Emigration and relocation from South Africa – Children’s Rights and that of Mother and Father

Emigration and Relocation from South African with the minor child

Legal Resources and Advice regarding emigration and relocation from South Africa to the UK, USA etc.

Are you intending on relocating to any one of the popular destination countries below?

  • United Kingdom (UK)

  • Australia

  • United States of America (USA)

  • New Zealand

  • Canada

  • Angola

  • Botswana

  • Chile

  • Zimbabwe

  • Germany

  • Netherlands

  • Swaziland

  • Israel

  • Portugal

  • Mozambique

  • Ireland

  • Malawi

  • Switzerland

  • Namibia

  • Greece

Are there possible consent issues regarding passports, and relocation or emigration? If you answered yes,  have a look at the articles on this website that you may of use.

Consent for Relocation and Passport Application for minor children

The father does not want to consent to a passport and the Relocation from South Africa with my minor child. What are my rights?

Relocating from South Africa with your child – When do you need consent from the father? Relocation – If you were born and raised in South Africa, it does not mean that you have to live there for the rest of your life. There are opportunities elsewhere in the world to live and continue your life’s journey. This may include a neighbouring country, or on another continent like Europe. Wherever it is, there are a few things to consider should you wish to relocate with your minor child. This is especially so if you are not relocating with the father. If you are the only parent to your child, then this article may not apply to you. This is where we will start off this article. The other parent when it comes to relocation If you are a mother and was never married to the father of your child, the father may have guardianship rights. This would be the case even though the father’s name is not mentioned on the child’s birth certificate. This is so as the Children’s Act affords certain rights to unmarried fathers. Therefore, if an unmarried father has parental rights and responsibilities of guardianship, his consent is required. This we deal with next. Guardian’s Consent for relocation and passport – What does the law say? The Children’s Act states the following: 18 Parental responsibilities and rights (1) A person may have either full or specific parental responsibilities and rights in respect of a child. (2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right- (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance ...
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Relocation and Passport Application consent for a minor child

Consent for minor child for relocation and passport application

I intend to leave South Africa and relocate with my minor child. What do I need to be aware of? Have a look at the checklist below. There is no reason to only live in one country for your entire life. Your work, or partner in life may force you to leave South Africa and relocate to another country. Many people relocate to the United States of America, United Kingdom, Asia, and the Middle East, to mention a few. When a parent wishes to leave South Africa and relocate to another country with a minor child, there are certain things he or she needs to be aware of. In essence, it is the issue of consent from the other parent or co-guardian. The reason for requiring consent is due to the prescripts of the Children’s Act. Section 18(3) of the Children’s Act states the following: (3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must- (a) administer and safeguard the child’s property and property interests; (b) assist or represent the child in administrative, contractual and other legal matters; or (c) give or refuse any consent required by law in respect of the child, including- (i) consent to the child’s marriage; (ii) consent to the child’s adoption; (iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport; and (v) consent to the alienation or encumbrance of any immovable property of the child. Sections 18(4) and 18(5) states: (4) Whenever more than one person has guardianship of a child, each one of them is competent, subject to subsection (5), any other law or any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or responsibility arising from such guardianship. (5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3) (c) . We bolded and underlined section 18(3)(iii) and 18(3)(iv) of the Children’s Act dealing with “(iii) consent to the child’s departure or removal from the Republic; (iv) consent to the child’s application for a passport”. So, if you are intending to relocate with your minor child to another country, make sure you comply with the following checklist: Consent Checklist Consent for ...
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Relocation with minor child from South Africa

Frequently asked questions regarding relocation and consent when it comes to minor children

