Relocation of Children to Another Province or Country
Relocation is well known to be among the most difficult issues that courts have to deal with in family law matters.
The “Great Resignation” is a concept that forecasts that many people will be exiting their jobs following the COVID pandemic. The term “Great Resignation” was coined by US psychologist Anthony Klotz, when he forecasted that “pandemic epiphanies” might encourage people to give up their jobs in favour of greener pastures. Taking a positive view, he argues that we should be embracing this moment as a “Great Reset”. Nearly a quarter of workers are earnestly preparing to change employers in the next few months, a recent report has claimed, as part of a “great resignation” inspired by a high number of vacancies and burnout caused by the pandemic. A study of 6,000 workers by the recruitment firm Randstad UK found that 69% of them were feeling assured about moving to a new role in the next few months, with 24% planning a change within three to six months.
New research indicates evidence of the global ‘great resignation’ trend that is growing in South Africa as overworked employees are resigning from their jobs. Factors entail extended working hours, far fewer opportunities to take leave and a toxic workplace culture. The upcoming months are most likely to see lots of resignations spanning all sectors as people opt for freedom, knowing their skills are in high demand as they look for greener pastures.
As a result of the probability of the Great Resignation many employees will quit their jobs and move to another province or to another country due to opportunities there. The consequences of relocation to another province or country impacts on families, especially where ex-spouses or partners have children and share contact with them. Decisions by primary caregiving parents to relocate after divorce, thereby causing disruption to the non-primary caregivers' right of contact with children or, where both parents have joint care, the denial of the other's parental rights and responsibilities to care, can give rise to cases which deal with relocation disputes.
What does the South African Children’s Act 38 of 2005 (“the Act”) say about Overseas Relocation?
Unfortunately, the Children's Act does not make provision for consent procedures for relocation. However, it is clear from section 18 of the Act that if a parent wishes to relocate outside of South Africa the consent of both parents is needed. Section 18(3)(c)(iii) of the Children's Act provides that a parent of a child must give or refuse any consent required by law in respect of the child, including consent to the child’s departure or removal from the Republic. The basic principle is that both the parents maintain guardianship of a child following the dissolution of a marriage except if the courts orders otherwise. Section 18 of the Children's Act sets out the responsibilities and rights that parents have in respect of their children. These consist of the responsibility and right to care for the child, to maintain contact with the child, to act as a guardian of the child; and to contribute to the maintenance of the child.
New research indicates evidence of the global ‘great resignation’ trend that is growing in South Africa as overworked employees are resigning from their jobs. Factors entail extended working hours, far fewer opportunities to take leave and a toxic workplace culture. The upcoming months are most likely to see lots of resignations spanning all sectors as people opt for freedom, knowing their skills are in high demand as they look for greener pastures.
As a result of the probability of the Great Resignation many employees will quit their jobs and move to another province or to another country due to opportunities there. The consequences of relocation to another province or country impacts on families, especially where ex-spouses or partners have children and share contact with them. Decisions by primary caregiving parents to relocate after divorce, thereby causing disruption to the non-primary caregivers' right of contact with children or, where both parents have joint care, the denial of the other's parental rights and responsibilities to care, can give rise to cases which deal with relocation disputes.
What does the South African Children’s Act 38 of 2005 (“the Act”) say about Overseas Relocation?
Unfortunately, the Children's Act does not make provision for consent procedures for relocation. However, it is clear from section 18 of the Act that if a parent wishes to relocate outside of South Africa the consent of both parents is needed. Section 18(3)(c)(iii) of the Children's Act provides that a parent of a child must give or refuse any consent required by law in respect of the child, including consent to the child’s departure or removal from the Republic. The basic principle is that both the parents maintain guardianship of a child following the dissolution of a marriage except if the courts orders otherwise. Section 18 of the Children's Act sets out the responsibilities and rights that parents have in respect of their children. These consist of the responsibility and right to care for the child, to maintain contact with the child, to act as a guardian of the child; and to contribute to the maintenance of the child.
