International Parental Child Abduction South Africa
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JANUARY 2011
General Information: South Africa is a signatory to the Hague Abduction Convention on the Civil Aspects of International Child Abduction. The Hague Convention entered into force between the United States and South Africa on November 1, 1997 and therefore applies to cases where a child was abducted or retained after November 1, 1997. Parents and legal guardians of children taken to or retained in South Africa prior to that date may still submit applications for access to the child under the Hague Convention.
The Department of State’s Office of American Citizens Services and Crisis Management (ACS) posts additional information on South Africa at: http://travel.state.gov/travel/cis_pa_tw/cis/cis_1008.html
Legal System: South Africa is a parliamentary democracy with nine provinces. Although South Africa’s legal system incorporates common law statutory law and customary African law, parental child abduction cases are determined using the common law. Under South African law, unless modified by a court, the phrase “parental responsibility and rights in respect of the child” includes the responsibility and right to care for the child, to maintain contact with the child, to act as guardian of the child, and to contribute to the maintenance of the child. Also, the term “care” includes physical custody and the term “contact” includes access to the child (including visitation).
Absent a court order, married parents have equal rights of custody and access to their children. Absent a court order, the mother of a child born out of wedlock has sole rights of custody and access, with limited exceptions. In such cases, a father can petition the court for rights to custody and/or access, and the court will grant them if to do so would be in the best interest of the child.
The High Court hears cases arising under the Hague Abduction Convention, and child custody and access cases.
Retaining an Attorney: The U.S. Embassy in Pretoria maintains a list of attorneys, including those with expertise in family law, available at: http://southafrica.usembassy.gov/acs_attorneys_jhb.html. This list is provided as a courtesy service only and does not constitute an endorsement of any individual attorney. The Department of State assumes no responsibility or liability for the professional ability or reputation of, or the quality of services provided by, the following persons or firms. Professional credentials and areas of expertise are provided directly by the lawyers.
Legal Aid may be available to a parent in matters involving parental responsibility and guardianship of a child. Please contact Legal Aid South Africa for additional information; http://www.legal-aid.co.za/index.php/Contac-Details.html
It is not necessary for a left-behind parent to retain a private attorney for Hague Abduction Convention proceedings. The Family Advocate can present an application on behalf of the left-behind parent to the South African court for the child’s return; the Advocate represents the petition, not the petitioner. If required, the Family Advocate’s Office in conjunction with the Legal Aid Board will assist the left-behind parent to obtain legal aid. Still, the parent may also wish to retain a private attorney of his or her choosing.
Citizenship & Passport Matters: Child passports are issued to children under the age of 16, and are valid for five years. Usually, the consent of both parents is required to obtain a South African passport for a child, though South African passport regulations allow a parent who has sole custody and guardianship to sign the passport applications of his/her children alone. However, Home Affairs will not accept a minor's application for passport without both parents' signatures unless there is a legal document provided showing that the applicant parent has both sole custody (or physical custody) and guardianship (or the court-appointed right to make decisions for the child). If the divorce decree does not specify custody and guardianship, the other parent’s approval / signature is needed.
Birth within the territory of South Africa does not automatically confer South African citizenship. A person may claim South African citizenship by birth if one parent was a South African citizen or if one parent had been lawfully admitted to the Republic for permanent residence when the child was born. A child born out of wedlock prior to October 6, 1995 is a South African citizen by birth only if the mother was a South African citizen at the time of the birth of the child. Any person born outside South Africa, at least one of whose parents is a South African citizen at the time of the child’s birth, and whose birth is registered in the terms of the Births and Deaths Registration Act, 1922, shall be a South African citizen by descent.
A parent can apply for a minor to become a South African citizen by naturalization if the minor is permanently and lawfully resident in the Republic. For additional information on citizenship, please see: http://www.home-affairs.gov.za/ and click on civic services.
An adult South African citizen automatically loses his or her South African citizenship by voluntarily acquiring or accepting the citizenship of another country. However, South African law recognizes dual citizenship if the person is granted permission to retain South African citizenship prior to acquiring foreign citizenship. For additional information on this issue, please see: http://www.sahc.org.au/citizenship/Dual_Citizenship.htm.
Exit Permits: South African law requires travelers to have one (1) blank (unstamped) visa page in his or her passport to enter the country. In practice, however, there have been instances of South African immigration officers requiring travelers to have two (2) blank pages: one for the South African temporary residence permit sticker that is issued upon entry to the country, and an additional page to allow for entry and exit stamps for South Africa and other countries to be visited en route to South Africa or elsewhere in the region.
