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If another guardian refuses or fails to cooperate with a child’s passport application, a South African court may be asked to order that the other guardian’s consent, presence or signature is not required.
The default position under section 18 of the Children’s Act is that all persons who hold guardianship must consent to a child’s passport application, unless a competent court orders otherwise. The legal question is therefore not simply whether “both parents” agree. It is who legally holds guardianship and whether the court should alter the ordinary consent requirement. Children’s Act 38 of 2005
A passport dispute must also be separated from two different questions:
Obtaining a passport does not, by itself, authorise either international travel or permanent relocation.
This article provides general information about South African law. It is not legal advice and does not predict the outcome of any individual matter.
| Question | General position |
Can the child obtain a passport? | Consent to the passport application under section 18(3)(c)(iv) of the Children’s Act. |
Can the child travel outside South Africa? | Consent to the child’s departure or removal from South Africa under section 18(3)(c)(iii), together with current travel-document requirements. |
Can the child relocate permanently overseas? | A separate relocation and best-interests enquiry, in addition to the necessary guardianship consent or court relief. |
A court order dealing only with the passport application should not automatically be treated as permission for a holiday abroad or permanent emigration.
Section 18(3)(c)(iv) of the Children’s Act places consent to a child’s passport application within the responsibilities and rights of guardianship.
Section 18(5) provides the default rule: where more than one person has guardianship, the consent of all guardians is required for the matters listed in section 18(3)(c), unless a competent court orders otherwise. Those matters separately include the child’s departure or removal from South Africa and the child’s passport application. View the Children’s Act
The correct legal question is: Who holds guardianship of this child?
That may not always be answered merely by identifying the biological parents.
Where only one person legally holds guardianship, there may be no second guardian whose consent is required. Where more than one guardian exists, the ordinary rule is that each must consent unless a court orders otherwise.
Passport consent, travel consent and relocation permission are related, but they are not interchangeable.
Section 18(3)(c)(iv) concerns consent to the child’s application for a passport.
Section 18(3)(c)(iii) separately concerns consent required by law for the child’s departure or removal from South Africa.
A permanent move abroad involves a broader relocation enquiry. The court may need to consider the child’s best interests, the proposed country, schooling, accommodation, contact with the parent remaining in South Africa, travel costs and the overall relocation plan.
A parent may obtain an order allowing the passport application but still require separate consent or court relief before taking the child abroad.
The Children’s Act recognises that guardians may disagree.
Section 18(5) therefore permits a competent court to order that the consent of all guardians is not required in the particular circumstances.
The court is not limited to telling an unwilling guardian to reconsider. Depending on the relief sought and the facts, it may:
The wording of the court order matters. It should address the practical obstacle that prevents Home Affairs from processing the application.
Not every refusal justifies immediate litigation.
The first step is usually to establish:
A written request can be useful because it records:
A passport should not be used as leverage in a maintenance, contact or interpersonal dispute.
Equally, a guardian’s legitimate concern about international removal should not simply be dismissed. The court will consider the real facts rather than assuming that every refusal is unreasonable.
A section 18(5) application is not necessarily an application to terminate the other person’s guardianship.
A court can dispense with consent for a particular passport application without permanently removing the guardian’s broader parental responsibilities and rights.
The scope of the order may be:
The appropriate relief depends on the actual problem.
The proper court and procedure can also depend on the nature of the relief, the child’s residence, any existing divorce or parenting order and whether broader parental rights are being varied.
Legal advice should therefore be obtained before selecting a forum or drafting the application.
South African courts have dealt with several disputes involving passport cooperation, passport renewal and section 18 consent.
In Fellgiebel v Bradley, In re: Ex Parte Bradley, the court recorded an order dispensing with the father’s consent under section 18. The mother could apply, when required, for the child’s passports and travel documents without his presence, consent or signature.
The order required the mother to provide him with copies of new or renewed documents. The case illustrates that a court can solve the administrative problem directly while also imposing a practical safeguard.
Read Fellgiebel v Bradley on SAFLII
In Y.S v C.M, the parties’ parenting plan said neither could obtain or renew the children’s passports without the other’s prior written consent.
The court found that the father had delayed and failed to cooperate properly with the passport process. It amended the parenting-plan provision to state that consent could not be unreasonably withheld.
The judgment shows that a court may examine the parties’ history of cooperation and whether passport consent is being obstructed for proper reasons.
In M.L v S.J.D, the court considered prolonged difficulty obtaining cooperation for a child’s passport and related international travel.
