Hague Convention and International Child Abduction
hague_convention

Introduction

Relocation disputes between parents are frequently brought before our courts. Where both parents have guardianship the consent of the “left behind” parent is needed in order to relocate with a minor child. Typically, a relocation dispute will arise when one parent, normally the parent who has primary residence, decides to relocate to another town, province, or country. Often, the left behind parent will refuse to consent to such relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. Such cases are decided on a case-by-case basis depending on the specific circumstances involved.

Factors considered by the courts

The primary consideration is the best interests of the child. Other factors include whether the decision by the parent to relocate is reasonable and bona fide and the impact on the left behind parent and his/her relationship with the child. For example, the court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. The court found that the practicalities of the mother’s decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.

International child abduction

South Africa is a party state to The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”), an international treaty aimed at preventing the unlawful removal of a child from the jurisdiction in which he/she normally resides, without the consent of the other parent or caregiver, and to facilitate the return of a child wrongfully removed.

The purpose of the Convention is to secure the prompt return of any child wrongfully removed to, or retained in, a contracting state. The purpose of obtaining the child’s return is that the court with jurisdiction is better appraised to deal with the merits of the matter. Furthermore, the left behind parent is at a considerable disadvantage in litigating a contested claim for care and contact in the courts of a country other than those of the place of habitual residence. Few people can readily afford litigation in their own jurisdiction, let alone in foreign courts, where the legal system may be different, laws and even language unfamiliar, costs substantial, and facilities for legal assistance difficult to obtain or non-existent.

When might the other country not return my child?

A court in the other country may refuse to return the child if:

  • it is not convinced that the key requirements of the convention have been met
  • it determines that you (the applicant) had agreed to the child being taken or kept in that country, or subsequently acquiesced (see below) to the removal or retention
  • the child has been in that country for more than twelve months and is settled there
  • the child objects to being returned and is old enough and mature enough for their opinion to be considered
  • returning the child would expose them to a grave risk of physical or psychological harm, or some other intolerable situation, or
  • returning the child would breach their fundamental freedoms and human rights.

What is ‘acquiescence’?

If someone ‘acquiesces’ to something, they consent to it or allow it to happen. Under The Hague Convention, one of the reasons a court may decide not to return a child to its habitual residence is if the court believes the applicant ‘subsequently acquiesced’ to the removal of the child, or their retention in the other country. It is up to the court to decide what constitutes ‘subsequent acquiescence’ and whether or not the applicant did in fact acquiesce.

However, common actions that may raise a question of acquiescence include:

  • engaging in court proceedings in the country where the child is located, apart from those in relation to The Hague Convention application (this may indicate that you give permission for the child to remain in that country, or that you have ‘submitted to the jurisdiction’)
  • providing verbal or written agreement to the abducting person that you consent to the child being taken to, or remaining in, a country (either before, during or after the removal or retention)
  • helping the abducting person make decisions about the child’s living arrangements in the other country, such as where the child should live or go to school
  • any other action which may indicate that you give permission for the child to remain in the country they have been taken to or held in.

How can we help

We have a team of highly experienced professionals who have successfully handled Hague Convention cases emanating from a number of countries around the world. As with all our matters, our first priority is always to attempt to find resolution without the need for litigation, however, in most Hague Convention matters this is unavoidable given the urgency of the proceedings.

For direct answers to your specific personal questions, please contact us directly.

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