We live in a day and age where there are more and more single parent households than ever before. Parents are required to learn how to navigate the new circumstances of having to share guardianship, and the care and contact of their children.
Guardianship is an adults’ right and responsibility to manage a child’s interests, assets and financial aspects of the child, assist the child in legal matters, give consent to medical treatment, marriage or adoption, and give consent for the child to travel out of South Africa.
The outdated term “custody” is the common law concept of day-to-day control and care of the child. Since the advent of the Children’s Act 38 of 2005, it is no longer used as a concept on its own. It is loosely to be construed to mean the same as “care”, defined as where the child lives.
It often happens that one of the parents choose to relocate to a different city or a different country. Where the parents share guardianship, Section 18(3)(c)(iii) and (iv) of The Children’s Act dictates that consent will be needed when one decides to relocate to another country with a minor child, and failing this consent, our High Courts have jurisdiction to provide the necessary order dispensing with the other parent’s consent and allowing the relocation, after hearing such an application.
Approaches to relocation disputes by South African courts have shown that it is left for the parent without the primary care of the child, to show that relocation would be detrimental to the child. Our courts adhere to the “best interests” approach as they are required to do by the Constitution. The courts have emphasised the importance of the continuity in the child’s primary relationship, usually the parent with the primary care of the child.
Similarly, the Hague Convention assist parents, with the help of the office of the Chief Family Advocate to facilitate the return of the child when removed without the consent of the other parent from the jurisdictional area of where he/ she normally resides.
Travelling abroad without the consent of both parents having guardianship (or a Court Order dispensing with the consent) is tantamount to Abduction. To the contrary, abduction in terms of South African Criminal Law, is in fact only applicable where a minor is taken with the intent that he/ she or another may have sexual intercourse with that minor.
Relocation within the borders of South Africa, is technically different. Section 18(4) stipulates that co-holders of guardianship over a child can exercise their parental responsibilities and rights independently and without the consent of the other guardian's rights. This on the face of it means that a parent, with whom the child permanently resides, can independently and without the consent of the other parent, decide to relocate with child within the country. Section 6(5) of the Children's Act states that-
“A child, having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child, where appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.”
Section 31 also stipulates that a co-holder of parental responsibilities and rights must consult and give consideration to the views of other co-holders of responsibilities and rights as well as the child when making decisions which are likely to change significantly or to have a significantly adverse effect on the co-holder’s exercise of parental responsibilities and rights in respect of the child.
Our courts have held that a failure to give consideration to the views of the other parent and failure to inform the other parent of the relocation did not render the decision by the primary caregiver void or invalid, but subject to review.
So, what do people mean when they say that a child is being "trafficked"? Trafficking children means the recruitment, sale, supply, transportation, transfer, harbouring or receipt of children, within or across the borders of South Africa. This can be done by any means, including: the use of threats, force or other forms of coercion; abduction; fraud; deception; abuse of power; or the giving or receiving of payments or benefits to achieve the consent of a person having control of a child.
The main purpose of trafficking is for the exploitation of the child, and even includes the sole purpose of facilitating the adoption of a child through illegal means. The verb exploit means to use someone or something, usually selfishly or for profit or own advantage or gain.
Kidnapping in terms of South African Criminal Law means unlawfully and intentionally depriving a person of his/ her freedom of movement. Where a child is involved, it is the parent with primary care and control over the child, that is affected. A person is ordinarily charged with the crime of kidnapping, as read with sections 256 and 270 of Criminal Procedure Act 51 of 1977.
Other terms used synonymous with kidnapping is “childstealing”, or in Afrikaans, “vryheidsberowing” or “menseroof”.
In terms of old South African case law (Hunt 1967 SALJ 270) it was ruled that a parent could not commit the crime of kidnapping of their own child. At page 274 the court states that the mere keeping of and caring for a child by its father and natural guardian, can never constitute childstealing (kidnapping), even in an instance where the father did not have the primary care and control of the child at the relevant stage.
It must however be noted that one of the essential elements of the offence of kidnapping, is that the parent with lawful primary care, be deprived of their control of the child. Where a non- custodian parent (or the parent without the primary care of a child) removes a child without consent or a lawful right to do so, this action would necessarily be in contravention of the applicable court order regarding access, care and contact, which in turn will amount to contempt of court. It may also constitute kidnapping if the parent removing the child has not be awarded the care of the child.
On the flipside, any parent who has the primary care of a child and refuses access by not allowing the other parent to exercise his/her contact rights contrary to a court order or properly concluded parental responsibilities and rights agreement, is guilty of an offence in terms of Section 35 of the Children’s Act. He/ she will be liable on conviction to a fine or to imprisonment for a period not exceeding one year.
In addition, the parent with whom the child lives must notify the other parent in writing of any change to his/her residential address. Failure to do so is considered a criminal offence and is punishable by a period of imprisonment not exceeding one year.
The aggrieved parent may lay a complaint at the police, which is punishable with a fine or imprisonment for up to a year; or alternatively may apply to the High Court for committal of contempt of court. The aggrieved person must prove that the custodian parent/s acted willfully and mala fide.
To successfully navigate this minefield and to ensure the best access arrangement for you and your child, schedule an appointment with one of our attorneys now.