Is Consent Required for Relocation?
If both parents hold full parental rights and responsibilities in respect of a minor child, a parent can only travel and/or relocate to another country with that child if the express written permission from the other parent has been acquired. Pursuant to amendments to the Immigration Act 13 of 2002 and Immigration Regulations promulgated thereafter in May 2014, specific requirements have been set for minors traveling internationally with a view to stop child abduction. If a parent is unreasonably withholding such consent, the parent who wants to travel and/or immigrate with a minor child will have to approach the High Court for relief. In uncontested relocations, some countries may nevertheless require a Court Order to satisfy their immigration authorities.
In terms of section 18(4) of the Children’s Act, whenever more than one person has guardianship of a child, each of them is competent to exercise independently and without the consent of the other party, any right or responsibility arising from such guardianship. However, section 18(5) of the Act provides as follows:
“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).”
Therefore, if one parent does not consent to relocation an application must be made to the High Court under section 18(5) of the Act.
What about Relocation to another Province?
Insofar as relocation between provinces is concerned, a co-holder of parental responsibilities and rights must be consulted, and consideration is to be given to his/her views, nevertheless, consent procedures for relocation inside the country are not governed by the legislature. In the event of a dispute, the relevant High Court would likewise have to be approached for relief.
If both parents hold full parental rights and responsibilities in respect of a minor child, a parent can only travel and/or relocate to another country with that child if the express written permission from the other parent has been acquired. Pursuant to amendments to the Immigration Act 13 of 2002 and Immigration Regulations promulgated thereafter in May 2014, specific requirements have been set for minors traveling internationally with a view to stop child abduction. If a parent is unreasonably withholding such consent, the parent who wants to travel and/or immigrate with a minor child will have to approach the High Court for relief. In uncontested relocations, some countries may nevertheless require a Court Order to satisfy their immigration authorities.
In terms of section 18(4) of the Children’s Act, whenever more than one person has guardianship of a child, each of them is competent to exercise independently and without the consent of the other party, any right or responsibility arising from such guardianship. However, section 18(5) of the Act provides as follows:
“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).”
Therefore, if one parent does not consent to relocation an application must be made to the High Court under section 18(5) of the Act.
What about Relocation to another Province?
Insofar as relocation between provinces is concerned, a co-holder of parental responsibilities and rights must be consulted, and consideration is to be given to his/her views, nevertheless, consent procedures for relocation inside the country are not governed by the legislature. In the event of a dispute, the relevant High Court would likewise have to be approached for relief.
What does our courts say about relocation?
Where a custodian parent wishes to emigrate or relocate with a child, the court will be slow to restrict this if the desire to relocate is genuine and reasonable, not because this is a right of the custodian parent, but due to the fact that usually the best interests of the child will not be served by frustrating the custodian parent’s wish (see the case of Jackson v Jackson 2002 (2) SA 303 (SCA) at 318E-I; F v F [2006] 1 All SA 571 (SCA). Any such decision must undoubtedly be subject to a careful and appropriate consideration of the best interests of the child, which must entail a consideration of the nature and extent of contact possible with the non-custodian parent if relocation is allowed. The judge in Jackson v Jackson, 2002 (2) SA 303 (SCA), said (at paragraph [19]):
“The increasing numbers of relocation disputes referred to in psychological and legal literature as also in South African jurisprudence and that of other jurisdictions, is a reflection of the increasing trend of geographical mobility particularly in relation to work, coupled with a higher rate of separation or divorce after which former partners go their different ways.” Listing “Principles applicable to relocation of children”, the learned judge said (at paragraph [20]): “Where a custodial parent wishes to emigrate, a court will not likely refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable.”
