Hague Convention On The Civil Aspects Of International Child

On 20 November 1996 the President assented to the Hague Convention On The Civil Aspects Of International Child. The entire Act can be found at the end of this article. South Africa ratified the Convention in 1996 and the Act came into operation on 1 October 1997. The Convention’s main object is to enforce rights of custody over a child(ren) who has been wrongfully removed to or kept in a foreign country in breach of those rights and to secure the prompt return of the child(ren) to South Africa. https://www.justice.gov.za/hague/main.htm Below is the complete Convention found at https://www.gov.za/sites/default/files/gcis_document/201409/a72-96.pdf . NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD PRESIDENT’S OFFICE No. 1872. 20 November 1996 NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION ACT, 1996. It is hereby notified that the President has assented to the following Act which is hereby published for general information:- ACT To provide for the application in the Republic of the Hague Convention on the Civil Aspects of International Child Abduction; and to provide for matters connected therewith. (English text signed by the President.) (Assented to 6 November 1996.) BE IT ENACTED by the Parliament of the Republic of South Africa. as follows:- Definitions 1. In this Act, unless the context otherwise indicates- (i) “Central Authority” means the Central Authority designated in terms of section 3; (v) (ii) “Convention” means the Hague Convention on the Civil Aspects of International Child Abduction, adopted on 25 October 1980 at The Hague, and set out in the Schedule; (ii) (iii) “Minister” means the Minister of Justice; (iii) (iv) “regulation” means a regulation made under this Act; (iv) (v) “this Act” includes the regulations. (i) Application of Convention 2. The Convention shall, subject to the provisions of this Act, apply in the Republic. Designation of Central Authority 3. For the purposes of Article 6 of the Convention the Chief Family Advocate appointed by the Minister in terms of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987), is hereby designated as the Central Authority for the Republic. Delegation 4. (1) The Central Authority may, subject to such conditions as he or she may impose, delegate or assign any power or duty conferred or imposed upon him or her by or under the Convention to any Family Advocate appointed in terms of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987). (2) The delegation, assignment and conditions imposed shall be in writing. Regulations 5. (1) The Minister may make regulations- (a) to give effect to any provision of the Convention; and (b) prescribing fees, and providing for the recovery of any expenditure incurred, in connection with the application of the Convention. (2) A regulation made under subsection (1) may prescribe a penalty of a fine or of imprisonment for a period not exceeding 12 months for any contravention thereof or failure to comply therewith. (3) Any regulation made under subsection (1) shall be laid upon the Table in Parliament within 14 days after the publication thereof in the Gazette if Parliament is then in ordinary session, or, if Parliament is not in ordinary session, within 14 days after the commencement of the next ensuing ordinary session. (4) Any regulation referred to in subsection (3) or any provision thereof may, by resolution passed by both Houses of Parliament during the session in which such regulation has been laid upon the Table, be rejected, and if the said regulation or provision is so rejected the provisions of section 12(2) of the Interpretation Act, 1957 (Act No. 33 of 1957), shall apply as if such resolution were a law repealing the regulation or provision in question. Short title and commencement 6.This Act shall be called the Hague Convention on the Civil Aspects of International Child Abduction Act, 1996, and shall come into operation on a date fixed by the President by proclamation in the Gazette. SCHEDULE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION The States signatory to the present Convention- Firmly convinced that the interests of children are of paramount importance in matters relating to their custody. Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions- CHAPTER I SCOPE OF THE CONVENTION Article 1 The objects of the present Convention area to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and b to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. Article 2 Contracting States shall take all appropriate measures to secure within their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available. Article 3 The removal or the retention of a child is to be considered wrongful wherea it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. The rights of custody mentioned in subparagraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Conventiona rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence b “rights of access” shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence. CHAPTER II CENTRAL AUTHORITIES Article 6 A Contracting State shall designate a Central Authority to discharge the duties which are imposed by the Convention upon such authorities. Federal States, States with more than one system of law or States having autonomous territorial organizations shall be free to appoint more than one Central Authority and to specify the territorial extent of their powers. Where a State has appointed more than one Central Authority, it shall designate the Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State. Article 7 Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention. In particular, either directly or through any intermediary, they shall take all appropriate measures a to discover the whereabouts of a child who has been wrongfully removed or retained; b to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures; c to secure the voluntary return of the child or to bring about an amicable resolution of the issues; d to exchange, where desirable, information relating to the social background of the child; e to provide information of a general character as to the law of their State in connection with the application of the Convention; f to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organizing or securing the effective exercise of rights of access; g where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers; h to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child; i to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application. CHAPTER III RETURN OF CHILDREN Article 8 Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child. The application shall contain a information concerning the identity of the applicant, of the child and of the person alleged to have removed or retained the child; b where available, the date of birth of the child; c the grounds on which the applicant’s claim for return of the child is based: d all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by e an authenticated copy of any relevant decision or agreement; f a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State; g any other relevant documents. Article 9 If the Central Authority which receives an application referred to in Article 8 has reason to believe that the child is in another Contracting State, it shall directly and without delay transmit the application to the Central Authority of that Contracting State and inform the requesting Central Authority or the applicant, as the case may be. Article 10 The Central Authority of the State where the child is shall take or cause tobe taken all appropriate measures in order to obtain the voluntary return of the child. Article 11 The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children. If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. If a reply is received by the Central Authority of the requested State, that Authority shall transmit the reply to the Central Authority of the requesting State, or to the applicant, as the case may be. Article 12 Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child. Article 13 Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or b there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child’s habitual residence. Article 14 In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable. Article 15 The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination. Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of Article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. Article 17 The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. Article 18 The provisions of this Chapter do not limit the power of a judicial or administrative authority to order the return of the child at any time. Article 19 A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue. Article 20 The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. CHAPTER IV RIGHTS OF ACCESS Article 21 An application to make arrangements for organizing or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of co-operation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organizing or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject. CHAPTER V GENERAL PROVISIONS Article 22 No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention. Article 23 No legalization or similar formality may be required in the context of this Convention. Article 24 Any application, communication or other document sent to the Central Authority of the requested State shall be in the original language, and shall be accompanied by a translation into the official language or one of the official languages of the requested State or, where that is not feasible, a translation into French or English. However, a Contracting State may, by making a reservation in accordance with Article 42, object to the use of either French or English, but not both, in any application, communication or other document sent to its Central Authority. Article 25 Nationals of the Contracting States and persons who are habitually resident within those States shall be entitled in matters concerned with the application of this Convention to legal aid and advice in any other Contracting State on the same conditions as if they themselves were nationals of and habitually resident in that State. Article 26 Each Central Authority shall bear its own costs in applying this Convention. Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child. However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice. Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child. Article 27 When it is manifest that the requirements of this Convention are not fulfilled or that the application is otherwise not well founded, a Central Authority is not bound to accept the application. In that case the Central Authority shall forthwith inform the applicant or the Central Authority through which the application was submitted, as the case may be, of its reasons. Article 28 A Central Authority may require that the application be accompanied by a written authorization empowering it to act on behalf of the applicant, or to designate a representative so to act. Article 29 This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention. Article 30 Any application submitted to the Central Authorities or directly to the judicial or administrative authorities of a Contracting State in accordance with the terms of this Convention, together with documents and any other information appended thereto or provided by a Central Authority, shall be admissible in the courts or administrative authorities of the Contracting States. Article 31 In relation to a State which in matters of custody of children has two or more systems of law applicable in different territorial unitsa any reference to habitual residence in that State shall be construed as referring to habitual residence in a territorial unit of that State; b any reference to the law of the State of habitual residence shall be construed as referring to the law of the territorial unit in that State where the child habitually resides. Article 32 In relation to a State which in matters of custody of children has two or more systems of law applicable to different categories of persons, any reference to the law of that State shall be construed as referring to the legal system specified by the law of that State. Article 33 A State within which different territorial units have their own rules of law in respect of custody of children shall not be bound to apply this Convention where a State with a unified system of law would not be bound to do so. Article 34 This Convention shall take priority in matters within its scope over the Convention of 5 October 1961 concerning the powers of authorities and the law applicable in respect of the protection of minors, as between Parties to both Conventions. Otherwise the present Convention shall not restrict the application of an international instrument in force between the State of origin and the State addressed or other law of the State addressed for the purposes of obtaining the return of a child who has been wrongfully removed or retained or of organizing access rights. Article 35 This Convention shall apply as between Contracting States only to wrongful removals or retentions occurring after its entry into force in those States. Where a declaration has been made under Article 39 or 40, the reference in the preceding paragraph to a Contracting State shall be taken to refer to the territorial unit or units in relation to which this Convention applies. Article 36 Nothing in this Convention shall prevent two or more Contracting States, in order to limit the restrictions to which the return of the child may be subject, from agreeing among themselves to derogate from any provisions of this Convention which may imply such a restriction. CHAPTER VI FINAL CLAUSES Article 37 The Convention shall be open for signature by the States which were Members of the Hague Conference on Private International Law at the time of its Fourteenth Session. It shall be ratified, accepted or approved and the instruments of ratification, acceptance or approval shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 38 Any other State may accede to the Convention. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The Convention shall enter into force for a State acceding to it on the first day of the third calendar month after the deposit of its instrument of accession. The accession will have effect only as regard the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands: the Ministry shall forward through diplomatic channels, a certified copy to each of the Contracting States. The Convention will enter into force as between the acceding State and the State that has declared its acceptance of the accession on the first day of the third calendar month after the deposit of the declaration of acceptance. Article 39 Any State may, at the time of signature, ratification, acceptance, approval or accession, declare that the Convention shall extend to all the territories for the international relations of which it is responsible, or to one or more of them. Such a declaration shall take effect at the time the Convention enters into force for that State. Such declaration, as well as any subsequent extension, shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. Article 40 If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time. Any such declaration shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands and shall state expressly the territorial units to which the Convention applies. Article 41 Where a Contracting State has a system of government under which executive, judicial and legislative powers are distributed between central and other authorities within that State, its signature or ratification, acceptance or approval of or accession to this Convention, or its making of any declaration in terms of Article 40 shall carry no implication as to the internal distribution of powers within that State. Article 42 Any State may, not later than the time of ratification, acceptance, approval or accession, or at the time of making a declaration in terms of Article 39 or 40 make one or both of the reservations provided for in Article 24 and Article 26, third paragraph. No other reservation shall be permitted. Any State may at any time withdraw a reservation it has made. The withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The reservation shall cease to have effect on the first day of the third calendar month after the notification referred to in the preceding paragraph. Article 43 The Convention shall enter into force on the first day of the third calendar month after the deposit of the third instruments of ratification, acceptance, approval or accession referred to in Articles 37 and 38. Thereafter the Convention shall enter into force- 1 for each State ratifying, accepting, approving or acceding to it subsequently, on the first day of the third calendar month after the deposit of its instrument of ratification, acceptance, approval or accession; 2 for any territory or territorial unit to which the Convention has been extended in conformity with Article 39 or 40, on the first day of the third calendar month after the notification referred to in that Article. Article 44 The Convention shall remain in force for five years from the date of its entry into force in accordance with the first paragraph of Article 43 even for States which subsequently have ratified, accepted, approved it or acceded to it. Any denunciation shall be notified to the Ministry of Foreign Affairs of the Kingdom of the Netherlands at least six months before the expiry of the five year period. It may be limited to certain of the territories or territorial units to which the Convention applies. The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in force for the other Contracting States. Article 45 The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall notify the States Members of the Conference, and the States which have acceded in accordance with Article 38, of the following- 1 the signatures and ratifications, acceptances and approvals referred to in Article 37; 2 the accessions referred to in Article 38; 3 the date on which the Convention enters into force in accordance with Article 43; 4 the extensions referred to in Article 39; 5 the declarations referred to in Articles 38 and 40; 6 the reservations referred to in Article 24 and Article 26, third paragraph and the withdrawals referred to in Article 42; and 7 the denunciations referred to in Article 44. In witness whereof the undersigned, being duly authorized thereto, have signed this Convention. Done at The Hague, on the 25th day of October 1980 in the English and French languages, both texts being equally authentic in a single copy which shall be deposited in the archives of the Government of the Kingdom of the Netherlands,$ and of which a certified copy shall be sent through diplomatic channels to each of the States Members of the Hague Conference on Private International Law at the date of its Fourteenth Session.

