The short answer
Nigerian laws are different to ours, but an order from a South African court may help your case.
The whole question
Two years ago, my husband took our daughters to Nigeria, even though I disagreed. He refuses to bring them back on the basis that he and I are not together anymore. He came back to South Africa last year without my daughters. I was able to contact them through the person they are staying with and I learnt that their physical condition is bad. They are under 18 years old and should be under my care as their mother. How can I bring my children back to me?
The long answer
The children are South African citizens unless they became Nigerian citizens while living in Nigeria with their father, and did not apply for the Retention of South African Citizenship through the Department of Home Affairs before becoming Nigerian citizens.
In Nigeria, the Matrimonial Causes Act is used to make decisions about which parent should have custody of the children in non-customary marriages. As in South Africa, the court is bound to take its decision in terms of the best interests and welfare of the children. As the girls are under 18, they are still minor children in South Africa, but in Nigeria, after children reach 16 years, custody orders will not be made by a Nigerian court without consulting them. If it is possible for you to persuade their father to allow them to return, this would be the easiest and cheapest way. If he refuses, you could approach the Children’s Court (which is part of the magistrate’s court) or the High Court, and ask for a court order for custody of the children and to have them returned.
Although a father keeping his children in Nigeria against a mother’s will may not be considered a crime in Nigeria, the fact of a court order from a South African court should influence a Nigerian court to carefully consider the order and to consult the children.
Before approaching the Children’s Court, you should gather all the information about your children and their father that may be useful in court, such as birth certificates, photographs, the letter of consent for their original visit to Nigeria, passport number/s, marriage certificate, etc. You should keep copies of any communication between yourself and their father through email, text message or phone, as these conversations could be used as evidence if needed.
If at all possible, try to keep channels of communication open with the children’s father and any other members of their family in Nigeria.
You could also approach one of the following organisations for advice and help:
The Scalabrini Centre of Cape Town at [email protected] or phone 021 465 6433
Lawyers for Human Rights at [email protected] or phone Musina 015 534 2203, Durban 031 301 0531, Pretoria 012 320 2943, Johannesburg 011 339 1960.
Legal Resources Centre at [email protected] or phone in Johannesburg at 011 836 9831 or in Cape Town at 021 481 3000.
Wishing you the best,
Answered on Jan. 17, 2022, 12:38 p.m.
Please note. We are not lawyers or financial advisors. We do our best to make the answers accurate, but we cannot accept any legal liability if there are errors.