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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.

What are the rights of unmarried mothers and fathers wanting to travel overseas with their minor child if consent is refused?

What are the rights of unmarried mothers and fathers wanting to travel overseas with their minor child if consent is refused?

I am an unmarried mother. I want to take my child with me on a holiday overseas, but the biological father of my child does not want to give consent and co-operate. What are my, and our child’s rights for a passport and to visit the United Kingdom? South Africa is one of the most beautiful countries in the world. We have mountains, seas, forests, lakes, and dams. It is the ideal holiday destination, and a countless number of people flock to our shores every year. But now and again, South Africans want to leave our borders and go on holiday to another country. For this, one usually only requires an air ticket, passport, and a visa. And of course, some money. Now the process of traveling overseas would be simple if you are an adult going on your own, or with another adult. What if a single parent wants to travel overseas with a minor child? But what if you want to travel overseas with your minor child? When we say minor child, we refer to a child under the age of 18 years old. Under normal circumstances, both parents would co-operate in applying for a visa and a passport for the minor child. But what if this is not the case? What if one parent does not want to consent to the minor child going overseas with the other parent? Let us explore the issues and laws involved. The parenting scenario – unmarried parents and the child Let’s say a couple had a child together and they are now separated. They were never married. The father was actively involved in the child’s life since the child’s birth. He paid child maintenance regularly and visited the child often. However, when the child was three (3) years old, he had challenges in obtaining regular contact with the minor child. Father approaches the Children’s Court The father then approaches the children’s court and he was awarded reasonable contact. This entailed him having the minor child every second weekend and a half of the school holidays. Telephone and special days' contact were also incorporated in the Court Order. The mother approaches the maintenance court The mother then took the father to the maintenance court, as according to her, the amount he was currently paying was not enough. The matter was then resolved and it was ordered that the father pays for all ...
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Relocation with minor child from South Africa

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

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 consent ...
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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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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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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?

My Child was born out of wedlock: Her mother will not consent to her surname change and for me 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. What is a surname? A surname connects you to your family, ancestors and heritage. On a 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 a minor child. Parent Refusing Consent for a Passport Father being refused contact with 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 ...
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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 of the National Lockdown. What do I need to be aware of? Have a look at the checklist below. With Covid-19 and the National Lockdown in South Africa, many things have changed. People re-looked their lives and started thinking differently about the future. As international travel is phasing in, relocating to another country may be something you have strongly considered. Now can you do it with your minor child? Reasons people relocate to other countries 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. You may even want to go back to your country of birth. Relocating with a minor child 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 ...
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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 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 not see the child for some time. This becomes a problem if ...
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Best Lawyer - Attorney - Advocate - Cape Town

How to find the right lawyer for your case. Costs, experience, and your preference.

Factors to consider when searching for child custody, divorce or child maintenance lawyers? Not all lawyers are the same. Just as not all doctors are the same. You won't go to a medical doctor who is a foot specialist (podiatrist) if you have a skin problem. For that, you will see a Dermatologist. This you would do, even if the podiatrist knows a bit about skin illnesses and diseases and is, nonetheless, a medical doctor. The same principles apply to the law and to lawyers. Various lawyers specialise in various fields of law. Some know more, and some know less. You won't meet with a property lawyer if you have been accused of medical malpractice; or would you? You get the point we are trying to bring across. Factors to consider when enlisting legal service from a legal practitioner There are Important factors to consider when employing, or enlisting the services of a lawyer (attorney, advocate, legal consultant, etc.) A few of these factors as follows: Location of the lawyer This is not always an issue as the advice can be provided via a video call or telephonically. If it comes to litigation, it may be an issue. If you live in Cape Town and the lawyer in Johannesburg, there would be additional traveling costs to consider. The Cost or Fee of the Lawyer Not all legal practitioners charge the same for their services. Depending on the years of experience of the lawyer, he or she would charge a higher or lower fee. The same applies to his or her expertise. If he or she is an expert in a certain field of law, the fee may be higher than a generalist attorney. Therefore, if you do not need expert advice, consult with an advocate or attorney with enough experience to be able to assist you. Gender of the Attorney or Advocate There is not much that can be said about this factor. Some people prefer one gender over the other. The bottom line is to be comfortable with the person you are consulting with. Many times, especially in litigation, you may see your lawyer a few times a month for up to two (2) years. Availability of your lawyer Some lawyers are extremely busy and in demand. Ensure that the lawyer you are making use of has the time to attend to your matter expeditiously. Experience of the lawyer ...
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Reclocation to The United Kingdom, Australia, United States, New Zealand, Canada

