Court grants mother right to keep children in SA away from nomadic father in US

Court grants mother right to keep children in SA away from nomadic father in US

Pretoria News – 25 January 2023

Pretoria - A father of three who lives in Texas in the United States – said to have subjected his children to a nomadic life and who is so controlling that he even watches his children’s weight – lost his legal bid in a South African court to have his children returned to him.

The father launched proceedings in the Johannesburg High Court in terms of The Hague Convention on the Civil Aspects of International Child Abduction Act, to have his children returned.

The purpose of the Convention is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country, or their wrongful retention in another country.

The Convention does so by establishing a procedure to secure the prompt return of any such child to the country of their habitual residence so that custody and similar issues in respect of them can be adjudicated upon by the courts of that country. The Convention is primarily aimed at deterring self-help, and provides for the return of children in such circumstances.

But Judge Fiona Dippenaar ruled that the evidence before the court proved that the children – aged7, 9 and 11 – will be placed in an intolerable situation if they are returned to the US.

The mother, a South African citizen, obtained permission from her husband to visit her parents here in July last year. While in South Africa, she instituted divorce proceedings against her “abusive” husband and decided not to return to the US. She has since stayed in Gauteng with the children on the same premises as her parents.

After the couple got married they mostly lived in Texas, and all three children were born in the US. The father, a US citizen, was born in Mexico. During 2018 the husband lost his job, the family condominium in Austin was sold, and the family moved to Chihuahua, Mexico, in July 2019. When he lost his job, they moved between Mexico and the US.

While the father painted a picture of a stable home for the children in the US, which he said was far more promising than life in South Africa, the mother painted a picture of a family without roots and who had lived a nomadic existence when the father lost his job.

The mother, an occupational therapist, did not work as her husband had forbidden her to do so. He also refused that the children attend school; they were homeschooled.

The mother and children had to accompany the father wherever he obtained work and had to illegally cross the Mexican border each time as neither the mother nor children had valid passports or visas to live in Mexico.

The mother said the father was a manipulative, domineering and controlling person who abused her – both physically and emotionally, and excessively controlled and dominated the children. She also referred to the “military style exercises” he forced the children to do, his obsessions with hoarding, religion and his male dominance in the family.

She and the children lived in fear of him, she said, as he insisted on controlling their lives and making choices about the children’s hairstyles and clothing, and was obsessive about none of them gaining weight.

Coupled with their nomadic lifestyle, she said the children are better off in South Africa with her. The children also voiced their desire to rather live in South Africa, where they are free to socialise and to go to school.

The judge said the father lacked appreciation for the impact life in the US had on the children and the risks of forcing them to travel wherever he finds work, even if it meant crossing borders “in a clandestine manner”.

He presented a glowing picture of life in Texas filled with opportunities while contrasting it to life in South Africa which “provides a far less certain future”. But the judge said his picture was painted in broad and abstract terms, and disregards the realities of the family’s life experiences and “the erosion of constitutional rights taking place in the US, and specifically Texas; rights protected under the South African Constitution.”

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SA-born child leaves for Croatia with father after court rules against estranged wife

SA-born child leaves for Croatia with father after court rules against estranged wife

Pretoria News – 25 January 2023

Pretoria - A South African-born child aged 13 will next week start school in Croatia after her father won a legal battle against his estranged wife to take his daughter with him while he assists Ukrainian refugees in that country.

The child’s mother was shortly before Christmas ordered by the South Gauteng High Court in Johannesburg to allow the child to live with her father abroad.

Judge Shanaaz Mia ordered the mother to sign all the necessary documents relating to her daughter’s relocation. If the mother refused to sign the documents, the sheriff of the court was entitled to do so on her behalf, the order read.

Not only did the mother lose her battle for her child to remain here, but she was also instructed by the court to foot her husband’s legal bill.

Judge Mia made it clear that the interest of a child will always prevail. In this case the child made it clear she wanted to go to Croatia with her father, with whom she had a better relationship.

The judge said the court heard “the voice of the child” in this matter, as the daughter was old enough to express her wishes.

The couple met while the father worked on humanitarian and relief projects in the southern African region. The parties got married and the child was born during the marriage.

The mother stated in her opposing affidavit that her relationship with the child was strained. She noted, however, that there were efforts to improve this relationship.

According to her, the father simply wanted to take the child away in a bid to hurt her (the mother).

The father said he was due to start his new job assisting Ukrainian refugees in Croatia and he wished to return to that country, where his family resides and where his support system is based in the form of family and friends.

Having secured employment and accommodation, he was ready to depart, but the mother refused to give her consent.

Judge Mia said the Constitution was clear that decisions relating to children were paramount and must be taken having regard to their best interests.

“Where the child’s interests and an adult’s interests are not congruent, the adult’s interests must yield to what will promote the child’s best interests,” she said.

The voice of the child report and the family advocate who consulted with the child indicated that the child wished to accompany the father to Croatia. The mother is of the view that the child, being female, required a parent of the same gender to guide her as she grows older.

The family advocate indicated that the mother would have contact regularly via WhatsApp and Zoom calls. She would thus be able to maintain her relationship with the child and to advise her and counsel her on any issues required by the child.

The mother was also concerned about the child’s safety, being in an area close to the war in Ukraine. But the court said the reality of the father’s work, in the humanitarian field, is that it will always take him to where the need arises.

“The first respondent’s (mother) concern about a war being waged in parts of Europe can be assuaged by her regular contact to check in with the child. The parties have the option of returning the child to South Africa should they feel she is in danger at any point,” the judge said.

While the father may take the child with him, he has to ensure that the mother has daily contact with the child.

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ASYLUM SEEKERS PERMIT EXPIRED or NEW ONE needed – Don’t know what to do ?

