Parental child abduction is defined as the “taking, retention, or concealment of a child or children by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights of another parent or family member.”  [Girdner, L. 1994b. Introduction. In Obstacles to the Recovery and Return of Parentally Abducted Children, Final Report, edited by L. Girdner and P. Hoff. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention, pp. 1–1 to 1–13.]

What happens when a child is taken to another country?

When a child has been abducted internationally, the rights of the parent or caregiver from whom the child has been taken cannot be enforced in the country where they are residing. These rights must be pursued in the country where the child is currently present.

The Hague Convention

South Africa forms part of the Hague Convention on civil aspects of international child abduction which is basically aimed at preventing a child from being removed from the jurisdiction where he or she usually resides. This is when a parent or person removes a child without the consent of the other parent or caregiver. The main purpose of the Hague Convention is to facilitate the safe return of a child who was wrongfully removed.

The wrongful removal or retention of a child can be explained as the following:

  • when there is a breach of the rights of custody given to a parent, any institution or anybody, either jointly or alone, under the law of the country in which the child is originally resident in immediately before the removal/retention; as well as
  • where, at the moment of removal/retention, those rights were actually exercised, either jointly or alone, or would’ve been so exercised but for the removal/retention.

What to do if your child has been abducted overseas?

Steps to take, with help from the Hague Convention, when a child has been abducted internationally:

  • A Hague Convention application is made, these applications are heard on an urgent/semi-urgent basis generally by way of notice of motion proceedings in the High Court. You may be represented by your attorney but the proceedings must be approved by the Family Advocate.
  • If the two countries involved (one being the country where the child originally resides and the other being the country where the child is physically present) are parties to the Hague Convention it binds the member country to help the parent/person searching for the child.
  • The recommended time to complete a Hague case is within six weeks but these cases can be instituted more than a year after a child has been abducted.
  • The member country is required to set up a central authority and trace the child in order to secure the child’s safe return. The central authority in South Africa is the Chief Family Advocate.
  • The application can only be made when a child is under the age of 16 years.
  • An applicant must first prove the prerequisites to High Court that the child was wrongfully removed and then only will the process start.

In conclusion, every moment counts in respect of international child abduction. It is recommended that should you find yourself in this situation, you contact an experienced legal expert to assist you in the safe return of your child.

Our Family Law attorneys specialise in all matters of law affecting the family – be it divorce, matrimonial or child-related. For any legal assistance in this regard, please contact our experienced team.

For legal advice about Family Law, Divorce and Matrimonial Law

Juan Smuts                      juan@abgross.co.za

Wesley Scheepers          wesleys@abgross.co.za

Vera Kruger                     verak@abgross.co.za

 

Disclaimer

The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.

 

 

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