• by Samantha Rich
A parent or guardian of a minor child/children, who shares parental rights and responsibilities with another parent or guardian, may not simply leave South Africa with the minor child/children, whether to emigrate or go on a holiday.
According to section 18(3)(c)(iii) of the Children’s Act 38 of 2005 a parent or guardian of a minor child/children must give their consent for the minor child/children to depart temporarily or be removed permanently from South Africa. Essentially, one parent or guardian cannot unilaterally decide to depart from South Africa with the minor child/children or permanently remove the minor child/children from South Africa. You need the consent of all parties who have parental rights and responsibilities in respect of a minor child/children to remove or depart with a minor child/children from South Africa.
According to section 139 of the Children’s Act it is unlawful for one parent or guardian to remove or depart with a minor child/children from South Africa without the consent of all parties who have parental rights and responsibilities in respect of a minor child/children, in contravention of an order of a court prohibiting the removal of the child/children from South Africa or without the consent of a court.
Section 36 of the Prevention and Combatting of Trafficking in Persons Act 7 of 2013 and section 287 of the Children’s Act asserts that if a Children’s Court has reason to believe that the parent or guardian of a minor child/children, has trafficked the child/children, the court may suspend all parental rights and responsibilities in respect of the minor child/children and place the minor child/children in temporary safe care.
It is therefore necessary that when attending to travel arrangements to depart with the minor child/children from South Africa, that you obtain the written consent of your ex-spouse or person who you share parental rights and responsibilities with in respect of the minor child/children.