Cross-border custody: towards a more family-friendly system by 2030

International lessons for South Africa

We live in a globally connected world. As we travel more, marriage across cultures and national borders becomes more common. But these marriages are no more immune from divorce than any other union. Sometimes cultural differences only emerge when children come on the scene, and child-rearing customs conflict. When a transnational couple divorces, one spouse may elect to return to their country of birth, leading to complicated and complex child care and contact issues. Cross-border custody cases are some of the most complex and emotionally charged matters in family law.

When families span countries, questions of jurisdiction, enforceability and the child’s best interests become even more difficult to resolve. What can South Africa learn from international best practices to strengthen its own systems and reduce delays, uncertainty and heartache for parents and children alike?

Best practices from leading jurisdictions

South Africa can draw inspiration from jurisdictions with harmonised or specialised approaches. The European Union, Australia and the Netherlands offer valuable examples of how to handle relocation, foreign orders and abduction cases effectively. By studying comparative models we can explore ways to achieve greater harmonisation, specialisation and cooperation. The EU shows how unified rules can remove friction in cross-border cases. Australia highlights the importance of international treaties and global enforceability. The Netherlands, while part of the EU, particularly exemplifies specialisation and the power of mediation and direct judge-to-judge communication. These best practices could provide a roadmap for future South African policy. Let’s look at what these practices are:

Expedited decision-making

Cross-border cases must be handled with urgency. Children’s lives should not be put on hold due to legal delays. Internationally, courts often set strict timelines. For example, the Hague Convention recommends resolving abduction cases within six weeks. South African courts already prioritise Hague cases and could expand this urgency to all cross-border custody disputes. Formal timeframes and active case management can lead to speedier conflict resolution.

Specialised courts or judges

Expertise is key in international family law. Countries like the Netherlands have designated specialised courts to hear Hague abduction cases. South Africa could adopt a similar approach by appointing dedicated judges or creating an international family law panel within existing courts. Judges who regularly handle these matters have greater understanding of foreign legal systems, treaties and cultural contexts, leading to more consistent decisions.

Mirror orders and reciprocal enforcement

Enforceability of the order in another country is a challenge in cross-border custody cases. A mirror order is a court order from the destination country that reflects the original order, making it locally enforceable. South African courts should encourage mirror orders as a condition of relocation where the destination country is not part of the Hague Convention. Equally, South Africa should streamline the process for recognising foreign orders domestically.

Stronger enforcement and cooperation

A court order is only the first step; it must be followed. South Africa could consider removing the requirement of exequatur (the formal recognition of a foreign judgment) for certain countries with reciprocal arrangements. Administrative registration of foreign custody orders could expedite their enforcement. The Central Authority (currently the Office of the Family Advocate) also plays a vital role and could be further empowered to assist courts, facilitate international cooperation and support families through the process.

Judicial training and support

Judges and legal professionals must be equipped to handle these complex matters. Regular training on international conventions, comparative family law and cultural considerations would promote consistent application of the law and reduce errors. Resources such as translation services, foreign legal materials and liaison networks would also improve practical case handling skills.

Child-centred innovations

Children’s views must be heard where appropriate. South African courts consult children through the Family Advocate or expert assessments, but more could be done. Structured processes for gathering a child’s input, including remote interviews for children living abroad, could be introduced. Additionally, technology helps parents and children maintain meaningful relationships across borders. Courts could routinely include video calls or virtual contact arrangements in relocation or mirror orders.

Towards reform by 2030

Achieving these improvements will require a concerted legal reform agenda. To align with international standards and better serve families, South Africa should pursue the following key reforms to develop a robust cross-border family law framework:

Finalise relocation guidelines in legislation

The South African Law Reform Commission (SALRC) has proposed relocation-specific amendments to the Children’s Act. These should be finalised and enacted. The law should define relocation and set out clear, neutral criteria against which courts can assess relocation applications, avoiding prejudice. It should include procedural rules to streamline cases and reduce litigation.

Join the 1996 Hague Convention on Child Protection

South Africa is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, which helps in resolving international child custody disputes. However, we are not yet a contracting party to the Convention on Child Protection, which allows authorities to protect children and cooperate in a range of cross-border situations, providing practical ways to fulfil international obligations. Acceding to this treaty would provide a clear legal framework for recognising and enforcing foreign custody and guardianship orders. It would also ensure South African orders are recognised in other member states. Bilateral agreements with non-Hague countries, especially within the SADC region, could complement this effort and facilitate regional cooperation.

Institutionalise mirror orders and clauses

South Africa should formalise the process for issuing mirror orders and include “mirror clauses” in relocation judgments. These clauses would require the relocating parent to obtain an equivalent order in the new jurisdiction within a set timeframe. Enforcement mechanisms could include making relocation conditional on compliance with the order.

Strengthen the central authority

The Office of the Family Advocate should be given adequate resources to guide parents through the Hague process, assist in locating children, appear in court to represent the Convention’s requirements, and liaise with international counterparts. It could also administer a mediation programme, offering an opportunity for resolution before parents resort to litigation.

Establish a specialist international family law panel

Dedicated judges in each High Court or a centralised appeal panel for Hague matters would ensure quicker and more consistent outcomes. A designated international family law unit would be an indication of expertise and authority. It would provide a focal point for complex cross-border cases.

Promote mediation and parenting plans

Alternative dispute resolution should be encouraged in international custody matters. Before resorting to litigation, parents should attempt to negotiate a revised parenting plan covering travel, holidays, communication, education and other logistics. If they reach agreement, the process for producing a relevant court order should be streamlined.

Prioritise the child’s best interests in every case

Every reform must uphold the constitutional principle of the paramountcy of the child’s best interests. Courts could order protective measures when returning a child under the Hague Convention, such as guarantees of safety, housing or schooling. They could also craft detailed relocation orders to support ongoing contact with both parents. Psychological input and creative use of technology could help courts design arrangements that meet a child’s emotional and developmental needs.

Justice can be effective and compassionate

Cross-border custody reform is a vital step toward protecting children and families who straddle national boundaries. With strategic reforms, South Africa could create a future-ready, child-focused system by 2030. Parents would no longer face a confusing or inconsistent process. Instead, they would find timely, predictable and fair solutions that safeguard the best interests of the child while honouring parental rights.

In a globalised world, family law must evolve. By embracing international standards and improving local practice, South Africa could ensure that justice in cross-border custody cases is both effective and compassionate.

International divorce lawyer can help

At Simon Dippenaar & Associates Inc., we are passionate about the law. Simon and his team are experts in divorce and child care and contact (custody), both domestic and international. The team at Simon Dippenaar & Associates Inc. will handle your cross-border custody case efficiently and sensitively. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion.

SD Law – Simon Dippenaar & Associates Inc.

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