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 or she ordinarily resides by a parent or guardian who has removed the child without the consent of the other parent or guardian.
Hague Convention signatory countries
Over 90 countries are signatory to the Hague Convention of the Civil Aspects of International Child Abduction, including South Africa.
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. In South Africa, the Chief Family Advocate is designated as the Central Authority.
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?
An application must be made for the child’s return on behalf of the parent/guardian to the Central Authority of the signatory country that the child has been taken to or is being kept in.
Thereafter, the Central Authority must immediately take the following steps:
- 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, judicial or administrative proceedings must be instituted in order to ensure the safe return of the child to South Africa.
What are the Defences available to ward off an application for the return of a child to a member state?
Article 13 of the Hague Convention states that the judicial or administrative authority of the State requested to secure the return of a removed child is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
- the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;
- there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
- The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
Speak to a Family Law attorney
Whether you are in dire need of securing the return of a child which has been unlawfully removed from the Republic of South Africa, or alternatively opposing an application to secure the return of a minor child to the left behind parent, contact our Family Law attorneys immediately for appropriate advice.
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