The worst of the worst – your child is abducted (kidnapped) by your ex-partner to another country. What can you do to ensure the return of your child?
International child abduction has increased exponentially in modern times due to a number of reasons such as the high incidence of dual nationality, the ease international air travel, relaxation of cross-border control and an upsurge in bi-national marriages (Nicholson “Introduction to the Hague Convention on the civil aspects of international child abduction” in Davel (ed) Introduction to child law in South Africa (2000) 232)).
Parental abduction is defined as the “taking, retention, or concealment of a child or children by a parent, other family members, or their agent, in derogation of the custody rights, including visitation rights of another parent or family member” (Chiancone, Girdner and Hoff “Issues in resolving cases of international child abduction by parents” 2001 OJJDP 1). Although abductors may be other family members or their agents, in most cases the abductor is the child’s parent (Chiancone, Girdner and Hoff 2001 OJJDP 1).
When a child has been abducted internationally, the rights of the person from whom the child has been abducted can usually not be effectively enforced in his or her country of residence. A remedy must be pursued in the country where the child is physically present.
A Hague Convention application is made when a child is taken or retained across an international border away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of habitual residence. If the two countries are parties to the convention ( they are known as contracting states) it binds member states to assist the parent or person left behind. The purpose of the application is to secure the prompt return of any child wrongfully removed to or retained in a contracting state.
It is of paramount importance that such matters be dealt with expeditiously as prompt action may be critical. A Hague case can be instituted more than a year after the child has been abducted, but a defence will kick in after such a prolonged period that the child has being settled in its new environment. Always remember, time favours the abductor. It is therefore recommended that Hague cases be completed within six weeks.
In terms of South African law, the right to consent to or refuse the removal of a child from South Africa is entrenched in the concept of guardianship. In terms of the Children’s Act, 38 of 2005 ( Children’s Act), a person who has parental responsibilities and rights in respect of a child has the right to act as guardian of the child, and a guardian must consent to the child’s departure or removal from South Africa. If a child has more than one guardian, all must consent before the child can be removed.
A contracting state to the Hague Convention is bound to set up a central authority and its primary function is to trace the child and take steps to secure the child’s return. The Chief Family Advocate is designated as the central Authority in South Africa. The central authority will assist in both outgoing cases where a child is wrongfully taken from South Africa to a foreign country as well as incoming cases where a child has wrongfully brought to, or retained in South Africa.
Article 3 of the Hague Convention sets out the jurisdictional prerequisites which an applicant is required to establish before a court can consider whether the removal or retention of a child is to be considered wrongful. These are that: (a) the child was habitually resident in the other State; (b) the removal or retention constitutes a breach of custody rights; and (c) the applicant was actually exercising such rights (either jointly or alone) at the time of removal or retention, or would have exercised such rights but for the removal or retention. It is furthermore important to take note of the fact that the Hague convention can only be invoked if the child is under the age of 16 years.
The child in essence, must be returned to the state of habitual residence unless a defence is raised which is provided by article 13 of the convention that the person, institution or Article 13 provides that the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that: (a) the applicant was not actually exercising custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation or (c) the judicial or administrative authority (i.e. the court) may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. All the above defenses are always subject to what is in the best interest of the child and the court can exercise a discretion whether to return the child or not.
Unmarried fathers should take note that the common law rights of custody and guardianship in respect of extra marital children no longer exclusively vests in the mother. The Children’s Act which came into operation in 2007 changed the position and rights unmarried fathers have in respect of their minor children and are thus at a more advantageous position. Section 21 of the Children’s Act confers full parental responsibilities on the biological father of an extra-martial child, if, at the time of the child’s birth, he is (a) living with the mother in a permanent life – partnership, or (b) consents to being identified or successfully applies in terms of Section 26 to be identified as the child’s father; or (c) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period, and contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. Unmarried fathers are thus no longer excluded from having parental rights and responsibilities in respect of a child and are thus eligible to apply for an application under The Hague.
One must take into account that the Convention promotes the prompt return of an abducted child and it does not impose criminal sanctions on the abducting parent. Moreover, the Convention’s available remedies do not apply to nations that fail to participate. The Convention’s procedures are inapplicable and unenforceable in non signatory nations. As such, parents and governments must often embark on the difficult and sometimes impossible task of seeking other means of resolving international child custody disputes with such nations.
Furthermore, if your child is taken to a country that is not a signatory to the Hague Convention, a parent of such child will have to acquire the assistance of a lawyer within that said country in order to issue proceedings as well as an application for custody in our own South African courts.
In conclusion, a parent or an interested party must always bear in mind that prompt action is the key to the return of an abducted child and that an application of this nature is expensive due to the urgency of the matter. The application (see attachment below) should be concluded within six weeks and various factors as stipulated above play a part in whether or not the child will be returned or not.