Can the Hague Convention help me see my child?

The ever-present problem of child abduction persists in many countries. “Abductions” has a wide meaning in terms of Child Law to include keeping a child away in another country from a parent who has rights to see his/her child. South Africa became a signatory to the Hague Convention on the Civil Aspects of International Child Abduction on 1 October 1997 (“the Convention”). Prior to the Convention, even if a parent had a court-ordered right to a child, it was exceptionally difficult to enforce that right outside of the Country which granted the order, being it of ‘access’ or ‘custody.’

The major limitation with respect to the Convention is that it is only applicable to countries who are signatories to it and whom therefore have an obligation to ratify the Convention into its own law. These countries are called “Contracting States.” This means that each country that agreed to abide by the Convention must create its own ‘local’ laws to give effect to the Convention, so that their obligations are observed as a Contracting State. As of 2 August 2017, there were ninety-eight (98) signatories, or Contracting States, to the Convention. As a global statistic, that amounts to just over 50% of the world’s countries that have agreed to be bound by the Convention and ratify it into their own laws, having become fully cognisant of the increasing problem of “child abduction.”

South Africa ratified the Convention through its incorporation into the Children’s Act, 38 of 2005. Chapter 17, viz. Sections 274 to 280 (“the Act”). The process was designed to be relatively simple, fair, transparent, effective, and streamlined. The reality of it, however, left much to be desired.

In terms of the Convention and the Act, each Contracting State appoints a Central Authority who acts as the duly authorised representative in all matters concerning application and/or contravention of the Convention. In the case of South Africa, the Office of the Chief Family Advocate is the duly appointed Central Authority, represented by Advocate Petunia Seabi. The Central Authority has been bestowed with a plethora of powers to act where it is established that a child has been abducted in terms of the Convention; paired with this comes the onus placed on the Parent whose rights to the child have been breached and who is seeking the application of the Convention (“the Complainant”).

The alternative to seeking the application of the Convention is through what is otherwise known as a ‘mirror order’ which is where the Complainant approaches the Court of jurisdiction in the country in which the child and caregiver reside (“the Local Country”) for the South African Court Order to be enforceable in the Local Country as if the order was obtained there. This would normally be most effective if the Complainant obtains his/her original order from the High Court as opposed to, say, the Regional Court or the Children’s Court.

Whilst there are many differences between the two procedures, the biggest differences are as follows:

CONVENTION	MIRROR ORDER
Central Authority largely represents the Complainant in the presentation of its case, if it believes that its case complies with the requirements of the Convention, but there is provision for the Complainant to appoints its own legal team;	The Complainant drives the litigation process.
The Central Authority attempts to limits costs through its own services, with the usual risks of costs orders being granted against the unsuccessful litigant;	The Complainant is responsible for the costs of his/her part of the process, and the same risks with respect to the unsuccessful litigant;
Contact must have been continuous and interrupted solely as a result of the “wrong retention” or “unlawful removal” by the other Parent;	There is no set specification on the status quo of access, however if it is interrupted for a lengthy period of time, a Court may require further evidence;
A legal representative must be appointed for the child concerned for his/her views and objections to the application;	There is a discretion on the Court, and sometimes the parents, to appoint a legal representative for the child but it is not mandatory.
It is a single relief application i.e. requesting the return of a child back into the care of its ‘custodian’ or to resume rights of access to a parent in terms of an existing court order.	One must first have the order granted before one is able to enforce it in the Local Country.
One must act with urgency.	There is less need for urgency, although there are other drawbacks to delaying this type of application.
The Convention only applies to Contracting States (approximately 50% of the countries).	An application can, generally, be brought in any country.

Through judgments handed down thus far, it would appear that unless the Complainant has legal assistance, the Family Advocate is less likely to finalise the proceedings timeously and may even unnecessarily delay the proceedings. If you believe that your case may fit into a Convention-type category of litigation, please consult with us immediately because not doing so may have severe repercussions on the success of your case.

27 Mar 2018