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:
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. 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.
Opposing an application for return
If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return. However, the Convention does make provision for the abducting parent to oppose the application for the return of the child, and the court has discretion to order or refuse the return based on the evidence brought before it.
When there is a grave risk that returning the child will expose him/her to physical or psychological harm, or would place him/her in an intolerable situation, the court hearing the application is not bound to order the child’s return. Mere allegations of grave risk will not persuade a court to refuse the return, however; it must be shown that the risk is serious or that the envisaged harm is of significant proportion.
Among the most popular defences raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually with the assistance of a family counsellor or psychologist, to ascertain whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for objecting will also be examined in order to exclude possible influence by the abducting parent.
Other available defences are that the removal was not wrongful, that the left-behind parent was not exercising his/her parental rights at the time of removal, or that the left-behind parent had agreed or subsequently acquiesced to the removal.
If the child has been wrongfully removed for more than one year, and available evidence indicates that the child has become settled in the new environment, the court may not necessarily order a return. In cases where the child’s return would be contrary to South Africa’s fundamental freedoms and principles relating to the protection of human rights, the courts are under no obligation to order the child’s return.
A court may also withhold permission to return the child if he/she is above 16 years of age and therefore not covered by the Convention.
Care and contact rulings made in South African civil courts
An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking the return of the abducted child. Where an abductor seeks an order in the South African court that will have the effect of ratifying the wrongfulness of the child’s removal to or retention in South Africa, the Central Authority will invoke the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained in are required by the Convention to not decide on the merits of custody rights until a determination has been made that the child will not be returned.
Recovering a child from a non-contracting state
From a South African perspective, it is advisable that the left-behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left-behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction that also orders the return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under the Convention.
Conclusion
The Hague Convention on Civil Aspects of International Child Abduction serves as an essential framework to mitigate the complexities and challenges associated with international child abduction. The Convention offers a streamlined process that aims to ensure the swift return of wrongfully removed or retained children to their country of habitual residence. This international treaty not only offers legal recourse but also provides a platform for multi-state cooperation. For countries like South Africa, which are signatories to the Convention, it gives a legal foundation upon which parents and legal entities can rely to secure the return of abducted children.
However, the Convention is not without its limitations. It doesn't apply to all countries, leaving a gap in its effectiveness in global child abduction cases. For such cases, the South African High Court acts as the upper guardian of minor children, and legal avenues must be explored within that context. Expensive legal battles in foreign jurisdictions often become a necessity, underlining the importance of the Convention and the need for its broader global adoption.
It's important to note that the Convention doesn't outrightly solve parental disputes but aims to return the child to the jurisdiction most capable of resolving such matters. The focus is always on the best interest of the child, a principle that is deeply rooted in South African family law as well. The Convention aids in levelling the playing field, ensuring that the parent left behind is not unduly disadvantaged due to the wrongful acts of the other parent.
Lastly, for any parent navigating the fraught landscape of international child abduction, legal counsel specialized in family and divorce law, well-versed in international treaties like the Hague Convention, is indispensable. While the Convention provides a framework, the actual process is often intricate, requiring a deep understanding of both domestic and international law.
Based in Cape Town, with consulting rooms in Paarl and Melkbosstrand, Maurice Phillips Wisenberg (MP|W) stands as one of South Africa's most innovative specialist providers of family law solutions. Divorce Lawyer Bertus Preller heads up our family and divorce law department, bringing a wealth of experience to the table. Our firm is not just about offering legal advice; we are about shaping the law and changing lives. Our adherence to international standards, particularly in dealing with cases related to the Hague Convention on Civil Aspects of International Child Abduction, positions us as a trusted legal advisor in complex family law matters. With a compassionate, straightforward, no-nonsense approach, we strive to offer our clients the best possible service in the realm of family and divorce law.
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. 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.
Opposing an application for return
If a child has been wrongfully removed for less than one year, the child’s removal is to be ordered forthwith under the Convention. The Convention makes it mandatory for the judicial authority to order return. However, the Convention does make provision for the abducting parent to oppose the application for the return of the child, and the court has discretion to order or refuse the return based on the evidence brought before it.
When there is a grave risk that returning the child will expose him/her to physical or psychological harm, or would place him/her in an intolerable situation, the court hearing the application is not bound to order the child’s return. Mere allegations of grave risk will not persuade a court to refuse the return, however; it must be shown that the risk is serious or that the envisaged harm is of significant proportion.
