Tackling the wrongful removal of children

Authorities are becoming increasingly strict in their attempts to reduce and reverse the wrongful removals of children from their country of residence.

In South Africa, an increase in wrongful removals of children has been fuelled by escalating divorce rates; parents electing to live and work overseas; and parents using independent ways of moving abroad without the consent of their child or children’s other parent or in contravention of court sanctions.

Wrongful removal is an issue that countries around the world struggle with, and which is taken so seriously that it is monitored and governed by The Hague. Member countries of The Hague Convention on the Civil Aspects of International Child Abduction include European nations, Commonwealth countries, the USA, Mauritius, Zimbabwe and South Africa. The convention is effectively a treaty or contract between countries to ensure the return of children who have been wrongfully removed from the country of their habitual residence.

The agreement is designed to create a simplified and speedy procedure for the return of children, and to keep them in the jurisdiction that is best suited to deal with the dispute surrounding their removal.

The removal of a child is seen as wrongful if it breaches any custody rights in the country where the child was living before they were moved, even if the custody rights had only recently been decided. It is also seen as a wrongful removal if the child was habitually resident in the contracting state immediately before the abduction, and if the child is under the age of 16.

If a child has been wrongfully removed, there are several steps that a caregiver can take to apply for their return.

Caregivers should approach the central authority of the country which the child was abducted from (in South Africa this is the Office of the Chief Family Advocate) or the central authority of the country where the child was abducted to.

Caregivers need to provide; proof of parental rights and responsibilities, recent photographs of the child and the abductor, a certified copy of the child’s birth certificate, a certified copy of the parents’ marriage certificate, if applicable, and an affidavit setting out the chronological events leading to the abduction.

If the child was abducted to a country that is part of the Hague convention, the Office of the Chief Family Advocate will send all the documentation to that state.

However, if the child was abducted to a state that isn’t part of the convention, the procedure is costly and more intricate. A South African court needs to order the removal as wrongful, that order then needs to be made an order of the foreign courts, and the foreign order then needs to be enforced and the child’s return arranged.

The contracting states will try to get the child voluntarily returned before referring the matter to the relevant judicial or administrative body.

It’s important to remember that that judicial or administrative body does not have to return the child to their original country of residence. A child would be less likely to be returned if:

  • The child’s caregiver was not actually exercising their parental rights of residency or contact at the time or had consented to the removal of the child; or
  • There is a risk that the child would be physically or psychologically harmed or placed in an intolerable situation if they were returned; or
  • The child objects to being returned and is old enough and mature enough for his or her views to be taken into account.

The wrongful abduction of children is clearly a complex issue and one that needs an understanding of the legal requirements and recourses. Without such an understanding, and an awareness of the processes involved, it is extremely difficult and frustrating for those facing a wrongful abduction case to have their voices heard.

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