Advocate Muhammad Abduroaf Attorney Appeal Constitutional Court Supreme Court 

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Advocate Muhammad Abduroaf Attorney Appeal Constitutional Court Supreme Court 

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Parent Refusing Relocation, and Passport Application for Minor Child

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

Popular relocation countries for South Africans

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

  • United Kingdom (UK)

  • Australia

  • United States of America (USA)

  • New Zealand

  • Canada

  • Angola

  • Botswana

  • Chile

  • Zimbabwe

  • Germany

  • Netherlands

  • Swaziland

  • Israel

  • Portugal

  • Mozambique

  • Ireland

  • Malawi

  • Switzerland

  • Namibia

  • Greece

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

The parent refuses to consent to emigration

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

The Right to a Passport

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

The law on Consent for Passports for Minor children

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

What can be done if consent is refused for emigration?

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

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

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

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

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

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[caption id="attachment_10811" align="alignnone" width="713"] Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption]

I want to relocate from South Africa to Canada with my minor child. The other parent does not want my child to relocate to Canada. What can I do?

Canada is a popular destination to emigrate to. People emigrate from South Africa for many reasons. It ranges from better employment opportunities, family relations, or for a better standard of living. Whatever the reason a parent wants to relocate to Canada, if a minor child will be joining that parent and also relocating to Canada, then the parent remaining in South Africa’s consent would usually be required. Let us unpack the legal issues a parent may encounter when wanting to emigrate to Canada. Before we do so, let us list the various cities and towns in Canada to which you may want to relocate: Alberta, Banff, Brooks, Calgary, Edmonton, Fort McMurray, Grande Prairie, Jasper, Lake Louise, Lethbridge, Medicine Hat, Red Deer, Saint Albert, British Columbia, Barkerville, Burnaby, Campbell River, Chilliwack, Courtenay, Cranbrook, Dawson Creek, Delta, Esquimalt, Fort Saint James, Fort Saint John, Hope, Kamloops, Kelowna, Kimberley, Kitimat, Langley, Nanaimo, Nelson, New Westminster, North Vancouver, Oak Bay, Penticton, Powell River, Prince George, Prince Rupert, Quesnel, Revelstoke, Rossland, Trail, Vancouver, Vernon, Victoria, West Vancouver, White Rock, Manitoba, Brandon, Churchill, Dauphin, Flin Flon, Kildonan, Saint Boniface, Swan River, Thompson, Winnipeg, York Factory, New Brunswick, Bathurst, Caraquet, Dalhousie, Fredericton, Miramichi, Moncton, Saint John, Newfoundland and Labrador, Argentia, Bonavista, Channel-Port aux Basques, Corner Brook, Ferryland, Gander, Grand Falls–Windsor, Happy Valley–Goose Bay, Harbour Grace, Labrador City, Placentia, Saint Anthony, St. John’s, Wabana, Northwest Territories, Fort Smith, Hay River, Inuvik, Tuktoyaktuk, Yellowknife, Nova Scotia, Baddeck, Digby, Glace Bay, Halifax, Liverpool, Louisbourg, Lunenburg, Pictou, Port Hawkesbury, Springhill, Sydney, Yarmouth, Nunavut, Iqaluit, Ontario, Bancroft, Barrie, Belleville, Brampton, Brantford, Brockville, Burlington, Cambridge, Chatham, Chatham-Kent, Cornwall, Elliot Lake, Etobicoke, Fort Erie, Fort Frances, Gananoque, Guelph, Hamilton, Iroquois Falls, Kapuskasing, Kawartha Lakes, Kenora, Kingston, Kirkland Lake, Kitchener, Laurentian Hills, London, Midland, Mississauga, Moose Factory, Moosonee, Niagara Falls, Niagara-on-the-Lake, North Bay, North York, Oakville, Orillia, Oshawa, Ottawa, Parry Sound, Perth, Peterborough, Picton, Port Colborne, Saint Catharines, Saint Thomas, Sarnia-Clearwater, Sault Sainte Marie, Scarborough, Simcoe, Stratford, Sudbury, Temiskaming Shores, Thorold, Thunder Bay, Timmins, Toronto, Trenton, Waterloo, Welland, West Nipissing, Windsor, Woodstock, York, Prince Edward Island, Borden, Cavendish, Charlottetown, Souris, Summerside, Quebec, Asbestos, Baie-Comeau, Beloeil, Cap-de-la-Madeleine, Chambly, Charlesbourg, Châteauguay, Chibougamau, Côte-Saint-Luc, Dorval, Gaspé, Gatineau, Granby, Havre-Saint-Pierre, Hull, Jonquière, Kuujjuaq, La Salle, La Tuque, Lachine, Laval, Lévis, Longueuil, Magog, Matane, Montreal, Montréal-Nord, Percé, Port-Cartier, Quebec, Rimouski, Rouyn-Noranda, Saguenay, Saint-Eustache, Saint-Hubert, Sainte-Anne-de-Beaupré, Sainte-Foy, Sainte-Thérèse, Sept-Îles, Sherbrooke, Sorel-Tracy, Trois-Rivières, Val-d’Or, Waskaganish, Saskatchewan, Batoche, Cumberland House, Estevan, Flin Flon, Moose Jaw, Prince Albert, Regina, Saskatoon, Uranium City, Yukon, Dawson, Watson Lake, Whitehorse. (https://www.britannica.com/topic/list-of-cities-and-towns-in-Canada-2038873)

