Child Relocation 2023 Comparisons

The equivalent principle in South African Law is known as “parental responsibilities and rights” which is governed by Chapter 3 of the Children’s Act 38 of 2005 (the “Children’s Act”). Section 18 of the Act defines the principle. Parental responsibilities and rights comprise of the responsibility and right to care for the child, maintain contact with the child, act as guardian of the child and to contribute towards the maintenance of the child.

The biological mother does not need to meet any requirements to obtain parental responsibilities and rights. In terms of Section 19 of the Children’s Act, the mother automatically acquires parental responsibilities and rights.

The Children’s Act differentiates between biological fathers who are married to the mother of the child and fathers who are unmarried. Therefore, the father of a child does not have automatic responsibilities and rights.

Married Biological Fathers

In terms of Section 20 of the Children’s Act, the biological father of a child acquires full parental responsibilities and rights in respect of a child if he is either:

• married to the child’s mother; or
• if he was married to the child’s mother at the time of conception, birth or any time between the child’s conception and birth. 

Unmarried Biological Fathers

In terms of Section 21 of the Children’s Act, an unmarried biological father of a child acquires full parental responsibilities and rights in respect of a child:

• if at the time of the birth of the child, he is living with the mother in a permanent life-partnership; or
• if he, regardless of whether he has lived or is living with the mother:
1. consents to be identified or successfully applies to be identified as the child’s father or pays damages in terms of customary law;
2. contributes or has attempted in good faith to contribute towards the child’s upbringing for a reasonable period; and
3. contributes or attempts in good faith to contribute towards the expenses/maintenance of the child for a reasonable period.

The rights of a child conceived by artificial fertilisation are regulated by Section 40 and 41 of Children’s Act. 

Section 40(3) states that no right, responsibility or duty or obligation automatically arises between a child born of a woman as a result artificial fertilisation and any person whose gamete(s) were utilised for artificial fertilisation or the blood relations of that person, unless:

• that person is the woman who gave birth to that child; or
• that person was the husband of such woman at the time of such artificial fertilisation. 

The provision in its current form is exclusionary to unmarried persons in respect of both heterosexual and same-sex relationships. This effectively means that a party who does not fall within the scope of Section 40(3), regardless of having contributed gamete(s), has to apply for parental rights and responsibilities in terms of Sections 23 and 24 of the Children’s Act.

The aforesaid sections relate to the assignment of guardianship and/or care and contact by order of court.  Applications in terms of these sections may be brought by “any person having an interest in the care, well-being or development of a child.”

Fathers who are married to the mother of a child, either when they are conceived, born or any time between conception and birth, acquire full responsibilities and rights by virtue of the marriage. However, fathers who are unmarried to the mother of a child will need to establish certain requirements before they acquire full responsibilities and rights. This is elaborated on in paragraph 1.3 Requirements for Fathers.

However, a mother of a child, whether married or unmarried, acquires full responsibilities and rights in respect of a child automatically.

Currently, persons in a same-sex relationship who have conceived a child by way of artificial fertilisation have to apply for parental rights and responsibilities in terms of sections 23 and 24 of the Children’s Act.

However, the Constitutional Court, in a recent landmark decision, VJV and Another v Minister of Social Development and Another (2023), declared Section 40 of the Children’s Act unconstitutional to the extent that it unfairly and unjustifiably discriminated based on marital status and sexual orientation. The case involved a lesbian couple who utilised artificial fertilisation to conceive a child. The court ordered the insertion of “or permanent life partner” after the words “spouse” and “husband” when they appear in Section 40 of the Children’s Act.

The invalidity of the provision is suspended for a period of time, but it will soon mean that same-sex partners (in a permanent life partnership) who had a child together through artificial fertilisation will automatically be regarded as the legal parents of a child and acquire full responsibilities and rights.

There has been substantial progress in equalising the rights of same-sex partners in obtaining parental rights and responsibilities, specifically in respect of adoption.

The Constitutional Court ruling in Du Toit and De Vos v Minister of Welfare and Population Development and Others (2002) declared provisions of the Child Care Act and Guardianship Act unconstitutional, thereby enabling same-sex couples to jointly adopt children and to allow one partner to adopt the other’s child(ren). See below adoption process. The Child Care Act and Guardianship Act have subsequently been replaced with the Children’s Act which mirrors the ruling made in the aforesaid judgment and has homogenised the adoption process for both same-sex and heterosexual partners.

Overview of the Adoption Process

Chapter 15 of the Children’s Act regulates adoption of children in South Africa. The definition of a parent includes the adoptive parent of a child.

In terms of Section 242(2) of the Children’s Act, an adoption order confers full parental rights and responsibilities in respect of the adoptive child upon the adoptive parent.

