Passport Application for a minor child: Mother cannot find the father to provide the necessary consent at the Department of Home Affairs. The Application is therefore refused.

Passport Application for a minor child: It is not easy being a single parent, and at the same time, the primary caregiver of the child. This is even so where the other parent pays child support and regularly sees the child. This article deals with the situation where the father of the child is missing. He, therefore, does not pay any child support, nor has a relationship with the child. This causes a problem when it comes to issues of guardianship rights. For example, when the mother wants to enrol the child in a school or provide medical consent. The question would always arise – “where is the father?”, or “did the father give his consent?” When it comes to official matters, for example, the application for a passport, then things become more complicated. This is where the issue of parental consent for the application for a passport is looked at. Now let us first deal with the law.

Parental Responsibilities and Rights of Fathers

In short, if a father was married to the mother, he would automatically have full parental responsibilities and rights to the child born from them. This includes the rights of care, contact and guardianship. If he was not married to the mother of the child, he can acquire parental responsibilities and rights. In short, in order for the unmarried father to acquire parental responsibilities and rights, he has to form part of the child’s life. He may also attempt to do so and the mother hinders it from happening. In the latter situation, he would still acquire parental responsibilities and rights.

The Unmarried Father’s Rights

The unmarried father can acquire parental responsibilities and rights to his child in a number of ways. They include paying child support, visiting the child and so on. Therefore, not all fathers would have parental responsibilities and rights over their children. Some fathers just impregnated the mothers and went missing. Such a father cannot rock up, 12 years later and demand to take the child with him to the movies. I think you understand the point we are trying to make.

What is the legal effect of having parental responsibilities and rights over a child?

Should a father have parental responsibilities and rights over a child – he has certain defined rights. Those rights could either be absolute, or specific. An absolute right would be one of guardianship. An example would be an application for a passport or the removal of a child from the Republic. In the latter cases, the father’s consent is an absolute requirement which can only be taken away by a court of law. Then there are relative parental responsibilities and rights over a child. These rights depend on the circumstances of the case. An example would be that of visitation. A father who has parental responsibilities and rights of contact over a child cannot demand to see the child at any time. He may not even be able to demand to see the child half the time. His contact rights would be limited to what is in the child’s bests interests. And that would change from time to time. For example, should the father live 100km away from his children, contact could be every second weekend. But, should he live down the road, it could be every second day.

The Legal Problem for unmarried parents and their rights

The consent required in relation to the exercise of parental responsibilities and rights over certain children have challenges. How would anyone know whether or not an unmarried father has parental responsibilities and rights? For example, lets say the father was never involved in the child’s life – what proof does she have to show the authorities that the father does not have any parental responsibilities and rights? Would the Department of Home Affairs just accept the allegation made by the mother? I do not think so. And this could cause a problem in two ways. Let’s say the father has parental responsibilities and rights over a child. The mother however now wishes to relocate overseas. She tells the authorities at the Department of Home Affairs that she does not know where the father is, and he was never involved in the child’s life. If the Department of Home Affairs accepts her lie, the mother would be able to leave South Africa with the child, and without the father knowing. Let alone obtain his consent. On the other hand, let’s say that the father was really not involved in the child’s life since birth. He went missing after he found out the mother was pregnant. He never paid for any of the birthing costs, nor any of the child’s expenses since birth. Should the mother approach the Department of Home Affairs, would they allow her to obtain a passport without the father’s consent? We could be wrong, but we doubt they will.

What can a mother do if she does not have the consent from the father

As the law stands and with the current position of the Department of Home Affairs, the following needs to be done if the father refuses to give his consent, or cannot be found.

Application to the High Court

We advise that you consult with a legal advisor to advise you on the merits of your case. If there are merits, an application to the relevant court would be made. The Court would decide on the matter after hearing from both the parents. If it is decided that it would be best for the child to obtain a passport or relocate, the court would grant the appropriate order.