Why do I require the other parent’s Consent to relocate to Canada?

According to South African law, if you are a co-holder of parental responsibilities and rights over your minor child, you must consent to your child leaving South Africa. In this case, relocating to Canada. Here we refer to section 18 of the Children’s Act 38 of 2005. The entire provision is as follows: 18 Parental responsibilities and rights  (1) A person may have either full or specific parental responsibilities and rights in respect of a child.  (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-  (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child.  (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must-  (a) administer and safeguard the child’s property and property interests;  (b) assist or represent the child in administrative, contractual and other legal matters; or  (c) give or refuse any consent required by law in respect of the child, including-  (i) consent to the child’s marriage;  (ii) consent to the child’s adoption;  (iii) consent to the child’s departure or removal from the Republic;  (iv) consent to the child’s application for a passport; and  (v) consent to the alienation or encumbrance of any immovable property of the child.  (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the Consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Now let us explain what Parental Responsibilities and Rights are.

What are Parental Responsibilities and Rights of a parent in relation to a child?

As can be seen from section 18(2) of the Children’s Act, when we refer to Parental Responsibilities and Rights, we refer to the following: (a) to care for the child;  (b) to maintain contact with the child;  (c) to act as guardian of the child; and  (d) to contribute to the maintenance of the child. Therefore, if a parent has parental responsibilities and rights over a minor child, and accordingly, rights of guardianship, their Consent is required when it comes to issues of guardianship. As seen from section 18(3)(c) of the Children’s Act above, both parents’ Consent is required should a minor child depart from the Republic of South Africa. In this case, to emigrate to Canada. Even if the minor child only wants to go for a short holiday to Canada, both guardians’ Consent would be required.

When would the other parent be seen as a guardian in the case of a relocation matter to Canada?

It must be noted that not all parents are legal guardians over their minor children. We should therefore distinguish between married or divorced parents and parents who were never married. As you would see below, usually married, or divorced parents’ Consent would be required for a minor child to relocate or emigrate to Canada. However, that does not automatically apply to parents who were never married. This could be because the child could have been born from a brief encounter and never met his or her father. It would not make sense that a parent who never met his or her 15-year-old child, should give Consent for relocation to Canada.