Among the most popular defences raised in return applications is that the child objects to the return. In such instances, an assessment must be made, usually with the assistance of a family counsellor or psychologist, to ascertain whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child’s reasons for objecting will also be examined in order to exclude possible influence by the abducting parent.
Other available defences are that the removal was not wrongful, that the left-behind parent was not exercising his/her parental rights at the time of removal, or that the left-behind parent had agreed or subsequently acquiesced to the removal.
If the child has been wrongfully removed for more than one year, and available evidence indicates that the child has become settled in the new environment, the court may not necessarily order a return. In cases where the child’s return would be contrary to South Africa’s fundamental freedoms and principles relating to the protection of human rights, the courts are under no obligation to order the child’s return.
A court may also withhold permission to return the child if he/she is above 16 years of age and therefore not covered by the Convention.
Care and contact rulings made in South African civil courts
An order granting care and contact can be used as proof of the existence of parental rights by the parent seeking the return of the abducted child. Where an abductor seeks an order in the South African court that will have the effect of ratifying the wrongfulness of the child’s removal to or retention in South Africa, the Central Authority will invoke the Convention to stop or suspend the proceedings until a decision has been made on the return of the child to his/her country of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained in are required by the Convention to not decide on the merits of custody rights until a determination has been made that the child will not be returned.
Recovering a child from a non-contracting state
From a South African perspective, it is advisable that the left-behind parent obtain an order through the normal civil procedures, which declare the removal/retention of the child unlawful and a breach of their parental rights. Once such an order has been obtained, the left-behind parent must obtain a mirror order or an order for enforcement in the foreign jurisdiction that also orders the return of the child. This route is very expensive as it involves the instruction of lawyers in foreign countries. For this reason, the Hague Conference on Private International Law is taking steps to encourage other countries to consider contracting under the Convention.
Conclusion
The Hague Convention on Civil Aspects of International Child Abduction serves as an essential framework to mitigate the complexities and challenges associated with international child abduction. The Convention offers a streamlined process that aims to ensure the swift return of wrongfully removed or retained children to their country of habitual residence. This international treaty not only offers legal recourse but also provides a platform for multi-state cooperation. For countries like South Africa, which are signatories to the Convention, it gives a legal foundation upon which parents and legal entities can rely to secure the return of abducted children.
However, the Convention is not without its limitations. It doesn't apply to all countries, leaving a gap in its effectiveness in global child abduction cases. For such cases, the South African High Court acts as the upper guardian of minor children, and legal avenues must be explored within that context. Expensive legal battles in foreign jurisdictions often become a necessity, underlining the importance of the Convention and the need for its broader global adoption.
It's important to note that the Convention doesn't outrightly solve parental disputes but aims to return the child to the jurisdiction most capable of resolving such matters. The focus is always on the best interest of the child, a principle that is deeply rooted in South African family law as well. The Convention aids in levelling the playing field, ensuring that the parent left behind is not unduly disadvantaged due to the wrongful acts of the other parent.
Lastly, for any parent navigating the fraught landscape of international child abduction, legal counsel specialized in family and divorce law, well-versed in international treaties like the Hague Convention, is indispensable. While the Convention provides a framework, the actual process is often intricate, requiring a deep understanding of both domestic and international law.
Based in Cape Town, with consulting rooms in Paarl and Melkbosstrand, Maurice Phillips Wisenberg (MP|W) stands as one of South Africa's most innovative specialist providers of family law solutions. Divorce Lawyer Bertus Preller heads up our family and divorce law department, bringing a wealth of experience to the table. Our firm is not just about offering legal advice; we are about shaping the law and changing lives. Our adherence to international standards, particularly in dealing with cases related to the Hague Convention on Civil Aspects of International Child Abduction, positions us as a trusted legal advisor in complex family law matters. With a compassionate, straightforward, no-nonsense approach, we strive to offer our clients the best possible service in the realm of family and divorce law.
Client Testimonial
An insane fight to recover my abducted daughter around the world during seven years brought me to South Africa and I was lucky enough to meet and to reach Bertus and all his team represent me to fight for my daughter´s rights. In fact they were the unique firm around the world that got a real step towards to start reestablishing the stolen relationship. Not just they achieved to get a Court Ruling on a short time but to involve border´s police, Sheriff and all required institutions to assure my daughter would meet me again. Forever I will deeply thankful for all its professional acting and of course because Bertus decided to act probonus on my daughter´s case after he realized the huge expenses a legal fight around the world brings. Without a doubt I would recommend this firm to work on your family cases. - Enrique Spain.