These are the documents that would form part of the Court file:

Notice of Motion

This document outlines the relief you are asking the court for. This would be the case where the details of the father is known. Two of the clauses could be as follows:

The Respondent’s consent is not required for the departure of the minor child, Little One, with identity number 0813040502086 (hereafter referred to as “the minor child”), from the Republic of South Africa, and to relocate to France, as provided for in section 18(5) of the Children’s Act 38 of 2005;
The Respondent’s consent is not required for the return of the minor child to the Republic of South Africa for visits;

Founding Affidavit

In this document, you outline the facts of the matter. You would deal with why you want consent.

Opposing Affidavit

If the father opposes the Application, he would file this affidavit. In this document he would outline reasons why the court should not give consent.

Replying Affidavit

You would then get an opportunity to reply to the father’s allegations made.

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. [caption id="attachment_7081" align="alignleft" width="217"] Advocate Cape Town Lawyer Attorney Legal High Court

Advocate Muhammad Abduroaf[/caption] 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"]

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Posted on 11 February 2025 by Telelaw

Passport Application for a minor child: Mother cannot find the father to provide the necessary consent at the Department of Home Affairs. The Application is therefore refused.

Parental Responsibilities and Rights of Fathers

The Unmarried Father’s Rights

What is the legal effect of having parental responsibilities and rights over a child?

Then there are relative parental responsibilities and rights over a child. These rights depend on the circumstances of the case. An example would be that of visitation. A father who has parental responsibilities and rights of contact over a child cannot demand to see the child at any time. He may not even be able to demand to see the child half the time. His contact rights would be limited to what is in the child’s bests interests. And that would change from time to time. For example, should the father live 100km away from his children, contact could be every second weekend. But, should he live down the road, it could be every second day.

The Legal Problem for unmarried parents and their rights

Let’s say the father has parental responsibilities and rights over a child. The mother however now wishes to relocate overseas. She tells the authorities at the Department of Home Affairs that she does not know where the father is, and he was never involved in the child’s life. If the Department of Home Affairs accepts her lie, the mother would be able to leave South Africa with the child, and without the father knowing. Let alone obtain his consent.

On the other hand, let’s say that the father was really not involved in the child’s life since birth. He went missing after he found out the mother was pregnant. He never paid for any of the birthing costs, nor any of the child’s expenses since birth. Should the mother approach the Department of Home Affairs, would they allow her to obtain a passport without the father’s consent? We could be wrong, but we doubt they will.

What can a mother do if she does not have the consent from the father

As the law stands and with the current position of the Department of Home Affairs, the following needs to be done if the father refuses to give his consent, or cannot be found.

Application to the High Court

These are the documents that would form part of the Court file:

Notice of Motion

This document outlines the relief you are asking the court for. This would be the case where the details of the father is known. Two of the clauses could be as follows:

The Respondent’s consent is not required for the departure of the minor child, Little One, with identity number 0813040502086 (hereafter referred to as “the minor child”), from the Republic of South Africa, and to relocate to France, as provided for in section 18(5) of the Children’s Act 38 of 2005;
The Respondent’s consent is not required for the return of the minor child to the Republic of South Africa for visits;

Founding Affidavit

In this document, you outline the facts of the matter. You would deal with why you want consent.

Opposing Affidavit

If the father opposes the Application, he would file this affidavit. In this document he would outline reasons why the court should not give consent.

Replying Affidavit

You would then get an opportunity to reply to the father’s allegations made.

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

Advocate Cape Town Lawyer Attorney Legal High Court — Advocate Muhammad Abduroaf

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.

