The Children’s Act allows children to be relocated after divorce – but only with consent
The festive season is meant to be a time of celebration, cheer, and relaxation. But for divorced families it can be a stressful time. There may be conflict over the division of time between parents, and competition in terms of present-giving. One or other parent may opt to take the child or children away on holiday, either to another South African province or overseas, in accordance with the parenting plan or as a requested exception to it. What happens if they don’t come back? If one parent removes a child without the other parent’s consent, it is considered child abduction, even if the parents have shared custody (care and contact).
We’ve written before about relocating with children post-divorce, but what if your child fails to return home at the arranged time, and you suspect your ex-spouse of abducting your child? What can you do about it? The answer will depend on where they have gone.
Child abduction to another South African province
Your ex-spouse comes from another province in South Africa, and after the divorce feels lonely and isolated in the city where you lived together. They go on holiday to visit family, and don’t return home, either due to prior intent or spontaneous decision. While this desire is understandable, it is not lawful. The Children’s Act 2005 does not specifically deal with relocation, but stresses the interests of the children. In case law, relocating with children requires the consent of both parents. The judge will not usually prohibit a parent from relocating, providing the move does not compromise the interests of the child, and, in fact, a parent seeking to refuse consent must give a good reason for such refusal. Mobility is accepted as a fact of life, and the law does not deny someone the opportunity to advance one’s career or otherwise move on in life through relocation, as long as reasonable arrangements are made for contact with the non-custodial parent.
If permitted relocation is so easy, why would anyone choose to act unlawfully? The answer is that human beings do not always behave rationally, especially where their children are concerned. There may be other factors at play, such as a threat of violence or intimidation or a fear that the other parent will abduct the child. In this case the abduction may be seen as a means of protecting the child.
If you believe your child has been abducted, the court will consider several factors: the legal status of the other parent; any court orders you may have regarding care and contact of the child; and the intent of the offending parent. While due process should have been followed, the court may not automatically order the return of the child. You may need to make application to the court, and the court will consider matters such as the environment the child will live in, the child’s needs, the motivation of the relocating parent, and in some cases the wishes of the child.
International child abduction
If your child has been taken overseas without your consent, or has gone on holiday with your permission but has not returned, the situation is clearer from a legal perspective. International child abduction is governed by the Hague Convention, to which South Africa is a signatory. According to the Hague Conference on Private International Law, “the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return.” South Africa ratified the Convention in 1996 and it came into effect in 1997. It has been incorporated into the Children’s Act.
If you suspect your child has been abducted internationally, there is a defined process to follow:
- You make an application to the Hague Convention. This will be heard in the High Court and must be approved by the Family Advocate, although your own family lawyer may also represent you. NB the child must be under the age of 16.
- If both countries involved (i.e. the child’s original residence and the destination country) are members of the Hague Convention, the member countries must cooperate in finding the child.
- Speed is of the essence. Cases are usually completed within six weeks but a case can be brought up to a year after a child has been abducted. The faster you act, the greater the chance of finding the child.
- Each member country has a central authority responsible for tracing the child and securing their safe return. In South Africa the central authority is the Chief Family Advocate.
- You must provide evidence to the High Court that the child was wrongfully removed. Proof might include your original letter of consent for the holiday, with dates; a copy of your parenting plan, describing holiday arrangements; and/or a copy of the return air ticket.
Countries not members of the Hague Convention
Unfortunately, most countries in Africa are not signatories to the Hague Convention, and another African country may well be the destination of your ex-partner and child. If your child has been removed to a non-signatory state, you will need to obtain an order through normal civil procedures declaring the abduction of the child unlawful and in breach of your parental rights. You then have to obtain a mirror order in the foreign country. There is no designated central authority outside of Hague Convention member states. Unfortunately, this may be time-consuming and is likely to be an expensive process. You will need the assistance of experienced family law attorneys.
Caring for your child on their return
However loving the relationship between your child and the parent who has taken them away, the series of events leading up to their return will inevitably be traumatic for your child. They may resent you for bringing them back from an “adventure”. Or they may be happy to be home in their own bed, but suffer stress from the upheaval and emotional disturbance. The other parent may have tried to alienate the child from you. It is important that you listen to the child and allow them to recover in their own time. They may need to grieve what they see as a loss, or come to terms with a new reality – the other parent is an abductor. Counselling can help.
We’re here to help
At Cape Town Divorce Attorneys, we’ve helped many parents navigate the difficult scenario of post-divorce relocation. We can help you negotiate changes to your parenting plan, if you need to relocate to another province or country. If your child has been abducted, we will support you in lodging a case with the central authority (Family Advocate) in South Africa or in seeking an order in a non-member state. Contact Simon on 086 099 5146 or email firstname.lastname@example.org to discuss your case in confidence.