Posted on 11 February 2025 by Telelaw

Hague Convention On The Civil Aspects Of International Child

On 20 November 1996 the President assented to the Hague Convention On The Civil Aspects Of International Child. The entire Act can be found at the end of this article.

South Africa ratified the Convention in 1996 and the Act came into operation on 1 October 1997. The Convention’s main object is to enforce rights of custody over a child(ren) who has been wrongfully removed to or kept in a foreign country in breach of those rights and to secure the prompt return of the child(ren) to South Africa. https://www.justice.gov.za/hague/main.htm

Below is the complete Convention found at https://www.gov.za/sites/default/files/gcis_document/201409/a72-96.pdf .

NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
PRESIDENT’S OFFICE
No. 1872.
20 November 1996
NO. 72 OF 1996: HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD
ABDUCTION ACT, 1996.
It is hereby notified that the President has assented to the following Act which is hereby published for general information:-
ACT
To provide for the application in the Republic of the Hague Convention on the Civil Aspects of International Child Abduction; and to provide for matters connected therewith.
(English text signed by the President.)
(Assented to 6 November 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa. as
follows:-
Definitions
1. In this Act, unless the context otherwise indicates-
(i) “Central Authority” means the Central Authority designated in terms
of section 3; (v)
(ii) “Convention” means the Hague Convention on the Civil Aspects of
International Child Abduction, adopted on 25 October 1980 at The Hague, and set out in the Schedule; (ii)
(iii) “Minister” means the Minister of Justice; (iii)
(iv) “regulation” means a regulation made under this Act; (iv)
(v) “this Act” includes the regulations. (i)
Application of Convention
2. The Convention shall, subject to the provisions of this Act, apply in the Republic.
Designation of Central Authority
3. For the purposes of Article 6 of the Convention the Chief Family
Advocate appointed by the Minister in terms of the Mediation in Certain Divorce Matters
Act, 1987 (Act No. 24 of 1987), is hereby designated as the Central Authority
for the Republic.
Delegation
4. (1) The Central Authority may, subject to such conditions as he or she
may impose, delegate or assign any power or duty conferred or imposed upon him or her by or under the Convention to any Family Advocate appointed in terms of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987).
(2) The delegation, assignment and conditions imposed shall be in writing.
Regulations
5. (1) The Minister may make regulations-
(a) to give effect to any provision of the Convention; and
(b) prescribing fees, and providing for the recovery of any expenditure
incurred, in connection with the application of the Convention.
(2) A regulation made under subsection (1) may prescribe a penalty of a fine or of imprisonment for a period not exceeding 12 months for any contravention thereof or failure to comply therewith.
(3) Any regulation made under subsection (1) shall be laid upon the Table in Parliament within 14 days after the publication thereof in the Gazette if Parliament is then in ordinary session, or, if Parliament is not in ordinary session, within 14 days after the commencement of the next ensuing ordinary
session.
(4) Any regulation referred to in subsection (3) or any provision thereof may, by resolution passed by both Houses of Parliament during the session in which such regulation has been laid upon the Table, be rejected, and if the
said regulation or provision is so rejected the provisions of section 12(2) of
the Interpretation Act, 1957 (Act No. 33 of 1957), shall apply as if such
resolution were a law repealing the regulation or provision in question.
Short title and commencement
6.This Act shall be called the Hague Convention on the Civil Aspects of
International Child Abduction Act, 1996, and shall come into operation on a
date fixed by the President by proclamation in the Gazette.
SCHEDULE
CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION
The States signatory to the present Convention-
Firmly convinced that the interests of children are of paramount importance
in matters relating to their custody. Desiring to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access. Have resolved to conclude a Convention to this effect, and have agreed upon the following provisions-
CHAPTER I
SCOPE OF THE CONVENTION
Article 1
The objects of the present Convention area to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
b to ensure that rights of custody and of access under the law of one
Contracting State are effectively respected in the other Contracting States.
Article 2
Contracting States shall take all appropriate measures to secure within
their territories the implementation of the objects of the Convention. For this purpose they shall use the most expeditious procedures available.
Article 3
The removal or the retention of a child is to be considered wrongful wherea
it is in breach of rights of custody attributed to a person, an institution
or any other body, either jointly or alone, under the law of the State in
which the child was habitually resident immediately before the removal or
retention; and
b at the time of removal or retention those rights were actually exercised,
either jointly or alone, or would have been so exercised but for the removal
or retention.
The rights of custody mentioned in subparagraph a above, may arise in
particular by operation of law or by reason of a judicial or administrative
decision, or by reason of an agreement having legal effect under the law of
that State.
Article 4
The Convention shall apply to any child who was habitually resident in a
Contracting State immediately before any breach of custody or access rights.
The Convention shall cease to apply when the child attains the age of 16 years.
Article 5
For the purposes of this Conventiona
rights of custody” shall include rights relating to the care of the person of
the child and, in particular, the right to determine the child’s place of residence
b “rights of access” shall include the right to take a child for a limited
period of time to a place other than the child’s habitual residence.
CHAPTER II
CENTRAL AUTHORITIES
Article 6
A Contracting State shall designate a Central Authority to discharge the
duties which are imposed by the Convention upon such authorities.
Federal States, States with more than one system of law or States having
autonomous territorial organizations shall be free to appoint more than one
Central Authority and to specify the territorial extent of their powers.
Where a State has appointed more than one Central Authority, it shall designate the
Central Authority to which applications may be addressed for transmission to the appropriate Central Authority within that State.
Article 7
Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.
In particular, either directly or through any intermediary, they shall take
all appropriate measures

