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The "Kidnapping" of a minor child by its parent

I as an attorney have had many divorce roundtables and consultations where the question of an alleged “kidnapping” of a minor child has been raised.

In one case the parties were not married. The woman left the house where the parties were staying with the minor child, and moved back into her parents' home. She was reluctant to grant the father of the child access to the child, and threatened to open a charge of kidnapping against the father if he even as much as attended at the child's crèche to fetch the child from crèche.

In another case which I recently had, the parties were going through a divorce. The father had recently moved to a different province, but came down to Cape Town for a roundtable meeting in attempt to settle the divorce matter. Various scenarios were discussed, more particularly as to whether the young child was old enough to fly to another province to visit his father. The mother of the child alleged that the child was too young to fly himself, and suffered from “seperation anxiety” as a result of the father having left the matrimonial home.

She furthermore alleged that a psychologist had to be appointed to determine whether the young child was mentally sound enough to fly by himself to visit his father. She threatened to open a charge of “kidnapping” against the father of the child if he as much as came down to Cape Town to fetch the child for a visit. She insisted on a clause being inserted in the consent paper empowering her to open a charge of “kidnapping” in the event of the father removing the child without her consent. This is simply not a clause that is normally inserted in a consent paper, and the end result of the discussion was that she had the right to do so, but that this would not be included in the consent paper.

In a recent leading descision, S v H 2007 (3) SA 330 (C), the minor child's parents were unmarried. The father sought joint custody. The mother took the child to Switzerland without informing the father. The father alleged that the court had the right of custody over the child as provided for in article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (1980).

In the abovementioned case the Judge granted the order sought, and held that the court was vested with rights of custody. The father was then in a better position to institute proceedings in a Swiss court for the return of the child to South Africa.

“Kidnapping” of a child is a very serious allegation. In my opinion the parents of a minor child should rather strive to achieve a situation where it will not be necessary to raise allegations of this nature, and try to sort out access rights in a more amicable fashion, where allegations of criminal behaviour will not be necessary.

This article was written by Cape Town divorce lawyer, Peter M Baker

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