::International abduction of minors to South Africa

The legislation dealing with international abduction of minors is known as the Hague Convention of the Civil Aspects of International Child Abduction (1980). The South African legislation incorporating this Act is the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996.

The latest case dealing with the international abduction of minors is that of Central Authority of the Republic of South Africa and Another v LG 2011 (2) SA 386. In this case the second Applicant, the husband, was married to the Respondent, his wife. The marriage broke down irretrievably and the parties decided to get divorced. They had been living in the United Kingdom and had a minor child.

The man alleged that his wife had taken the minor child to South Africa in order to attend a wedding in South Africa and that she had undertaken to return to the United Kingdom after the wedding. His argument was that she had unlawfully retained the minor child in South Africa without his consent. He then approached the first Applicant, the Central Authority of South Africa, to assist in having the child returned back to the United Kingdom. The application was dismissed with costs.

The court looked at the age of the minor child. The minor child was only seventeen months old at the time. The court found that there was no close bond between the father and the minor child. The father had even been prepared to live apart from the minor child for at least six months when the child was in South Africa with the mother.

In coming to its decision, the court also looked at the risk of psychological harm. The court found that the man did not have the best interests of the child at heart, and that the child would be exposed to psychological harm if returned to the man. The court also looked at the health of the child. The court found that the health of the child had greatly improved since being in South Africa.

In my opinion the above decision was the correct one. In terms of Article 13(B) of the Hague Convention of the Civil Aspects of International Child Abduction (1980), there is no duty on the state to return the child if a risk is established that the return of the child would expose the child to physical or psychological harm. In the abovementioned case, the child may well have been psychologically harmed if he had been returned to the United Kingdom and his father.

The decision was also correct because the child was still very young. The court must always act in the best interests of the minor child. Considering that there was no close bond between the father and the child, this would be reason enough for the court to allow the child to continue to stay with his mother.

This article was written by Cape Town divorce lawyer, Peter M Baker

 

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