International mobility and the opening up of borders linked to increasing globalisation have given rise to serious risks for children caught up in cross-border situations. On one hand, there is the risk of cross-border trafficking of children for economic, sexual or other exploitation. On the other, there are children caught up in fractured relationships within transnational families, with disputes over custody and relocation, the hazards of international child abduction, and the problems of maintaining contact and enforcing claims for child support across international borders.
Then there is the phenomenon of inter-country adoption. This expanded slowly after World War II until the 1970s, when the numbers increased considerably. By the 1980s, this phenomenon was causing complex social and legal problems in the absence of existing domestic and international regulatory legal instruments. In more recent years, Africa has become the new frontier for inter-country adoption, with the much publicised inter-country adoptions by the likes of Madonna and Angelina Jolie being only the tip of the iceberg.
The general norms that should apply to the protection of children in these cross-border situations in Africa are to be found in the United Nations Convention on the Rights of the Child, 1989 (CRC) and in the African Charter on the Rights and Welfare of the Child, 1990 (African Charter). All African countries have ratified the CRC, while the African Charter has been ratified by 47 African states, including South Africa.
These norms consist of the general principles of the child’s best interest, non-discrimination, and the child’s right to be heard. In addition, there are the more specific principles applicable to cross-border situations, such as the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, and the principles governing inter-country adoption.
Against the backdrop of these general norms, four Hague Conventions regulating cross- border child protection have emerged: the 1980 Convention on the Civil Aspects of International Child Abduction; the 1993 Convention on Protection of Children and Co-Operation in Respect of Inter country Adoption; the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children; and the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. South Africa has ratified only the Child Abduction Convention and the Inter-country Adoption Convention.
The relevance of the above-mentioned Hague Children’s Conventions in the African context is the subject of a high profile conference to be held on 2 and 3 April 2019 at the University of the Western Cape. The conference is hosted by a steering committee consisting of, inter alia, the Law Faculty of the University of the Western Cape, the International Academy of Family Lawyers and experts from the Permanent Bureau of the Hague Conference on Private International Law. The speakers include experts from the Hague Permanent Bureau, representatives of Central Authorities, judges, lawyers and Ministers from South Africa, other countries in Africa and abroad, and representatives of NGOs working in the sphere of child protection.
Delegates from various disciplines, Government Ministries and Departments, judges and child protection specialists from South Africa, other countries in Africa and the rest of the world, including England, Scotland, France, the Netherlands, Israel, Japan, New Zealand, the USA and others have already secured their places at the Conference.
The principal focus of attention at the Conference is likely to be the two Hague Children’s Conventions which have been ratified by South Africa, viz the Child Abduction Convention and the Inter-country Adoption Convention.
As regards the Child Abduction Convention, the primary purpose is to secure the prompt return (usually to the country of their habitual residence) of children wrongfully removed to or retained in any Contracting State. The Convention is premised on the assumption that the abduction of a child across international borders will generally be prejudicial to his or her welfare and that, in the majority of cases, it will be in the best interests of the child to restore him or her to the State of the child’s habitual residence. The idea is therefore that the authorities best placed to resolve the merits of a custody dispute are the courts of the State of the child’s habitual residence and not the courts of the State to which the child has been removed or in which the child is being retained. The principle of prompt return also serves as a deterrent to abductions and wrongful removals and this is seen by the Convention to be in the interests of children generally.
The Convention is based on a system of Central Authorities, which have a duty to co-operate with each other to secure the prompt return of children. In South Africa the Central Authority is the Chief Family Advocate. Over the three years from 2016 to 2018, there were a total of 32 applications for return of children abducted to South Africa from Convention countries, 45 applications for return of children abducted from South Africa to Convention countries and 137 removals of children from South Africa to non-Convention countries, as reported to the South African Central Authority. The manner in which the Central Authority and the courts deal with these kinds of applications is one of the focal points of the Conference.
As regards the Inter-country Adoption Convention, this Convention establishes safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights. These safeguards aim to prevent the abduction or sale of, or the traffic in, children. The Convention recognises that inter-country adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her country of origin. It requires that possibilities for the placement of a child within the country of origin be considered first.
The Convention guarantees the recognition in all Contracting States of adoptions made in accordance with its provisions. It also establishes a system of co-operation between Central Authorities in countries of origin and receiving countries, designed to ensure that inter-country adoption takes place under conditions which help to guarantee best adoption practices and the elimination of abuses. In South Africa the Central Authority is the Director-General of the Department of Social Development.
Between 1 April 2017 and 31 March 2018, there were only 153 inter-country adoptions in South Africa. Possible reasons for this small number are discussed – critically – by Robyn Wolfson Vorster in The Worldwide War on Adoption. It will be interesting to see what the inter-country adoption specialists at the Conference make of the manner in which the Convention is being implemented in South Africa and in other countries in Africa.
Over and above in depth discussions of all four Hague Children’s Conventions at the Conference, there will also be presentations and panel discussions on direct communications between members of the International Hague Network of Judges, mediation in cross-border child-related disputes and international surrogacy and its implications for Africa. DM
For further details about the Conference, contact [email protected]
Belinda Jane van Heerden is a retired judge of the South African Supreme Court of Appeal. She was appointed to a permanent seat on the Cape High Court Bench from January 2000. She acted as a judge of the Supreme Court of Appeal from 1 June 2003 and was appointed as a judge in that court from 1 August 2004. For the second half of 2006, she served as an acting Justice of the Constitutional Court of South Africa. She retired from the Supreme Court of Appeal in September 2013. One of Judge Van Heerden’s main spheres of interest and expertise is child and family law (especially children’s rights and gender equality issues). She has co-authored three books on child and family law and has contributed a substantial number of articles to legal journals in this area. She has also presented papers in these fields at a large number of conferences, workshops and seminars (both national and international)