Child Relocation 2025 Comparisons

In South Africa, the equivalent principle would be “parental responsibilities and rights”, and a person may have full or specific parental responsibilities and rights in respect of a child.

The acquisition and loss of parental responsibilities and rights in respect of a child are governed by Sections 18 to 49 of the Children’s Act 38 of 2005 (CA).

In terms of Section 18, CA, parental responsibilities and rights include the following:

• to care for the child;
• to maintain contact with the child;
• to act as guardian of the child; and
• to contribute to the maintenance of the child.

Unless the child was born as a result of a valid surrogacy agreement (Section 297(a) and (c), CA), the birth mother automatically acquires full parental responsibility and rights in respect of their child (Section 19, CA).

In terms of Section 20, CA, the biological father has full parental responsibilities and rights in respect of the child if:

• he is married to the child’s mother; or
• he was married to the child’s mother at the time:
1. of the child’s conception;
2. of the child’s birth; or
3. between the child’s conception and birth.

Section 21, CA provides that an unmarried father shall acquire full parental rights and responsibilities if, at the time of the birth of the child, he was living with the mother in a permanent life partnership; or he, regardless of whether he has lived with or is living with the mother:

• consents to being identified or successfully applies to be identified as the child’s father or pays customary law damages;
• contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
• contributes or has attempted in good faith to contribute to expenses/maintenance of the child for a reasonable period.

In South Africa, the absence of a biological link does not preclude a person from applying for parenting responsibilities and rights in respect of a child.

Adoption

Section 231(2), CA provides that a prospective adoptive parent must be:

• fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
• willing and able to undertake, exercise and maintain those responsibilities and rights;
• over the age of 18 years; and
• properly assessed by an adoption social worker for compliance.

A prospective adoptive parent may not be disqualified from adoption by virtue of their financial status (Section 231(4), CA). In the assessment of a prospective adoptive parent, an adoption social worker may take the cultural and community diversity of the adoptable child and prospective adoptive parent into consideration (Section 231(3), CA).

An application for an adoption order is made to the Children’s Court in accordance with Section 239 and Section 240, CA.

Surrogacy

Surrogacy agreements are regulated by Chapter 19, CA, which, inter alia, provides that:

• the agreement must be in writing, signed by all parties and confirmed by the court (Section 292(1)(a) and (e), CA);
• the commissioning parent or parents are not able to give birth to a child and that the condition is permanent and irreversible (Section 295(a), CA);
• no artificial fertilisation may take place prior to the court confirming the agreement (Section 296(1), CA); and
• the child born of the agreement is the child of the commissioning parents from birth (Section 297(1)(a), CA).

A surrogacy agreement would be invalid if the conception of the child born of the agreement was not effected by the use of the gametes of both commissioning parents or, if that is not possible due to biological, medical or other valid reasons, the gamete of at least one of the commissioning parents (Section 294, CA).

Whether the commissioning parent is the genetic parent or not, the same requirements are applicable before a court will confirm the surrogacy agreement.

In addition to the commissioning parent or parents having to furnish medical evidence to show the permanent and irreversible inability to give birth, they must also provide evidence showing that they are competent to enter into the agreement and are in all respects suitable persons to accept the parenthood of the child that is to be conceived; and evidence that they understand and accept the legal consequences of the agreement and their rights and obligations in terms thereof. In practice, fertility and psychologist expert reports are furnished to the court in support of these “competencies”.

Unlike in the instance of adoption, the CA does not expressly provide that prospective non-genetic surrogacy parents must be fit and proper to be entrusted with full parental responsibilities and rights in respect of the child and willing and able to undertake, exercise and maintain those responsibilities and rights.

Interested Parties

Section 23, CA provides that any person having an interest in the care, well-being or development of a child may apply to court for an order granting such interested party contact with or care of the child. In YCM v NDN (CA04/2024) [2024] ZAECMKHC 144 (10 December 2024), the applicant was the maternal grandmother who successfully applied for rights of contact in respect of her grandchildren after the death of their mother (her deceased daughter).

Care and Contact

In South Africa, “care” and “contact” can be likened to “custody” and “access”. However, in terms of the CA, they both encompass much broader qualities as follows.

Care

“Care” includes, where appropriate:

• within available means, providing the child with a suitable place to live, living conditions that are conducive to the child’s health, well-being and development, and the necessary financial support;
• safeguarding and promoting the well-being of the child;
• protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
• respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of the CA;
• guiding, directing and securing the child’s education and upbringing, including religious and cultural education and upbringing in a manner appropriate to the child’s age, maturity and stage of development;
• guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity and stage of development;
• guiding the behaviour of the child in a humane manner;
• maintaining a sound relationship with the child;
• accommodating any special needs that the child may have; and
• generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

Contact

“Contact”, in relation to a child, means:

• maintaining a personal relationship with the child; and
• if the child lives with someone else, communication on a regular basis with the child.

