International Child Abduction

The Hague Convention on Civil Aspects of International Child Abduction is an international Convention aimed at preventing the removal of children from the jurisdiction in which they ordinarily reside by a parent or caregiver without the consent of the other parent or caregiver. The Convention is also aimed at facilitating the return of children wrongfully removed from the jurisdiction in which they were ordinarily resident.

In practical terms, the purpose of The Hague Convention on Civil Aspects of International Child Abduction is to secure the return of any child wrongfully removed to or retained in a state that is a signatory to the Convention. Such member state is obliged to assist the parent alleging the wrongful removal of the child.

The reason the child must be returned to his or her place of residence is to place the child in the jurisdiction of a court better suited and equipped to deal with the dispute between the parents of the child. The child must, in addition, be returned to his or her country of residence promptly. The reason for this is because a child that has been removed from one parent to a foreign country will be subjected to the sole influence, control and authority of the abducting parent. Prolonged separation between the child and the parent left behind can result in such parent’s influence on the child being significantly diminished.

South Africa has been a signatory to The Hague Convention on Civil Aspects of International Child Abduction since 1996. Most European and Commonwealth countries are signatories to the Convention and are therefore obliged to co-operate with other member states, as long as the wrongful removal or retention occurred after the treaty became effective as between the two member states in question.

In cases where a child is removed to or retained in a country that is not a signatory to The Hague Convention on Civil Aspects of International Child Abduction, the High Court of South Africa, as the upper guardian of all children, will have jurisdiction to hear an application for the return of such child. Once the High Court has ordered the return of the child, the parent left behind will be required to obtain an identical order in the foreign country. This is no doubt a very costly exercise, as it involves the appointment of foreign lawyers in the foreign country concerned.