Pumeza Ntisana vs Thabo Mvubu Grahamstown High Court CA 1272018 – 6 August 2019

I am an unmarried mother. I want to take my child with me on a holiday overseas, but the biological father of my child does not want to give consent and co-operate. What are my, and our child’s rights for a passport and to visit the United Kingdom?

South Africa is one of the most beautiful countries in the world. We have mountains, seas, forests, lakes, and dams. It is the ideal holiday destination, and a countless number of people flock to our shores every year. But now and again, South Africans want to leave our borders and go on holiday to another country. For this, one usually only requires an air ticket, passport, and a visa. And of course, some money. Now the process of traveling overseas would be simple if you are an adult going on your own, or with another adult.

What if a single parent wants to travel overseas with a minor child?

But what if you want to travel overseas with your minor child? When we say minor child, we refer to a child under the age of 18 years old. Under normal circumstances, both parents would co-operate in applying for a visa and a passport for the minor child. But what if this is not the case? What if one parent does not want to consent to the minor child going overseas with the other parent? Let us explore the issues and laws involved.

The parenting scenario – unmarried parents and the child

Let’s say a couple had a child together and they are now separated. They were never married. The father was actively involved in the child’s life since the child’s birth. He paid child maintenance regularly and visited the child often. However, when the child was three (3) years old, he had challenges in obtaining regular contact with the minor child.

Father approaches the Children’s Court

The father then approaches the children’s court and he was awarded reasonable contact. This entailed him having the minor child every second weekend and a half of the school holidays. Telephone and special days’ contact were also incorporated in the Court Order.

The mother approaches the maintenance court

The mother then took the father to the maintenance court, as according to her, the amount he was currently paying was not enough. The matter was then resolved and it was ordered that the father pays for all the minor child’s school fees and medical costs. He also had to make a cash contribution which increased each year by 10%.

Father approaches the domestic violence court

The mother was not happy with the child maintenance amount that was ordered by the Court. The father remarried and his wife was expecting a child. He then approached the maintenance court for a reduction in child maintenance. At the time, the mother also inherited a large sum of money. Arguments arose regarding maintenance, and the mother approached the Domestic Violence court for a Protection Order. The parties, however, managed to resolve the issue. The maintenance order was ultimately reduced and the mother never proceeded with the Domestic Violence Court matter.

Things go well after the parties were tired of litigating against each other

The parties were now tired of litigating against each other. Contact and maintenance payments went well for years. Whenever the mother required consent for something where a co-guardian had to consent for, the father would provide it. For example, the application and enrolment for the minor child into a primary school. The relationship between the parent and the father went well for many years as well.

The Mother wishes to take the minor child with her to the United Kingdom

The child is now 10 years old, and the mother wants to take him with her on a holiday to the United Kingdom to visit the child’s maternal grandparents. This would take place during the mother’s half of the school holidays as per the Children’s Court Order. The last time either the mother or the child saw the maternal grandparent was 5 years ago. This was when the grandparents visited South Africa.

The father refuses to give his consent for the minor child to travel

The mother can afford to pay for both the minor child and her air ticket to the United Kingdom. Accommodation is also not an issue as they will be staying at the maternal grandparents. There are two problems. The child does not have a passport and the father does not want to consent to the minor child going with the mother on holiday overseas. His reason for refusing is because he believes the child is too young to travel overseas. Now let us unpack the parental rights of unmarried parents. Is he allowed to do that?

Parental rights and responsibilities of unmarried parents?

Before we can advise on the scenario above, we first need to unpack the law. The first issue is, that of what are parental responsibilities and rights of parents? Thereafter, we must outline what the parental responsibilities and rights of unmarried mothers and fathers are. As can be seen from the scenario above, the two issues are those of an application for a passport, and for the child to go overseas. Section 18 of the Children’s Act deal with Parental responsibilities and rights. It states the following: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c).  From the above, it is clear, if a parent has parental responsibilities and rights, he or she must consent for the application for a passport, and the minor child to travel overseas.

What are the Parental responsibilities and rights of unmarried mothers?

Now let us unpack the law regarding parental responsibilities and rights of unmarried mothers as per our scenario above. This is where section 19 of the Children’s Act comes into play. It states:

19 Parental responsibilities and rights of mothers

(1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. (2) If- (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child. (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. It is clear from the above, that irrespective of whether a child’s mother gave birth in wedlock, or out, she has full parental responsibilities and rights over the minor child. Does the biological father have the same rights?

What are the Parental responsibilities and rights of unmarried fathers?

21 Parental responsibilities and rights of unmarried fathers

• consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;
• (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and
• (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

What are the rights of the father in this scenario?

What can the mother do if the father refuses to give consent?

