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

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 ...
Read More

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 0214243487 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 ...
Read More

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 ...
Read More

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 ...
Read More

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. Please share. Someone may find it useful ...
Read More

Child Relocation, Passports, Custody, Surname Change and the High Courts Child Relocation, Passports, Custody, Surname Change, and the High Courts – Simplified What does Child Relocation, Passport disputes, Custody issues, and surname changes have in common? They are all matters which a court of law resolves if the parties cannot do so. Other than child custody issues that can be resolved by the Children’s Court, disputes in relation to Child Relocation, Passport Disputes and Surname changes for minor children are dealt with in the various Provincial High Courts in South Africa where the child ore parties reside. Much has been written in this website regarding child custody, relocation of minor children, and passport disputes. They have however not been dealt with simultaneously in one article. This is what this article intends to do. It basically provides the intertwined application of the law. With the rise in relocation and disputes regarding care and contact in South Africa, this article would be useful for many parents. However, if you wish to view some of the articles already written on the aforementioned topics, feel free to click on the following links: – Minor children born out of wedlock – Whose surname should they have? – Passport Application for my child. I cannot find the father to give consent at the Department of Home Affairs – Child Custody – Articles and Posts – Relocate with the minor child. Parent Refusing Consent for a Passport 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 Child’s Best interests – A Constitutional Right You guessed it, this article will commence with the fundamental principle in our law – the child’s best interests. This principle is an international principle, applied all over the world. Locally, the principle is found in our Constitution, Act 108 of 1996 and in the Children’s Act 38 of 2005. Let ...
Read More

Amendments to the Maintenance Act – Final Changes that took place in 2018 – Know your rights Parents have a legal obligation to maintain their children. The same applies to spouses who have to maintain each other, and so on. This obligation should be exercised naturally. In other words, even if a parent did not know of the law enforcing child support, he or she should have a natural inclination to do so. Unfortunately, the true reality is that it is not the case. Countless parents are taken to the maintenance court every year due to not supporting, or inadequately supporting their children. And to be fair, there are parents who abuse the maintenance process who takes the parent to court who is already adequately contributing. Now, for the maintenance enforcement process to function, working mechanisms need to be in place. This is where the Maintenance Act 99 of 1998, and the Maintenance Amendment Act, 9 of 2015 come into play. Read on to learn more. The Maintenance Act 99 of 1998 Since or about 1998, the Maintenance Act 99 of 1998 was the main piece of legislation that was used for parents to obtain maintenance for their children. Other legal tools would be making an application in terms of High Court Rule 43 for interim maintenance in a divorce matter, and the Divorce Court would make a final order. In the Magistrate’s Court, rule 58 would apply. Then there is the Domestic Violence Act, which allows for emergency monetary relief. Notwithstanding the Maintenance Act being a great and useful tool, as time changed, so too did it have to do the same. Maintenance Amendment Act (Act No.9 of 2015) On 5 January 2018, the entire Maintenance Amendment Act came into operation. In our view, it placed some sharp claws into the already existing Maintenance Act. Some changes to the Maintenance Act were cosmetic in a sense and other changes (or additions) toughened up the law. Sections 2, 11 and 13(b) of the Amendment Act, which is dealt with below, were not initially in operation due to it requiring Regulations to be created to make it work. It is however now in place. To make things easy, we unpacked the Maintenance Amendment Act (Act No.9 of 2015) and give our explanation as to how it better serves South Africans. Below we provide a summary of the amendments we find relevant ...
Read More

Children born out of wedlock – The issue of whose surname the minor child should have Children born out of wedlock – let us have a look at the law when it comes to their surname, and changes to it. In the ideal world, a couple falls in love, gets married, and then bring a child into this world. However, since the beginning of time, this was not always the case. History has many stories of children who were born out of wedlock. This is more prevalent this modern day as many couples decide to start a family, without nuptials. Then there is the other extreme where a child is conceived through a brief encounter and then the parties continue with their own paths in life. The law and society also treat children born out of wedlock differently. This has changed to an extent where neutral terms are being used. Words like “illegitimate” and so on are used to refer to such innocent children whose fate was laid down by their parents. The law and society were so extreme, that even children born from religious marriages, which were not recognised as valid civil marriages were also referred to as “illegitimate”. It is however still shocking that the South African law we refer to later, still uses the term “illegitimate child”. Nonetheless, a beautiful innocent child is born, and then the issue of whose surname he or she should have has arisen. This is what this article addresses. Whose surname should a child born out of wedlock have, according to the law? And further, can such a surname be legally changed later?  Issues in relation to a surname of  minor children born out of wedlock This article deals with two issues in relation to a surname of a child born out of wedlock. The first is whose surname a child born out of wedlock should have according to the law? This is an important issue. There are a few scenarios that come to play. One where the parties lived together and planned on having the child and intend to marry or live together indefinitely. In such a case, maybe the child should have the father’s surname. Then there is the other situation, where the mother and the father of the child had a short intimate relationship, and he wants the child to have his surname. This could be complicated as he ...
Read More