In accordance with s 28(2) of the Constitution of the Republic of South Africa, section 9 of the Children’s Act provides that in all matters regarding the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance must be applied. Section 7(1) highlights the factors that must, where relevant, be taken into consideration in applying the standard of the best interests of the child. This does not imply that the child’s best interest is the only consideration or even that it necessarily trumps all others (S v M (Centre for Child Law As Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) para 26). Parenthood is a fundamental and life-affirming human experience. It can be cruel and hurtful, and an insult to a parent’s dignity, to deprive him or her of a meaningful role in nurturing and developing and maintaining a bond with the child. The Act speaks not only of the responsibilities but also the rights of a parent in relation to the child. In a case where the best interests of the child are clear and are adverse to a parent’s interest in performing a parenting role, the former would, always have to prevail, see P v P (6743/2019) [2019] ZAWCHC 174; [2020] 2 All SA 587 (WCC). In other cases, however, it may be far more difficult to discern what course of action will best advance the child’s interests, and in such cases the parents’ respective interests may come to the fore.
In matters regarding the best interests of children there is no onus ‘in the conventional sense’ (Van Rooyen v Van Rooyen 1999 (4) SA 435 (C) at 437I-J; B v M [2006] 3 All SA 109 (W) para 5). The court performs an investigation into the matter, an approach in which it may act more inquisitorially than would be acceptable in adversarial proceedings. Nonetheless, there is authority that where a parent seeks a relocation order which amounts to a variation of a divorce order, it is for such parent to establish on a balance of probability that a variation should be granted (Jackson supra 307G-H and cases there cited).
In the recent case of DJB v MB (13973/2020) [2021] ZAWCHC 27, the Applicant wanted to relocate from Cape Town to Pretoria with the minor children. Following the parties divorce in 2011, the children resided with the Applicant and her family in Worcester where they went to Afrikaans medium public schools. The relationship between the children and the Respondent was rather strained. In March 2020, the Respondent told the Applicant that he did not consent to the children’s relocation to Pretoria nor the schools where the Applicant desired to enroll them in. On 16 September 2020, the Applicant asked for the Respondent’s co-operation in respect of an urgent assessment to be done by a psychologist, who was appointed to investigate the children’s best interests.
The Respondent’s co-operation was not forthcoming, and the Applicant launched urgent Court proceedings, seeking relief in two parts:
The relocation assessment report of the psychologist recommended that the children be permitted to relocate with the Applicant to Pretoria, and that they should attend dual medium private schools. The Applicant remarried in November 2020 and relocated to Pretoria. At the time of launching Part B of the application in January 2021, the children were living with her in Pretoria during the school holidays. The Applicant, with the assistance of her husband, would be responsible for transporting the children to school. The Court held that the Applicant cannot be blamed for re-marrying during these proceedings and relocating to Pretoria. She is entitled to continue her life. The Court indicated that the best interests of the child should be the pre-eminent consideration in matters involving their relocation. The Respondent later withdrew his opposition to the relocation. The Court held further that the Applicant shall pay the cost of one economy return air ticket per child per month for the purposes of the children having weekend contact with the Respondent.
Where a custodian parent wishes to emigrate or relocate with a child, the court will be slow to restrict this if the desire to relocate is genuine and reasonable, not because this is a right of the custodian parent, but due to the fact that usually the best interests of the child will not be served by frustrating the custodian parent’s wish (see the case of Jackson v Jackson 2002 (2) SA 303 (SCA) at 318E-I; F v F [2006] 1 All SA 571 (SCA). Any such decision must undoubtedly be subject to a careful and appropriate consideration of the best interests of the child, which must entail a consideration of the nature and extent of contact possible with the non-custodian parent if relocation is allowed. The judge in Jackson v Jackson, 2002 (2) SA 303 (SCA), said (at paragraph [19]):
“The increasing numbers of relocation disputes referred to in psychological and legal literature as also in South African jurisprudence and that of other jurisdictions, is a reflection of the increasing trend of geographical mobility particularly in relation to work, coupled with a higher rate of separation or divorce after which former partners go their different ways.” Listing “Principles applicable to relocation of children”, the learned judge said (at paragraph [20]): “Where a custodial parent wishes to emigrate, a court will not likely refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable.”