The Children’s Act distinguishes between children who are adoptable and imposes limitations on the parties who are eligible to apply for an adoption order.

A child can be jointly adopted by a heterosexual married couple, partners in a domestic permanent life partnership or persons who share a common home and form a family unit. Alternatively, by a divorcee, widow(er), unmarried person, foster parent, biological father of a child born out of wedlock or spouse of the child’s biological parent.

An application to adopt a child must be made to a Children’s Court and be accompanied by a report prepared by an adoption social worker. Further, a recommendation letter from the provincial head of social development must be provided. Once the adoption is approved and finalised, the adoptive parent(s) acquire full parental responsibilities and rights.

Inter-country Adoption

The authors will specifically focus on adoptions where South Africa is the country of origin and the adoption is processed with another foreign country which is the member state of the Hague Convention. Designated child protection organisations accredited in line with Section 259 of the Children’s Act to do inter-country adoptions can be approached to assist with these types of adoptions.

Inter-country adoptions can take place where a working agreement between South Africa and the other Hague country has been established and approved by the Central Authorities of the two countries, unless the child is being adopted by a blood-related family member.

According to Section 261 of the Children’s Act, prospective parents habitually resident in a foreign country interested in adopting a child habitually resident in South Africa must apply to the Central Authority in their country. If the Central Authority is satisfied that the applicant is a fit and proper person to adopt, they will send a report in line with the requirements of the Hague Convention on Inter-country Adoption to the Central Authority of South Africa. If both the South African Central Authority and the Central Authority of the convention country consent to the adoption, the Central Authority will refer the adoption application to the Children’s Court for consideration in terms of Section 240 of the Children’s Act. The court will grant the adoption in the event that Section 240 and Section 231 of the Children’s Act are complied with.

However, the South African Central Authority may withdraw its consent within 140 days of granting its consent if it is in the child’s best interest. The child with thereafter have to be returned to South Africa.

In circumstances where a parent wishes to relocate his/her minor child/children, there are specific laws that he/she will need to be aware of. Section 18 of the Children’s Act provides a guideline to parents’ rights and responsibilities in South Africa.

Section 18(3)(c)(iii) and(iv) states that, subject to subsections (4) and (5), a parent or guardian must provide consent for a child to leave the country or apply for a passport. Section 18(4) and (5) further state that when multiple guardians share responsibility for a child, each of them can, in line with subsection 5 and subject to other laws or court orders, independently carry out their duties or rights associated with guardianship without requiring the other’s consent. Further, unless directed by a competent court, the agreement of all guardians is required for decisions relating to the child.

In South Africa, common law provides a principle that the High Court of South Africa acts as an upper guardian of all children under the age of 18. Where all the required consent cannot be obtained, the parent/guardian seeking consent will then need to bring an application to the High Court of South Africa for an order dispensing with the consent of the other parent/guardian.

If the relocation is to a nearby location, the relocating parent will not need to obtain the “left behind” parent’s consent to relocate. If the parties have a parenting plan in place and/or a maintenance agreement, they may need to make certain variations to cater for the new situation.

If the relocation is some distance away, the relocating parent will not need to obtain the “left behind” parent’s consent to relocate but will need their consent in the event that the child needs to change schools. If the parties have a parenting plan in place and/or a maintenance agreement, they may need to make certain variations to cater for the new situation.

If the relocation is to a separate area with a distinct legal structure, it will be treated similar to that of an international relocation.

Section 139(1) of the Children’s Act 38 of 2005 confirms that it is unlawful to remove a child from the Republic of South Africa without consent.

The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) aims to facilitate the return of children who have been wrongfully removed from their home country or retained in another country. Such circumstances could include where a child has been removed from their jurisdiction without lawful consent.

Return of a Child in Terms of the Hague Convention

If a child has been removed from a jurisdiction without the relevant consent, one can apply to the Central Authority for assistance in returning the child. This can be the Central Authority in either the country where the child is habitually resident or the country where the child is to be returned from. The person applying for the return of a child must have had rights of custody in respect of the child at the time of the wrongful removal/retention of the child. The application to the Central Authority must contain the grounds on which the claim for return is based, as well all information relevant to identify the child (including their date of birth if possible). Any information available regarding the person who is alleged to have removed or retained the child, as well as the child’s current whereabouts, must also be supplied where possible.

All countries which have adopted the Hague Convention are required to have a Central Authority. The Central Authority is a department designated to uphold the Hague Convention by facilitating the return of children to their country of habitual residence. The Central Authorities of the respective countries involved in a particular matter are required to co-operate with each other. Procedures are to be implemented to locate the child, familiarise each other with the applicable laws in their respective jurisdictions and aid in promptly securing the return of the child. This assistance includes the provision of information relating to the child as well as the obligation to assist each other in resolving difficulties in the operation of the convention.