https://www.ourlawyer.co.za/wp-content/uploads/Relocation.mp4 Frequently asked questions regarding relocation and consent when it comes to minor children Relocation – Are you planning on relocating to another country or moving to a different province within South Africa with your minor child? Are you concerned about the issue of consent from the other parent? Below are some frequently asked, and related questions on the topic. We would encourage you to post and answer some of the questions, or just leave a comment. Parents often decide to relocate with their minor children. However, they do not always understand the legal requirements and implications involved. For example, can they just leave the country with the minor child or do they require the other parents’ consent? Furthermore, if consent is required and refused; what are the remedies available to that parent? With regard to the issue of moving from one province to another, unless a court order stipulates otherwise, consent is not required. However, the relocation from one province to another could have an effect on existing parental responsibilities and rights. Under these circumstances, a variation of the court order would be warranted. There are therefore also other issues involved when it comes to relocation. For example, what contact would the other parent who remains in South Africa have to the minor children after relocation? The aforementioned questions and a range of other related questions may be posed and answered below. Feel free to post your question should this blog post not have answered it. Can I move from South Africa to the United Kingdom with my child without the father’s permission? If the father has parental responsibilities and rights of guardianship, his consent is required for the relocation to the United Kingdom. For example, if the father and the mother were married, then under those circumstances unless an order of court determines otherwise, the father’s consent is required. If the father was not married to the mother, but in a long term relationship when the child was born, and involved in the child’s life after birth, then his consent under the circumstances would also be required. What do I do if the father refuses to consent to relocate to Germany? If a parent refuses to provide the necessary consent for relocation to another country, in this case, Germany, then the Court must be approached. Basically, you would ask the court to dispense with the requirement of the father’s ...
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Passport Application fro a Minor Child where father cannot be found or does not give consent.

Passport Application for my child. I cannot find the father to give consent at the Department of Home Affairs

Passport Application for a minor child: Mother cannot find the father to provide the necessary consent at the Department of Home Affairs. The Application is therefore refused. Passport Application for a minor child: It is not easy being a single parent, and at the same time, the primary caregiver of the child. This is even so where the other parent pays child support and regularly sees the child. This article deals with the situation where the father of the child is missing. He, therefore, does not pay any child support, nor has a relationship with the child. This causes a problem when it comes to issues of guardianship rights. For example, when the mother wants to enrol the child in a school or provide medical consent. The question would always arise – “where is the father?”, or “did the father give his consent?” When it comes to official matters, for example, the application for a passport, then things become more complicated. This is where the issue of parental consent for the application for a passport is looked at. Now let us first deal with the law. Parental Responsibilities and Rights of Fathers In short, if a father was married to the mother, he would automatically have full parental responsibilities and rights to the child born from them. This includes the rights of care, contact and guardianship. If he was not married to the mother of the child, he can acquire parental responsibilities and rights. In short, in order for the unmarried father to acquire parental responsibilities and rights, he has to form part of the child’s life. He may also attempt to do so and the mother hinders it from happening. In the latter situation, he would still acquire parental responsibilities and rights. The Unmarried Father’s Rights The unmarried father can acquire parental responsibilities and rights to his child in a number of ways. They include paying child support, visiting the child and so on. Therefore, not all fathers would have parental responsibilities and rights over their children. Some fathers just impregnated the mothers and went missing. Such a father cannot rock up, 12 years later and demand to take the child with him to the movies. I think you understand the point  we are trying to make. What is the legal effect of having parental responsibilities and rights over a child? Should a father have parental responsibilities and rights ...
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Passport Applications for a Minor Child - Parent Refusing Consent and to Co-operate

Passport Application of a Minor Child and Consent – Department of Home Affairs

Passport Applications for minor children: What you need to know – Department of Home Affairs – Questions  and Answers Should you require any advice on an application for a passport of a minor, where the co-parent refuses to consent or co-operate;  feel free to set up a consultation with us. You may call 0211110090 or click here to do it online. Leaving South Africa, and visiting another country is something many people do on a daily basis. The reason, therefore, could either be for a holiday, business, a death in the family, and so on. Or it might be to relocate to another country to start a new life, either alone, or with your spouse or children. Whatever the reason is, you require a passport when leaving South Africa. For an adult, all you need to do is visit your nearest Department of Home Affairs Offices, with proof of identity, and the prescribed fees, and take your picture, fingerprints, etc. However, if you are a minor child, under the age of 18, it is not that simple. You would need to go with both your parents, and they need to provide their consent. Parental Consent and Co-operation for a Passport Application of a Minor child According to Section 18 (3) of the Children’s Act, both parent’s consent is required for a minor’s application for a passport. This is why we refer to consent and co-operation. Co-operation in the sense of going with to the Department of Home Affairs and giving the consent. Now, this can cause a problem should a parent not agree to the application for a passport. Therefore, one of two things could happen in practice should there be children involved. Either the parent would have to go overseas without the children, or not at all. Before we deal with such a scenario in detail, a bit later, let’s look at the law in a bit more detail. A child’s Constitutional right to a Passport Our Constitution, Act 108 of 1996 is the supreme law of the Country. All laws and practices should be in line with it. Therefore, it’s always a good idea to find out what it says. Section 21(4) of our Constitution states the following: “Every citizen has the right to a passport.” This is a fundamental right. The question would then be asked, if that is a fundamental right, why would you still require ...
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Relocation - Refusal of Consent for passport and removal