Paternity disputes and Scientific DNA Testing in Child Legal Matters Paternity disputes are not uncommon in our courts of law. What sparks them varies, however, all disputes are messy. For one, the mere allegation that he is not the father of the child may directly or indirectly affect the dignity of the mother, and that of the child. In other words, it is suggested that she had more than one sexual partner at the time, and the child was born from such a relationship. Nonetheless, the issue can speedily be resolved through scientific DNA testing. Paternity – Legal Settings There are two common legal settings where a parent (or alleged parent) would dispute paternity. The one would be in a child maintenance dispute, where the father alleges that he is not the biological father of the child, and therefore cannot be ordered to pay child maintenance. The other situation would be in a child custody or visitation dispute. Here the mother would allege that the man is not the father, or he denies paternity. Paternity Dispute Scenarios There are other scenarios where paternity can become an issue. One would be in the case of inheritance. A parent would allege that a child is an heir of the person who passed on. Another would be in the case of marriage. What happens if there is a rumour your intended bride is your half-sister? These disputes and many others can only be resolved with DNA or scientific testing. Below we further deal with the question as to whether a court can force a parent and a child to submit to a blood test. That is where It gets interesting. The latter scenario laid the seed for researching and writing this post.  Read on to learn more. You may learn something new. The legal presumption of pater est quem nuptiae demonstrant Now let’s start with the common law. There is a phrase or common law presumption, “Pater est quem nuptiae demonstrant”. It is a Latin phrase which states that the father is he who is married to the mother. In other words, if the child was born whilst the father was married to the mother, it is presumed that he is the father. Therefore, unless the father or mother can prove otherwise, every child born from a marriage is presumed to be the child of the husband. If the husband or wife disputes ...
Read More

Advocate Muhammad Abduroaf – Advocate of the High Court of South Africa Advocate Muhammad Abduroaf is an advocate of the High Court of South Africa. He has the right of appearance in any Court in South Africa. Other than representing clients in Court in legal matters, he also advises them. Read further to find out more about this exceptional legal eagle. Advocate Muhammad Abduroaf Early success Having completed his Masters in Law Degree (LL.M) in 2003, advocate Abduroaf was the same year admitted as an advocate of the High Court of South Africa. In the same year, he further successfully represented his client in the Western Cape High Court, where history was made. This was the case of Petersen v Maintenance Officer Simon’s Town Maintenance Court and Others 2004 2 SA 56 (C) 38. Because of this important case, it is now possible to claim maintenance from paternal grandparents of children born out of wedlock. This was not possible for over 80 years. If it was not for his tenacity and belief in law, his client wouldn’t receive the much-needed child support. Advocate Abduroaf keeping the momentum A year later, the young advocate Abduroaf, again made legal history. This was in the case of Soller v Maintenance Magistrate, Wynberg and Others 2006 2 SA 66 (C) 2006 446. In this case, the Western Cape High Court confirmed the extensive powers of the Maintenance Court, which includes interdicting pension funds. A mother struggling to obtain maintenance has an additional option because of this case. Because of the latter two cases, family law has developed constitutionally to the benefit of many. Advocate Abduroaf’s practice for the past 15 (fifteen) years For the past 15 (fifteen) years, advocate Abduroaf represented his clients in countless legal matters. These ranged from businesses, commercial, family, to criminal matters. Don’t forget about employment and delictual matters. Advocate Abduroaf fearlessly represented his clients and keeps that work ethic up until this day. You would further find a range of legal articles on the internet written by the advocate. Go ahead and do a simple search. Attorney Referrals As an Advocate, his work comes to him via attorneys. If you ask why – the client has to first approach an attorney with his or her problem. Thereafter the attorney instructs the advocate if necessary, under the circumstances, or if the client persists. Of course, this is still the practice ...
Read More