A child passport application in South Africa often raises important legal questions, particularly where parents are divorced, separated, unmarried, or involved in a parenting dispute. One of the most common concerns is whether both parents must consent to the passport application.
Under South African law, the answer generally depends on guardianship rights. The primary legal framework regulating parental consent for a child passport application in South Africa is found in Section 18 of the Children’s Act 38 of 2005.
Where both parents hold guardianship rights, both parents will ordinarily be required to consent to the child passport application. This requirement is aimed at protecting the child’s best interests and preventing unlawful removal or international child abduction.
Understanding Section 18 of the Children’s Act
Section 18 of the Children’s Act defines the parental responsibilities and rights that a person may hold in respect of a child.
In terms of Section 18(1), a person may hold either full parental responsibilities and rights or specific parental responsibilities and rights in relation to a child.
Section 18(2) further provides that parental responsibilities and rights may include the responsibility and right:
- to care for the child;
- to maintain contact with the child;
- to act as guardian of the child; and
- to contribute to the maintenance of the child.
Importantly, guardianship involves more than day-to-day caregiving responsibilities. A guardian holds specific legal powers and duties relating to major decisions affecting the child.
Section 18(3) provides that a parent or other person acting as guardian must:
- administer and safeguard the child’s property and property interests;
- assist or represent the child in administrative, contractual, and legal matters; and
- give or refuse any consent required by law in respect of the child.
Section 18(3)(c) specifically identifies certain decisions that require guardian consent, including:
- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from South Africa;
- consent to the child’s application for a passport; and
- consent to the alienation or encumbrance of immovable property belonging to the child.
Section 18(3)(c)(iv) expressly states that a guardian must give or refuse consent to a child’s passport application in South Africa.
Why Section 18(5) Is Critically Important in a Child Passport Application in South Africa
Many parents are unaware that Section 18 draws an important distinction between ordinary guardianship decisions and certain major decisions affecting a child, where the consent of both guardians are required.
Section 18(4) provides that where more than one person holds guardianship of a child, each guardian may generally exercise guardianship responsibilities and rights independently and without the consent of the other guardian.
However, Section 18(5) creates an important exception. It provides:
“Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).”
This means that although co-guardians may independently exercise many guardianship powers, they cannot independently make decisions relating to matters listed in Section 18(3)(c), including:
- a child’s departure from South Africa; or
- a child passport application in South Africa.
As a result, where both parents are guardians, both parents will ordinarily need to consent to the child passport application.
Do Both Parents Need to Attend Home Affairs?
In most cases, the Department of Home Affairs requires both parents and the child to attend in person when submitting a child passport application in South Africa.
This allows Home Affairs officials to:
- verify the identities of the parents and child;
- confirm consent directly; and
- ensure compliance with the Children’s Act.
Although exceptions may sometimes be permitted, Home Affairs practices can vary. In certain situations, the absent parent may be required to provide:
- a sworn affidavit confirming consent; and
- a certified copy of their identity document.
However, acceptance of these documents remains discretionary and may not always be sufficient.
Does Divorce Remove the Need for Consent?
No. Divorce does not automatically terminate guardianship rights.
Many divorced parents mistakenly assume that because one parent has primary residence or caregiving responsibilities, that parent may independently proceed with a child passport application in South Africa. This is often incorrect.
Unless a court order specifically limits or removes a parent’s guardianship rights, both parents usually remain co-guardians after divorce. Accordingly, Section 18(5) continues to apply, meaning both parents must still consent to the passport application.
For further guidance, see our pages on Divorce, Contested Divorce, and Children’s Matters.
What Happens If One Parent Refuses to Consent?
If one parent refuses to consent to the child passport application in South Africa, Home Affairs will generally not process the application through ordinary administrative procedures.
In these circumstances, the other parent may need to approach the High Court for appropriate relief.
The court will typically consider:
- the child’s best interests;
- the purpose of the proposed travel;
- whether there is a genuine risk of abduction or non-return;
- existing parenting arrangements; and
- the overall welfare of the child.
The child’s best interests remain the paramount consideration under South African constitutional and family law principles in terms of Section 28(2) of the Constitution.
What If One Parent Cannot Be Located?
Where a parent cannot be traced, is absent, or refuses to participate in the process, a court application may become necessary.
The applicant parent will usually need to show:
- what attempts were made to locate the absent parent;
- why the passport is required; and
- why granting the order would be in the child’s best interests.
The court may authorise the child passport application in South Africa without the absent parent’s consent where justified.
Can a Parent With Sole Guardianship Apply Alone?
Yes. A parent with sole guardianship may independently submit a child passport application in South Africa.
However, proper supporting documentation will usually be required, including:
- a court order granting sole guardianship; or
- a death certificate where the other parent is deceased.
Without proper documentation, Home Affairs may presume that shared guardianship exists.
Do Unmarried Fathers Need to Consent?
An unmarried father who has acquired guardianship under the Children’s Act must also consent to the child passport application in South Africa.
Whether an unmarried father has guardianship depends on the legal requirements contained in the Children’s Act, including the following factors depending on the circumstances of each case in terms of Section 21:
- whether the father was residing in a permanent life partnership with the mother at the time of the birth;
- acknowledgment of paternity / identification on the birth certificate;
- contributions toward the child’s upbringing; and
- contributions toward the child’s maintenance;
Where guardianship is disputed, legal advice should be obtained before proceeding with the application.
Can a Non-Parent Guardian Apply?
Yes. A person formally appointed as a guardian by a court may apply for the child’s passport, provided they can produce the relevant court order confirming their guardianship status.
Why Does South African Law Require Both Parents’ Consent?
The requirement for dual consent serves important constitutional and protective purposes.
It is intended to:
- prevent international child abduction;
- protect children from unlawful removal from South Africa;
- ensure both guardians participate in major decisions affecting the child; and
- uphold the child’s constitutional right to have their best interests prioritised.
Because a passport enables international travel and possible relocation, South African law treats a child passport application in South Africa as a significant guardianship decision requiring the involvement of all guardians.
When Should You Consult a Family Law Attorney?
You should obtain legal advice if:
- the other parent refuses to sign the passport application;
- the other parent cannot be located;
- there is a dispute regarding guardianship;
- Home Affairs refuses to process the application;
- urgent international travel is required; or
- there are concerns regarding international child abduction.
At Vermeulen Attorneys, we assist parents with guardianship disputes, urgent children’s matters, passport consent applications, and High Court proceedings involving international travel and child relocation.