Relocate with minor child. Parent Refusing Consent for a Passport

Parent Refusing Relocation, and Passport Application for Minor Child Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa Often times, a parent would want to travel overseas, relocate or emigrate, and take the child with. However, the practical aspects thereof are not that easy. For starters, your child requires a passport. And what does the law say about passports of a minor child? As you would see later, both parents holding parental responsibilities and rights of guardianship should consent to a minor child obtaining a passport. That is a requirement in Law. But let’s say your child already has a passport. Can you still take your minor child out of the country or relocate? Yes, you can, as long as you have the consent of the other parent. This article does not only apply to parents of minor children who are not married to each other or separated. It applies to all parents of children holding parental responsibilities and rights over them, married, separated, or divorced. Before we move on, let us look at the most popular countries South African’s relocate to. Popular relocation countries for South Africans If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to: United Kingdom (UK) Australia United States of America (USA) New Zealand Canada Angola Botswana Chile Zimbabwe Germany Netherlands Swaziland Israel Portugal Mozambique Ireland Malawi Switzerland Namibia Greece If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you. The parent refuses to consent to emigration Parents of minor children differ on many things. Sometimes it’s minor issues. For instance, which clothes the child should wear. However, some disagreements are serious and exhausting.  For instance, what school should the minor child attend, or extra-mural activities to partake in? What school a child attend can affect the contact rights of parents when they live in separate homes. Now turning to this article. What if one parent wants to go away on holiday or relocate with the child, and the other parent refuses to give consent. One obvious reason to object to a relocation would be that the parent that remains in South Africa may ...
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Child born out of wedlock - Rights of parents

Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do?

Child born out of wedlock: Mother will not consent to her surname change and to be registered as her biological father. What can I do? It often happens that a child is registered at the Department of Home Affairs with the mother’s surname, and later the father wants the child to have his surname. The opposite is also true. This is when the child has the father’s surname, and the mother wants her to have her surname. This often happens in cases of children born out of wedlock, or in cases where the parents are divorced. So, what can a parent do to change the child’s surname? Read on to find out the answers below. Then there is the other scenario where the details of the father are not provided when registering the child with the Department of Home Affairs. One reason for this could be that the mother is not certain who the father is, or just does not want him to be associated with the child. Either way, that section of the child’s birth registration is left blank. Now, what can such a father, or child do under such a situation? We approached Advocate Muhammad Abduroaf, a Family Law Expert for some advice on this issue. Read on if you want to know more. Consult with us, click here. What is a surname? A surname connects you to your family, ancestors and heritage. On the rare occasion, your last name can be an omen that you carry with you for the rest of your life. Each parent would prefer to have their offspring have their family name to connect their child to them. But sometimes, getting it right can be a challenge, especially if the child’s parents are not married and do not share the same surname. You may find the following articles interesting: How do I get full custody over my child? Parental Child Abuse in Custody Cases Relocate with minor child. Parent Refusing Consent for a Passport Father being refused contact to his child! What are his rights as a Father? Father’s Parental Responsibilities and Rights to his Child Urgent Access to your Children without a Lawyer Parenting Plans and the Law What happens in a custody dispute where one parent is mentally ill? How to win your child custody and access court case – Tips and Tricks Most people get married, and the wife usually ...
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Advocate Megan Naidu