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What are the Legal Principles applicable to minor Children’s Relocation matters? Are there differences between Local or provincial and International Relocation?
If parents cannot agree on the issue of relocation of minor children with a parent, a court of law would have to step in. If the parent who wishes to relocate is successful, it would mean the other parent would not have contact with the minor child as he or she used to. This is a difficult situation to deal with if you are not the custodial parent of the minor child. For one, you may not see you child face to face every day or every weekend as you used to. You will, therefore unfortunately not see your child grow and be there during his or her various developmental stages in life.
The challenges with minor children relocation matters
That is why relocation matters can be difficult to deal with by the parents due to the high amount of emotions involved. The usual issues that parents would “fight” over are contact and care issues while the parents are living in the same town or suburb. The court would decide whether a parent can see a child from 11:00 or from 14:00 or on a Monday or Sunday. However, in relocation matters, the effect of the court order is that contact would not take place in person, and as often and regularly by the nature of the relief sought.
How contact is exercised when minor children relocation
We do agree that there are other means of contact if relocation is allowed. That includes video contact, text and email etc. The minor child can also visit the parent during school holidays, or the parent can visit the minor child. In the case of international relocation, the option can become very costly and sometimes impossible. Therefore, parties should strongly look into those alternative means of contact in the event the application for relocation is successful.
Minor children relocaiton and the Legal Principles applicable
This article deals with the issue of the best interest of minor children in relocation matters and the principles applicable. Each case is different, just as each family and its dynamics differs vastly from the next. What follows is an extract of a court case that dealt with the issue of relocation. You can apply those principles to your case.
What does our courts say in relocation matters?
In the matter of LW v DB 2020 (1) SA 169 (GJ), the Gauteng High Court dealt with the issue of the best interest of minor children specifically in relocation matters. It outlined the principles that follows.
Principles applicable to relocation of children Certain guidelines may be distilled from the Constitution, judgments of South African courts, and conventions to which South Africa is a signatory: (a) The interests of children are the first and paramount consideration. (b) Each case is to be decided on its own particular facts. (c) Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained. (d) Where a custodial parent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. (e) The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question. The best interests of the child Our courts adhere to the ‘best interests’ approach as they are required to do by the Constitution. On the papers, which include the founding, answering and supplementary affidavits as also the report emanating from the Office of the Family Advocate, reference was made to a number of issues associated with the life, circumstances, wellbeing activities, relationships, dependencies of R — all of which contribute to a greater or lesser extent, and in isolation or in conjunction, to determining his ‘best interests’. Amongst these issues are R’s attachment to both parents and grandparents, the disruption of R’s bond with his father if he were to move to Cape Town, the somewhat conflicted relationship between LW and DB, the demands made on both parents to hold down employment and earn livings to support their child, the arrangements made for the care of R in Vereeniging, Vanderbijlpark and Cape Town, the personal needs and desires of all adults involved in this issue, taking into account the constitutional acknowledgments of the rights of human dignity, freedom and equality. In the unreported judgment dissenting from the majority of the court in Ford v Ford WLD 5001/04, I discussed the manner in which one may attempt to give meaning and content to the concept of the ‘best interests of the child’. The majority of the court expressed no view on this issue and the Supreme Court of Appeal did not disagree therewith. It is convenient to repeat those portions of the judgment which are relevant to the issue before us today. Our law has developed the ‘best interests of the child’ approach which has now been enshrined in the Constitution which, in s 28(2), proclaims that ‘a child’s best interests are of paramount importance in every matter concerning the child’. This principle has become known, in one form or another, in many national legal systems and has been recognised in international instruments. However, some writers suggest that the principle has yet to acquire much specific content or to be the subject of any sustained analysis designed to shed light on its precise meaning. The result is that diverse interpretation may be given to the principle in different settings. I suggested that care also be taken to avoid slavish adoption of such content as has been given to specific legislation or instruments, since language, as also constitutional, cultural, familial, social and other traditions, inform contrasting interpretations. The full complexity of the South African Constitution is continually being explored. Section 28(2) and the ‘best interests’ principle do not represent and are not situate within a Constitution which envisages a monolithic or unidimensional approach reflecting a single, unified philosophy of children’s rights. There can be no specific and readily ascertainable recipe for resolving the inevitable tensions and conflicts that arise in each given situation. The respective concerns and entitlements of different actors involved cannot be assumed to always be clearly defined and delineated. In different situations, other interests to be balanced may include, not only the particular child but also siblings, parents, nuclear and extended families and sometimes the local community, society and the state. The ‘best interests’ principle is used to provide a framework for addressing the entire range of major issues affecting children. The principle may be invoked in relation to and in the context of the separation of the child from the family setting, adoption and comparable practices, parental responsibility for the upbringing and development of the child, the child’s involvement with the police and the justice system, the provision of housing and social services, access to schooling and so on.
If you wish to relocate with your minor child to a different province or abroad, consider the above principles. It would make your case much easier if you understand them.

Posted on 11 February 2025 by Telelaw

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