Tackling the Wrongful Removal of Children in Divorce

As a result of a number of factors, the wrongful removal of children in divorce or separation by SA by parents is a major issue – and one that needs to be tackled. These factors include skyrocketing divorce rates; parents electing to live and work overseas; and people employing self-help methods to move without the consent of the other parent or court sanctions.

Wrongful removal is a child custody issue that countries around the world struggle with, and is in fact monitored and governed by the Hague. (More specifically, by the Hague Convention on the Civil Aspects of International Child Abduction 25 October 1980). Member countries include European nations, commonwealth countries, the USA, Mauritius, Zimbabwe and South Africa. The Convention is effectively a treaty or contract between countries to ensure the return of children wrongfully removed from the country of their habitual residence. The agreement is designed to ensure a simplified and speedy procedure for the return of children in a divorce or separation situation, and strives to return them to the jurisdiction best suited to deal with the child custody dispute.

The removal of a child as a result of divorce or separation is deemed wrongful if:

• It is in breach of the rights of child custody attributed to a person under the law in which the child was habitually resident immediately before the removal
• At the time of the removal these rights were being exercised or would have bene exercised but for the removal
• The child is habitually resident in the contracting state immediately before the abduction
• The child is under 16

So, what steps should be taken in applying for the return of the child during a divorce or separation if he/she has been wrongfully removed?

Approach the Central Authority of the country from whence the child was abducted (in RSA this is the Office of the Chief Family Advocate) or the Central Authority of the country where the child was abducted to.

Make sure you have the following items on hand:

• Proof of parental rights and responsibilities in the child custody agreement
• Recent photographs of the child and the abductor
• Certified copy of birth certificate
• Certified copy of marriage certificate if applicable
• Affidavit setting out the chronological events leading to abduction

If the child was abducted to a contracting State, the Central Authority of RSA will send the documentation to the foreign contracting State.

However, if the child was abducted to a non-contracting State, the procedure is costly and more intricate:

• An order will have to be obtained in the South African courts ordering the removal to be wrongful
• This order will have to be made an order of the foreign courts
• The foreign order will then have to be enforced and the return of the child secured

The contracting States will endeavour to ensure the voluntary return of the child before resorting to a referral of the child custody matter to the relevant judicial or administrative body.

One must, however, keep in mind that the judicial or administrative body is not bound to return the child if it establishes the following:

• The person having care of the child was not actually exercising their child custody rights at the time or removal or had consented or acquiesced to the removal; or
• There is a grave risk that the return of the child would result in physical or psychological harm or otherwise place the child in an intolerable situation
• The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of his or her views

The wrongful abduction of children in divorce or separation is clearly a complex issue and one that requires an understanding of the legal requirements and recourses of child custody. Without such an understanding, and an awareness of the processes involved, it is extremely difficult and frustrating for those involved in a wrongful abduction case to have their voices heard.

By Gillian Lowndes, attorney specialising in family law