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Article by listed attorney: Fawzia Khan

Having one’s child wrongfully retained or removed from a place or country must rank as one of the most difficult and anguishing scenarios any parent could face. Wrongful retention or removal of a child is where parents either share custody or have access to the child and one of the parents then takes the child away from the place where the child habitually resides.

Having a child wrongfully removed to another city or town is stressful enough and the parent, with whom the court has ordered the child to live with, can approach the local court for relief as well as obtain the assistance of the police in locating and having the child returned.  What happens if the parent manages to leave South Africa taking the child with him or her? Assuming off course, you know which country the child has been removed to, you would need to approach that foreign government authority or embassy and also have to consider the laws of that country. It could prove to be a monumental challenge involving private international laws without any guarantee of success for the return of the child.

The good news is that Article 3 of the Schedule to the Hague Convention on The Civil Aspects of International Child Abduction Act 72 of 1996 (‘the Hague Convention’), of which South Africa is a signatory, can come to the rescue of such a parent. The parent can then file a petition under the Convention for the return of the child. The Convention stipulates that children who are wrongfully removed from the country in which they habitually reside must forthwith be returned back to the home of their primary residency. Both the country where the child has moved to as well as the country where the child habitually resides must be a signatory to the Convention. The child must be 16 years old or younger. A further condition is that the child must not have been removed for more than a year, before the petition was filed. The Hague Convention cannot be used to determine which parent has a better right of access or custody of a child. Their role is simply to ensure that the child is returned to the country of habitual residence. Should a parent then wish to prove that he or she is the better custodial parent or that it’s not in the child’s best interests’ to remain in the place of habitual residence, that parent must do so in that country or jurisdiction where the child resides.  It would be a reasonable defence for the parent who removed the children more than a year ago to prove that the child have adjusted to their surroundings and should not be moved.

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