a child’s objections is because it wants to remain with the abducting parent, who is also asserting that he or she is unwilling to return, the Judge is likely to overlook such as objection as the child is simply echoing the views of the abducting parent.[12]

It would appear from the cases that the older and more mature the child is the more weight their opinions carry. All objections have to be valid and have to be with regard to the return to the child’s place of habitual residence.

[1] Re KP (Abduction: Child’s Objection) [2014] EWCA Civ 554, [2014] 2 FLR 660.

[2] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[3] [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[4] JPC v SLW and SMW [2007] EWHC 1349 9Fam), [2007] 2 FLR 900, De L v H [2009] EWHC 3074 9Fam), [2010] 1 FLR 1229.

[5] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[6] [2014] UKSC 1, [2014] 2 WLR 124, [2014] 1 FLR 1486.

[7] Re M Republic of Ireland) (Child’s objections) (Joinder of Children as Parties to Appeal)[2015]EWCA Civ 26.

[8] The Ontario Court v M and M [1997] 1 FLR 475, Re T (Abduction: child’s Objections to Return) [2000] 2 FLR 192.

[9] [2005] EWCA Civ 1012, [2006] 1 FLR 410.

[10] [2015] EWCA Civ 2, [2015] All ER 9D) 56 (Jan).

[11] In Re M and Another (Children) (Abduction; Rights of Custody [2007] UKHL 55, [2008] AC 1288, [2008] 1 FLR 251.

[12] SvS (Child Abduction) (Child’s views) [1993] Fam 242, [1992] 2 FLR 492.