In accordance with s 28(2) of the Constitution of the Republic of South Africa, section 9 of the Children’s Act provides that in all matters regarding the care, protection and well-being of a child, the standard that the child’s best interest is of paramount importance must be applied. Section 7(1) highlights the factors that must, where relevant, be taken into consideration in applying the standard of the best interests of the child. This does not imply that the child’s best interest is the only consideration or even that it necessarily trumps all others (S v M (Centre for Child Law As Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) para 26). Parenthood is a fundamental and life-affirming human experience. It can be cruel and hurtful, and an insult to a parent’s dignity, to deprive him or her of a meaningful role in nurturing and developing and maintaining a bond with the child. The Act speaks not only of the responsibilities but also the rights of a parent in relation to the child. In a case where the best interests of the child are clear and are adverse to a parent’s interest in performing a parenting role, the former would, always have to prevail, see P v P (6743/2019) [2019] ZAWCHC 174; [2020] 2 All SA 587 (WCC). In other cases, however, it may be far more difficult to discern what course of action will best advance the child’s interests, and in such cases the parents’ respective interests may come to the fore.
In matters regarding the best interests of children there is no onus ‘in the conventional sense’ (Van Rooyen v Van Rooyen 1999 (4) SA 435 (C) at 437I-J; B v M [2006] 3 All SA 109 (W) para 5). The court performs an investigation into the matter, an approach in which it may act more inquisitorially than would be acceptable in adversarial proceedings. Nonetheless, there is authority that where a parent seeks a relocation order which amounts to a variation of a divorce order, it is for such parent to establish on a balance of probability that a variation should be granted (Jackson supra 307G-H and cases there cited).
In the recent case of DJB v MB (13973/2020) [2021] ZAWCHC 27, the Applicant wanted to relocate from Cape Town to Pretoria with the minor children. Following the parties divorce in 2011, the children resided with the Applicant and her family in Worcester where they went to Afrikaans medium public schools. The relationship between the children and the Respondent was rather strained. In March 2020, the Respondent told the Applicant that he did not consent to the children’s relocation to Pretoria nor the schools where the Applicant desired to enroll them in. On 16 September 2020, the Applicant asked for the Respondent’s co-operation in respect of an urgent assessment to be done by a psychologist, who was appointed to investigate the children’s best interests.
The Respondent’s co-operation was not forthcoming, and the Applicant launched urgent Court proceedings, seeking relief in two parts:
- Part A – an order that the psychologist investigates and assesses the care and contact arrangements, the children’s relocation, and recommends schools the children should attend in 2021; and
- Part B – that leave be granted to the Applicant to relocate with the children to Pretoria; that the children shall attend schools in 2021 as recommended by the psychologist; that the Applicant shall be liable for one economy return ticket per child per month for purposes of the children visiting the Respondent in Cape Town be varied in accordance with the psychologist’s recommendation or as the Court deems appropriate.
The relocation assessment report of the psychologist recommended that the children be permitted to relocate with the Applicant to Pretoria, and that they should attend dual medium private schools. The Applicant remarried in November 2020 and relocated to Pretoria. At the time of launching Part B of the application in January 2021, the children were living with her in Pretoria during the school holidays. The Applicant, with the assistance of her husband, would be responsible for transporting the children to school. The Court held that the Applicant cannot be blamed for re-marrying during these proceedings and relocating to Pretoria. She is entitled to continue her life. The Court indicated that the best interests of the child should be the pre-eminent consideration in matters involving their relocation. The Respondent later withdrew his opposition to the relocation. The Court held further that the Applicant shall pay the cost of one economy return air ticket per child per month for the purposes of the children having weekend contact with the Respondent.
What are the factors that a court will consider in relocation applications?
