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Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-11-13
As we head towards the end of the school year, many families who are lucky and indeed brave enough, to go on holiday overseas, (what with the rand peaking this week to more than R14 to the dollar, Eina!), need to ensure that all the travel paperwork relating to their minor children are in place.

Apart from having valid passports, and any requisite visas in place, if a traveller is under 18 years of age, you would need to have an unabridged birth certificate as well. If either or both parents will not be accompanying the minor children, then an affidavit from that parent, allowing the child to travel outside the borders of South Africa, would also be needed. This can be relatively easy to obtain, barring the time it takes Home Affairs to give you the unabridged birth certificates.

However in those instances where the parents are divorced or not living together or perhaps not even speaking to each other, then trying to get parental consents for compliance to travel abroad can be extremely difficult. Often a parent may need to resort to the courts to compel the other parent to sign whatever paper work may be required, alternatively to ask the court to authorize the Sheriff of the court to sign on behalf of the parent who refuses to do so.

A case where both parents were no longer living together and relationship had broken down irretrievably, came before the High Court in the Eastern Cape. The father was previously awarded certain access rights to his minor children, aged 8 and 10 years. The mother had refused to abide by that court order granting the father his rights of access and there were contempt of court proceedings still be heard, on that score. In addition there were also other legal proceedings before the court, which were not yet finalized by the court, one of them being an application brought by the mother who asked the court to grant her sole guardianship to and sole care of the minor children.

In October 2015, the mother approached the High Court, on an urgent basis saying that she and the children were set to travel on holiday, to the United States and Barbados, leaving in 1 November 2015. The mother asked the court to compel the father to sign the visa documents for the children. The father refused to provide his consent allowing the children to travel. In his objection, the father said that he feared that the mother was really planning to cut all ties between him and the children and that the holiday was merely a ruse to take the children out of the jurisdiction of the South African courts. The mother denied this saying there was nothing sinister about her travel as it was simply work related and a vacation.

The court however did not agree. Its view was that it was the right of the father to exercise parental contact with his children and that this was indeed in the best interests of the children. Also, as the mother had previously ignored a court order allowing the father to have exercise his rights of access to the children, the court was of the opinion the father's objection was well founded and that the mother's departure was for an 'ulterior purpose'.

The court felt that the mother was likely to remove the children out of South Africa under the guise of a holiday and thereby deny the father his rights. The court said that the urgency claimed by the mother for the application to be heard (based on deadlines for departure to the United States) was "self-serving". The presiding Judge Chetty said that the "father's apprehension was well grounded and not capricious" and dismissed the mother's application with costs.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.