Travelling to South Africa with Children

Date: September 24th, 2015 - Written by: Brookman Solicitors

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South Africa has brought in wide-ranging new rules to combat child trafficking across its borders. Unfortunately the effect of these new rules is likely to produce complications for ordinary residents and visitors, and is unlikely to inhibit any trafficking.

The new regulations require that parents travelling with children to or from South Africa must produce an unabridged birth certificate for each child reflecting the particulars of both his or her parents. This is required even when both parents are travelling with their children and it applies to foreigners and South Africans alike. Each child is also required to have their own passport.

In the case of one parent travelling with a child, he or she must produce the child’s unabridged birth certificate and either written consent in the form of an affidavit from the other parent authorising the travelling parent to enter into or depart from South Africa with the child, or a court order to that effect, or a death certificate of the other parent. If a person is travelling with a child who is not their biological child, there also has to be an affidavit from the parents or guardians, together with copies of the parents or guardians’ passports or identity documents. Some of the new Regulations are not very clear. For example, it is unclear whether a foreign birth certificate in a language other than English has to be accompanied by a sworn translation.

There are other ramifications. What if one parent cannot consent for some reason such as illness or disability, or cannot be contacted by the travelling parent?

Apparently the new travel regulations are already having a negative impact on tourism.

The stated reason to combat child trafficking is praiseworthy, but lacks any proper analysis of the problem. There have been grossly exaggerated claims, such as sensational claims regarding the scale of supposed trafficking of children for prostitution during sporting events such as the 2010 soccer World Cup. These claims are not supported by the little research that is available. Activists and media often confuse child prostitution with child trafficking or conflate the two. One hopes this is an unwitting misunderstanding of the statistics, but one fears that sometimes it is a deliberate confusion to make the problem appear worse than it actually is.

In 2013 Africa Check, a verification organisation, conducted a detailed analysis of the evidence for claims in the South African media that some 30,000 children per year were trafficked through South African borders. It found there was no statistical support for that claim. A 2010 review noted that 306 victims of trafficking had been assisted during the period January 2004 to January 2010, that is, an average of 51 cases per year. Of those 306 victims, 57 were children. (An example of where there can be a conflation of the expression “trafficking” with “child trafficking”). Between 2010 and March 2011 South Africa’s national prosecuting authority reported that 235 adults and 13 children were victims of human trafficking.

Research based on convictions will certainly underestimate the size of the problem. However, similarly no good purpose is served by multiplying the figures without any evidence for doing so.

The other point that should be made is that many of South Africa’s neighbouring countries do not have Western style administration. Many children’s births do not go on an official register. It seems deeply unlikely that a serious criminal trafficker will opt to create a set of administrative papers for a child when given the porous nature of South African land and sea borders, a far more realistic scenario is that trafficked children are smuggled across borders in ways that do not require production of travel documents.

Nonetheless the current regulations pose a problem for parents who may for example be negotiating visitation arrangements, and the regulations will have to be taken into account in any legal arrangements being made between separated parents(1).

 

(1) I gratefully acknowledge the article by Belinda Van Heerden in Issue 3/2015 International Family Law Journal for the material used.

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