International Child Abduction in South Africa

Zenobia Du Toit () and Bia Van Heerden ()
Additional contact information
Zenobia Du Toit: Miller du Toit Cloete Inc., Cape Town 8001, South Africa
Bia Van Heerden: Faculty of Law, LLB Graduate University of the Western Cape, Cape Town 7535, South Africa

Laws, 2023, vol. 12, issue 4, 1-15

Abstract: This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future.

Keywords: voice of the child; Art 13 defences; best interests of child; Hague Convention provisions; return orders (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2023
References: View references in EconPapers View complete reference list from CitEc
Citations:

Downloads: (external link)
https://www.mdpi.com/2075-471X/12/4/74/pdf (application/pdf)
https://www.mdpi.com/2075-471X/12/4/74/ (text/html)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:gam:jlawss:v:12:y:2023:i:4:p:74-:d:1221665

Access Statistics for this article

Laws is currently edited by Ms. Heather Liang

More articles in Laws from MDPI
Bibliographic data for series maintained by MDPI Indexing Manager ().