The Hague Convention of the Civil Aspects of International Child Abduction is an international treaty aimed at preventing the removal of a child from the jurisdiction in which he/she ordinarily resides by a parent or guardian who has removed the child without the consent of the other parent or guardian.

The primary objective of the Hague Convention is to enforce the rights of custody over a child or children who have wrongfully been removed to or kept in a foreign country. The Convention aims to secure the return of the child or children to South Africa.

Hague Convention signatory countries

South Africa has ratified the Convention in 1996 and the Act came into operation on 1 October 1997. Thus, South Africa is a signatory to the Convention. There are over 90 countries that are signatory to the Hague Convention of the Civil Aspects of International Child Abduction. Some of these signatory countries include:

  • Argentina
  • Belgium
  • Canada
  • China
  • Denmark
  • Fiji
  • Gabon
  • Germany
  • Iceland
  • Lithuania
  • Mexico
  • Morocco
  • Panama
  • Singapore
  • Spain
  • Sri Lanka
  • Sweden
  • Thailand
  • Turkey
  • Venezuela

When a country is signatory to the Convention, the signatory country is obliged to set up an administrative body to facilitate the procedures in respect of tracing the child and taking steps to ensure the child’s prompt and safe return. This administrative body is known as the Central Authority.

In South Africa, the Chief Family Advocate is designated as the Central Authority. The Central Authority assists in cases where a child is wrongfully kept in South Africa, as well as when a child has been wrongfully taken from South Africa.

When is the Hague Convention on the Civil Aspects of International Child Abduction applicable?

  • The Hague Convention will find applicability between other member countries signatory to the Convention
  • The Hague Convention only applies to children below the age of 16 years old
  • The applicant/s must have rights of custody over the child
  • The applicant/s must have been exercising said custody rights over the child at the time of the wrongful removal
  • The child must have been taken without consent or a court order authorising such removal

What is the process?

The Central Authority in South Africa will make an application for the child’s return on behalf of the parent/guardian to the Central Authority of the other signatory country that the child has been taken to or is being kept in.

Thereafter the Central Authority upon which the request was made for the return of the child, must immediately take the following steps to:

  • Trace the whereabouts of the child
  • Prevent any further harm to the child
  • Attempt to secure the voluntary return of the child
  • If the voluntary return of the child cannot be facilitated, the Central Authority must initiate judicial or administrative proceedings in that country in order to ensure the safe return of the child to South Africa
  • In the event of legal assistance being warranted, the Central Authority must either provide or facilitate the provision of legal aid and advice

Conversely, when a child is wrongfully kept in South Africa or removed to South Africa, our Central Authority will receive the documents from the applicant signatory country.

Once received, our Central Authority must analyse and study the application to establish if the application received has merit in law. If said application is founded in legislation, the Central Authority must start proceedings in order to locate and return the child.

Recovering a child from a non-contracting state

From a South African perspective, if a child has been abducted to a country that is not a signatory to the Hague Convention, 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 demands the return of the child. Alternatively, one can deal with an order that allows the non-custodial parent the right to go and collect the child in that country as seen successfully executed by Abrahams & Gross Inc.

See this article for the full story: Talitha & Baby are back home

What to do if your child has been abducted by a parent or guardian

In the event of your child being abducted, it is important to act with urgency in order to facilitate the safe return of your child. The left behind parent must approach the office of the local Family Advocate to inform them of the abduction. Thereafter, a Family Advocate will be appointed to your case in order to engage with the other signatory state to effect the safe and speedy return of your child. Alternatively, the left behind parent can approach a family law attorney for legal advice in this regard.

For Family Law expertise

 Juan Smuts                       juan@abgross.co.za

Wesley Scheepers           wesley@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.