ASYLUM SEEKERS PERMIT EXPIRED or NEW ONE needed – Don’t know what to do?

Apply Now for Temporary Residence even with EXPIRED LOCKDOWN PERMITS.

The Constitutional Court handed down a judgement in the Ahmed matter as well as a Court Order opening the door for Asylum Seekers and Refugees to apply to change their status to  temporary residence visa . Contact us now before this fantastic opportunity is lost .

Contact us now and ask me HOW CHANGE TO TEMPORARY RESIDENCE . Travel abroad from South Africa , get a Canada , Schengen Visa afterwards .

Under the new rules they don’t have to cancel their asylum or refugee status and can change to any visa class if they qualify from within South Africa.


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Spouse Required to be present on submission of life partner and spousal application

Spouse Required to be present on submission of life partner and spousal application 

New development with respect to spouse / life partner application needs pictures of spouse/ life partner  and applicant , the SA spouse  must be physically present on day of application.  No excuses.  

This info was sent to vfs today they will action wef 1 Feb 2023 . It will be signposted on website and offices accordingly . As an aside you and I will understand why, the fraudulent SA life partner s who cry foul and say they stole my ID when caught out will be exposed as well as the syndicates .

I have no problem with this.  Pre 2014 it was mandatory for spouse to be with but the vfs context created a challenge as not being DHA.

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Undocumented, unmarried fathers cannot be excluded from their children’s birth certificates

Undocumented, unmarried fathers cannot be excluded from their children’s birth certificates 

The CItizen | 19 Jan 2023

Gqeberha High Court judge said regulation was “irrational” and unconstitutional. 

A South African birth certificate and Identity document. 

A regulation preventing the naming of a foreign, unmarried father who is in South Africa illegally on his child’s birth certificate is unconstitutional, the Eastern Cape High Court in Gqeberha has ruled.

Judge Mbulelo Jolwana said the regulation, which provides that a foreign father of a child born out of wedlock must submit a copy of his valid passport, visa, permit, permanent residency, ID document or refugee identity document in order to be registered, was not only irrational but was contrary to the best interest of the child.

It was also at odds with the Births and Deaths Registration Act which imposed no such rule.

Case study

The matter before Judge Jolwana was brought by the unmarried biological parents of a young child. The mother is South African. The father is Bulgarian and his visa has expired.

Officials at the Department of Home Affairs refused to register him as the father on his child’s unabridged birth certificate, saying he was no longer legally in the country and because he was not a South African citizen, he had to undergo a paternity test.

The couple launched a court action for an order compelling the department to include the fathers name on the birth certificate and challenging the constitutionality of the relevant regulation.

READ THE FULL JUDGEMENT HERE

Judge Jolwana noted that the Minister of Home Affairs had initially opposed the matter, citing the father’s illegal presence in the country and that the regulation “made it impossible” to include the father’s name on the certificate.

During the hearing, his lawyers made a “180 degree turn” and conceded the issues, claiming that the regulation actually did not apply in this matter.

But the couple said the constitutional issue still needed to be aired given that it was a matter of significant public interest.

Lawyers for the minister said that given their capitulation, it was not necessary and the issue was now “moot”.

But Judge Jolwana said they had not explained their earlier stance and their “change of tack” and it called for an explanation.

“It is impossible to appreciate what informed this sudden change and it makes it even difficult to resist the temptation to conclude that the sudden change of mind was in bad faith, designed to cripple and disable the court from enquiring into the constitutionality of the regulation … which continues to bedevil children born in similar circumstances as the child in this matter.

“As can be gleaned from [the minister’s] affidavit, every day in all Department of Home Affairs offices throughout the country, those seeking the registration of their details in the birth records of their children are turned away if their fathers happen to be illegal foreigners,” the judge said, noting that there had been no concession regarding the constitutionality or otherwise of the regulation.

“Rights of citizens cannot be subject to the whims or attitudes of the attending officials in government offices … courts must act when rights, especially the rights of children, are allegedly being undermined.

“The court cannot ignore the fact that there may be literally thousands of other children who are treated no differently from this child, even as we speak … an inquiry into the constitutionality of this regulation is a matter of public importance.”

Judge Jolwana said neither the Constitution nor the Children’s Act distinguished between children on the basis of the citizenship of their parents.

The couple, he said, contended however that the regulation discriminated against their child, who was a South African citizen, because of the circumstances of birth.

In the matter before him, the fact that the father had been unable to renew his visa “has nothing to do with the child and his right to have the identity of his father officially recognised”.

Judge Jolwana said the regulation was “irrational”, noting that it had not gone through any parliamentary process and flew in the face of international instruments dealing with the rights of children.

The Act itself made no distinction between local and foreign fathers – those legally in the country and those that are not.

Unconstitutional

He declared the regulation to be unconstitutional and ordered the minister to pay the costs on a punitive scale, noting the last-minute about turn.

“For them to force people such as the applicants to approach court, only to admit that they were wrong from the onset, is troubling,” the judge said.

What does this mean to you 

There are 2 parts to this  question

1) child is just born and birth needs to be registered with DHA  

2) child is born , birth already registered , birth certificate issued and father now wants to be included on birth certificate.  

In case 1) no  problem he simply register as before being illegal except for 1 thing bearing in mind he is illegal so the question is post birth registration does civic affairs hand him over to immigration to be prosecuted as an illegal foreigners 2) to add father is called an insertion of natural fathers particulars and given its a citizenship amendment it takes  up to 1 year.


For more information, Please contact us on :

Tel No landline CT  :  +27 (0) 21 879 5560

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Tel No sales : +27 (0) 74 0366127 - ( Whatsapp calls only – No Messages )

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