Child abduction & Children's Act

Abduction of a minor child and the other spouse's rights of access in terms of the Children's Act

Quite often in a divorce matter, one party tries to get the upper hand and simply removes a minor child to a different country without the consent of the other spouse. They want a clean break from the person whom they are divorcing or whom they have divorced and simply move to another country. This is however not allowed according to the Children’s Act. It can only be allowed if there is a Court Order allowing it.

A recent case involving abduction of a minor child came to the High Court before Judge Siraj Desai. A couple had been married and a child was born in February 2007 in Belgium. According to the reports the couple and the child had lived in various countries including Turkey, Germany and Belgium. They had also stayed in South Africa for a short while in 2008 and had then returned to Belgium where the marriage had broken down irretrievably.

The mother of the child according to the reports is a South African citizen and in 2009 she apparently left Belgium with the child and returned to South Africa. This was after a Belgian Court had granted rights of contact and visitation to the father.

The father then spent much money trying to locate the child. The Family Advocate got involved in trying to establish the whereabouts of the child. Judge Desai in the Cape High Court accepted, in the end, the father’s argument that in terms of the Hague Convention, the removal of the child was unlawful, and that South Africa is a signatory to the Hague Convention.

The mother’s argument had been that she believed that it was in the best interest of the child that the child be removed from Belgium. She alleged that she was struggling financially and could not afford to stay in Belgium, and that the system in Belgium had failed her and her daughter’s needs. She alleged further that the father had neglected the child and that the child feared her father.

The Court rejected the mother’s arguments. One of the arguments was that the mother felt that it was not in the best interests of the child to have contact to the father. It is only in exceptional cases that no contact is awarded to one of the parents in South African Law. The courts these days in terms of the new Children’s Act encourage an equal participation by both parents in the life of the child. In fact, even if one of the parents has been incarcerated and has a criminal record, the courts would still award contact to that parent even if it is supervised.

One of the mother’s further arguments had been that the parties had intended to live in South Africa permanently. This argument was rejected by the Court. The Court agreed with the father’s argument that South Africa was not the habitual residence of the parties. The mother in fact had gone into hiding for two years and had taken extreme measures to frustrate the father’s contact to the child.

The Court in the end found that there was no indication that the child would not be properly cared for by her father and his mother. This decision was no doubt in line with the recommendations of the new Children’s Act which encourages equal participation by both parents in the life of the child.