Article 19 of the Hague Convention describes that a primary goal of the convention is to ensure the swift return of a child. Therefore, the Central Authority whose assistance has been requested, must act without delay, and immediately inform the Central Authorities of states where the child is suspected or known to be of the application and transmit it to them. Once the Central Authority where the child is suspected to be resided receives the application, it must then take all reasonable steps to arrange the voluntary return of the child.

Despite the efforts of the Central Authority, it is not always possible to secure the voluntary return of the child. In such circumstances the Central Authority is authorised to bring an application to the court with jurisdiction in the country where the child is living or is being retained. The application will be brought by the Central Authority against the person who removed or is retaining the child to seek an order requiring the child’s return. If the Central Authority fails to bring the application timeously or at all, an interested party may also bring the application. Where an interested party is required to bring the application, courts have taken a dim view of the failure to act and have made costs orders against the Central Authority.

Application of the Hague Convention

The Hague Convention will apply if the child in question is: 

• under the age of 16;
• habitually resident in a country which is a signatory of the Hague Convention;
• in a country which has ratified the Hague Convention into its law;
• to be returned from another country which is also a signatory of the convention; and
• in a country which has likewise ratified the Hague Convention into its law.

Signature v Ratification of the Hague Convention

The steps to return a child to their country of habitual residence in terms of the Hague Convention can only be taken between states which have both become signatories and have ratified it into their law. This means that the Hague Convention cannot be used to return a child where the country the child is habitually resident or where they are taken to is not a signatory. In addition, where a country is a signatory to the Hague Convention, but has not adopted it into its domestic law, the Hague Convention would not be applicable.

The Vienna Convention of the Law of Treaties 1969 explains the adoption of treaties and conventions and their binding nature on states. Article 10 read with Article 18 thereof provides that when a country becomes a signatory to a convention, they do not actually become bound to it yet. The signature only indicates that the state is going to “ratify” the convention by adopting it into its domestic law. Only once the signatory has ratified the treaty does it become bound to its contents and only then can the country enforce the convention on other convention counties or have it be enforceable against them.

South Africa is a signatory of the Hague Convention and has ratified it into law in terms of the Children’s Act.

Charges and Legal Costs

In terms of Article 7(g) of the Hague Convention, the Central Authority must take measures to facilitate the provision of legal aid and advice to persons participating in the process. In terms of Section 278(3) of the Children’s Act, this requirement extends to the child, who legally must be represented in the proceedings. As the Central Authority is a public facility, it may not charge for any of its services in respect of applications made to it. In addition, Article 7(2) authorises a court to order the person who abducted the child to pay for the costs incurred by the applicant in securing and arranging for the return of the child. There are, however, other legal costs which may arise that the parties could be liable for, such as the costs of legal representation and counsel relating to the return of the child.

When South Africa acceded to the Hague Convention, it did so on the basis that the state would not be required to cover the costs of court proceedings in terms thereof as per Article 42(1). It is possible for some of these costs to be absorbed by the state in the provision of state-funded legal services through Legal Aid South Africa, which provides legal assistance to persons meeting certain criteria. This criterion is largely based on the financial means of a person which must be below an amount determined by the Legal Aid Board from time to time. Legal Aid in South Africa is generally not available to non-citizens, however, in cases involving children it may be extended to a person who is permanently resident in South Africa.

Links to Central Authority Case Law

Hague

Incadat

Application of the Hague Convention by Courts in South Africa

In the application of the Hague Convention in South Africa, courts operate under the rebuttable presumption that it is generally in the child’s best interests to be returned to their country of habitual residence. In cases where the child has been removed for less than a year, a court must order their return if it finds that the Hague Convention is applicable. There are certain exceptions that exist where the court is not required to order the return, but in such circumstances, the court may exercise its discretion to do so anyway. Exceptional circumstances which would suffice to justify the court not ordering the return of the child would include where it would be contrary to public policy to do so. Where the child has been removed for more than a year, unless it is found that the child has settled in the country they are currently residing, the court must still order the return.

Notwithstanding the strict approach of South African courts, certain defences to a return application have been raised successfully. Particularly persuasive defences include the following.

• A child may object to being returned. The views of the child must be considered by the court, provided that the child is shown to possess sufficient maturity to understand and take a stance on the matter.
• A “removing” person may show that the removal was not wrongful. Circumstances where this has been accepted include where it is proved that there was consent to remove the child either at the time of removal or subsequent thereto through acquiescence.

