Conditions that must be satisfied by applications under the Convention:
- The child must be aged under 16 years
- The person applying for the return of a child, must have had rights of custody in respect of the child, at the time of the wrongful removal / retention of the child (Please see statement regarding law of custody and guardianship of children under “Legislation”.) Visitation or access rights are not viewed as rights of custody.
- The child must have been habitually resident in the country, for example South Africa at the time of the wrongful removal or retention.
- An agreement must exist between South Africa and the Country where the child is at present, in terms of the Convention. (See “List of countries “)
How to apply: Under “Documents: is a questionnaire to request the return of a child or access to the child. This should be completed and submitted to any of the Family Advocate Offices who will forward it to the Central Authority of the country to which the child has been taken. It is obviously in the interests of the applicant to provide as much information as possible, in particular where there may be problems finding the child. Photographs of the child/ren and copies of birth certificates should also be included.
Checklist for applicants : In order to facilitate the processing of an application by the Central Authority for the R.S.A., the partent left behind or the parent seeking to secure effective exercise of rights of access/visitation must ensure that the application contains the following documents:
- Prescribed questionnaire in English
- Recent photographs of the child(ren) and of the abducting parent
- Certified copies of birth certificates, preferably unabridged
- Proof of parental rights, such as court orders (and agreements of settlement, where applicable) regarding the custody, access & guardianship
- Certified copy of marriage certificate, where applicable
- Details of the child(ren)'s and/or the abducting parent's whereabouts or possible location
- Sworn translations to English of all relevant documentation, if in a foreign language.
APPLICATION THAT CAN BE MADE:
Under the Convention applications can be made for:
The return of a child removed or retained in breach of rights of custody – for further information on rights of custody see “ Statement of Law compiled by the Chief State Law Advisor’ under “Legislation”.
The organising or securing of rights of access to a child removed from South Africa to a foreign country.