a to discover the whereabouts of a child who has been wrongfully removed or
retained;
b to prevent further harm to the child or prejudice to interested parties by
taking or causing to be taken provisional measures;
c to secure the voluntary return of the child or to bring about an amicable
resolution of the issues;
d to exchange, where desirable, information relating to the social background
of the child;
e to provide information of a general character as to the law of their State
in connection with the application of the Convention;
f to initiate or facilitate the institution of judicial or administrative
proceedings with a view to obtaining the return of the child and, in a
proper case, to make arrangements for organizing or securing the effective exercise
of rights of access;
g where the circumstances so require, to provide or facilitate the provision
of legal aid and advice, including the participation of legal counsel and
advisers;
h to provide such administrative arrangements as may be necessary and
appropriate to secure the safe return of the child;
i to keep each other informed with respect to the operation of this Convention
and, as far as possible, to eliminate any obstacles to its application.
CHAPTER III
RETURN OF CHILDREN
Article 8
Any person, institution or other body claiming that a child has been removed or retained in breach of custody rights may apply either to the Central Authority of the child’s habitual residence or to the Central Authority of any other Contracting State for assistance in securing the return of the child.
The application shall contain

a information concerning the identity of the applicant, of the child and of
the person alleged to have removed or retained the child;
b where available, the date of birth of the child;
c the grounds on which the applicant’s claim for return of the child is based:
d all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be. The application may be accompanied or supplemented by

e an authenticated copy of any relevant decision or agreement;
f a certificate or an affidavit emanating from a Central Authority, or other
competent authority of the State of the child’s habitual residence, or from
a qualified person, concerning the relevant law of that State;
g any other relevant documents.
Article 9
If the Central Authority which receives an application referred to in
Article 8 has reason to believe that the child is in another Contracting
State, it shall directly and without delay transmit the application to the Central
Authority of that Contracting State and inform the requesting Central
Authority or the applicant, as the case may be.
Article 10
The Central Authority of the State where the child is shall take or cause
tobe taken all appropriate measures in order to obtain the voluntary return of
the child.
Article 11
The judicial or administrative authorities of Contracting States shall act
expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a
decision within six weeks from the date of commencement of the proceedings,
the applicant or the Central Authority of the requested State, on its own
initiative or if asked by the Central Authority of the requesting State, shall
have the right to request a statement of the reasons for the delay. If a
reply is received by the Central Authority of the requested State, that Authority
shall transmit the reply to the Central Authority of the requesting State, or
to the applicant, as the case may be.
Article 12
Where a child has been wrongfully removed or retained in terms of Article 3
and, at the date of the commencement of the proceedings before the judicial or
administrative authority of the Contracting State where the child is, a period
of less than one year has elapsed from the date of the wrongful removal or
retention, the authority concerned shall order the return of the child
forthwith.
The judicial or administrative authority, even where the proceedings have
been commenced after the expiration of the period of one year referred to in
the preceding paragraph, shall also order the return of the child, unless it
is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has
reason to believe that the child has been taken to another State, it may stay
the proceedings or dismiss the application for the return of the child.
Article 13
Notwithstanding the provisions of the preceding Article, the judicial or
administrative authority of the requested State is not bound to order the
return of the child if the person, institution or other body which opposes its
return establishes that

