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INTERNATIONAL CHILD ABDUCTION IN ZIMBABWE

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INTERNATIONAL CHILD ABDUCTION IN ZIMBABWE 

By: Prince Kanokanga

People are migrating to different parts of the world for different reasons which reasons include but are not limited to pursuing attractive employment opportunities, seeking better educational opportunities for one’s children or a loss of confidence in one’s country’s economy. This has seen a huge increase in the number of international marriages or unions. In turn this has led to an increase in children being born to foreign parents in various parts of the world.

Against this background international child abduction has become a global phenomenon. In recent years the Zimbabwean courts have been seized with a number of relocation disputes. It must be said at the onset that international child abduction can have both civil and criminal law consequences depending on the particular circumstances of the child’s removal or retention and the countries involved.

Separation between a child’s parents or divorce can lead to child abduction especially where the parties disagree on custody and or access issues. It is unfortunate that in such situations the innocent children stand to suffer the most.

Justice L’Heureux-Dubé had this to say in the Canadian case of Thomson v Thomson (1994) 119 DLR (4th) 253 at 296 that:

“… the necessity of international agreements with regard to the abduction of children has been abundantly demonstrated particularly in recent years. The increase in rapid international transportation, the freer crossing of international boundaries, the continued decrease in documentation requirements when entering foreign jurisdictions, the increase in ‘international families’, where parents are of different countries of origin, and the escalation of family breakups worldwide, all serve to multiply the number of international abductions.” 

The Hague Convention on Civil Aspects of International Child Abduction 

Zimbabwe has taken specific and internal measures to domesticate the Hague Convention on Civil Aspects of International Child Abduction. More specifically, the legislature has transformed the international obligations into effectual provisions of municipal law in Zimbabwe through the Child Abduction Act [Chapter 5:05]

In the case of Wheeler v Egglestone HH 99-16 the court stated that:

“The Child Abduction Act is basically an Act to give effect within Zimbabwe to the Convention on the Civil Aspects of International Child Abduction (herein after referred to as the Convention). Section 3 of the Child Abduction Act states that: –  “Subject to this Act, the Convention shall have the force of law in Zimbabwe.” The Convention is incorporated as part of the Child Abduction Act. The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and to ensure that rights of custody and of access under the law of one  Contracting State are  effectively respected in the other Contracting States. (Art.1)  

The Convention only applies to wrongful removals or retentions occurring after the treaty became effective between the involved countries. Put differently, the Hague Convention on Civil Aspects of International Child Abduction aims at preventing the removal of a child from the jurisdiction in which he/she normally resides by a parent or caregiver without the consent of the other parent or caregiver and to facilitate the return of the child wrongfully removed.

Wrongful removal or retention of a child 

The removal or retention of a child is to be considered wrongful, where it is in breach of the rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the state in which the child was habitually resident immediately before the removal or retention; and where, at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The purpose of the Convention is to secure the prompt return of any child wrongfully removed to or retained in a contracting state. The convention facilitates the safe return of abducted children and encourages cooperation between countries that are signatories to the convention. A further aim is to curb international abductions of children. It must be highlighted that when a child is removed to a country that is not a party to the Convention, the Zimbabwean High Court, as the upper guardian of minor children, will have jurisdiction and the application should be made to such a court for the return of the child.

The Zimbabwean High Court has jurisdiction to deal with applications and other proceedings vis-à-vis the Convention, consistent with section 6 of the Child Abduction Act. According to section 9 of the Child Abduction Act, the Court is also vested with the power to issue interim directions and other temporary orders to secure the welfare of the child or to prevent changes pertinent to the determination of issues involved in the case.

Local law enforcement assists for purposes of enforcing the Convention, and the relevant enforcement agents included the Sheriff of the High Court and the Zimbabwe Republic Police.

Makarau J had this to say in the case of Kumalo v Kumalo HH 65-2004

“The purpose of the Convention, according to its preamble, is to secure the prompt return, to the jurisdiction of habitual residence, of children abducted by one parent. Hearings of applications brought under the Convention are not inquiries into whom as between the feuding parents, should have custody of the child or children whose custody is in dispute. The purpose of such hearings is to determine whether there are any exceptional circumstances why the court of habitual residence of the child or children should not determine the custody issue of the child or children concerned. Such hearings are inquiries aimed at determining which court, between the court of the country of habitual residence and the court of the assumed residence of the abducting parent, is best placed to determine the issue of the custody of the child or children whose custody is disputed. The inquiry starts off with the court of habitual residence in a favoured position such that it is almost akin to a presumption that abducted children will be returned to the jurisdiction of that court unless there are exceptional circumstances making such a return injurious to the best interests of the minor children.” 

The court in the case of Re B (A Minor) (Abduction) [1994] 2 FLR 249, had this to say:

“The purposes of the Hague Convention were, in part at least, humanitarian. The objective is to spare children already suffering the effects of breakdown in their parents’ relationship the further disruption which is suffered when they are taken arbitrarily by one parent from their settled environment and moved to another country for the sake of finding there a supposedly more sympathetic forum or a more congenial base. The expression ‘rights of custody’ when used in the Convention therefore needs to be construed in the sense that will best accord with that objective. In most cases, that will involve giving the term the widest sense possible.” 

