Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf – High Court

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Child Custody Notice of Motion and Founding Affidavit Advocate Abduroaf – High Court

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[caption id="attachment_10806" align="alignnone" width="707"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]

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

The Netherlands 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 the Netherlands, if a minor child will be joining that parent and also relocating to the Netherlands, 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 the Netherlands. Before we do so, let us list the various cities and towns in the Netherlands to which you may want to relocate:

Drenthe (province), Meppel, Flevoland (province), Lelystad, Friesland (province), Leeuwarden, Sneek, Gelderland (province), Nijmegen, Renkum, Rheden, Tiel, Zutphen, Groningen (province), Groningen, Limburg (province), Kerkrade, Maastricht, Roermond, Sittard, Tegelen, Venlo, Noord-Brabant (province), Oss, Roosendaal, ’s-Hertogenbosch, Tilburg, Noord-Holland (province), the Netherlands, Den Helder, Marken, Velsen, Volendam, Zaanstad, Overijssel (province), Kampen, Zwolle, Utrecht (province), Soest, Utrecht, Zeist, Zeeland (province), Middelburg, Vlissingen, Zuid-Holland (province), The Hague, Scheveningen, Katwijk, Leiden, Lisse, Rijswijk, Rotterdam, Schiedam, Vlaardingen, Zoetermeer, Caribbean Netherlands (special municipalities), Bonaire (special municipality), Saba (special municipality), Sint Eustatius (special municipality), Aruba (unitary state), Oranjestad, San Nicolas, Curaçao (unitary state), Willemstad, Sint Maarten (unitary state)

(https://www.britannica.com/topic/list-of-cities-and-towns-in-the-Netherlands-2055398)

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

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 the Netherlands. 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 the Netherlands. Even if the minor child only wants to go for a short holiday to the Netherlands, both guardians’ Consent would be required.

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

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 the Netherlands. 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 the Netherlands.

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

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 the Netherlands, 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 the Netherlands

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 the Netherlands. 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 the Netherlands.

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

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 the Netherlands?

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 the Netherlands, 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 the Netherlands, then the Court will make an Order similar to that which is shown below. [caption id="attachment_10805" align="alignnone" width="715"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption] [caption id="attachment_10806" align="alignnone" width="694"]Relocation consent for minor child to Netherlands - Advocate Muhammad Abduroaf Relocation consent Order for minor child to the Netherlands – Advocate Muhammad Abduroaf[/caption]  

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Are you intending on taking someone to court? Have you been sued? Do you require some basic advice on litigation from an experienced advocate? If you answered yes once, this article is for you.

Picture outside the Western Cape High Court in Cape Town [caption id="attachment_8243" align="alignleft" width="412"]Advocate Muhammad Abduroaf Advocate Muhammad Abduroaf outside the Western Cape High Court[/caption] We asked Advocate Muhammad Abduroaf to provide our readers with some simple and basic information on how to conduct themselves in court litigation. He holds a decade and a half of litigation experience. Who better to ask than him? Learn more about Advocate Muhammad Abduroaf by reading the article, ADVOCATE OF THE HIGH COURT OF SOUTH AFRICA. Advocate Muhammad Abduroaf: I appeared in court countless amount of times for clients I represented. Furthermore, I drafted thousands of legal documents for them. This I did for litigants as they obviously do not have the necessary skills and experience to do it themselves. Often when a client meets with me, he or she will say this is the first time they have been introduced or embroiled in a legal matter. They are initially a bit anxious and do not know what to expect. Luckily for them, they are legally represented. Litigants are advised on what to expect as their case unfolds. They are informed of the processes that need to be followed and what they have to do in order to provide evidence to the court. As you would see later, this could either be in the form of an affidavit, or orally in Court. Notwithstanding the above, it is always useful to follow some basic guidelines when dealing with a court matter. This is what this article intends to demonstrate. It would be especially useful for someone who is representing themselves in court. In other words, acting in person. Although we advise you to make use of legal representation (advocate or attorney) when engaging in litigation, this article is for those who wish to handle their case on their own.

