December … the month when child kidnapping is on the increase.

2012-12-22 09:52

December is not always the month of fun, happiness and laughter for all parents. For some it could also be a nightmare, particularly when a child is abducted. It is typically in holiday season when abduction of children is on the increase. The increase in parental child abduction cases is a major cause for concern. Before or during school holidays it is one of the most common times for a child to be abducted by an estranged parent. Parental child abduction is not faith or country specific. The number of children abducted and taken abroad by an estranged parent has risen by 88% in just under a decade, according to new government figures released in the United Kingdom. In the UK it is estimated more than 140,000 children go missing every year, one every three minutes. The statistic was calculated by the Child Exploitation and Online Protection Centre, which includes teenage runaways, parental abductions and kidnappings. According to the statistics last year alone the UK Foreign Office’s Child Abduction Section fielded an average of 4 calls per day to its specialist advice line, more than half of which were new cases. Cases were worked on in 84 different countries, showing just how widespread the problem has become.

Each year, 800,000 children are reported missing in the United States, including some who are lost, injured, have run away from home or are abducted. Of those who are abducted, 200,000 are taken by family members, typically during a custody battle, while 58,000 involve non-family members who are familiar to the child and who typically have targeted the child.

Trafficking in children is a global problem affecting large numbers of children. According to UNICEF some estimates have as many as 1.2 million children begin trafficked every year.

According to figures that was released by the South African Police Service Missing Persons Bureau a child goes missing every six hours in South Africa, it means that 1460 children per year goes missing. According to Missing Children South Africa an organisation registered with Department of Social Development at least 13% of these children are never located.

There are 3 types of abductions:

When a stranger takes a child away for criminal purposes (such as sexual assault or ransom – the latter would be classified as a kidnapping in South Africa). When a child is stolen to be brought up by the abductor. When a parent removes a child from the other parent’s care.

Viewing the Facebook profile of Missing Children SA one grasps how common child abduction in South Africa really is. There are plentiful posts of children being abducted by one of the parents. One of the posts on Facebook read: “Christine Kayla Bodden (9) was last seen on the 8 December 2012 with her mother in January in Masilela Drive (General Louis Botha Avenue), Constantia Park, Pretoria, near Hatfield Christian Church. Christine was wearing purple floral shorts, a white t-shirt and flip flops. They may be in the Pretoria suburbs Arcadia / Sunnyside, or may be seeking accommodation at backpacker’s lodges around SA".

Not long ago there was the case of Stefano Cavinato an Italian American father of a little two year old boy called Matteo Cavinato. Matteo’s mother a South African and was living in the United States since 1995. During 2011, she fell pregnant from a man of Botswana and wanted to move to South Africa with the child. The parties became embroiled in litigation in the United States to determine care and contact (custody) over for the child. An interim order was granted for the parties to have joint custody and residence. However, on 4 February 2012, the mother, Nontobeko Tsotetsi, boarded a plane in the United States without the father’s knowledge or consent, using a false passport for the child and arrived in SA the next day.

Her conduct was in breach of the Hague Convention on International Child Abduction, and the South African Central Authority (Family Advocate), acting on instruction of the American Central Authority, brought an application for the child to be returned to the USA so that the United States court could continue to determine issues the parental responsibility disputes. The High Court in Cape Town then was then approached and the return of the child was ordered. However, the mother sent the father a text message to say she would rather die, and disappeared with the child. The police, courts, Family Advocate and private investigators were all involved in the search eventually the mother and child was found and the child was returned to his father in the United States.

Phillip Dexter well-known politician also opened a case of abduction against his ex-wife last year for apparently leaving the country with his five-year-old daughter without his consent.

Many countries have adopted the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. The Hague Convention aims to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of a child to his/her country of habitual residence.

As a matter of fact, the child can remain in the care of the abducting parent, if they choose to return together with the child. The elements of a cause of action for the return of an abducted child under the Hague Convention are that:

- the child was habitually resident of the country from which the child was abducted;

- petitioning parent had either sole or joint rights of custody of the child either through a custody order or de jure (by operation of law); and

- at the time of removal, petitioning parent was exercising those rights.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

E: bertus@divorceattorney.co.za

Twitter: @bertuspreller

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