Mother’s Consent for relocation of the minor child to Canada

Section 19 of the Children’s Act deals with the Parental responsibilities and rights of mothers. It states the following: 19 Parental responsibilities and rights of mothers  (1) The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child.  (2) If-  (a) the biological mother of a child is an unmarried child who does not have guardianship in respect of the child; and  (b) the biological father of the child does not have guardianship in respect of the child, the guardian of the child’s biological mother is also the guardian of the child.  (3) This section does not apply in respect of a child who is the subject of a surrogacy agreement. As seen from section 19(1) of the Children’s Act, in most cases involving the relocation of a minor child to Canada, the mother’s Consent is required as she has full parental responsibilities and rights over the minor child.

Married father’s Consent for the relocation of the minor child to Canada

Section 20 of the Children’s Act deals with Parental responsibilities and rights of married fathers. It states the following: 20 Parental responsibilities and rights of married fathers The biological father of a child has full parental responsibilities and rights in respect of the child- (a) if he is married to the child’s mother; or (b) if he was married to the child’s mother at (i) the time of the child’s conception; (ii) the time of the child’s birth; or (iii) any time between the child’s conception and birth. As can be seen from sections 20 (a) and (b) of the Children’s Act, if the father and the mother were married, or are married, then his Consent is required for the minor child to relocate to Canada. Of course, an exception to this would be should a court of law order otherwise. This would be the case should the parents be divorced and the divorce court ordered that only the mother may act as guardian. Next, we deal with the issue of an unmarried father’s Consent to relocate a minor child to Canada.

Consent of unmarried fathers for the relocation of their minor children to Canada.

Section 21 of the Children’s Act deals with parental responsibilities and rights of unmarried fathers. The section states the following: 21 Parental responsibilities and rights of unmarried fathers  (1) The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of section 20, acquires full parental responsibilities and rights in respect of the child-  (a) if at the time of the child’s birth he is living with the mother in a permanent life-partnership; or  (b) if he, regardless of whether he has lived or is living with the mother-  (i) consents to be identified or successfully applies in terms of section 26 to be identified as the child’s father or pays damages in terms of customary law;  (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and  (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.  (2) This section does not affect the duty of a father to contribute towards the maintenance of the child.  (3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (1) (a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.  (b) Any party to the mediation may have the outcome  of the mediation reviewed by a court.  (4) This section applies regardless of whether the child was born before or after the commencement of this Act. As can be seen from the latter sections, a father of a child born out of wedlock does not automatically have parental responsibilities and rights over his minor child. He may however acquire those parental responsibilities and rights over his minor child if he is materially involved in the child’s life. That would be where the father and the mother were in a permanent life partnership when the child was born or he is meaningfully involved in the child’s life, as outlined above. We shall not go into much detail regarding that. However, in most cases, if the father had regular contact with the child and paid child support, he would have acquired parental responsibilities and rights over the minor child.

What do you do if the other parent does not want to consent to the minor child relocating to Canada?

Suppose the other parent also has parental responsibilities and rights over the minor child, and he or she does not want to consent to the relocation of the minor child to Canada, then in such a case, the Court needs to be approached. Here I refer you back to section 18(5) of the Children’s Act referred to above where it states: (5) Unless a competent court orders otherwise, the Consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c). Therefore, after your Court Application has been launched an both sides have been heard, the Court would make the necessary Order. If you are successful in your application for the relocation of your minor children to Canada, then the Court will make an Order similar to that which is shown below.
[caption id="attachment_10810" align="alignnone" width="697"]Relocation consent Court Order for minor child to Canada - Advocate Muhammad Abduroaf Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10811" align="alignnone" width="717"] Relocation consent Court Order for minor child to Canada – Advocate Muhammad Abduroaf[/caption]  

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

 

Family law legal matters can be very stressful. This is so whether you live in Bellville 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 Bellville. 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 Bellville or any other city in South Africa.

What to do before visiting the Bellville Children’s Court

Before you approach the Children’s Court in Bellville, 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. Bellville 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 Bellville 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 Bellville Children’s Court

The Bellville Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Bellville 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 Bellville 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 Bellville.

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 Bellville Children’s Court

Once you complete the Form A and submit it to the Clerk of the Bellville 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 Bellville 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 Bellville Children’s Court

Once the Bellville 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 Bellville 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, Bellville, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

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