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.