a the person, institution or other body having the care of the person of the
child was not actually exercising the custody rights at the time of removal
or retention, or had consented to or subsequently acquiesced in the removal
or retention; or
b there is a grave risk that his or her return would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable
situation.
The judicial or administrative authority may also refuse to order the
return of the child if it finds that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to take
account of its views.
In considering the circumstances referred to in this Article, the judicial
and administrative authorities shall take into account the information
relating to the social background of the child provided by the Central Authority or
other competent authority of the child’s habitual residence.
Article 14
In ascertaining whether there has been a wrongful removal or retention
within the meaning of Article 3, the judicial or administrative authorities of
the requested State may take notice directly of the law of, and of judicial or
administrative decisions, formally recognized or not in the State of the
habitual residence of the child, without recourse to the specific procedures
for the proof of that law or for the recognition of foreign decisions which
would otherwise be applicable.
Article 15
The judicial or administrative authorities of a Contracting State may,
prior
to the making of an order for the return of the child, request that the
applicant obtain from the authorities of the State of the habitual residence
of
the child a decision or other determination that the removal or retention was
wrongful within the meaning of Article 3 of the Convention, where such a
decision or determination may be obtained in that State. The Central
Authorities of the Contracting States shall so far as practicable assist
applicants to obtain such a decision or determination.
Article 16
After receiving notice of a wrongful removal or retention of a child in the
sense of Article 3, the judicial or administrative authorities of the
Contracting State to which the child has been removed or in which it has been
retained shall not decide on the merits of rights of custody until it has been
determined that the child is not to be returned under this Convention or
unless
an application under this Convention is not lodged within a reasonable time
following receipt of the notice.
Article 17
The sole fact that a decision relating to custody has been given in or is
entitled to recognition in the requested State shall not be a ground for
refusing to return a child under this Convention, but the judicial or
administrative authorities of the requested State may take account of the
reasons for that decision in applying this Convention.
Article 18
The provisions of this Chapter do not limit the power of a judicial or
administrative authority to order the return of the child at any time.
Article 19
A decision under this Convention concerning the return of the child shall
not be taken to be a determination on the merits of any custody issue.
Article 20
The return of the child under the provisions of Article 12 may be refused
if
this would not be permitted by the fundamental principles of the requested
State relating to the protection of human rights and fundamental freedoms.
CHAPTER IV
RIGHTS OF ACCESS
Article 21
An application to make arrangements for organizing or securing the
effective
exercise of rights of access may be presented to the Central Authorities of
the
Contracting States in the same way as an application for the return of a
child.
The Central Authorities are bound by the obligations of co-operation which
are set forth in Article 7 to promote the peaceful enjoyment of access rights
and the fulfilment of any conditions to which the exercise of those rights may
be subject. The Central Authorities shall take steps to remove, as far as
possible, all obstacles to the exercise of such rights. The Central
Authorities, either directly or through intermediaries, may initiate or assist
in the institution of proceedings with a view to organizing or protecting
these
rights and securing respect for the conditions to which the exercise of these
rights may be subject.
CHAPTER V
GENERAL PROVISIONS
Article 22
No security, bond or deposit, however described, shall be required to
guarantee the payment of costs and expenses in the judicial or administrative
proceedings falling within the scope of this Convention.
Article 23
No legalization or similar formality may be required in the context of this
Convention.
Article 24
Any application, communication or other document sent to the Central
Authority of the requested State shall be in the original language, and shall
be accompanied by a translation into the official language or one of the
official languages of the requested State or, where that is not feasible, a
translation into French or English.
However, a Contracting State may, by making a reservation in accordance
with
Article 42, object to the use of either French or English, but not both, in
any
application, communication or other document sent to its Central Authority.
Article 25
Nationals of the Contracting States and persons who are habitually resident
within those States shall be entitled in matters concerned with the
application
of this Convention to legal aid and advice in any other Contracting State on
the same conditions as if they themselves were nationals of and habitually
resident in that State.
Article 26
Each Central Authority shall bear its own costs in applying this
Convention.
Central Authorities and other public services of Contracting States shall
not impose any charges in relation to applications submitted under this
Convention. In particular, they may not require any payment from the
applicant
towards the costs and expenses of the proceedings or, where applicable, those
arising from the participation of legal counsel or advisers. However, they
may
require the payment of the expenses incurred or to be incurred in implementing
the return of the child.
However, a Contracting State may, by making a reservation in accordance
with
Article 42, declare that it shall not be bound to assume any costs referred to
in the preceding paragraph resulting from the participation of legal counsel
or
advisers or from court proceedings, except insofar as those costs may be
covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights
of
access under this Convention, the judicial or administrative authorities may,
where appropriate, direct the person who removed or retained the child, or who
prevented the exercise of rights of access, to pay necessary expenses incurred
by or on behalf of the applicant, including travel expenses, any costs
incurred
or payments made for locating the child, the costs of legal representation of
the applicant, and those of returning the child.
Article 27
When it is manifest that the requirements of this Convention are not
fulfilled or that the application is otherwise not well founded, a Central
Authority is not bound to accept the application. In that case the Central
Authority shall forthwith inform the applicant or the Central Authority
through
which the application was submitted, as the case may be, of its reasons.
Article 28
A Central Authority may require that the application be accompanied by a
written authorization empowering it to act on behalf of the applicant, or to
designate a representative so to act.
Article 29
This Convention shall not preclude any person, institution or body who
claims that there has been a breach of custody or access rights within the
meaning of Article 3 or 21 from applying directly to the judicial or
administrative authorities of a Contracting State, whether or not under the
provisions of this Convention.
Article 30
Any application submitted to the Central Authorities or directly to the
judicial or administrative authorities of a Contracting State in accordance
with the terms of this Convention, together with documents and any other
information appended thereto or provided by a Central Authority, shall be
admissible in the courts or administrative authorities of the Contracting
States.
Article 31
In relation to a State which in matters of custody of children has two or
more systems of law applicable in different territorial unitsa
any reference to habitual residence in that State shall be construed as
referring to habitual residence in a territorial unit of that State;
b any reference to the law of the State of habitual residence shall be
construed as referring to the law of the territorial unit in that State
where
the child habitually resides.
Article 32
In relation to a State which in matters of custody of children has two or
more systems of law applicable to different categories of persons, any
reference to the law of that State shall be construed as referring to the
legal
system specified by the law of that State.
Article 33
A State within which different territorial units have their own rules of
law
in respect of custody of children shall not be bound to apply this Convention
where a State with a unified system of law would not be bound to do so.
Article 34
This Convention shall take priority in matters within its scope over the
Convention of 5 October 1961 concerning the powers of authorities and the law
applicable in respect of the protection of minors, as between Parties to both
Conventions. Otherwise the present Convention shall not restrict the
application of an international instrument in force between the State of
origin
and the State addressed or other law of the State addressed for the purposes
of
obtaining the return of a child who has been wrongfully removed or retained or
of organizing access rights.
Article 35
This Convention shall apply as between Contracting States only to wrongful
removals or retentions occurring after its entry into force in those States.
Where a declaration has been made under Article 39 or 40, the reference in
the preceding paragraph to a Contracting State shall be taken to refer to the
territorial unit or units in relation to which this Convention applies.
Article 36
Nothing in this Convention shall prevent two or more Contracting States, in
order to limit the restrictions to which the return of the child may be
subject, from agreeing among themselves to derogate from any provisions of
this
Convention which may imply such a restriction.
CHAPTER VI
FINAL CLAUSES
Article 37
The Convention shall be open for signature by the States which were Members
of the Hague Conference on Private International Law at the time of its
Fourteenth Session. It shall be ratified, accepted or approved and the
instruments of ratification, acceptance or approval shall be deposited with
the
Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 38
Any other State may accede to the Convention.
The instrument of accession shall be deposited with the Ministry of Foreign
Affairs of the Kingdom of the Netherlands.
The Convention shall enter into force for a State acceding to it on the
first day of the third calendar month after the deposit of its instrument of
accession.
The accession will have effect only as regard the relations between the
acceding State and such Contracting States as will have declared their
acceptance of the accession.
Such a declaration will also have to be made by any Member State ratifying,
accepting or approving the Convention after an accession. Such declaration
shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the
Netherlands: the Ministry shall forward through diplomatic channels, a
certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the
State that has declared its acceptance of the accession on the first day of
the
third calendar month after the deposit of the declaration of acceptance.
Article 39
Any State may, at the time of signature, ratification, acceptance, approval
or accession, declare that the Convention shall extend to all the territories
for the international relations of which it is responsible, or to one or more
of them. Such a declaration shall take effect at the time the Convention
enters into force for that State.
Such declaration, as well as any subsequent extension, shall be notified to
the Ministry of Foreign Affairs of the Kingdom of the Netherlands.
Article 40
If a Contracting State has two or more territorial units in which different
systems of law are applicable in relation to matters dealt with in this
Convention, it may at the time of signature, ratification, acceptance,
approval
or accession declare that this Convention shall extend to all its territorial
units or only to one or more of them and may modify this declaration by
submitting another declaration at any time.
Any such declaration shall be notified to the Ministry of Foreign Affairs
of
the Kingdom of the Netherlands and shall state expressly the territorial units
to which the Convention applies.
Article 41
Where a Contracting State has a system of government under which executive,
judicial and legislative powers are distributed between central and other
authorities within that State, its signature or ratification, acceptance or
approval of or accession to this Convention, or its making of any declaration
in terms of Article 40 shall carry no implication as to the internal
distribution of powers within that State.
Article 42
Any State may, not later than the time of ratification, acceptance,
approval
or accession, or at the time of making a declaration in terms of Article 39 or
40 make one or both of the reservations provided for in Article 24 and Article
26, third paragraph. No other reservation shall be permitted.
Any State may at any time withdraw a reservation it has made. The
withdrawal shall be notified to the Ministry of Foreign Affairs of the Kingdom
of the Netherlands. The reservation shall cease to have effect on the first
day of the third calendar month after the notification referred to in the
preceding paragraph.
Article 43
The Convention shall enter into force on the first day of the third
calendar
month after the deposit of the third instruments of ratification, acceptance,
approval or accession referred to in Articles 37 and 38.
Thereafter the Convention shall enter into force-
1 for each State ratifying, accepting, approving or acceding to it
subsequently, on the first day of the third calendar month after the deposit
of its instrument of ratification, acceptance, approval or accession;
2 for any territory or territorial unit to which the Convention has been
extended in conformity with Article 39 or 40, on the first day of the third
calendar month after the notification referred to in that Article.
Article 44
The Convention shall remain in force for five years from the date of its
entry into force in accordance with the first paragraph of Article 43 even for
States which subsequently have ratified, accepted, approved it or acceded to
it.
Any denunciation shall be notified to the Ministry of Foreign Affairs of
the
Kingdom of the Netherlands at least six months before the expiry of the five
year period. It may be limited to certain of the territories or territorial
units to which the Convention applies.
The denunciation shall have effect only as regards the State which has
notified it. The Convention shall remain in force for the other Contracting
States.
Article 45
The Ministry of Foreign Affairs of the Kingdom of the Netherlands shall
notify the States Members of the Conference, and the States which have acceded
in accordance with Article 38, of the following-
1 the signatures and ratifications, acceptances and approvals referred to in
Article 37;
2 the accessions referred to in Article 38;
3 the date on which the Convention enters into force in accordance with
Article
43;
4 the extensions referred to in Article 39;
5 the declarations referred to in Articles 38 and 40;
6 the reservations referred to in Article 24 and Article 26, third paragraph
and the withdrawals referred to in Article 42; and
7 the denunciations referred to in Article 44.
In witness whereof the undersigned, being duly authorized thereto, have
signed this Convention.
Done at The Hague, on the 25th day of October 1980 in the English and
French
languages, both texts being equally authentic in a single copy which shall be
deposited in the archives of the Government of the Kingdom of the
Netherlands,$
and of which a certified copy shall be sent through diplomatic channels to
each
of the States Members of the Hague Conference on Private International Law at
the date of its Fourteenth Session.

