The Importance of a South African Attorney Accompanying a Client Overseas In Hague Convention Matters
I have just returned from London representing a client in a Hague convention matter. This is the second time in the last couple of years that I have travelled overseas with a client and feel compelled to write this article about the importance of an attorney accompanying a client where a child/ children are abducted. This article refers to cases where a child/children are abducted to the United Kingdom specifically, although it will have worldwide acceptance.
The family advocate in England will appoint an attorney and an advocate to act on behalf of the parent whose child is abducted. However, it is the practice for the South African attorney to draw the affidavits and reply to various allegations if the overseas parent indicates that he or she will not be returning the child/children. These affidavits are then sent to the attorney in London appointed by the family advocate.
While I tossed and turned with my client as to whether I should accompany him to London when the matter was set down for trial, (obviously finances were a concern) in the end my client paid for me to accompany him on the trip.
When I arrived in London with my client, the overseas attorney appointed by the family advocate was unavailable or didn’t care to meet with me and I met with the attorney’s clerk who did not have a clue about the matter. My client was very uncomfortable with the clerk but thank goodness, I was there to assist.
We then met and consulted with the advocate appointed by the family advocate’s office in London who to my amazement was not advised that I would be attending the trial. Obviously, had I not accompanied my client, my client would have met the advocate for the first time. There being no personal relationship between my client and the advocate, again my client was pleased that I was present. At the court hearing, the judge asked me if I would give evidence on certain aspects of South African law which was vital in the judge deciding the matter.
The matter was settled out of court and the children will be returned to South Africa. It took ten hours to settle the matter and draft an agreement, much of which pertained to the law in South Africa once it was agreed that the children should return to South Africa. Again, my input in the matter helped and assisted the court and my client in that I was able to apply the law in South Africa to the settlement agreement.
My suggestion is therefore that it is most advisable depending on one’s finances to take an attorney with you overseas in Hague Convention matters.
Submitted by Ivan Zartz, Founding Attorney
Child Relocation Order Granted
Winning isn’t everything but wanting to win is – fighting to re-locate two children from South Africa to the United Kingdom.
An Order was recently granted in the North Gauteng High Court in favour of a certain “Mr K”, who shall be referred to as such to preserve his anonymity. He was been represented by Ivan Zartz attorneys (IZA) since November 2013.
The case in point was a very interesting one whereby a divorced father who resides in South Africa with his two minor children, who were born in the United Kingdom and have United Kingdom passports, made an application to court to enable him to re-locate to the United Kingdom with the two children.
This application to court was necessary as Mr K’s ex-wife resides in Australia and has the two minor children’s British passports with her, and refused to hand over the passports to Mr K. She also refused to allow the re-location of the children from South Africa to the United Kingdom. The Application specifically dealt with the granting of an order from the South African High Court allowing that new passports should be re- issued by the British embassy. The British authorities required an order of court as Mr K’s ex-wife would not give her consent with regard to new passports being issued and she refused to hand over the passports that are in her possession.
Due to Mr K’s ex-wife residing in Australia and her exact location being unknown to Mr K coupled with her refusal to supply such information to Mr K’s attorneys, an initial Application needed to be instituted in Court before IZA could proceed with the main Application to have the new passports to be issued. The reason for the initial Application which is called an “Edictal Citation”, is that all the court documents which were prepared by IZA on behalf of Mr K needed to be delivered or “served” on Mr K’s ex-wife to promote the interests of justice and so she could know exactly what is happening with the court case, giving her a chance to defend herself or to oppose the matter. For this reason the edictal citation was required as the only contact detail IZA had for the ex-wife was an e-mail address of which IZA required special consent from the court to allow us to send her documents via e-mail.
The primary Application allowing the above edictal citation was heard in the North Gauteng High Court on the 15th of April 2014 and it was granted. We then proceeded to send all the papers stating what we intended applying to court for. The process towards trying to obtain the main Application for the new passports to be issued could now officially begin.
Obtaining a date for the matter to be heard before a Judge at court was of utmost importance as Mr K and the children had to be in the United Kingdom in early September. We were given a date of the 13th of August 2014 and on that date the order was granted after many consultations and a lot of paperwork.
Submitted by Fiona Fiebig, Candidate Attorney