SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
3. Child Abduction 3.1 Legality
sympathy from the court. The best interests of the child/children remains the paramount concern. 2.3.8 Costs of an Application for Relocation An opposed relocation can cost anything from ZAR150,000 to ZAR550,000. 2.3.9 Time Taken by an Application for Relocation Applications for relocation typically take from six months to a year. 2.3.10 Primary Caregivers Versus Left-Behind Parents In the past, the courts appeared to be more pro-relo - cation, which was underscored by a presumption in favour of the primary carer. Today, however, decisions vary and there does not appear to be any bias towards either parent as the decision is ultimately made in the best interests of the child/children, having regard to the specific facts of the case and all of the various considerations. 2.4 Relocation Within a Jurisdiction Whilst the CA does not expressly provide that co- guardians must furnish consent for relocation within the borders of SA, where decisions are required to be made that affect contact between the child and co-holder and are likely to cause significant change, or have an adverse effect on the child’s well-being, due consideration must first be given to any views and wishes expressed by the co-holder of parental responsibilities and rights, as well as that of the child (Section 31, CA). Section 7 (1)(f), CA requires that the courts, when considering the best interests of the child concerned, take into account the need for the child: • to remain in the care of the child’s parent, family and extended family; and • to maintain a connection with the child’s family, extended family, culture or tradition.
In terms of Section 139 (1)(b), CAit is unlawfulto take a child out of South Africa without the consent of their co-guardian (Section 18 (3)(c)(iii) and (5), CA). 3.2 Steps Taken to Return Abducted Children South Africa is a signatory to the Hague Convention and the Office of the Family Advocate is the desig - nated Central Authority. If a child has been wrong - fully removed from South Africa and taken to another Hague Convention country, the person with rights of custody in terms of the Convention can apply to the Central Authority for assistance in returning the child; alternatively, they can apply directly to court for an application for the return. If the Central Authority is unable to secure the return of the child voluntarily, the Central Authority shall bring an application to court within the jurisdiction in the country where the child is being retained. Where the child has been removed from South Africa and then retained in a non-Hague Convention country, the person with rights of custody can still approach the Central Authority for assistance. However, the other country is not obliged to assist nor are they automatically competent to compel the return of the child. In this case, it may be necessary to bring an application in the SA High Court for the child’s return: an order for repatriation in the best inter - ests of the child. 3.3 Hague Convention on the Civil Aspects of International Child Abduction South Africa is a signatory to the 1980 Hague Con - vention. Free legal advice is available from the Legal Aid Board for those who qualify in terms of the means test. Alternatively, the Central Authority is required to take measures to facilitate the provision of legal aid and advice to parties to the proceedings. In practice, however, most parties instruct attorneys in private practice to assist at a cost. South Africa does not have a centralised database for Hague Abduction cases, but local resources such as SAFLII can be accessed as well as INCADAT. SA courts endeavour to implement a swift return pol - icy in the interests of the child, but there have some - times been delays. Each High Court has a Hague
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