ver the past ten years, moreSouth Africans became married but both the marriage andthe divorce rates have fluctuated, according to Statistics South Africa figures released in August 2008.
Africa in 2006 - the latest available figures - an increase of 26 percentfrom 10 years ago.
A total of 30 242 children were affected by divorce in 2006.
As the country and economychange, many parents are workingabroad, some of whom leave children behind, while others emigratewith their dependents. Divorced /separated parents come to careand visitation agreements in thisregard, when matters are dealt withamicably. However in other cases, parents do not see eye to eye and one will flee the country with the child. In some instances parentsresort to self-help by relocatingchildren to a jurisdiction where theyhope for a favourable outcomein either divorce, care or contactproceedings.
These are cases of Parental Abduction. Because of different laws, cultural views and perceptions ofmen's and women's role in society, Parental Abduction cases are challenging.
Hague Convention of 25 October1980 on the Civil Aspects of International Child Abduction.
By doing so, those countries haveincurred certain obligations, similarto that arising out of a contract.
This is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have beenwrongfully removed.
Habitual residence sometimes differs /or from citizenship and nationality.
The Convention is not only aboutreturn, but through Article 21 also makes provision forcontact, removal of obstaclesthat may prevent effectiveexercise of parent-child contact. Central Authorities are duty-bound as with returnapplications to perform dutiesemanating from Article 21.
The Hague Convention aims tocurb international abductions of children by providing judicial remedies to those seeking the returnof a child who has been wrongfullyremoved or retained. It provides a simplified procedure for seeking the return of a child to his/her country of habitual residence. It should be noted that purpose of the speedyreturn is to place the child in thejurisdiction of a court that is bestapprised to deal with the merits ofthe parental dispute.
As a matter of fact, the child canremain in the care of the abducting parent, if they choose to returntogether with the child.
3.at the time of removal, petitioning parent was exercisingthose rights.
Chief Family Advocate Petunia Seabi is an expert on such matters. She explains how SouthAfrican law deals with cases of Parental Abduction, using the Hague Convention and the Children's Act as points of departure.
Q: What can South African parents do when a former spouse has abducted a child and taken them abroad?
The left behind parent should try as much as possible to establish the details of the departure and destination of the abductingparent and/or the child.
Chief Family Advocate or the Central Authority of the country where the child has been abducted to. The abducted child must be below sixteen years of age.
Original/certified copies of setting out cutody/guardianshiprights. Examples of these are marriage certificate, courtorders granting the alleged rights, unabridged birth certificates, etc.
The left behind parent will also be required to complete a prescribed form which is used by central authorities in most of the contracting countries.
Q: What are the steps taken in recovering an abductedchild, in terms of the Hague Convention and SA Children's Act?
The RSA Central Authority immediately after receipt of the necessary documents considers the legal aspects of the requestas well as the Convention status of the country to which thechild has been taken. If the child has been taken to a contract ing country and all legalities have been satisfied, the C.A. will compile a bundle and forward the application to the foreignC.A, requesting prompt return of the child. The procedure does not apply where a child has been taken to a non-Conventioncountry.
All C.A.'s are required by the Convention to take steps to obtain a voluntary return of the child. This is done through cross-border mediation. Litigation is resorted to in the event that the mediation fails. This approach is also consistent with the general principles set out in the Children's Act, namely, that in any matter concerning a child 'an approach which is conducive to conciliation and problem-solving should be followed'.
It is however, important that the left-behind parent alert the Central Authority to the possibility of further movement/possible harm to the child, should the abducting parent know of theapplication for return. In such cases the C.A. will take steps toobtain an urgent court order to prevent further movement of, orpossible harm to the child.
Q: How does the Hague Convention on the Civil Aspects of International Child Abduction relate to custody rulings made in South African civil courts?
Two scenarios arise in this regard. First, an order granting custody can be used as proof of parental rights by the parentseeking return of their abducted child. Second, is where anabductor seeks an order in the RSA court, which will have an effect of ratifying the wrongfulness of the removal or retention of the child in S.A. In this case the Central Authority will invoke article 16 of the Convention to stop/suspend the proceedings untila decision has been made on the return of the child to his/hercountry of habitual residence. The judicial authorities/courts of a contracting state to which a child has been taken or retained arerequired by the Convention not decide on the merits of custodyrights until a determination has been made that the child will notbe returned.
