South Africa: The documentation required and the procedures to be followed by a mother wishing to travel abroad with her minor child in the absence, or without the consent, of the father; the overall rights of a father with respect to a minor child he has officially recognized as his own
|Publisher||Immigration and Refugee Board of Canada|
|Publication Date||13 May 2010|
|Citation / Document Symbol||ZAF103365.E|
|Cite as||Immigration and Refugee Board of Canada, South Africa: The documentation required and the procedures to be followed by a mother wishing to travel abroad with her minor child in the absence, or without the consent, of the father; the overall rights of a father with respect to a minor child he has officially recognized as his own, 13 May 2010, ZAF103365.E, available at: http://www.refworld.org/docid/4e43b1fe2.html [accessed 9 December 2013]|
South Africa is a member and signatory to the Hague Convention on International Child Abduction (HCCH 6 May 2010). Section 275 of the 2005 Children's Act of the Republic of South Africa states that "The Hague Convention on International Child Abduction is in force in the Republic and its provisions are law in the Republic, subject to the provisions of this Act" (South Africa 19 June 2006). Various sections in the 2005 Children's Act pertaining to parental rights and responsibilities are attached to this Response.
In 3 March 2010 correspondence, the head of the Refugee and Migrant Rights Project of the Lawyers for Human Rights in Johannesburg provided the following information:
The child [of a mother wishing to travel abroad with her minor child in the absence, or without the consent, of the father] will need to have a passport/travel document. In the case of South Africa passports both parents will need to apply in person for this passport for a minor child. The consent of the father will need to be obtained if a mother wishes to travel abroad with a child. If this consent is withheld unreasonably, the mother may apply to the High Court to have the high court substitute consent on the father's behalf.
The website of the South African consulate in New York corroborates that both parents must sign a child's passport application; however, "single mothers can sign as the sole parent of their child" (South Africa 2 Mar. 2010).
In the case of refugees, a child may travel on a travel document and be accompanied by either parent or a guardian/care giver. (Lawyers for Human Rights 3 Mar. 2010)
Where the parents are not married, the mother is the guardian. [The] father of a child born out of wedlock does not have an automatic right to guardianship. He must apply to the High Court which can grant guardianship rights if this is considered to be in the child's interests. The father has a duty of support and is obliged to maintain the child. He may also have access and visitation rights. (ibid.).p>
Sources indicate that the 2005 Children's Act provides equal parental rights to unmarried fathers if they consent to being identified as the father of the child (Children's Institute 30 July 2008, 5)He [a father with a minor child he has officially recognized as his own] may have access and visitation rights. If these are in dispute they would need to [be] adjudicated by the High Court and on recommendations by the Office of the Family Advocate. (Lawyers for Human Rights 3 Mar. 2010)
He will have a financial obligation with regard to medical treatment and education, however the primary care giver (usually mother) will have preference over choice of [the] medical practitioner, schools etc.
A father does have the right of access and visitation (if granted by the High Court or on an informal arrangement with the mother) - and this would necessitate knowing where the child is residing.
She [the mother of a minor child who is not married to the biological father] is obliged to permit access and visitation to the father. She may also consult with the father pertaining to the child's care, medical requirements and education.
She [if she desires to travel abroad with her minor child] is required to notify the father of her intentions but may not necessarily be unable to travel with the child if he does not approve. If the mother has full custody of the child, she may travel abroad with the child. A father may petition the high court if he is opposed to a mother travelling abroad with his child. (ibid.).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.
Children's Institute, University of Cape Town. 30 July 2008. Lucy Jamieson, Paula Proudlock and Maliga Chetty. "The Children's Act No. 38 of 2005: A Guide for Health Care Practitioners."
Hague Conference on Private International Law. 6 May 2010. "The Hague Conventions: Signatures, Ratifications and Accessions."
Lawyers for Human Rights, Johannesburg. 3 March 2010. Correspondence from the head of the Refugee and Migrant Rights Project.
South Africa. 2 March 2010. "Child Passports."
_____. 19 June 2006. Government Gazette. "No. 38 of 2005: Children's Act, 2005."
Additional Sources Consulted
Oral sources: The South African Consulate-General in Toronto did not respond to a request for information within the time constraints of this Response.
Internet sites, including: : Child Rights Information Network (CRIN), Children's Rights Centre, Freedom House, Human Rights First, International Organization for Migration (IOM), Legalbrief Today, Open Society Justice Initiative, ReliefWeb, South Africa Government Online, United Nations (UN) Children's Fund (UNICEF).
South Africa. 19 June 2006. Government Gazette. "No. 38 of 2005. Children's Act, 2005." Chapter 3, Part 1, Articles 18-22.