Relocation and Parental Abduction in South Africa
The abduction of a child is a tragedy. No one can fully understand or appreciate what a parent goes through at such a time, unless they have faced a similar tragedy. Every parent responds differently. Each parent copes with this nightmare in the best way he or she knows how.~ John Walsh, US television personality, criminal investigator, human and victim rights advocate and the host, as well as creator, of America’s Most Wanted.
Relocation disputes between parents are frequently in our courts. Where both parents have guardianship, it necessarily follows that consent will be needed when one decides to relocate with a minor child. It is important to note that there is no section in the Children’s Act that deals specifically with relocation. The closest the Act gets to relocation is a section that deals with the jurisdiction of the court in matters where a child is removed from South Africa.
It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstruct their lives. Typically, a relocation dispute will arise when one parent, normally the parent of primary residence and with whom the child usually resides, decides to move town/province/country. Often, the parent who is to be left behind will refuse to give consent for the relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. It must be noted that it is not a given that the court will automatically give its consent. Because the Act does not set criteria, our courts have to consider various facts and case law before they can grant an order allowing relocation.
Factors a court will rely on in cases of relocation
The court will only grant permission based on the best interests of the child. An important factor that the court will take into consideration is whether the decision by the parent to relocate is reasonable and bona fide. Our courts take a pragmatic approach to such cases, and although the move may be detrimental to the other parent who will have less contact with the child, life must go on. That is not to say that the courts don’t consider the impact of the relocation of the left-behind parent, but our courts are compelled to respect the freedom of movement and family life of relocating parents. In looking at what is in the best interests of the child, the court will also consider whether relocation will be compatible with the child’s welfare.
Examples of relocation court cases
- The court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. What the court found was that the practicalities of her decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.
- The court rejected a father’s application to relocate with his daughter. The relationship between the parents was acrimonious and, at the time of divorce, the father alleged that the mother had sexually abused their daughter. Based on this and various other factors, the court awarded care to the father. After several years, the father sought to relocate to Israel. Although the mother initially gave her consent because she was led to believe she would be allowed contact with her child, she later withdrew it when she realised that her belief was false. The court refused the relocation based on the fact that the father could not provide sufficient information about when and where he would be employed, where the child would be going to school and how she would be assisted to learn Hebrew. The court also found the father to be thwarting attempts by the mother to rebuild her relationship with her daughter. The court emphasised the fact that it was important for the mother and child to re-establish their relationship, and criticised the experts (psychologists) who had recommended the relocation for not considering all the facts.
- The court rejected a mother’s application to relocate with her four children, aged eleven and eight (triplets). The parents had been awarded joint care in the divorce settlement agreement, the intention being that the children would spend an equal amount of time with each parent. Three years after the divorce, the wife filed an urgent application in the High Court for variation of the care order: she sought an order declaring her the primary caregiver and granting her the authority to relocate the children from South Africa to Dubai to live with a new man whom she planned to marry. A social worker and a clinical psychologist commissioned by the mother recommended that she be granted primary care and permission to relocate. Experts not commissioned by her held a different view, finding that relocation would not be in the best interests of the children as they would miss their father, school friends and the city to which they were accustomed. The court found that the mother’s experts’ recommendations were based too heavily on financial issues and did not sufficiently take into account the bond that existed between the children and their father. The court relied, ultimately, on the children’s views, having found that they were of an age and maturity to make informed decisions. The mother’s application was dismissed as the court found that it was not in the children’s best interests.
International Child abduction
The Hague Convention on Civil Aspects of International Child Abduction
South Africa is a party state of the Hague Convention on Civil Aspects of International Child Abduction, an international treaty aimed at preventing the removal of a child from the jurisdiction in which he/she normally resides by a parent or caregiver without the consent of the other parent or caregiver and to facilitate the return of the child wrongfully removed. South Africa ratified the Convention in 1996 and it came into operation on 1 October 1997.