Q: There are limitations to the treaty's application, in thatthe Convention applies only between countries that haveadopted it as "Contracting States." What are the procedures for recovering a child from a non Contracting State?
From a South African perspective, it is advisable that the leftbehind parent obtain an order through the normal civil procedures, that declare the removal/retention of the child unlawfuland a breach of their parental rights. Once such an order hasbeen obtained, the left behind parent must obtain a mirror orderor an order for enforcement in the foreign jurisdiction whichalso orders return of the child.
January/February 2009 Justice Today l 25 it involves the instruction of lawyers inforeign countries. For this reason, theHague Conference on Private International Law is taking steps to encourageother countries to consider contractingunder this Convention.
Q: What are the countries whichsubscribe to the Hague Convention?
Most European, Commonwealth countries and the USA. In Africa, the RSA, Mauritius and Zimbabwe only. The latter has however not designated a centralauthority. We need to take urgent steps to encourage the countries with which weshare national borders as well as other African states to enter into mutual child protection agreements, given the vastnumbers of minor children moving acrossour respective borders, some even unaccompanied or without any form of adultsupervision.
Q: If the parent who has taken achild overseas feels that the parent inSouth Africa is abusive, a danger to the child or cannot provide adequatecare; how do they go about defendingtheir actions, in terms the Hague Convention and SA Children's Act?
The Convention makes provision for theabducting parent to oppose the application for return. Where the abductingparent establishes that there is a graverisk that the return sought will expose thechild to physical, psychological harm, orwould place the child in intolerable situation, then the court hearing the application is not bound to order return. It should be noted that mere allegations of graverisk will not persuade a court to refusethe return; it must be shown that the riskis a serious or that the envisaged harm is of significant proportion.
Q: Are there timeframes that apply under the Hague Convention on theCivil Aspects of International Child Abduction?
Among the most popular defences thathave been raised in return applicationsis that the child objects to the return. Insuch instances, an assessment must bemade, usually through the assistanceof a Family Counsellor or psychologist, whether the child possesses sufficient maturity to form a viewpoint that the court may consider. The child's reasons for the objection will also be examined in order to exclude possible influence by the abducting parent.
Some of the defences available are that the removal was not wrongful, that theleft behind parent was not exercising his/her parental rights at the time of removalor retention, or that the left behind parenthad agreed or subsequently acquiescedto the removal/retention.
Where available evidence indicates that the child has become settled in the new environment the court may not necessarily order a return.
In cases where a child's return would be contrary to the RSA's fundamental principles relating to protection of human rightsand fundamental freedoms, our courts are courts are also under no obligation toorder return.
Children who have attained the ageof 16 years are not covered by theConvention.
If a child has been wrongfullyremoved for less than one year, the child's removal is to be ordered forthwith under the Convention. The Convention makes it mandatory forthe judicial authority to order return.
If a child has been wrongfully removed for more than one year, the child should still be returned but an exception is allowed -a court maychoose not to return the child if there is evidence that the child is settled in his/her new environment. The court has a discretion to order/refuse thereturn.
Courts and administrative authorities should act quickly in such cases butif one has not reached a decision within six weeks from the date proceedings commenced, an applicantor the Central Authority of the requested State may officially requesta reason for the delay.
The Convention only applies towrongful removals/retentions occurring after the treaty became effective between the involved countries.
Generally, the Convention requires that countries act without delayin child abduction cases that fall within its parameters. It is one ofthe objectives of the Conventionto protect children internationallyfrom the harmful effects of wrongful removal or retention and to establish procedures of ensuring promptreturn of children to their countryof habitual residence. The aim is to ensure that a competent court in thecountry of habitual residence decideon the merits of custody, access and even permanent removal to anothercountry.
This is based on the premise thatcourt in the country of habitualresidence is better apprised to obtainall relevant evidence regarding themerits of custody, care and contact and in a better position to grant anorder that will be in the best interests of and/or least detrimental to thewelfare of the child. For this reason, the Hague Convention is deemedto be consistent with our applicablelaws and the Constitution, throughaffording the best interests of the child paramount importance.