Given the absence of legislative guidelines to help courts in making their relocation judgements, which are largely value-based, it is crucial to give consideration to the factors that courts normally take into account. The following is a list of these factors stemming from a consideration of a few past relocation judgements.
The best interest concept was applied in relocation cases even prior to the introduction of the Constitution or the Children's Act. The conventional position favoured by our courts has been that it is usually regarded to be in the best interest of the child to stay with the custodial parent. The court in Joubert v Joubert 2008 JOL 219229 (C) held that the primary caregiver usually has the right to have the child with him/her. Nevertheless, in F v F 2006 3 SA 42 (SCA) it was found that courts should not easily assume that the primary caregiver's proposals are always compatible with the child's welfare. Various factors are taken into consideration in evaluating what is in the best interests of the child, such as the necessity to protect a particular family unit of which that child is a part, and the advantages and disadvantages that the move will have for the child (whether or not he/she will experience trauma if taken away from one parent).
In B v M 2006 3 All SA 109 (W) the court held the following in regard to the best interest principle:
A child's best interest is the pre-eminent consideration among all other considerations. Nevertheless, the legislature did not intend the best interests of the child to be the sole or exclusive aspect to be considered because it did not prescribe that the child's best interests are the only factor to be taken into consideration or the sole determinant of the exercise of the court's discretion. The best interest principle is the paramount consideration within a hierarchy or concatenation of factors but is not usually the only factor receiving consideration in matters concerning children.
In Cunningham v Pretorius 31187/08 2008 ZAGPHC 258 the court held that it must be carefully guided principally by the best interest of the child. Courts must cautiously weigh and balance the reasonableness of the primary caregiver's decision to relocate, the practical and other considerations on which such a decision is based, the competing advantages and disadvantages of relocation, and finally how relocation will affect the child's relationship with the non-primary caregiver.
The reason for relocation must be genuine, reasonable, and bona fide, and must not serve purely to frustrate the access rights of the other parent. For example, in F v F the court determined that the mother's plan to relocate to England was badly researched and unstructured. As a result, her application was dismissed.
In B v M the court found that South African judgments have clearly accepted that married persons are and should be free to create their own lives, post-divorce, unfettered by the needs or demands of their former spouses. The applicant's right to freedom of movement and family life is thus always a factor taken into account by the court. Satchwell J made the point that the message should not be sent out that primary caregivers are shackled to the other parent and that they lose their independent right to freedom of movement.
The court will examine if the applicant has taken into account the non-relocating parent's right of contact with the child and if a plan has been put in place to maintain the relationship of the child and the non-relocating parent. Social science studies show that "quality" and not "quantity" (the frequency of contact) effects on the parent-child relationship.
The amount of time the child spends with each parent is also a fact taken into account by the court. Where parties share roughly the same amount of time with the children, relocation could have a more damaging effect on the child and his/her relationship with the non-relocating parent.
In B v M the court took into account the gendered nature of the roles within the post-divorce family. It was recognized that primary caregivers or custodial parents are most often mothers. A limitation on the freedom of movement of a primary caregiver would for that reason impact more considerably upon women than men. Satchwell J stated that "careful consideration needs to be given to applying the best interest principle in a manner which does not create adverse effects on a discriminatory basis - in this case gender discrimination." In F v F the court was also very sensitive to the issue of indirect gender discrimination. It held that "despite constitutional commitments to equality, the division of parenting roles in SA remains mostly gender based. Considering women are in many instances the custodial parent, the refusal of relocation applications impacts disproportionately upon them."
Section 10 of the Children’s Act provides as follows:
‘Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.’
In terms of s 31(1)(a), a person holding parental responsibilities and rights must, before taking a decision on a matter inter alia listed in s 18(3)(c) (this includes removal from South Africa), ‘give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development’. In terms of s 10, the court must do likewise. The statutory provisions do not mean that a child’s view must prevail, only that it must be taken into account if the preconditions for doing so are satisfied.