What parents need to know should they wish to relocate from South Africa to the United Kingdom, Australia, United States, New Zealand or Canada

What parents need to know should they wish to relocate from South Africa to the United Kingdom, Australia, United States, New Zealand or Canada with their minor child We often receive queries and requests for advice and assistance on issues relating to relocation to another country with a minor child. Related topics relate to the issue of consent for the application for a Passport for a minor child. Sometimes the issue of changing the child’s surname comes into the picture. Of course, if parents are in agreement regarding the issue of relocation and a passport application, all should go well. You may want to see a lawyer to formalise the arrangement to avoid any issues whilst the parent and the child lives abroad. However, if there are potential complications or issues of consent not being forthcoming, then this article would be of assistance. Why relocate, or emigrate from South Africa to the United Kingdom, Australia, United States, New Zealand, Canada, or elsewhere? In no particular order, you would find someone relocating from South Africa to the following destinations: The United Kingdom, Australia, United States, New Zealand, Canada, Angola, Botswana, Chile, Zimbabwe, Germany, Netherlands, Swaziland, Israel, Portugal, Mozambique, Ireland, Malawi, Switzerland. Namibia and Greece. The reasons for the relocation vary. For some, it is for a better life, work, or to live with a new spouse or partner. For others, it may just be to explore the world. If there are children involved, then relocation won’t be that easy. Especially so if both parents live in South Africa, and the other wants to relocate with the minor child. In other words, parents who have parental responsibilities and rights need to be considered. Parental Responsibilities and rights of parents (Applicable to South Africa) Generally, both parents would have parental rights and responsibilities over a child. We say generally, as this would not always be the case. Mothers automatically have full parental responsibilities and rights over the child. If a parent has parental rights and responsibilities over a minor child; this could entail the right and responsibility to care for the child, have contact with the child and at the same time to act as guardian for the child. This article would deal with the issue of guardianship. If the parties were married the father will automatically have full parental rights and responsibilities over a minor child born from the marriage. If the ...
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Free DIY Urgent Holiday Contact Court Application Tools

FREE DIY ONLINE TOOLS TO GET URGENT CONTACT TO YOUR CHILD DURING THE SCHOOL HOLIDAYS The end of year holiday season is upon us. This is the time for families to come together and re-establish family bonds. It is also the time of year where many parents who are separated, or not living together, fight over aspects of contact to their children. Often times, a parent would be refused contact to his or her child for no good reason. This is not in the child’s best interests. We believe that children have a right to spend quality time with both his or her parents irrespective of what type of relationship the parents have amongst themselves. This way of thinking aids the minor child’s emotional and psychological development. With regard to how much quality time should a parent receive; this depends on the facts of the case. However, the deciding factor is what is in the child’s best interests. This is what we shall look at next. The Child’s best interests - Holidays or not All parents need to conduct themselves in a manner conducive to the child’s best interests. In other words, they need to put their personal issues aside with the other parent and focus on what is best for the child. What often happens, is that one parent tries to punish the other parent by making use of the child. Therefore, they would prefer to alienate a parent from their child and refuse him or her any contact during the holiday season and other times. Often time children are left with a grandparent, aunt or non-relative to care for them whilst the other parent is busy during the holiday season. The child is the one that loses out in the long run. His or her development would be prejudiced, which could lead to serious mental and psychological developmental issues in the future. A child required both parents to bring him or her into the world. And in the same manner, a child requires both parents to live a complete and meaningful life. Having said this, if you are being unreasonably refused contact to your child, and feel that it is not in the best interests of the child, read further, and find out what you can do. What can you do if you are being refused contact to your child in the Holidays? We don’t believe in resorting ...
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7 thoughts on “Emigration and relocation from South Africa – Children’s Rights and that of Mother and Father

