The notion of parental child abduction may seem forgein to many parents, however, in reality many children are abducted by a parent or caregiver. Parental child abduction is defined as the “taking, retention, or concealment of a child or children by a parent, other family member, or their agent, in derogation of the custody rights, including visitation rights of another parent or family member.”
When a child has been abducted internationally, the rights of the parent from whom the child has been taken cannot be enforced in the country where they are residing. These rights must be pursued in the country where the child is currently residing.
International child abduction is governed by the Hague Convention, to which South Africa is a signatory. According to the Hague Conference on Private International Law, “the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt and safe return.” South Africa ratified the Convention in 1996 and it came into effect in 1997. It has been incorporated into the Children’s Act.
A Hague Convention application is generally heard on an urgent basis by way of notice of motion proceedings in the High Court. One may choose to be represented by an attorney, and the proceedings must be approved by the Family Advocate. An application to the Hague can only be made when a child is under the age of 16 years.
If the two countries involved (one being the country where the child originally resides and the other being the country where the child is physically present) are parties to the Hague Convention it binds the member country to help the parent searching for the child.
The member country is also required to set up a central authority and trace the child in order to ensure the child’s safe return. The central authority in South Africa is the Chief Family Advocate.
An applicant must first prove to the High Court that the child was wrongfully removed and proof to support such contention must be submitted to the High Court. Only then will the process start.
In conclusion, every moment counts in respect of international child abduction. It is imperative that should you believe that your child has been abducted, that you contact an experienced family legal law attorney to assist you in the safe return of your child.
Benita Ardenbaum Attorney specialises in international child abductions.
For direct answers to your specific personal questions, please contact us directly.
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Author – Kate Bailey – Hill