On application by an interested party in terms of Section 23CA, the court must take into account:

• the best interests of the child;
• the relationship between the interested party and the child, and any other relevant person and the child;
• the degree of commitment that the interested party has shown towards the child;
• the extent to which the interested party has contributed towards expenses in connection with the birth and maintenance of the child; and
• any other fact that should, in the opinion of the court, be taken into account.

An order in terms of Section 23, CA does not affect the parental responsibilities and rights that any other person may have in respect of the same child (Section 23(4), CA).

Guardianship

Section 24, CA provides for an application by an interested party for guardianship of the child.

“Guardianship” is a specific parental responsibility and right in relation to a child (Section 18(2)(c), CA). Unless otherwise stated, in terms of Section 18(3), CA, only a guardian of a child may:

• administer and safeguard the child’s property and property interests;
• assist or represent the child in administrative, contractual and other legal matters; or
• give or refuse any consent required by law in respect of the child, including in regard to the following:
1. consent to the child’s marriage;
2. consent to the child’s adoption;
3. consent to the child’s departure or removal from the Republic;
4. consent to the child’s application for a passport; and
5. consent to the alienation or encumbrance of any immovable property of the child.

On application by an interested party for guardianship, the court must consider the same factors as it would in terms of Section 23, CA, and, where the child already has a guardian, the interested party must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child (Section 24(3), CA).

In RC v SC 2023 4 SA 231 (GJ), a former life partner successfully applied for rights of care, contact and co-guardianship of his former life partner’s biological child. The court held that as upper guardian of all children, it could, in the best interests of a child, grant joint guardianship without having to find that the existing guardian was unsuitable.

See 1.3 Requirements for Fathers.

There is no differentiation between heterosexual and same-sex couples during the process of obtaining parental responsibility.

In addition to what is set out in 1.4 Requirements for Non-Genetic Parents, prior to an application being made to court for an adoption order, it must first be determined that the proposed adoption is in the best interests of the child and that the child is adoptable (Section 230(1), CA).

Section 230(3), CA provides that a child is adoptable in the following circumstances:

• the child is an orphan and has no guardian or caregiver who is willing to adopt the child;
• the whereabouts of the child’s parent or guardian cannot be established;
• the child has been abandoned;
• the child’s parent or guardian has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected;
• the child is in need of a permanent alternative placement;
• the child is the stepchild of the person intending to adopt; or
• the child’s parent or guardian has consented to the adoption, unless consent is not required.

The consent of all co-guardians is required for the relocation/removal of a child from South Africa (Section 18(5), CA).

An application will have to be brought to the High Court, as upper guardian of all minor children, to dispense with the co-guardian’s consent and it will have to be shown that the proposed relocation is in the child/children’s best interests.

Whilst the CA does not expressly provide that co-guardians must furnish consent for relocation within the borders of SA, where decisions are required to be made that affect contact between the child and co-holder and are likely to cause significant change, or have an adverse effect on the child’s well-being, due consideration must first be given to any views and wishes expressed by the co-holder of parental responsibilities and rights, as well as that of the child (Section 31, CA). Section 7(1)(f), CA requires that the courts, when considering the best interests of the child concerned, take into account the need for the child:

• to remain in the care of the child’s parent, family and extended family; and
• to maintain a connection with the child’s family, extended family, culture or tradition.

In terms of Section 139(1)(b), CAit is unlawfulto take a child out of South Africa without the consent of their co-guardian (Section 18(3)(c)(iii) and (5), CA).

South Africa is a signatory to the Hague Convention and the Office of the Family Advocate is the designated Central Authority. If a child has been wrongfully removed from South Africa and taken to another Hague Convention country, the person with rights of custody in terms of the Convention can apply to the Central Authority for assistance in returning the child; alternatively, they can apply directly to court for an application for the return. If the Central Authority is unable to secure the return of the child voluntarily, the Central Authority shall bring an application to court within the jurisdiction in the country where the child is being retained. Where the child has been removed from South Africa and then retained in a non-Hague Convention country, the person with rights of custody can still approach the Central Authority for assistance. However, the other country is not obliged to assist nor are they automatically competent to compel the return of the child. In this case, it may be necessary to bring an application in the SA High Court for the child’s return: an order for repatriation in the best interests of the child.

South Africa is a signatory to the 1980 Hague Convention. Free legal advice is available from the Legal Aid Board for those who qualify in terms of the means test. Alternatively, the Central Authority is required to take measures to facilitate the provision of legal aid and advice to parties to the proceedings. In practice, however, most parties instruct attorneys in private practice to assist at a cost. South Africa does not have a centralised database for Hague Abduction cases, but local resources such as SAFLII can be accessed as well as INCADAT.

SA courts endeavour to implement a swift return policy in the interests of the child, but there have sometimes been delays. Each High Court has a Hague Judge and Justice Mocumie of the SCA is the Hague Liaison Judge. Section 28(h) of the SA Constitution states that every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result. Section 279, CA provides that a legal representative must represent the child in all applications in terms of the Hague Convention on International Child Abduction.

See 3.2 Steps Taken to Return Abducted Children.