Mediation: Mediation through the Office of the Family Advocate is available to families with a divorce case pending in the South African court system. For additional information, please see: http://www.justice.gov.za/FMAdv/f_main.htm.
Civil Remedies: Presently, South Africa does not have any laws that specifically address the process for recognizing and registering foreign custody orders. In addition, South Africa is not joined the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children. As a result, the process for registering foreign court orders will follow the normal civil procedure in the High Court of South Africa.
Family courts apply the “best interest of the child” standard in making custody and access decisions. Under the Children’s Act, the standard requires consideration of relevant factors, including: the child’s relationship with each parent and any other care-giver or relevant person; the parents’ attitudes toward the child; the parents’ exercise of parental responsibilities and rights in respect of the child; the capacity of each parent to provide for the needs of the child, including emotional and intellectual needs; the child’s age, maturity, gender, background, health; any other relevant factor. In addition, the child has the right to participate in any matter concerning his or her welfare as appropriate to his/her age, and the court must give his/her views due consideration.
Criminal Remedies: Child abduction is not a criminal offense under South African law, though a non-custodial parent who abducts his or her child may be held in contempt of court for violating a court order. However, in cases involving an existing South African custody order, “refusal of access” by a person having care or custody of a child to another person who has access to the child or who holds parental responsibilities is a crime punishable by a fine or imprisonment up to one year.
Before filing criminal charges, a left-behind parent or legal guardian should consider whether doing is the best way to secure the return of the child. In many instances, criminal charges against a taking parent can hinder return under the Hague Convention. For more information on pressing criminal charges, please see: http://www.travel.state.gov/abduction/solutions/criminal/criminal_3856.html.
The United States does have an extradition treaty with South Africa that includes international parental child abduction.
Visitation/Access Rights: A non-custodial parent is entitled to reasonable access, unless the court finds that such access is not in the child’s best interests. Separate from filing an application for access under the Hague Abduction Convention, South African civil law provides that a non-custodial parent can obtain access to his/her child by voluntary agreement with the custodial parent or by petitioning the high court for an access order as part of the divorce decree or by separate application.
As discussed in “Criminal Remedies” above, denial of visitation rights is a criminal offense.
Embassy Contact Information: The U.S. Embassy is located in Pretoria at:
U.S. Embassy Pretoria
877 Pretorius Street, Arcadia, Pretoria
Telephone: (27-12) 431-4000 (from South Africa 012-431-4000)
Fax: (27-12) 431-5504 (from South Africa 012-431-5504)
U.S. Consulate General Johannesburg
1 Sandton Drive (opposite Sandton City Mall just west of the intersection of Sandton Drive and Rivonia Road), Johannesburg
Telephone: (27-11) 290-3000 (from South Africa 011-290-3000)
Emergency after-hours telephone: 079-111-1684 (outside South Africa: +27 79-111-1684)
Fax: (27-11) 884-0396 (from South Africa 011-884-0396)
Consular jurisdiction: the Pretoria area and the Gauteng, Mpumalanga, Limpopo, North West, and Free State provinces.
U.S. Consulate General Cape Town
2 Reddam Avenue, West Lake 7945, Cape Town
Telephone: (27-21) 702-7300 (from South Africa 021-702-7300)
Emergency after-hours telephone: 021-702-7300 (outside of Africa +27 702-7300)
Fax (27-21) 702-7493 (from South Africa 021-702-7493)
Consular jurisdiction: Western Cape, Eastern Cape, and Northern Cape provinces.
U.S. Consulate General Durban
Located at: The Old Mutual Building, 31st floor, 303 Dr. Pixley KaSeme Street, Durban 4001
Telephone: (27-31) 305-7600 (from South Africa 031-305-7600)
Emergency after-hours telephone: 079-111-1445 (outside South Africa: +27 079-111-1445)
Fax: (27-31) 305-7691 (from South Africa 031-305-7691)
Consular jurisdiction: KwaZulu-Natal Province.
The South African Embassy in the United States is located at:
Chancery
3051 Massachusetts Ave, NW
Washington, DC 20008
Tel: (202) 232-4400
Fax: (202) 265-1607
Annex (for visas, passports, immigration matters)
4301 Connecticut Ave, NW, Suite 220
Washington, DC 20008
Tel: (202) 274-7991
Fax:(202) 244-9417
E-mail: consular.wa@foreign.gov.za