Who are the parties in a court case?

In civil legal matters, there are usually two opposite sides. Often there will be a Plaintiff and a Defendant. This is called action proceedings. In other cases, you will find an Applicant and a Respondent. This is called Application proceedings. The difference is explained next.

Action Proceedings: Commences with a Summons and Particulars of Claim

Western Cape High Court - Cape Town In action proceedings, there is a Plaintiff and a Defendant. Ultimately the parties will appear in Court to give evidence. In other words, they will step into the witness box and give evidence and answer questions about the specific case. The witness will be examined by his or her attorney or advocate. This is called examination in chief. Then he or she would be examined by the lawyer for the other side. This is called cross-examination. Then there is re-examination. The Plaintiff is the one who institutes the action or starts the case against the Defendant. And of course, the Defendant is the one who is taken to court by the Plaintiff.

Application Proceedings: Commences with a Notice of Motion and Founding Affidavit

In Application Proceedings, the parties to the dispute do not give evidence in the witness box. They provide their evidence in the form of a sworn statement or affidavit. It would start with a Notice of Motion. Basically, in the Notice of Motion, you will state exactly what you want from the court. The Applicant would then outline his or her case in the Founding Affidavit, and the Respondent would do so in his or her answering or opposing affidavit. The Applicant would then get a chance to reply to the opposing affidavit if he or she so wishes. The dispute is therefore resolved on affidavits. There is, therefore, no examination of witnesses. The Applicant is the one who starts the legal process and the Respondent is the other party. This article does not go into detail as to when Application proceedings or action proceedings are appropriate. However, if there is a serious dispute of fact at the outset, then action proceedings would be warranted. Now that we have identified who the parties are, let us provide you with some insight as to what the parties should observe when litigating.

Point 1: Do you have a case?

Whether or not you are instituting legal proceedings or defending it, it is always important to first determine whether or not you have a case. This might sound obvious, but many people litigate solely on emotion and not on fact. This point applies to whether you are instituting proceedings or whether you are defending it. If you are instituting proceedings and you do not have a case, you would not only be wasting your time and money, you would also have to pay the other side’s legal bill if so ordered. The same principle applies when opposing a case.

Point 2: Try to settle the court case early

Even if you have a strong case, it is always wise to attempt to settle it earlier than later. This is before an enormous amount of time and money is used. Many times, sitting face to face with the opposing party can resolve a dispute which could have cost the parties dearly. If sitting face to face is not possible, then try to send a written settlement proposal. This would give the other side something to work with. If they send a counter settlement proposal you are happy with, then take it and move on with your life.

Point 3: Obtain professional legal advice

This point could have been mentioned earlier, however, it applies to every step of the case. Although you are handling your own case, it is important that at each step of the way, you are legally informed. What better advantage will you have if you receive advice from someone who has years of legal experience in the field of law you are dealing with? As your case unfolds or evolves, having an experienced person advise you on your next move would be invaluable. This can save you a lot of time and money in the long run.

Point4: Stick to timelines and court rules

The court has rules and timelines. Therefore, know them and follow them pedantically. The last thing you want is for default judgment to be granted against you. Even worse, have your matter struck from the Court roll and pay the other party’s legal costs. The court rules are there for a reason. Other than timelines, ensure that your court file is in order, indexed and paginated and presentable for the court. This applies to both action and application proceedings.

Point 5: Simplify your case

The adjudicator of your matter is a judge. Although he or she is very learned and wise, he or she does not know the ins and out of your business or issue. It is therefore important that you follow basic principles of simplicity and logic when presenting a case. This could either be when drafting your particulars of claim, or your Notice of Motion. When presenting your case in action proceedings, ask a simple and concise question which would help the court to follow where you are going to. Ask one question at a time. Often lawyers ask two or three questions in a single “question”. For example, the lawyer would ask a witness, “what time did you meet the defendant, and what colour was his jacket and did he sound angry?”. 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      
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