Missing children: navigating the law on minors and adults

In this Q & A, attorney Serisha Inderjeeth shares insights on the legal rights of parents and missing children

Q. What rights does the parent have: can they open a case if their minor child leaves home willingly with a person who is older than he or she? 

A. A parent can open a criminal charge against an adult who has taken a minor child without the consent or a legal guardian even if the minor gives consent and willingly leaves with the adult. The courts relying on the law will focus on the adults’ actions, intention and the fact that parental consent was lacking. 

This however has limited exceptions such as the child being taken away by the adult in terms of it being under a court order,  which is regarded as authority, the adult who had taken the child has some sort of legal right over the child, or of the adult is of the strong belief that the child is in immediate danger and taking the child away will protect the child from such danger. 

Q. If the parents were aware of a “relationship” between their minor child and an adult, what should they do, and what is their legal recourse?

A.  A parent has a legal obligation to ensure a child’s safety. Often emanating from a minor and adult relationship is coercion, exploitation and grooming. Immediate steps are to be taken to cease the communication between the adult and minor child. It is advisable to inform those close to the minor child such as close family members, neighbours and teachers at the minors’ school of the involvement of the adult in the minor’s life for them to assist in ensuring that any interaction is reported and that the relationship is not supported in any manner. 

The assistance of the law can be obtained such as securing a restraining and/or protection order against the adult. The parents can make such an application in their capacity as the legal guardian of the minor child. The adult can be charged for rape in the event of sexual acts with the minor child. 

Q. Can a parent legally be held responsible in matters where, with their knowledge of the “illicit” relationship, the child runs away with an adult? Again, what law/act, if any, is this guided by?

A. A parent who is aware of an “illicit” relationship between their minor and an adult cannot simply be criminally charged for knowing. The Children's Act 38 of 2005 refers to parental responsibilities and rights of minor children. This includes care, contact and maintenance. It outlines a parent's responsibilities to the child such as safety and daily living.

If a parent allowed and/or overlooked a situation that placed the child in danger such as an illicit relationship that parent would have failed in their duty of care of the child. Child services and/or the courts may intervene to place the child in a place of safety. If the parent overlooked or supported the child being in a relationship, which placed the child in danger or for example was child grooming, this parent can be held liable for aiding and abetting such a criminal act.  

Q. What does the law state even if a minor runs away willingly with an adult partner?

A. The law disregards the consent of a minor child irrespective if the child willingly runs away with an adult partner. The adult still has the chance of facing criminal charges. The minor child does not have the capacity to make decisions for themselves in the absence of a legal guardian. It is regarded as an offence if a minor child is kept away from their legal guardian by an adult even if it is without any force on the child. This conduct of the adult triggers the intervention of social service and the courts to enforce the law to ensure the protection of the minor child.

Serisha Inderjeeth specialises in general family law, child law and rights, adoption, domestic violence, and divorce, among others. 

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