Re M (Abduction: Zimbabwe) [2007] UKHL 55 was an appeal case by a mother against the decision, under the Hague Convention proceedings, requiring the return of the children to Zimbabwe following their wrongful removal to England.

Baroness Hale is allowing the appeal concluded, “with considerable hesitation”, that where (as in this case) a child had been found to be settled for the purposes of Article 12, discretion did arise so that the court could consider whether or not to return a child to the requesting State. In addition, she was in “no doubt at all” that it was “wrong to import any test of exceptionality into the exercise of discretion under the Hague Convention”, as the Court of Appeal and first instance Judges had done in a number of recent cases. When a court came to exercise its discretion, it was “entitled to take into account the various aspects of the Convention Policy, alongside the circumstances which gave the court discretion in the first place and wider considerations of the child’s rights and welfare.” Indeed, “the further away one gets from the speedy return envisaged by the Convention, the less weighty those general Convention considerations must be.”

Requirements for Application of the Hague Convention 

The Hague Convention will apply in situations where the following requirements are met:

  1. The wrongful removal or retention of a child is in breach of rights of custody attributed to a person, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention
  2. At the time of the removal or retention, those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention
  • The child in question was habitually resident in the contracting state immediately before any breach of custody or access rights. iv. The child is under the age of 16 years.

The Central Authority

The Convention mandates contracting state parties to designate a Central Authority to discharge the duties imposed by the Convention (see Article 6 and 7 of the Convention). An application for the return of or access to a child must be submitted to the Central Authority.

The Zimbabwe Central Authority for the Hague Abduction Convention is the Ministry of Justice, Legal and Parliamentary Affairs.  The Zimbabwe Central Authority has an administrative role in processing Hague Abduction Convention applications. The duties of the Central Authority are couched in Article 7 of the Convention, these include the duty:

  1. to discover the whereabouts of a child who has been wrongfully removed or retained;
  2. to prevent further harm to the child or prejudice to interested parties by taking or causing to be taken provisional measures;
  3. to secure the voluntary return of the child or to bring about an amicable resolution of the issues;
  4. to exchange, where desirable, information relating to the social background of the child;
  5. to provide information of a general character as to the law of their State in connection with the application of the Convention;
  6. to initiate or facilitate the institution of judicial or administrative proceedings with a view to obtaining the return of the child and, in a proper case, to make arrangements for organising or securing the effective exercise of rights of access;
  7. where the circumstances so require, to provide or facilitate the provision of legal aid and advice, including the participation of legal counsel and advisers;
  8. to provide such administrative arrangements as may be necessary and appropriate to secure the safe return of the child;
  9. to keep each other informed with respect to the operation of this Convention and, as far as possible, to eliminate any obstacles to its application.

Habitual residence 

Habitual residence is not defined by the Convention. Whilst this is the case, it goes without saying that when a child is removed from its habitual environment, the implication is that it has been removed from the family and social environment in which it developed.

Scott JA in Smith v Smith 2001 (3) SA 845 (SCA) said the following:

“It is apparent from the aforegoing that a party seeking the return of a child under the Convention is obliged to establish that the child was habitually resident in the country from which it was removed immediately before the  removal or retention and that the removal or retention was otherwise wrongful in terms of Article 3. Once this has been established the onus is on the party resisting the order to establish one or other of the defences referred to in Article 13(a) and (b) or that the circumstances are such that a refusal would be justified having regard to the provisions of Article 20.” 

Goldstein J put it in this manner in Sonderup v Tondelli and another 2001 (1) SA 1171 (CC) at 1179B  

“In applying the Convention “rights of custody” must be determined according to this definition independent of the meaning given to the concept of “custody” by the domestic law of any State Party. Whether a person, an institution or any other body has the right to determine a child’s habitual residence must, however, be established by the domestic law of the child habitual residence.” 

Procedure  

Once you have contacted the appropriate Central Authority and established that the Hague Convention applies to your situation, you must submit a copy of the Convention approved application form.

To initiate a Hague case for the return of, or access to, a child in Zimbabwe, the left behind parent or legal guardian must submit a Hague application to the Zimbabwe Central Authority either directly or through any contracting state central authority.  It must be mentioned that there are no fees for filing Hague applications with Zimbabwe Central Authority or with other contracting state central authorities.  However, legal practitioners’ fees, if necessary, are the sole responsibility of the person hiring the legal practitioner.  There may also be supplementary costs which include return airplane tickets and for the return of the child, if so ordered.

You will be required to complete an application form with the following information:

  • information concerning the identity of the Applicant
  • information concerning the identity of the child
  • information concerning the identity of the person alleged to have removed or retained the child
  • the date of birth of the child
  • the grounds on which the applicant’s claim for return of the child is based
  • all available information relating to the whereabouts of the child and the identity of the person with whom the child is presumed to be.
  • an authenticated copy of any relevant decision or agreement
  • a certificate or an affidavit emanating from a Central Authority, or other competent authority of the State of the child’s habitual residence, or from a qualified person, concerning the relevant law of that State, and
  • any other relevant document required by the Central Authority and the State to which the child was abducted

Once you have filled out the application form and provided all the necessary information, Article 9 of the Hague Convention states that the Central Authority shall, without delay, transmit the application to the Central Authority of the foreign State to which the child has been brought (wrongfully).

Disclaimer: While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.

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