The Hague Convention on the Civil Aspects of International Child Abduction is designed to secure the return of a child, removed from or retained in a foreign country, to the child’s country of habitual residence.
It is a procedure aimed at returning the child to the jurisdiction of the country of habitual residence, and not to the left-behind parent. The Hague Convention now forms part of South African law through the Children’s Act, 38 of 2005.
The Central Authority for the purposes of the Hague Convention is the Chief Family Advocate. The Chief Family Advocate delegates authority to locally-based Family Advocates. The blurring of the role of the Family Advocate causes some difficulties in the implementation of the Hague Convention: the Family Advocate is supposed to be the neutral organ of state, which has the resources,skills and expertise to investigate and make recommendations on the best interests of the child. As the Family Advocate, the Family Advocate safeguards the interests of children, and plays a role similar to that of CAFCASS in England and Wales. Requiring the Family Advocate to act as the central authority, which means that it is the Family Advocate who is the applicant in litigation for the return of a child under the Hague Convention, causes internal conflict.
The courts have developed the practice of appointing a legal representative for the child, pursuant to section 279 of the Children’s Act 38 of 2005. Where the child is of sufficient age and maturity, the legal representative represents the child’s wishes, but where the child is very young, the function of the legal representative approximates that of a Curator ad litem, i.e. the legal representative makes decisions on behalf of the child.