Travelling internationally with minor children can be a sensitive issue, particularly when it involves parties in an acrimonious relationship. In South Africa, the law places the best interests of the child above all else. This means that both parents, whether still happily married, unmarried, divorced or separated, must comply with specific legal requirements when it comes to international travel.
Do you need the other parent’s consent to travel with your child?
Yes. According to South African law, if a child is under the age of 18 and there is more than one legally recognized holder of parental responsibilities and rights (including that of guardianship), you must obtain the consent of the other party before crossing international borders with the child.
Section 18 of the Children’s Act, Act 38 of 2005, outlines the rights and responsibilities of parents. In particular, Section 18(3)(c) provides that all parties who hold guardianship in respect of a child must consent to the child’s departure or removal from the Republic.
Irrespective of the duration for which the child will be outside of borders of the Republic of South Africa, the non-travelling guardian must provide their written consent to the departure of the child from South African borders.
What documents are required for travelling internationally with a minor child?
To avoid legal complications or delays at border control, you must ensure that the you have the following when travelling with a minor child, namely:
- valid passport of the minor child;
- parental consent affidavit deposed to by the non-travelling parent;
- unabridged birth certificate;
- certified copies of the identity document of the non-travelling parent;
- court order (if applicable) in respect of a divorce decree of settlement agreement which was made an order of court, if applicable;
- a parenting plan, if applicable.
Parental consent affidavit
The parental consent affidavit can be found on the website of the Department of Home Affairs. This affidavit must be completed and signed under oath by the consenting, non-travelling parent. The form must also stipulate the contact detail of the consenting parent, as well as specific dates for which they consent to the child being abroad.
Court order
In the event that the parental responsibilities and rights of a parent have been terminated by way of court order, a certified copy of the court order is required as a display that no consent is required for international travel of the minor child.
Death certificate
In the event that a parent of a minor child is deceased, a certified copy of the death certificate is required as a display that no consent is required for international travel of the minor child.
How to avoid legal issues and disputes when travelling
In order to avoid legal complications or emotional conflict, it would be advisable to:
Plan ahead – start the conversation with the other parent well in advance, especially if you are planning international travel or long trips. Provide clear details of your travel plans, including dates, destinations, and contact information.
Place agreements in writing – even if you have a good co-parenting relationship, it is best to ensure that arrangements respect of the periods when a parent has contact with a child is reduced to writing, to avoid unnecessary disputes as to whether that parent is entitled to exercise contact over that period of time.
Stick to the arrangement – If parties have an agreement which includes specific periods of contact during holidays, following these arrangements assists in avoiding misunderstanding and also aids trust between the parties.
What if the other parent refuses to give consent?
Consent to international travel cannot be unreasonably refused or denied by the other parent. As such, in the event that the other parent refuses consent for international travel and refuses to provide a reasonable basis for the refusal, alternatively in the event that you deem the reasons to be unreasonable, an application can be made to Court for an order permitting the child’s international travel. Consent to international travel is often an issue which arises, especially between parties who have an acrimonious relationship. As such, it is always best to plan ahead of time and obtain legal assistance in the event of an unreasonable refusal timeously.
If you are unsure of your legal obligations, it would be best to speak to our family law attorneys who can guide you through the process and help prevent unnecessary disputes. For assistance with travel-related disputes, or general family-related matters, the team at Pagel Schulenburg is here to help.
