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Abduction of a minor - Latest case law

Abduction of the minor child cases are becoming quite common internationally. One of the latest cases which emphasises that the best interests and views of the minor child must always be taken into consideration in international abduction matters is that of Central Authority v MR (LS Intervening) 2011 (2) SA 428.

In the abovementioned case a nine year old minor child lived with her father in Belgium after her mother had passed away. Due to work commitments her father and her had to relocate to Los Angeles. The father remarried. At one stage after the relocation to the United States of America, the minor child had visited her grandmother from her mother's side in Hoedspruit, Limpopo. Even though it was just meant to be a visit, her grandmother never allowed her to go back to the United States of America.

The grandmother was of the view that it was in the best interests of the minor child to stay in Limpopo and not to return to the United States of America. She brought an ex parte application to keep the minor child in South Africa. An ex parte application is basically an application which is brought without having to give notice of the application to the other side.

On the grandmother's court papers, she asked that she be given full parental rights and responsibilities in respect of the minor child. The biological father however wanted the child to be returned to the United States of America. He claimed that it was in the child's best interests to be living with him as opposed to the maternal grandmother.

The grandmother was successful in the application, and the father's application was dismissed. The grandmother was awarded full parental rights and responsibilities in respect of the minor child, pending the outcome of the family advocate investigation.

In coming to its decision, the court looked at various factors. One of the factors was that the minor child had a quite a few family members in Limpopo. Family support is very important when it comes to matters of this nature. The court had furthermore looked at reports of the school teacher, social worker, educational psychologists and the counselling psychologist. All of them were of the view that the minor child was well settled in Limpopo.

The court also found that the minor child in this case was old enough to decide for herself where she wanted to stay. In terms of the Children's Act, the minor child has an opportunity to raise an objection to being returned.
In this case the child did have an objection and her opinion was taken into account. In my opinion this was the correct decision, and in the best interests of the minor child.

This article was written by Cape Town divorce lawyer, Peter M Baker
petermbaker@yahoo.com

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Postal address: Box 657, Howard Place, 7450, South Africa