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If a parent unreasonably withholds their consent with the passport application of a minor child or they refuse to assist with the application, then it is possible to bring an application to the High Court to obtain a court order stating that, that parent’s consent is not required or is dispensed with.
People travel for work and leisure all the time, and often, when parents are no longer involved with each other, they refuse or simply fail to assist the parent that wants to take their minor child (or children) on holiday outside the borders of South Africa.
This even though the overseas holiday is likely in the minor child's best interest.
We get overwhelmed the last few months of each year with clients asking us for assistance as they want to take their child to the UK or Mauritius or somewhere else in the world, and the other parent or legal guardian refuse to consent or assist with the passport application.
In terms of Section 21 (4), of the Constitution of South Africa, "Every citizen has the right to a passport". This right also applies to minor children.
The Children’s Act, 38 of 2005, states that a person may have either full or specific parental responsibilities and rights in respect of a child.
This Act contains the law as it relates to the care, contact and protection of minor children.
Section 18 (2) of the Act deals with the acquisition and loss of parental responsibilities and rights.
The parental responsibilities and rights that a person may have in respect of a child, is summarised as the rights, which include the responsibility and the right-
You do as such need the consent of both parents (or guardians) to apply for a child’s passport. Co-operation by both parents/guardians are essential.
The Department of Home Affairs handles all passport applications. In terms of their application process, both parents must consent to the issuing of a passport and they currently even require both parents to be present for the passport application, unless only one parent is the guardian.
You told your child that you are taking them on a nice vacation to Mauritius, and the other parent refuses to consent. What do you do now?
Firstly, do not wait until the last moment as this will unnecessarily increase your stress levels.
If the other parent still refuses to consent, ask them to supply the reason for their refusal and then consider if the refusal is irrational and unreasonable.
If their refusal is reasonable, then it is unlikely that you will succeed with your application.
Each matter must be evaluated on its own merits.
I have an example of what the court viewed as unreasonable behaviour.
In an Urgent High Court matter that we had the mother informed the dad, our client, that she decided to take the baby on holiday with her and her friends. She also told our client that the holiday was safe and that our client’s contact with the baby would resume when she returns.
Our client was not happy to consent to this as the mother wanted to take the baby on holiday to a malaria area. The website of the resort warned tourist against this, and that malaria medicines had to be taken as per the doctor's prescription to stay safe.
It was also advised that small children should not visit the area at all if it can be helped.
We then brought an urgent application in the South Gauteng High Court, and we succeeded with our application to stop mom from taking the baby to a dangerous area.
When you bring an application to the court for relief, you will likely ask for among other things that the court makes an order stating that the non-consenting parent’s consent (and presence at Home Affairs), is not required or is dispensed with.
You will also ask that the court grants a costs order to pay your legal fees against that parent.
Generally, a successful litigant is entitled to costs.
However, the courts are not quick to award costs in matrimonial / children matters.
This is, however, not a rule and the Judge will decide on the issue of costs. If the court finds that a parent/guardian was malicious or entirely irrational and unreasonable, then the Judge can make a cost order as they deem fit.
Suppose a parent persists in their unreasonable refusal to consent to a child's passport or they fail to assist and co-operate with the passport application. In that case, you have recourse by bringing a High Court Application.