Relocation and repatriation of minor children during the South African National lockdown. Is it possible if there is no consent from the other parent?
Many parents before the lockdown had the intention to relocate to another country. It goes without saying that whatever plans they had to relocate at the start of the lockdown, was placed on hold. Having passed day 100 of the national lockdown, things have since changed. Domestic travel has been allowed under certain circumstances and many people have been repatriated to their home countries. International travel, other than that for repatriation is allowed under certain circumstances. We advise those parents who wish to leave South Africa to consult the relevant regulations and the laws applicable to the country you wish to travel when deciding to leave South Africa.
The high unemployment rate in South Africa due to the National Lockdown
Then there is the issue of unemployment. The South African economy is not in good shape, and many businesses have closed due to the lockdown and COVID-19. Many people lost their jobs and various forms of income due to the pandemic. Not being able to work, means not being able to pay for accommodation, food, clothing and school fees, to mention a few. Those people who lost their jobs may wish to seek employment and other economic opportunities abroad. For such parents, relocation may be the best option for them and the child concerned. If repatriation is possible, this option may be better.
Gaudian consent is required for the repatriation or relocation of minor children
But what about those parents who may relocate with their minor children, but does not have the consent of the other parent. What can that parent do under those circumstances? As the law stands, both parents who have parental responsibilities and rights of guardianship must consent for the removal of the minor child from South Africa. A mother naturally has guardianship rights over her child. Father’s, on the other hand, would have full guardianship rights over the child if he was married to the mother or if he materially formed part of the child’s life. If he was just part of the conception of the child, and never married the mother, then he would not have any guardianship rights.
If no consent is obtained, then the Court should be approached
If a parent, wishes to relocate overseas, or repatriate with a minor child, and the other parent does not want to consent thereto, then the Court must be approached for the necessary consent. At the end of the day, the court would decide and look at what is in the child’s best interests. Considering the COVID-19 pandemic, this factor would now also be considered. The court would have to consider the state of the pandemic in South Africa, as well as the country to which the parent wishes to relocate, with a range of the usual factors.
Legal Articles on the relocation of minor children
Have a look at the following articles on the issue of relocation of minor children. Passport Application of a Minor Child and Consent – Department of Home Affairs Consent for a minor child for relocation and passport application Frequently asked questions regarding relocation and consent when it comes to minor children I want to relocate with my minor child. what do I need to know with regard to the law? We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the East London Children’s Court

