Opening Remarks by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the African Regional Conference on the HCCH Children’s Conventions, held at the University of Western Cape, 2 April 2019
Ladies and gentlemen,
Good morning to you all and, as a member of the government of the hosting country, let me bid you all a very warm welcome.
Bienvenue, welkom, inikwani dehina met’ahi, bienvenido: I know that you will experience true South African hospitality and we are honoured to host this event in our country.
April is a special month for us, as we celebrate Freedom Month to commemorate the historic occasion in 1994 when South Africa achieved freedom and democracy, where all its citizens became free from the discrimination and oppression, moving away from hatred, divisions and a painful history to build a common future together. This year we are also celebrating 25 years of democracy.
I am told that on the 12th of September 1893, Tobias Asser – a Dutch jurist, scholar and statesman - opened the very first session of the HCCH.
He is described as being an ardent believer that strong legal frameworks governing private cross-border interactions would not only make life across borders easier, but could promote peace and justice globally, and so he envisioned the HCCH as a multilateral platform for dialogue, discussion, negotiation and collaboration.
So here we are, some 125 years later, coming together as a region, to develop and promote these very same goals – in particular, in the interests of children.
Family law has experienced significant changes – nationally, regionally and globally – in recent years.
As UNICEF has said, the international human rights community universally agrees that the best interests of the child are a paramount consideration in intercountry adoptions, however, there is less consensus on who is ultimately responsible for ensuring that the best interests of the child are honoured in the adoption process or how to make that determination.
South Africa is a contracting party to the Convention on the Civil Aspects of International Child Abduction and the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
My Department – the Department of Justice and Constitutional Development – is responsible for the former, and the Department of Social Development for the latter.
Our Constitution provides that a child's best interests are of paramount importance in every matter concerning the child.
We have passed significant pieces of legislation such as the Children’s Act which recognizes the child as a bearer of rights and gives effect to the international instruments that our country has signed, such as the Hague Convention.
The South African courts are the upper guardian of children in terms of the common law and have extremely wide powers in establishing what is in the best interest of the child.
The Hague Convention on the Civil Aspects of International Child Abduction, which South Africa acceded to in October 1996, now forms part of the laws of our country in terms of the Children’s Act, 2005.
As you know, the Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty to secure the prompt return of children wrongfully removed to or retained in any contracting state and to ensure that the rights of custody and access of a contracting state are respected by another contracting state.
By acceding to it, South Africa agreed and committed to cooperating with contracting states in matters affecting minor children of 16 years and below, who have been removed from South Africa and retained in foreign countries, or who have been removed from foreign countries and retained in South Africa.
In the past 2 years, our country accepted the accession of an additional 34 countries in order to increase the number of States that we are contracted with to 83 – this is in the interests of expanding our child protection work. Legal aid may further be provided in Hague Convention cases and also to children in civil proceedings involving the child.
The Central Authority of South Africa has been designated in the Office of the Chief Family Advocate. The Central Authority’s role is to, on behalf of South Africa, discharge all obligations under the Hague Convention and assist in both “outgoing” cases (when a child has been wrongfully taken from South Africa to a foreign country or retained in a foreign country), as well as “incoming” cases (when a child has been wrongfully brought to, or retained in South Africa). In 2018, we had 12 incoming cases from Convention countries and 20 outgoing to Convention countries. However, 42 removals to non-convention countries were reported to our Central Authority.
Our Central Authority has over the years facilitated the implementation of the Hague Convention by, inter alia, consulting with the left-behind parents of abducted children, obtaining documents and assisting these parents to lodge applications for the return of the children or access applications, and liaised with foreign Central Authorities and relevant stakeholders of the Hague Convention such as the Department of Home Affairs, Interpol, the South African Police Service, the Department of International Relations and Cooperation, Legal Aid SA and the National Prosecuting Authority, and has also engaged in civil litigation with the view to secure the prompt return of abducted children.
The Central Authority has also maintained relations with members of the Judiciary through a liaison network of judges with the view to create processes and mechanisms to protect the best interests of children and to also minimize the effects of child abduction on children.
Notwithstanding the aforesaid, the Central Authority has had to face certain challenges in the execution of its mandate, such as the fact that the Hague Convention is a multilateral treaty and is only applicable between countries which have ratified or acceded to it. In other words, it does not automatically come into operation between countries, unless such countries have accepted each other’s accession or ratification thereof.
The result of the aforesaid is that the left-behind parents have to go through lengthy civil proceedings to strengthen their position against abducting parents - with the result that children are often caught in protracted litigation proceedings which have, often insurmountable, physical, physiological, emotional and psychological effects. In many ways this renders the Hague Convention good on paper - but ineffective in protecting the rights of abducted children in practice.
A large number of other countries have, to date, not accepted nor ratified the Hague Convention thus resulting in the non-application of the Convention between them and South Africa.
This issue has resulted in many challenges, as evident from the growing statistics which indicate that a high number of children have been abducted to such countries; however, the Central Authority is unable to intervene due to its lack of locus standi.
In most cases, the Central Authority has to rely on embassies and embassies are sometimes reluctant to assist.
In other cases, it has also been found that embassies have issued travelling documents to the abducting parent without the other parent’s consent or knowledge.
It is therefore important that embassies be engaged at a high level, as well as lobbying countries as well as their embassies which are situated in South Africa.
We also have to embark on legislative reform in strengthening the implementation of the Hague Convention, especially on the criminal aspects thereof.
Whilst there are different schools of thoughts with regards to criminalization, deterrent measures have to be developed in order to deal with this matter, since legal loopholes are being exploited by parents who have the intention to punish the other parent by removing the children from their countries of habitual residence to foreign countries.
A member of our judiciary, Supreme Court of Appeal Judge Halima Saldulker, recently spoke about the Hague Convention and she said, when we look at the Convention, it should be looked at through “the eyes of a child”. An ever-increasing number of children, often in the centre of divorce proceedings and custody disputes, are abducted to foreign countries by a parent. There is a saying that children ought not to be victims of the choices adults make for them.
International child abduction by a parent is a crime that very frequently goes unpunished and unchecked, and can destroy the abducted child’s sense of security and well-being.
Clashes of cultural, religious and social norms also play a role. When a child is abducted across international borders, countries often have significantly divergent legal systems. This results in a failure to protect the parent being left behind, as well as the child – and both these parties have little recourse under present international law.
Ladies and gentlemen,
As we gather here, today and tomorrow, we are afforded a unique opportunity to discuss, identify and find solutions to the challenges being experienced with the implementation of these Conventions.
It therefore gives me great pleasure to welcome each and every one of you – and, in particular, our international guests and I want to wish you all a very successful and very productive Conference.