The Hague Convention on the Civil Aspects of International Child Abduction is the main international agreement that covers international parental child abduction. It provides a process through which a parent can seek to have their child returned to their home country.
The purpose of the Convention is to protect a child from the harmful effects of international abduction by a parent by encouraging the prompt return of the abducted child to their country of habitual residence, and to organize or secure the effective rights of access to a child.
The Convention focuses on the child, providing a shared civil remedy among partner countries.
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 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 to South Africa.
Important features of the Convention include:
- Each country that has ratified or acceded to the Convention is required to have a Central Authority. The Central Authority is the main point of contact for parents and other governments involved in abduction cases. The Central Authority has a duty of tracing the child and taking steps to secure the child’s return.
- In South Africa the Chief Family Advocate is designated as the Central Authority.
- The Central Authority in South Africa applies, on behalf of the applicant, to the Central Authority of the country to which the child has been taken. The requested Central Authority or their designated representative should on receipt of the application, take immediate steps to:
- Discover the whereabouts of the child; and
- Prevent any further harm to the child
- The Central Authority assists in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country, as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa).
- A party may submit an application for the return of a child, or access to a child to the Central Authority.
- A parent does not necessarily need to present a Court order to prove that his or her parental rights were violated when the child was taken from his or her country; the Convention allows proof according to the laws of the child’s habitual residence.
To obtain the return of your child, through a Hague proceeding, you must first be able to demonstrate:
- That your child was habitually resident in one Convention country, and was wrongfully removed to or retained in another Convention country.
- The removal or retention of your child is considered wrongful if it was in violation of your parental rights, and you were exercising those rights at the time of the removal or retention, or you would have been exercising them but for the removal or retention.
- The Convention must have been in force between the two countries when the wrongful removal or retention occurred.
- The child is under the age of 18.
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Author – Kate Bailey – Hill