Child Custody and the Children’s Act. Know your parental rights

THE CHILDREN’S ACT The Children’s Act, 38 of 2005 regulates how persons acquire parental responsibilities and rights over a child. For example, a biological mother whether she is married or unmarried automatically acquires full parental responsibilities and rights. However, unmarried fathers do not. This article is intended to show you how the Children’s Act can apply to you. WHAT IS PARENTAL RESPONSIBILITIES AND RIGHTS? Parental responsibilities and rights can be described as the rights a person may have in respect of a child. Co-holders of parental responsibilities and rights occur when more than one person share these responsibilities and rights. The co-holders must always consider the best interests of the child. These include the rights and responsibilities to care for a child, act as the guardian, contribute towards maintenance and maintain contact with the child.   HOW DOES ONE ACQUIRE PARENTAL RESPONSIBILITIES AND RIGHTS?  A biological father: Acquires full parental responsibilities and rights in respect of the child, if he is married to the child’s mother, he was married to the child’s mother at the time of the child’s conception or birth, or at any time between the child’s conception and birth; or he is or was married to the child’s mother at any time after the birth. A biological mother: Acquires full parental responsibilities and rights in respect of the child whether she is married or not. A biological mother is granted these rights due to the fact that she gave birth to the child. Unmarried biological fathers: Do not acquire full parental responsibilities and rights in respect of the child. The Children’s Act states that an unmarried father will have automatic parental responsibilities and rights if at the time of the child’s birth, he was in a life partnership with the mother, regardless of whether he was living with the mother or not, he consents to be identified as the father of the child, applies for an amendment to be effected on the birth certificate, or pays damages in terms of customary law; and he contributes or has attempted to contribute in good faith to the upbringing of the child. Artificial insemination: The biological mother and the biological father of the child acquires full parental responsibilities and rights in respect of the child. When a married woman is impregnated with the gametes of her husband, the child will be regarded as having been born to married parents. Guardians ...
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Advocate Megan Naidu Divorce

Uncontested or Friendly Divorces: What do you need to know?

Uncontested or friendly Divorce: What procedure to be followed on the divorce court day? By Advocate Megan Naidu This article provides information about the procedure to be followed for an uncontested divorce when making use of an Advocate at Court. An uncontested or friendly divorce is where both the husband and wife agree to all the terms of the divorce. This includes contact and care if there are minor children, as well as maintenance (child and personal) and proprietary aspects of the marriage. The divorce then gets finalised on an undefended base. This is not only quicker but also less emotionally draining and more cost-effective. How does the divorce process start? Once your uncontested divorce papers (Summons, Consent paper etc.) have been prepared, signed and issued, the documents would then have to be served on the Defendant by the Sheriff. If there are minor children, the Family Advocate has to endorse the documents and/or parenting plan. It is best that this takes place prior to when the matter is enrolled at court. Usually, the Plaintiff will appear at court. If he or she is not available, the Defendant may appear and give evidence. Consultation on the Day of Divorce If you issued your divorce summons in the High Court an Advocate will usually be appointed to appear with you. You may meet with the Advocate in Chambers, prior to your matter being heard for a brief consultation. This is done so that the procedure can be explained to you and it will prepare you for the questions that will be asked in court. Attending to Court After your consultation has taken place, you will meet the Advocate again at the High Court. The court sits at 10:00. This does not mean that your divorce will be heard at 10:00. The reason being, generally there are a number of cases listed on the court roll for this day. The time it takes to get a Divorce You will spend a few minutes in the witness box in front of the Judge in the High Court. However, you could wait for a brief period or a couple of hours before your matter will be heard. The Questions the Advocate and Judge will ask you in Court: – When your case is called, stand up and go to the witness box. – Your advocate will stand up and inform the Judge that he/she ...
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General Child Maintenance Questions and Answers

View question and answers regarding child maintenance posted on this website in the past. You may find some of the answers useful. My son is now 10 years old when he was much younger his father would pay here and there in all the years i have been supporting him… i recently got married to the man that loves my son dearly as his own. we want to change his surname also but i need his fathers permission. he said its fine but i need him to send me forms to say i may i have been wait more than over a year now and he keeps saying he is going to send it. i feel if he doesnt want me to change his surname then he should pay and help …..which he has not done in so many years.  please advise me The father will always have an obligation to support his child. Father and mother separated when she was pregnant I also have a question to ask or questions rather….my sons father and i separated when i was just a few weeks pregnant, he left me for someone else. I went through the whole pregnancy alone and he never owned up to it. To easy the pressure on my pregnant self i left him alone…….we talked here and there and would even buy preparatory baby stuff for the unborn child upon being asked  only two times that happened. We never quiet spoke and when the baby was born as much as i hated it i knew i had to let him see him n put our differences aside its like we started on a new page. However, upon being asked to support the child he always made it feel like i was nagging or if not made t purely look lyk he was doing me a favour. Every month i constantly have to remind him of the support needed sometyms he goes months before assisting. I just stopped asking him altogether  and i blocked him on any other platform such that he hasnt seen his son for nearly 3 months, i have been taking care of everyrhing by myself and eve  when he gave something it was very little in comparison with what he gets and i make way less than him and have filed for child support with hearing to be held in april…..in light of these ...
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