  1. In a nutshell, my child’s father is planning on going to work overseas indefinitely for 6 months at a time. He is basically relocating there and coming home for two one month holidays per year. He has left her before to move elsewhere in the country. She resides with me and visits him every second weekend, due to his life choices, I make all the decisions for her with her best interests at heart. Should I be going for full legal custody with him getting visitation when he is here?

  2. This is a case of a biological father and biological mother of a minor. The minor was born while the biological father and mother were engaged but the engagement was terminated. The biological father is married to another woman and decided to emigrate to New Zealand. The biological mother and biological father agreed that the minor (now 13 years old) could emigrate to New Zealand with the biological father and his wife. The minor is currently in New Zealand and lives with his biological father and is enrolled in a school. The biological father applied with the consent of the biological mother so that the minor could apply for citizenship of New Zealand. A parenting plan was drawn up in terms of Children’s Act 38 of 2005 and was approved by the Family Attorney at Palm Ridge Court Alberton. He recommended that it be in the best interests of the minor that he be able to emigrate to New Zealand with his biological father and that he also be able to apply for New Zealand citizenship. The Parenting Plan was served before the Children’s Court but the Magistrate found that the Parenting Plan could not be made a court order by the court as the minor is currently in New Zealand. The Chief Magistrate made a similar finding. The question now is; Does the Parent Plan have any legal force in New Zealand that can prove that the biological father and biological mother did agree that the biological father can apply for New Zealand citizenship on behalf of the minor?

    1. Good day

      It would be best to speak to the New Zealand authorities as to what the legal effect of the parenting plan is. It may be best to consult with a lawyer that side.

  3. This is a case of a biological father and biological mother of a minor.
    The minor was born while the biological father and mother were engaged but the engagement was terminated.
    The biological father is married to another woman and decided to emigrate to New Zealand.
    The biological mother and biological father agreed that the minor (now 13 years old) could emigrate to New Zealand with the biological father and his wife.
    The minor is currently in New Zealand and lives with his biological father and is enrolled in a school.
    The biological father applied with the consent of the biological mother so that the minor could apply for citizenship of New Zealand.
    A parenting plan was drawn up in terms of Children’s Act 38 of 2005 and was approved by the Family Attorney at Palm Ridge Court Alberton. He recommended that it be in the best interests of the minor that he be able to emigrate to New Zealand with his biological father and that he also be able to apply for New Zealand citizenship.
    The Parenting Plan was served before the Children’s Court but the Magistrate found that the Parenting Plan could not be made a court order by the court as the minor is currently in New Zealand.
    The Chief Magistrate made a similar finding.
    The question now is; Does the Parent Plan have any legal force in New Zealand that can prove that the biological father and biological mother did agree that the biological father can apply for New Zealand citizenship on behalf of the minor?

  4. Hi, would it be possible to assist with answering one question for me please?
    I am a single mother of 16 year old boy.
    There is a parenting plan and maintenance order in place.
    The father emigrated to the UK last year. Address unknown. But planning to visit family and his son next month. In contact with his son on whatsapp.
    He has stopped maintenance payments.
    My question is: CAN ANYTHING BE DONE…..? I AM STRUGGLING TO COPE FINANCIALLY.

    1. Good day
      Lay a complaint at the maintenance court for non-compliance. Advise them that he will be in SA soon. They can then get everything in order to charge him for contempt of court when he is in SA. The court may advise you otherwise, or assist you differently.

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