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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2013-04-05
In this issue we look at the issue of the removal of minor children, without the consent of the other parent, to a foreign jurisdiction outside the country, and how our law deals with such matters.

A matter came before the Western Cape Court recently involving a divorced couple who had three minor children. The mother moved the children from South Africa to Zimbabwe, without the father's consent.

The father brought an application against the mother of his children saying that she was in contempt of court as she unlawfully removed the children from the Republic of South Africa to Zimbabwe.

To intentionally and unlawfully disobey a court order is a crime, the sanction is often imprisonment. The father also brought an action in Zimbabwe under the Hague Convention on the Civil Aspects of International Child Abduction. In terms of their divorce order, the parents had signed a parenting plan, which they made an Order of Court.

In terms of the parenting plan, they were both co-guardians of the minor children and jointly responsible for the children's care. They also agreed to give "due consideration to the views of the other parent" in all decisions involving the children, including any decision to change their residence in either party's home, other than for a holiday period of short duration.

With regard to the father's application in South Africa that the mother be held in contempt of court for not complying with the divorce order, the mother's lawyers argued that the South African Court did not have the necessary jurisdiction, as she is no longer residing in South Africa, having moved to Zimbabwe.

The Court however found that the contempt proceedings were not new proceedings, but merely a continuation of proceedings previously instituted. In a detailed judgment, the judge stated that, even though the mother now lived in Zimbabwe, the South African Court did have jurisdiction to enforce it's orders and cited section 165 (5) of the Constitution in support of that averment and held her to be in contempt of court.

Know your rights! Email fawzia@thelawdesk.co.za or call 031-5025670 for any legal assistance.