What happens in the case of parents that wish to emigrate or travel with their minor child without the other parent? Do you need consent from the other parent? If they do not consent, what legal recourse do you have?
Introduction
In 2015 regulations pertaining to minors travelling internationally were amended in the Immigration Act 13 of 2002. Varying requirements were implemented when persons wanted to travel out of South Africa with a minor. For example, you now need to produce an unabridged birth certificate for the minor which is a birth certificate with the names of both parents. For this discussion the amendment that is relevant is if you as the parent of the minor child want to travel internationally with that child, you need to produce a Parental Consent Affidavit from the parent not accompanying that child.
What is a Parental Consent Affidavit?
It is a computer-generated form produced by the Department of Home Affairs with the details of all the relevant parties. Such as: the childs’ name, identity number, where they are travelling to and for how long. It must also contain the details of the person accompanying that child, whether it’s the father, mother, legal guardian or third party. If it’s a third party, the relationship to the child must be disclosed. The particulars of these persons must include the identity or passport number, the work and residential address and work, residential and mobile numbers. Most importantly it must state that the person signing the document consents to the travel.
What if a parent or legal guardian refuses to consent?
In order to travel with a minor without the consent of the other parent or legal guardian, you would need to apply for a court order in term of Section 18 (5) of the Childrens Act 38 of 2005. This section states that unless there is a court order in place, the consent of all guardians of the child is required on all matters relating to that child.
In other words, the consent of all guardians of that child is required for any matter pertaining to that child unless a court orders that such consent is not required.
Or in the case of divorced parents where the court has granted one parent full rights and responsibilities (sole custody as it was known previously) then such consent is not required.
Do parents or legal guardians have legal recourse if they do not want their minor child to leave the country?
Yes – just as a parent can approach court for an order that consent is not required, you can oppose the application and place reasons before the Court as to why you do not want your child to leave the country.
The court will consider all arguments made and will task the Family Advocate to decide what is in the best interests of the child. Armed with this information the Court will make a ruling that it feels is in the best interests of the child – whether that is to allow the child to travel without consent or not.
Conclusion
It is important to understand that the reason the South African government implemented these changes was to curb the trafficking of children into and out of its borders. It also provides a safety mechanism for parents to ensure that their child is not removed from this country without their consent if the parties are embroiled in a bitter divorce or have not reached consensus on a parenting plan. Remember – you have legal recourse in either situation!
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