International Child Law and the Hague Convention
HOW DOES THE CONVENTION WORK?
The Central Authority in South Africa (the Family Advocate's Office) is the first port of call unless the applicant uses a law firm in South Africa to lodge an application to court. Because the Central Authority is usually inundated with child abduction applications it is usually better for an applicant to use a local law firm in South Africa who specializes in child law. Where an applicant uses a law firm in South Africa the Central Authority oversee the process. The requested Central Authority or their designated representative (law firm) must take steps to:
Understanding the Hague Convention and Its Purpose
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that addresses the issue of child abduction across international borders. It aims to protect children's rights and ensure their safe return to their country of habitual residence when they have been wrongfully removed or retained by a parent. This article explains the purpose and workings of the Hague Convention and offers guidance on the steps to take if you find yourself in a situation involving child abduction across international borders.
Child Abduction and the Hague Convention
South Africa ratified the Hague Convention in 1996, and it came into effect on October 1, 1997. The treaty's primary goal is to protect children's rights to care and contact (custody) by preventing unlawful removal from their country of habitual residence and facilitating their return if they are wrongfully removed. Article 5 of the Convention establishes that a country's courts have jurisdiction over custody matters when the child is habitually resident there, with certain exceptions.
South Africa's Role and Responsibilities
As a signatory to the Hague Convention, South Africa is required to establish a Central Authority, which is the Chief Family Advocate's office in the country. This authority is responsible for tracing the child and taking necessary steps to ensure their return to South Africa.
The Convention applies to children within signatory countries, but its authority expires when the child turns 16.
Exceptions to Child Return
Courts in the country where the child has been taken may refuse to return them under certain circumstances, including:
Non-Signatory Countries and Alternatives
If a child is taken to a non-signatory country, diplomatic or consular routes must be pursued, which can take up to six months. However, if the child has been wrongfully removed to another Hague Convention country, the parent can access the Convention's provisions, which are quicker and less costly.
The Hague Convention Process
To initiate the Hague Convention process in cases of child abduction, follow these steps:
Check list for applicants:
To facilitate the processing of an application by the Central Authority, the parent left behind or the parent must ensure that the application contains the following documents:
At MPW Attorneys, we've assisted numerous parents in managing the complexities of post-divorce relocation, both within South Africa and abroad. If you're facing a relocation issue or dealing with child abduction, our experienced child relocation lawyers are here to help. We can guide you through the process of working with the Central Authority (Family Advocate) in South Africa or pursuing an order in non-member states. To discuss your case confidentially, reach out to our dedicated team at MPW Attorneys by calling +27 21 419 7115 or emailing [email protected]. We proudly offer our services on a national level across South Africa.
The Central Authority in South Africa (the Family Advocate's Office) is the first port of call unless the applicant uses a law firm in South Africa to lodge an application to court. Because the Central Authority is usually inundated with child abduction applications it is usually better for an applicant to use a local law firm in South Africa who specializes in child law. Where an applicant uses a law firm in South Africa the Central Authority oversee the process. The requested Central Authority or their designated representative (law firm) must take steps to:
- Discover the whereabouts of the child;
- Attempt to secure the voluntary return of the child, otherwise initiate or facilitate judicial or administrative proceeding.
Understanding the Hague Convention and Its Purpose
The Hague Convention on the Civil Aspects of International Child Abduction is an international treaty that addresses the issue of child abduction across international borders. It aims to protect children's rights and ensure their safe return to their country of habitual residence when they have been wrongfully removed or retained by a parent. This article explains the purpose and workings of the Hague Convention and offers guidance on the steps to take if you find yourself in a situation involving child abduction across international borders.
Child Abduction and the Hague Convention
South Africa ratified the Hague Convention in 1996, and it came into effect on October 1, 1997. The treaty's primary goal is to protect children's rights to care and contact (custody) by preventing unlawful removal from their country of habitual residence and facilitating their return if they are wrongfully removed. Article 5 of the Convention establishes that a country's courts have jurisdiction over custody matters when the child is habitually resident there, with certain exceptions.
South Africa's Role and Responsibilities
As a signatory to the Hague Convention, South Africa is required to establish a Central Authority, which is the Chief Family Advocate's office in the country. This authority is responsible for tracing the child and taking necessary steps to ensure their return to South Africa.
The Convention applies to children within signatory countries, but its authority expires when the child turns 16.
Exceptions to Child Return
Courts in the country where the child has been taken may refuse to return them under certain circumstances, including:
- The Convention's requirements are not met
- The applicant parent consented to the removal
- The child has been living abroad for over 12 months and is settled in the new country
- The child objects to returning, depending on their maturity and age
- Returning the child poses a risk to their physical or psychological well-being
- Returning would breach the child's fundamental freedom and human rights
Non-Signatory Countries and Alternatives
If a child is taken to a non-signatory country, diplomatic or consular routes must be pursued, which can take up to six months. However, if the child has been wrongfully removed to another Hague Convention country, the parent can access the Convention's provisions, which are quicker and less costly.
The Hague Convention Process
To initiate the Hague Convention process in cases of child abduction, follow these steps:
- Draft a "letter of request" and compile necessary documents, then send them to the Central Authority in the country where the child has been taken (in South Africa, it's the Chief Family Advocate).
- The Central Authority reviews the file for compliance with the Convention before sending it to the local court with jurisdiction.
- Documents are served on the relevant party (usually the parent who removed the child).
- The Central Authority ensures paperwork follows the Hague Convention rules and verifies that service was completed.
- Be aware of potential delays due to missing or incorrect information, and note that some countries may require translated documents.
Check list for applicants:
To facilitate the processing of an application by the Central Authority, the parent left behind or the parent must ensure that the application contains the following documents:
- Prescribed questionnaire in English;
- Recent photographs of the child and of the abducting parent;
- Certified copies of birth certificates;
- Proof of parental rights, such as court orders (and agreements of settlement, where applicable) regarding the custody, access & guardianship;
- Certified copy of marriage certificate, if applicable;
- Details of the child and/or the abducting parent's whereabouts or possible location;
- Sworn translations to English of all relevant documentation.
At MPW Attorneys, we've assisted numerous parents in managing the complexities of post-divorce relocation, both within South Africa and abroad. If you're facing a relocation issue or dealing with child abduction, our experienced child relocation lawyers are here to help. We can guide you through the process of working with the Central Authority (Family Advocate) in South Africa or pursuing an order in non-member states. To discuss your case confidentially, reach out to our dedicated team at MPW Attorneys by calling +27 21 419 7115 or emailing [email protected]. We proudly offer our services on a national level across South Africa.