A case where a minor child was abducted by one parent and the severe consequences thereof

Preamble: the minor child

This was an existing case which was taken on by Paizes Attorneys. A minor child was abducted by his mother, even though court orders were in place in relation to the primary residence of the minor child.

After several months, an allocated police services task team tracked the minor child and the mother. The mother of the child was arrested.

Paizes Attorneys through sheer dedication and commitment, acting in the best interests of the minor child and their client being the father of the child was able to obtain divorce and remove parental responsibilities and rights from the mother of the child.

The mother of the minor child is now incarcerated and is still being charged with various violations of the Children’s Act, 2005 (Act No. 38 of 2005).

This case was taken on by Paizes Attorneys on a pro bono basis as allocated by the Law Society of the Northern Province.

What Paizes Attorneys achieved in three months, no other attorney has achieved in the four years since the commencement of this case. Through the love of the law, hard work, justice for our client and acting in the best interests of the minor child, Paizes Attorneys accomplished the ultimate goal for our client and the minor child.

When Paizes Attorneys initially took on the case, the facts were complicated.

Facts of the case leading to the abduction of the minor child

  • The Plaintiff and the Defendant were married in 2010.
  • A minor boy child was born out of the marriage in August 2011, the Plaintiff is the father and the Defendant is the mother of the minor child.
  • The parties separated at the beginning of 2013.
  • Acrimony between the parties commenced in 2012, extreme hostility resulted in numerous assault cases being opened by both parties, against each other,  in 2013.
  • Numerous domestic violence cases were also opened by both parties in 2013/2014 against each other.
  • Primary residency, contact and care applications were submitted by both parties in the Children’s Court.
  • Several other complainants had opened fraud charges in 2014 against the Defendant as well.
  • The minor child was approximately a year old at the time when the acrimony began between the parties and the child was used as a pawn between the parties.
  • In 2013, the Children’s Court ordered that both parties were to have joint residency over the minor child. It was ordered that both parties would have contact to the minor child for a week at a time. The Children’s court believed, at that stage, this arrangement was in the best interests of the minor child.
  • The hostility between the parties escalated resulting in the Defendant and the Plaintiff both being represented by a string of attorneys.
  • The allegations against each other intensified, resulting in the Plaintiff suing for divorce in 2013, thus involving the Family Advocate’s office. In 2014, the family advocate began with investigations. During these investigations in October 2014, the Defendant abducted the minor child and disappeared with him and her boyfriend.
  • The Family Advocate’s investigation stopped once the minor child was abducted by the Defendant. The Plaintiff withdrew the divorce case against the Defendant after the abduction of the minor child, in addition, all social workers on this case were pulled off the case.

Facts of the case after the abduction of the minor child

  • On the date that the minor child was abducted, the Plaintiff turned to the South African Police services for assistance, as well as to the Children’s Court.
  • The Plaintiff obtained the assistance of the Pink Ladies and other NGO’s such as Hi5 assist to track and locate the minor child.
  • The Plaintiff had no option but to resign from employment and assist the NGO and the SAPS to look for his son.
  • The Media, being The Star newspaper and Carte Blanche also became involved. The Defendant and the boyfriend’s profiles were circulated on national television.
  • The Children’s court ordered that the Defendant was in violation of a court order and ordered the Defendant’s arrest.
  • After seven months of being on the run with the minor child, a special task team allocated by the Department of Justice acting on information received by informants, swooped down on the Defendant and her boyfriend in April 2015 resulting in an arrest. The minor child was unharmed during the arrest.
  • The minor child was removed from the Defendant and through instruction by the Children’s Court, was placed in the Plaintiff’s care.
  • The Defendant and her boyfriend were found guilty on five fraud charges of five years each running concurrently.
  • The Defendant was incarcerated for five years and become liable for parole after ten months.
  • Before the parole was granted by the parole board, the Defendant signed a plea bargain acknowledging that she violated a court order and accepted two years further direct imprisonment.
  • Whilst the Defendant was incarcerated, the Plaintiff launched against the Defendant a decree of divorce in addition to the termination of the Defendant’s parental responsibilities and rights to the minor child.
  • On the first day of trial in February 2016, the Regional court Magistrate strongly suggested that the Plaintiff seek the assistance of a specialised family law attorney, as the facts of the case where extremely complicated. The case was postponed to a later date.