In South Africa, in matters which do not fall within the Hague Convention, the common law would apply. Where a child has been wrongfully removed or retained, but is not subject to the Hague Convention, a person with access rights to the child may still make an application to the Central Authority for assistance. In such a circumstance, the relevant Central Authority may assist in the matter but is under no obligation to do so. The Central Authority can likewise not enforce rights in terms of the Hague Convention on another Central Authority in the respective state nor are they automatically competent to bring an application to compel the return of the child.

Where the common law is applicable and it is necessary to compel to the return of a child who is being held in South Africa, the person with rights of access can apply to the High Court for an order requiring the child’s return. Unlike in the Hague Convention, the court may exercise discretion regardless of how briefly the child has been in the country. Such discretion must always have regard to the best interests of the child. In the decision Fletcher v Fletcher 1948 (1) SA 130 (A) this was held to be a fundamental principle in all cases concerning custody or access to children. The Appellate Division confirmed that this is the most important factor and should be considered at all times and ahead of the rights of parents.

Costs and Average Timescale for Applications Under the Hague

There is no clear-cut answer to what the timescale for an application brought under the Hague is. Every application needs to undergo evaluation based on its specific qualities, and each foreign nation follows its own set of steps, protocols and timeframes. The duration of the process relies on variables like whether a voluntary return happens, if the application goes to court, and if the decision gets challenged. While courts and administrative bodies should handle these matters promptly, the Central Authority advises that if a decision is not reached within six weeks of starting proceedings, the applicant or the relevant Central Authority can formally ask for an explanation for the cause of the delay.

The cost of an application relies on the country where the child is situated. Generally, the Central Authority will assist the applicant free of charge, however, in some countries the applicant will be required to either contribute fully or partially to the cost of legal representation.

In respect of child abduction cases involving a state which is not part of the Hague Convention, the protocols and procedures vary depending on the countries involved. Some countries have concluded agreements, outside of the Hague Convention, which provide for remedies in the cases of child abduction between their respective borders. Other jurisdictions have sophisticated common law protocols in place to facilitate the return of children.

In South Africa in matters which do not fall within the Hague Convention, the common law would apply. Where a child has been wrongfully removed or retained, but is not subject to the Hague Convention, a person with access rights to the child may still make an application to the Central Authority for assistance. In such a circumstance the relevant Central Authority may assist in the matter but is under no obligation to do so. The Central Authority can likewise not enforce rights in terms of the Hague Convention on another Central Authority in the respective state nor are they automatically competent to bring an application to compel the return of the child.

Where the common law is applicable and it is necessary to compel to the return of a child who is being held in South Africa or abroad, the person with rights of access can apply to the High Court for an order requiring the child’s return. This is known as an order for repatriation. Unlike in the Hague Convention, the court may exercise discretion regardless of how briefly the child has been in the country. Such discretion must always have regard to the best interests of the child. In the decision Fletcher v Fletcher 1948 (1) SA 130 (A) this was held to be a fundamental principle in all cases concerning custody or access to children. The Supreme Court of Appeal in F v F [2006] 1 All SA 571 (SCA) confirmed that this remains the most important factor and should be considered at all times and ahead of the rights of parents.

Often a child is removed from a country in the middle of an ongoing dispute regarding care and contact. Under South African common law, a party seeking the repatriation of a child does not need to await the finality of other issues in dispute; provided the party is able to prove that the child was removed from South Africa without the required consent or authority, the child’s return may be sought on application to the court on an urgent basis.

The decision of P v P [2020] 2 All SA 587 (WCC) concerns the appeal of a relocation order sought by the father that his children should be able to immigrate to Alaska with him. The court a quo granted the order for relocation, however, the children’s mother took the judgment on appeal. In between the time in which the order was granted and the mother filing her notice to appeal, the father removed the children from the republic and took them to Alaska. The children’s mother then brought an urgent repatriation order, which was granted by Cloete J with punitive costs. In considering the finding of Cloete J, the Appellant division held that the order and the punitive costs were appropriate in the circumstances. The father had removed the children from the republic with the knowledge that for all intents and purposes, an appeal was pending. This was sufficient to indicate no consent or authority was present.

The court in P v P was disapproving of the conduct of the children’s father in using the procedural difficulties experienced by the mother in lodging her appeal as an opportunity to remove the children from the republic particularly without the knowledge of the mother. In this instance, the children had, on the father’s version, wanted to relocate without informing their mother. In evaluating this submission, it was held that the children were not in a position to make such a decision and it was considered to be “morally reprehensible” to have not allowed them to say goodbye and to have “wretched them away from their mother by subterfuge”. The appellate division further recorded that the father attempted to appeal the repatriation order, however, Cloete J refused that request for appeal on the basis that she found that there was no evidence to show that the partial repatriation until the appeal process was finalised would jeopardise the children.