The Hague Convention

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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.

The Hague Convention of the Civil Aspects of International Child Abduction, 1996 (Act 72 of 1996)

Source: Department of Justice

Case Law

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(ren) 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(ren) to South Africa.

The role of the Central Authority

A contracting state is bound to set up an administrative body known as the “Central Authority”, which has the duty of tracing the child and taking steps to secure the child’s return.

In South Africa the Chief Family Advocate is designated as Central Authority.

Information and assistance can also be obtained at any of the Family Advocate Offices within South Africa. Their contact details are as follows: FMA Contacts

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.

How does the Convention work?

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
Prevent any further harm to the child
Attempt to secure the voluntary return of the child, otherwise initiate or facilitate judicial or administrative proceedings in that country with a view to obtain the return of the child to South Africa or the securing of rights of access to the child
Provide or facilitate the provision of legal aid and advice

If a child has been wrongfully removed to South Africa or retained in South Africa, the Family Advocate, appointed as Central Authority, will receive the documents from the other country’s Central Authority. The Family Advocate will study the application and if the application is well founded in terms of the legislation, will effect proceedings to locate and return the minor child.

Signatory countries:

HAGUE CONVENTION OF 25 OCTOBER 1980 ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION (entry into force on 1 December 1983)

SOUTH AFRICA: 1 October 1997

Entry into force between South Africa and the following States:

United States of America ( 1 November 1997 );
Netherlands (for the Kingdom in Europe ) ( 1 November 1997 );
Israel ( 1 December 1997 );
United Kingdom of Great Britain and Northern Ireland* ( 1 December 1997 )
Finland ( 1 December 1997 );
Ireland ( 1 December 1997 );
Sweden ( 1 January 1998 );
Australia ( 1 January 1998 );
Germany ( 1 February 1998 );
New Zealand ( 1 March 1998 );
Poland ( 1 March 1998 );
Norway ( 1 March 1998 )
Switzerland ( 1 August 1998 );
Czech Republic ( 1 August 1998 );
Argentina ( 1 November 1998 );
China , Hong Kong Special Administrative Region ( 1 December 1998 );
Canada ( 1 May 1999 );
Chile ( 1 June 1999 );
Spain ( 1 February 2000 );
the Slovak Republic ( 1 February 2001 );
Greece ( 1 March 2000 );
Colombia ( 1 April 2001 );
Uruguay ( 1 June 2001 );
Mexico ( 1 June 2001 );
Italy ( 1 August 2001 );
Portugal ( 1 January 2002 );
Austria ( 1 March 2002 );
Hungary ( 1 June 2002 );
Belgium ( 1 May 2003 );
Denmark ( 1 June 2003 );
China , Macao Special Administrative Region ( 1 September 2003 );
Serbia and Montenegro ( 1 November 2003 ).
Cyprus ( 1 April 2004 )

* The United Kingdom made the following declaration with regard to the accession of South Africa to the Convention:
“…notwithstanding the provisions of the said Article, the United Kingdom accepts the accession of South Africa … with effect from 1 October 1997.”

Reservation: South Africa will only accept documentation in English (no other language)

Applications that can be made:

Under the Convention applications can be made for the return of a child removed or retained in breach of rights of custody.

The organising or securing of rights of access to a child removed from South Africa to a foreign country.

Conditions that must be satisfied by applications under the Convention:

The child must be aged under 16 years
The person applying for the return of a child, must have had rights of custody in respect of the child, at the time of the wrongful removal / retention of the child. Visitation or access rights are not viewed as rights of custody.
The child must have been habitually resident in the country, for example South Africa at the time of the wrongful removal or retention.
An agreement must exist between South Africa and the Country where the child is at present, in terms of the Convention. (See “List of countries”)

How to apply:

There is a questionnaire to request the return of a child or access to the child. This should be completed and submitted to any of the Family Advocate Offices who will forward it to the Central Authority of the country to which the child has been taken. It is obviously in the interests of the applicant to provide as much information as possible, in particular where there may be problems finding the child. Photographs of the child/ren and copies of birth certificates should also be included.

Checklist for applicants:

In order to facilitate the processing of an application by the Central Authority for the R.S.A., the parent left behind or the parent seeking to secure effective exercise of rights of access/visitation must ensure that the application contains the following documents:

Prescribed questionnaire in English
Recent photographs of the child(ren) and of the abducting parent
Certified copies of birth certificates, preferably unabridged
Proof of parental rights, such as court orders (and agreements of settlement, where applicable) regarding the custody, access & guardianship
Certified copy of marriage certificate, where applicable
Details of the child(ren)’s and/or the abducting parent’s whereabouts or possible location
Sworn translations to English of all relevant documentation, if in a foreign language

Legislation:

The Hague Convention on the Civil Aspects of International Child Abduction Act, Act 72 of 1996.
The Regulations on Act 72 of 1996 as published in GGR 18322 of October 1997.

Legal Aid:

The position regarding legal aid for parents of children abducted to South Africa :

The Family Advocate will bring an application on behalf of the left behind parent to have the child returned to the habitual residence. If required the Family Advocate’s Office in conjunction with the Legal Aid Board will assist the left-behind parent to obtain legal aid, in accordance with that country’s legal assistance rules and regulations.

In cases where children were abducted to signatory countries, that country is responsible to assist the left behind parent from South Africa with legal aid.

Links:

The information can also be obtained at the following website: www.hcch.net/e/status/abdshte.html
www.hcch.net/e/status/abdshte.html

Legal decisions on Hague cases can be obtained at the following website:
www.incadat.com

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