Paizes Attorneys involvement in this case

The Plaintiff sought the assistance of the Law Society and Paizes Attorneys was requested by the Law Society to assist the Plaintiff on a pro bono basis due to our skill and expertise in Family Law.

Paizes Attorneys commenced with the case on 20 July 2016. Due to the severity of the case and the incarceration of the Defendant, the court allocated three days for the case to be heard. The case was set down for full trial on 20-22 September 2016.

As the Plaintiff had reiterated his desire to terminate all of the Defendant’s rights and responsibilities to the minor child, Paizes Attorneys had to immediately secure and ensure that our client’s instructions were carried out.

Paizes Attorneys without hesitation started preparing for trial and began interviewing expert witnesses. Both parties agreed the divorce was common cause.

The minor child in 2015, after his abduction by the Defendant and while on the run from the SAPS, was assessed by a court appointed child psychologist to determine whether he was traumatised whilst in the Defendant’s care.

A full psychological assessment was conducted on the minor child. The child psychologist concluded that the child was traumatised and that it was not in the best interest for him to have contact to the Defendant.

The Family Advocate further concluded in its report that it would be in the best interest of the minor child that the Defendant’s rights be terminated.

The Defendant’s attorneys of record insisted that the Defendant’s rights were not to be terminated and that they were moving for full parental responsibilities and rights with primary residency with the Plaintiff and full contact to the minor child.

The Defendant demanded contact to the minor child whilst incarcerated. This, in our opinion, was clearly not in the best interests of the minor child.The Plaintiff and the Defendant simply could not see eye-to-eye. .

During this time period, the Defendant was charged with a violation of a court order. The Defendant accepted a Plea Bargain in which she pleaded guilty to the violation of the Children’s Court Order in which she abducted the minor child.

Settlement

After numerous and painstaking consultations with witnesses and the Plaintiff, providing full and ongoing advice to the Plaintiff, the Plaintiff instructed our offices to propose a full settlement agreement to the attorneys representing the Defendant.

A decree of divorce was to be granted, the Defendant’s rights to the minor child be terminated until she no longer in direct incarcerated.

Once the Defendant is no longer in direct incarcerated, the Defendant and all parties in this case are required to undergo full clinical assessments by a well-known and selected forensic clinical psychologist to determine whether it would be in the best interests of the minor child for him to have contact to the Defendant.

If the forensic clinical psychologist determines and recommends that it is in the best interests of the minor child, the Defendant requires to approach the correct court in the correct forum to reinstate her parental responsibilities and rights to the minor child.

The Defendant accepted the proposal and all parties signed the settlement agreement the day before trial commenced.

The fully signed Settlement Agreement was sent to the Family Advocate’s office who accepted the Settlement Agreement as being in the best interest of the minor child.

On date of trial, the case moved on an unopposed basis and the decree of divorce was granted incorporating the settlement agreement.

The court clearly stated that Paizes Attorneys went beyond what is required of an attorney and had committed themselves to the minor child ensuring that justice had been served.

The Defendant continues to be charged with violations under the Children’s Act by the National Prosecuting Authority.

Conclusion

Paizes Attorneys are Family Law specialists. We are a well-known East Rand law firm committed not only to acting in the best interests of our client but also acting in the best interests of minor children.

We thank all the people involved in this case, from the forensic psychologist, to the specialist task team who found the minor child, and to the advocate who devoted her time and effort to ensure that Paizes Attorneys was adequately prepared for trial.

Extensive time was devoted to this case to ensure that Paizes Attorneys was ready for trial and that the case was concluded within three months of being allocated by the Law Society of Northern Provinces.

Lastly, we thank our client for trusting our advice and acting solely in the best interests of the minor child.