The purpose of the Convention is to secure the prompt return of any child wrongfully removed to or retained in a contracting state. The Convention binds member states to assist the parent or person left behind. By providing a simplified procedure and additional remedies to those seeking the return of a child who has been wrongfully removed or retained, the convention aims to curb international abductions of children.
The purpose of a speedy return is to place the child in the jurisdiction of a court that is better appraised to deal with the merits of the parental dispute. A child removed from one parent and taken to another country is subjected to the concentrated influence of the custodial parent; time favours the abductor. Unless firm steps are taken to ensure the prompt implementation of the Convention procedures, in a prolonged separation, the ‘absent’ parent’s influence on the child will wane. In addition, this parent will be at a considerable disadvantage in litigating a contested claim for custody and access in the courts of a country other than those of the place of habitual residence (the country from which the child has been removed). Few people can readily afford litigation in their own jurisdiction, let alone in foreign courts, where the legal system may be different, laws and even language unfamiliar, costs substantial, and facilities for legal assistance difficult to obtain or non-existent.
Most European and Commonwealth countries, as well as the US, are members. On the African continent, only South Africa, Mauritius and Zimbabwe subscribe to the Convention. When a child is removed to a country that is not a party state to the Convention, the South African High Court, as the upper guardian of minor children, will have jurisdiction and the application should be made to such a court for the return of the child.
The Convention only applies to wrongful removals/retentions occurring after the treaty became effective between the involved countries.
Wrongful removal or retention of a child
The removal or retention of a child is to be considered wrongful:
- where it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and
- where, at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned above may arise in particular by operation of law, by reason of judicial or administrative order, or by reason of an agreement having legal effect under the law of that state. The Convention applies to any child who was habitually resident in a contracting state immediately before any breach of custody or access rights.
Where a child has been wrongfully removed or retained and, at the date of the commencement of the proceedings before the judicial or administrative authority of the contracting state where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the child’s immediate return.
In practice, applications are generally heard on an urgent or semi-urgent basis by way of notice of motion proceedings. Inevitably, the overriding principle that our courts refer to is the best interest of the child principle (see page 00). In 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, 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. Where more than one person has guardianship over a child, all must consent before the child can be removed.
The role of the Central Authority
A contracting state is bound to set up an administrative body known as a Central Authority, whose duty it is to trace the child and take steps to secure the child’s return. In South Africa, the Chief Family Advocate is designated as Central Authority.
The Central Authority assists in both ‘outgoing’ cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country), and ‘incoming’ cases (when a child has been wrongfully brought to, or retained in, South Africa).
An application for the return of or access to a child must be submitted to the Central Authority.
Habitual residence
This concept of ‘habitual residence’ is not defined by the Convention itself. This is to avoid the development of restrictive rules as to the meaning of habitual residence, so that the facts and circumstances of each case can be assessed free of suppositions and presumptions. This means that close attention must be paid to subjective intent when evaluating an individual’s habitual residence.
When a child is removed from its habitual environment, the implication is that it has been removed from the family and social environment in which it developed. The word ‘habitual’ implies a stable territorial link, which may be achieved through length of stay, or through a particularly close tie between the child and the place. A number of foreign judgements have established that a possible prerequisite for habitual residence is some ‘degree of settled purpose or intention’. A settled purpose or settled intention will clearly not be temporary.
Procedures
The Office of the Chief Family Advocate divides the applications into incoming and outgoing applications. Courts and administrative authorities should act quickly when applications are brought before them, but if a decision has not been made within six weeks from the date proceedings commenced, the applicant or the Central Authority of the requested state may officially request a reason for the delay.
The Convention aims to ensure that a competent court in the country of habitual residence decides on the merits of custody, access and even permanent removal to another country. This is based on the premise that courts in the country of habitual residence are better apprised to obtain all relevant evidence regarding the merits of custody, care and contact, and are in a better position to grant an order that will be in the best interests of and/or least detrimental to the welfare of the child. For this reason, the Convention is consistent with our applicable laws and Constitution, through affording the best interests of the child paramount importance.
Case Law where we featured:
N F v M C (17845/2012) [2012] ZAWCHC 198 (27 November 2012)
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