Family law legal matters can be very stressful. This is so whether you live in East London or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.
This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in East London. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in East London or any other city in South Africa.
What to do before visiting the East London Children’s Court
Before you approach the Children’s Court in East London, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. East London has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the East London Children’s Court for assistance.
TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.
Approaching the East London Children’s Court
The East London Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the East London Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.
Once you arrive at the East London Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.
In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:
PART A: PARTICULARS OF CHILD(REN)
PART B: PARTICULARS OF CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON ACTING IN THE INTEREST OF THE CHILD/ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
PART D: PARTICULARS OF MATTER
In part D, the following is stated which you need to provide in the form:
Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
Documents: Are there any documents relating to the matter? (If so please attach)
Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in East London.
TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.
Processing your Application at the East London Children’s Court
Once you complete the Form A and submit it to the Clerk of the East London Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.
TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.
Appearing in the East London Children’s Court
When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:
Get a social worker involved in the matter;
Appoint a legal representative for the minor child;
Implement interim care and contact arrangements;
Having the parties attempt to agree on a parenting plan;

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.
TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.
Finalising the matter in the East London Children’s Court
Once the East London Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.
TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.
The above East London Children’s Court Application tips should apply to the following provinces and cities:
Eastern Cape:
Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha
Port Elizabeth, Queenstown, Uitenhage, Zwelitsha
Free State:
Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom
Gauteng:
Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging
KwaZulu-Natal:
Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi
Limpopo:
Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi
Mpumalanga:
Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth
Western Cape:
Bellville, East London, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

Posted on 11 February 2025 by Telelaw

Father being refused contact to his child! What are his rights as a Father?