Parent Refusing Relocation, and Passport Application for Minor Child

[caption id="attachment_7084" align="alignleft" width="229"] Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa[/caption] Often times, a parent would want to travel overseas, relocate or emigrate, and take the child with. However, the practical aspects thereof are not that easy. For starters, your child requires a passport. And what does the law say about passports of a minor child? As you would see later, both parents holding parental responsibilities and rights of guardianship should consent to a minor child obtaining a passport. That is a requirement in Law. But let’s say your child already has a passport. Can you still take your minor child out of the country or relocate? Yes, you can, as long as you have the consent of the other parent. This article does not only apply to parents of minor children who are not married to each other or separated. It applies to all parents of children holding parental responsibilities and rights over them, married, separated, or divorced. Before we move on, let us look at the most popular countries South African’s relocate to.

Popular relocation countries for South Africans

If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:

• United Kingdom (UK)

• Australia

• United States of America (USA)

• New Zealand

• Canada

• Angola

• Botswana

• Chile

• Zimbabwe

• Germany

• Netherlands

• Swaziland

• Israel

• Portugal

• Mozambique

• Ireland

• Malawi

• Switzerland

• Namibia

• Greece

If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you.

The parent refuses to consent to emigration

Parents of minor children differ on many things. Sometimes it’s minor issues. For instance, which clothes the child should wear. However, some disagreements are serious and exhausting.  For instance, what school should the minor child attend, or extra-mural activities to partake in? What school a child attend can affect the contact rights of parents when they live in separate homes. Now turning to this article. What if one parent wants to go away on holiday or relocate with the child, and the other parent refuses to give consent. One obvious reason to object to a relocation would be that the parent that remains in South Africa may not see the child for some time. This becomes a problem if the reason for the relocation is work-related, or for a better life. Does this now mean a parent must not better his or her situation in life in consideration of the other parent? And what if the other parent does not pay child maintenance? Must you still give up the job offer overseas? Worst yet, if the reason for the relocation is due to the parent having custody of the child remarried, and his or her spouse wants to relocate due to work reasons. Now let’s unpack the law.

The Right to a Passport

The South African Constitution, Act 108 of 1996 affords everyone certain basic human rights. These rights are entrenched in its Chapter 2, of the Bill of Rights. Section 21 of the Bill of Rights deals with freedom of movement and residence. It states the following: 21 (1) Everyone has the right to freedom of movement. (2) Everyone has the right to leave the Republic. (3) Every citizen has the right to enter, to remain in and to reside anywhere in, the Republic. (4) Every citizen has the right to a passport. Now, seeing that every child has a right to freedom of movement, and a passport, what does this mean to the parent who wants to take a child out of the Country for relocation or holiday?

The law on Consent for Passports for Minor children

Section 18 of the Children’s Act 38 of 2005 deals with Parental responsibilities and rights in relation to minor children.  According to section18 (3) read with section 18(5) of the Act, a co-guardian of a child must consent to the child’s departure or removal from the Republic as well as to the child’s application for a passport.  The only exception would be if a court decides otherwise. Therefore, even if the child lives with the father and he cares for her, if the mother has guardianship over the child, her consent is required.

What can be done if consent is refused for emigration?

Now that we know that everyone has the right to obtain a passport, and leave the Republic, what does this mean to the parent who now wants to relocate with the minor child, but the other parent does not want to give consent? An application to the competent court has to be made if this happens. And in this case, it would be the High Court where the child resides. The Court would have to determine what is in the minor child’s best interest. The High Court would listen to why the parent wants to leave, and also why the other parent does not want the child to accompany that parent. Once all the information is before the Court, the court would make a decision. The decision would be based solely on the minor child’s best interests. The Court may also consider reports and recommendations from other experts. For example, the Office of the Family Advocate, a Social Worker or Psychologist. Obviously, their experts need to consult with both parents and the child and have all the facts before them before they can provide recommendations to the Court. They may decide to consult with the child’s school teachers, family member etc. A good report would deal with the actual circumstances overseas. For example, verifying the job, the school the child will be going to, and so on.

What are the factors the court would look at in relation to emigration?

If one parent leaves the country with the child, it would mean no physical contact for the other parent. This would be the major objection. On the other hand, a parent could object due to the country visiting being dangerous. In the case of relocation, an objection could be that the child’s education would be compromised. One other obvious reason would be that the child would not see the remaining parent and his or her family in South Africa. Counter-arguments could be the use of Skype, and holiday visits etc.

Advice to parents who wants to relocate or temporary leave South Africa with the minor child

If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is. In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday. [caption id="attachment_6387" align="alignleft" width="300"] Contact us today[/caption]

Sharing is Caring