The Sunday News
Delta Milayo Ndou
LAST week a single mother, based in South Africa, posted on Facebook asking for suggestions on how best to get her 13-year-old to travel and join her in that country for the duration of the school holidays.
The mother indicated that her daughter, who uses the father’s surname, had a valid passport but would be denied entry into South Africa if she travelled without a parental consent affidavit signed by the father and a certified copy of the father’s ID.
This mother’s dilemma is that ever since she parted ways with the child’s father she has no idea of his whereabouts and therefore, legal decision-making in his absence has proved to be extremely difficult, more so as she herself cannot freely commute between Zimbabwe and South Africa owing to work responsibilities.
The consensus from the comments was that she should forego legal means and simply pay for her child to be smuggled into South Africa because it was the only way to get round the problem of not having the father’s parental consent and certified ID copy.
In the comments section the names of bus companies with the most reliable child smuggling drivers were shared as well as cautionary tales such as a 10-year-old who was left at the Botswana border for not having his father’s parental consent affidavit and accompanying certified ID copy.
His desperate mother had to request someone in Plumtree town to rush to the Botswana side and fetch him because she was in South Africa unable to come home. She too, had failed to get the father’s parental consent affidavit because his whereabouts are unknown.
School holidays are the peak child smuggling period, particularly in this region and in December of 2017, this publication reported that more than 100 children without requisite travelling documents had been intercepted and repatriated back to Zimbabwe from South Africa after being smuggled by cross border traders (omalayitsha) soon after the school term ended. In March this year, the Chronicle reported that South Africa had finally repatriated eight undocumented Zimbabwean children who were in the hands of that country’s Department of Social Development for three months since they were smuggled through Beitbridge Border Post last year.
According to the report, the children, aged between two and 12, were not allowed to see or speak to their parents while in the neighbouring country since November last year. And despite these widely publicised interceptions and repatriations of minors, desperate mothers across the border looking for ways to reunite with their children remain prepared to place their trust in child smugglers.
There are many factors that can lead to a child’s parents parting ways and losing touch but there is really no justification for a father’s wilful absenteeism in the life of his child. In a discussion on Twitter, a legal practitioner named Ashton Anderson Makore, who has practiced extensively in children rights and family law, had some advice to share.
According to Makore, the practical difficulties single mothers encounter when trying to fulfil the requirement of parental consent for travelling with minors is that sometimes the fathers, for reasons best known to them, can withhold their consent or often require quid pro quo (something for something) for that consent to be given. For example, one lady on Twitter shared how her child’s father had refused to give consent for her to travel to Zimbabwe (they were both based abroad) with their child unless she bought him a plane ticket so he could travel too. Out of desperation, she did buy the plane ticket for him and thus secured the required parental consent. Such unreasonable and unfair demands for quid pro quo should not be the case.
“Should the father withhold his consent, the mother concerned can approach the High Court (which is the upper guardian of all children in terms of section 81:3 of the Constitution of Zimbabwe) for a declaratory order allowing them to travel with the child across international borders”, according to Makore who maintained that the child’s freedom of movement should not be needlessly infringed upon.
While it is heartening that the High Court, as the upper guardian of all children, can intervene and empower single mothers with a declaratory order allowing them to travel freely with their children — the costs of hiring lawyers and the time to go through these processes makes it an option beyond the reach of many.
Using the cases of mothers who are based in South Africa, it is difficult to imagine how such mothers might be able to save up money and then appeal for time off from work, to travel back to Zimbabwe to hire a lawyer to approach the High Court for such declaratory orders. It’s a tall order.
The experience of one lady may offer a better alternative. After having her child out of wedlock, she acquired a birth certificate for her child using the father’s surname. And when the problems of accessing the father for legal decision-making became apparent to her, she approached a lawyer who charged $100 per hour.
She couldn’t afford it. So she approached the free women’s lawyers’ organisation and was told that she should wait for a month to get legal representation. In desperation, she went to the Magistrate’s court and sought advice.
From her recollection, she paid a small fee, got a court date, did not need a lawyer and she showed up for court with her mother and aunt. According to her, “I stood up there for less than five minutes and before I knew it the order was granted. Because we were never married it was almost automatic.
The court order that I have from the magistrate’s court granted me full custody and sole guardianship of my son. I have used that to travel with him internationally since 2015. The process of getting that priceless piece of paper actually cost me less than $40 at the time.”
Perhaps more awareness is required for mothers to know there are options beyond paying child smugglers to ferry their children across borders simply because the fathers choose to be absent, or refused to co-operate. It is time for the legal route to become an option so that when someone asks for help online, the default recommendation is not child smuggling.
(Don’t miss your copy for Part 2 of the article next week)