The concept of Family

Fam-i-ly. A three-syllable word, that means so much. The concept of family is a very broad one and one that takes more than one form. There is the traditional form, and a more modern one. When you say “she is family”, you may be referring to your father’s cousin, a grandparent, or a niece. However, people most often referred to are those closest to you, referring to blood relations, for example, a parent or child. The most basic social unit of what a family comprises of – two parents and in most cases a child.

We are conveniently located in the Pinnacle Building, in the Cape Town CBD. Click here to call us on (021) 4243487 or send us an email.

However, the law now sees people as family who are not necessary married to each other in law, but who may be cohabiting as life partners, bringing a more modern concept to it. As the law recognises family relations, it therefore imposes certain rights, obligations, and certain restraints when it comes to family. For example, spouses have a legal obligation to maintain each other, and you may not marry your sibling. Another example is that of inheritance, even if you never knew you had a child, at your death, he or she would inherit from you if you die intestate, all just because, you are Fam-i-ly.

What is a father?

This article deals with the legal relationship between a biological father and a child. Not all men are blessed with being referred to as a father. In order to be a father, you have to be a male parent to a child. The child must have been born from you. And therefore, every child can only have one father. However, from the moment you became a father, the law imposed certain rights and responsibilities. These responsibilities will remain until you or your child’s demise. The scope of this article is not to stipulate what a good or bad father is. It is to outline what the responsibilities and rights of a father are towards his child.

What are the father’s rights towards his child?

This article is inspired by the fact that many fathers who are not in a marital, or romantic relationship with the mother of his child, are refused the rights to exercise his parental rights and responsibilities towards his child. In South Africa, we have the Children’s Act 38 (Act 38 of 2005), which came into effect on 1 April 2010. Here section 10 of the Act is of use. It defines parental responsibilities and rights, which includes the right to care for the child, to maintain contact with the child, to act as guardian of the child; and to contribute to the maintenance of the child. Fathers of children born out of wedlock does not automatically have rights towards their child. In order for you to form part of such a child’s life you need to fulfil the requirements of section 21 of the Act, which basically states:

at the time of the child’s birth, you are living with the mother in a permanent life-partnership; and
you contribute or have attempted in good faith to contribute to the child’s upbringing for a reasonable period;
you contribute or have attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

Many fathers would have been married to the mother. Others would have meaningfully partook in the child’s life from birth. Therefore, there should generally be no difference between a child born from a marriage and a child born outside of a marriage. To take the statement further, it is possible for a father of a child born out of wedlock to be the primary care giver of the child, where the mother is only entitled to see the child at certain times and circumstances, or not at all.

What is meant by the terms care and contact?

The question is now posed, what is meant by this right of care and contact a father has towards his child? The Act provides a very holistic understanding of the concept of care. This includes providing the child with proper accommodation, guidance, protection and so on. Basically, to do, and provide the child with whatever is in his or her best interests. Contact, on the other hand entails maintaining a personal relationship with the child, visiting or being visited by him or her, and communication with the child in various forms.

Can the mother of your child deny you contact and care rights?

Now we deal with the issue of whether or not the mother of your child can arbitrary deny you from exercising your parental responsibilities and rights of care and contact. Should a mother feel that the father of her child should have limited rights and care to his child; in order for her to limit his rights, the mother should have a very good reason for doing so. Her reason should be motivated by what is in the child’s best interest and nothing else. However, what is in the child’s best interest is an objective assessment and not a maternal one. All factors are to be considered. Therefore, by way of example, should the mother’s reason be that the father has a new girlfriend, or that she does not like his parents – that would not on the face of it be a good reason. Therefore, should the father unreasonably be refused care and contact, he can invoke the law. Should he decide to litigate, the court would assess the matter and make a ruling as to what is in the minor child’s best interest. The court may agree with the mother, or the father, or with none of them.

Final words to fathers

As a father of a child, you are legally afforded with certain parental responsibilities in relation to your child. In South African law, there is no distinction between the rights of a mother and that of a father in relation to a child if the father has full parental rights and responsibilities. However, what the law looks at is what would practically make sense when exercising those rights and responsibilities. In other words, we cannot cut the child in half. The yardstick is, what is in the child’s best interests. All families are different, with many variables at play. Therefore, if it would be in the minor child’s best interests to reside with their mother, that should happen. Even if the father only sees the child on Christmas eve, then that should be the case. However, in the same breath if it would be in the minor child’s best interest for the minor child to reside with the father and the mother to have contact once a month, then that should be enforced. Therefore, if you as a father are unreasonably being obstructed from exercising your rights of care and contact, get legal advice, and enforce your rights.

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Posted on 11 February 2025 by Telelaw