The court found the father’s conduct obstructive and unreasonable. It also criticised the use of the passport issue as leverage to obtain answers to unrelated demands.
The case demonstrates the importance of making clear requests, acting early and preserving the written record of attempted cooperation.
These judgments do not establish that the requesting guardian will always succeed. They show that a court can intervene where the consent requirement is being used obstructively or where the child’s practical interests require the passport issue to be resolved.
The precise enquiry depends on the relief sought.
Relevant considerations may include:
Where international travel or permanent relocation is also sought, the evidence will need to address those separate issues.
A guardian may be absent, overseas or impossible to locate.
The requesting guardian should not simply assume that consent is no longer necessary.
A court application may be required. Evidence may be needed showing reasonable attempts to identify and contact the absent guardian.
Depending on the facts, this may include:
The correct procedural approach will depend on the relief sought and the available information.
Where a court order grants one person sole guardianship, the order should be checked carefully and presented to Home Affairs as required.
The same applies where another guardian has died. Current published government guidance indicates that a death certificate or an appropriate guardianship order may need to accompany the passport application.
Administrative requirements should be confirmed with the Department of Home Affairs before attending. Current published passport guidance
A primary-residence order does not necessarily amount to sole guardianship.
Having the child live primarily with you also does not automatically mean that the other guardian’s passport consent is unnecessary.
The legal rule comes from the Children’s Act. The practical application process is administered by the Department of Home Affairs.
Published government guidance currently indicates that both parents and the child generally attend a minor-passport application where both parents hold the relevant rights.
It also recognises exceptions involving sole guardianship, death, guardians other than parents and court orders. Government passport guidance
Where one guardian is outside South Africa, consent may in some circumstances be completed through a South African embassy, high commission or Home Affairs process. Example DIRCO guidance
Administrative requirements can change. Confirm the current requirements directly with Home Affairs or the relevant South African mission before applying.
Depending on the matter, useful documents may include:
The documents should establish the legal status of each guardian and the practical reason court intervention is required.
Passport-consent disputes can become urgent, but urgency is not automatic.
Potentially urgent circumstances may include:
In M.L v S.J.D, the court accepted that the passport issue was sufficiently pressing because travel arrangements and flight bookings could not be finalised while the passport remained unresolved. Read the judgment
Parents should nevertheless act as early as possible.
Waiting until shortly before travel may create avoidable procedural problems and may weaken an urgency argument.
Obtaining the child’s passport does not necessarily authorise the child to leave South Africa.
Current government travel guidance may require a parental consent affidavit or a relevant court order where a child travels with one parent or another adult.
The exact documentary requirements depend on the circumstances and may change. Government travel guidance for children
A section 18(5) order concerning international departure can, in appropriate circumstances, operate where the other guardian refuses travel consent. LA v EFV is an example of a court dispensing with consent for a particular trip after finding that the refusal was unreasonable.
That judgment concerned departure from South Africa, not merely the passport application. It illustrates why passport consent and travel consent must be addressed separately.
A passport application should not be used as a substitute for a relocation application.
If the real intention is to move permanently overseas with the child, the court may need to consider:
The passport may be one practical step in the relocation process, but it does not decide whether the relocation should occur.
For the broader principles, see MVA’s guide to Child Relocation in South Africa
If a child has already been taken outside South Africa without the required consent, the matter may involve more than a passport dispute.
Depending on the circumstances, it may raise issues involving:
Urgent specialist advice may be required.
A passport-consent application is not a substitute for a Hague return application or other urgent international relief.
For further information, see MVA’s article on Hague Convention Child Return Applications in South Africa
Costs remain discretionary.
In children-related disputes, courts do not automatically order the unsuccessful parent to pay the other parent’s legal costs.
The parties’ conduct can nevertheless affect the result.
A court may consider:
Both Fellgiebel and Y.S v C.M demonstrate that obstructive conduct can have costs consequences.
No parent should institute proceedings on the assumption that all legal costs will be recovered.
If another guardian refuses or delays passport consent:
The correct remedy depends on the reason for the passport, the guardianship position and whether travel or relocation is also in dispute.
A child-passport dispute can appear simple: one guardian wants the passport and another refuses.
Legally, the position may involve several different questions.
The court may need to determine:
Resolving the correct question prevents the parties from obtaining an order that does not solve the practical problem.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving parental responsibilities and rights, guardianship, passport consent, international travel, child relocation and related court applications.
If another guardian refuses or fails to cooperate with a child’s passport application, obtaining advice early can help establish the appropriate documents, forum and relief before the delay affects travel or other important arrangements.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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