Jacques Brits

You’re a single divorced parent with primary residence of your minor child. You decide to travel overseas, or alternatively to move overseas. The minor child’s father, with full rights and responsibilities pertaining to the minor child, refuses his permission in an effort to keep his child close. What now? This article will explain the law applicable to disputes of this nature, as well as the consequences of ignoring the rights of the other party.

Every person has the right to freedom of movement which includes the right to leave the Republic of South Africa with a valid South African passport.[1] In contradiction to the aforementioned, section 18 of the Children’s Act[2] warrants the consent of a co-guardian to allow the minor child to leave the country, or even to apply for a passport.

If consensus cannot be reached between the parties themselves, an application can be made to the applicable High Court who has the necessary jurisdiction, for an order indicating whether the relocation would be allowed or not. The application can only be made to a High Court, due to its common law power pertaining to upper guardianship over all children in its jurisdiction. The court will consider various factors including but not limited to:

  • The best interest of the child;[3]
  • The purpose of the relocation;
  • The reasonability and bona fides of the party considering relocation;
  • The interest of the non-relocating parent;
  • The impact that the relocation would have on the affected child and his/her relationship with his/her parents;

Ignoring the consent requirement

What happens if you have had enough of the constant fights and disagreements with your ex-partner pertaining to relocation and decide to dispense with the consent requirement? What then?

The Hague Convention on Civil Aspects of International Child Abduction prevents the removal of a child from the jurisdiction in which the child normally resides, without the consent of the other parent or caregiver. The aforementioned international treaty further facilitates the process of returning the child wrongfully removed. South Africa forms part of The Hague Convention and therefore has to abide by the rules and principles as set out therein.

The parent who failed to give his / her consent can therefore in these circumstances approach the designated central authorities, which is the office of the Chief Family Advocate or alternatively the central authority of the country where the child has been abducted to. The South African central authority will immediately consider the legal aspects, compile a bundle, forward the relevant application to the foreign central authority and request the prompt response of a child. The aforementioned procedure only applies where the child has been abducted to a contracting party of The Hague Convention.

What happens if the child has been abducted to a non-contracting party?

The route to follow in these circumstances are more complex. The parent who failed to give his / her consent must firstly obtain an order from a South African High Court that declares the removal of the child unlawful. The order must then be mirrored, alternatively an application for enforcement thereof must be made to the foreign jurisdiction where the child has been abducted to.[4]

In conclusion, I would like to urge all divorced parents to consider the best interest of their children above their own personal feelings. Should you have no other alternative than relocation, speak to your ex-partner, alternatively follow the correct procedures in obtaining consent to remove your child from the country.

Should you have any disputes relating to the removal, alternatively wrongful removal of your child from the country, kindly contact our family law department for assistance.

[1] Section 21 of the Constitution of the Republic of South Africa, 1996

[2] Act 38 of 2005

[3] Section 28(2) of the Constitution of the Republic of South Africa, 1996

[4] Anon “International Views on Justice: The Hague convention and International Child Abduction” , Justice Today, January/February 2009

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.