Particularly at the time of a contemplated move, the court should be responsive to the child's voice, amplifying it above the din of competing parents. Only in this way can it ascertain and respect "the best interests of the child." In the HG v CG 2010 3 SA 352 (ECP) case the court stated that the Children's Act brought about a fundamental shift in the parent/child relationship and not only vested a child with particular rights but also provided the child the opportunity to take part in any decision affecting him or her. The court was enjoined by the Act to give due consideration to the views of the children in a case. In the present case the minor children were of an age and level of maturity (14 and 11 years of age) to make an informed decision, namely, to preserve the status quo of joint care by both parents and to reject relocation to Dubai.
Given the absence of legislative guidelines to help courts in making their relocation judgements, which are largely value-based, it is crucial to give consideration to the factors that courts normally take into account. The following is a list of these factors stemming from a consideration of a few past relocation judgements.
- The critical consideration: 'the best interest of the child'
The best interest concept was applied in relocation cases even prior to the introduction of the Constitution or the Children's Act. The conventional position favoured by our courts has been that it is usually regarded to be in the best interest of the child to stay with the custodial parent. The court in Joubert v Joubert 2008 JOL 219229 (C) held that the primary caregiver usually has the right to have the child with him/her. Nevertheless, in F v F 2006 3 SA 42 (SCA) it was found that courts should not easily assume that the primary caregiver's proposals are always compatible with the child's welfare. Various factors are taken into consideration in evaluating what is in the best interests of the child, such as the necessity to protect a particular family unit of which that child is a part, and the advantages and disadvantages that the move will have for the child (whether or not he/she will experience trauma if taken away from one parent).
In B v M 2006 3 All SA 109 (W) the court held the following in regard to the best interest principle:
A child's best interest is the pre-eminent consideration among all other considerations. Nevertheless, the legislature did not intend the best interests of the child to be the sole or exclusive aspect to be considered because it did not prescribe that the child's best interests are the only factor to be taken into consideration or the sole determinant of the exercise of the court's discretion. The best interest principle is the paramount consideration within a hierarchy or concatenation of factors but is not usually the only factor receiving consideration in matters concerning children.
In Cunningham v Pretorius 31187/08 2008 ZAGPHC 258 the court held that it must be carefully guided principally by the best interest of the child. Courts must cautiously weigh and balance the reasonableness of the primary caregiver's decision to relocate, the practical and other considerations on which such a decision is based, the competing advantages and disadvantages of relocation, and finally how relocation will affect the child's relationship with the non-primary caregiver.
- The purpose of relocating
The reason for relocation must be genuine, reasonable, and bona fide, and must not serve purely to frustrate the access rights of the other parent. For example, in F v F the court determined that the mother's plan to relocate to England was badly researched and unstructured. As a result, her application was dismissed.
- The interest of the relocating parent
In B v M the court found that South African judgments have clearly accepted that married persons are and should be free to create their own lives, post-divorce, unfettered by the needs or demands of their former spouses. The applicant's right to freedom of movement and family life is thus always a factor taken into account by the court. Satchwell J made the point that the message should not be sent out that primary caregivers are shackled to the other parent and that they lose their independent right to freedom of movement.
- The interests of the non-relocating parent
The court will examine if the applicant has taken into account the non-relocating parent's right of contact with the child and if a plan has been put in place to maintain the relationship of the child and the non-relocating parent. Social science studies show that "quality" and not "quantity" (the frequency of contact) effects on the parent-child relationship.
- The relationship between the child(ren) and parents
The amount of time the child spends with each parent is also a fact taken into account by the court. Where parties share roughly the same amount of time with the children, relocation could have a more damaging effect on the child and his/her relationship with the non-relocating parent.
- The gendered nature of the roles within the post-divorce family
In B v M the court took into account the gendered nature of the roles within the post-divorce family. It was recognized that primary caregivers or custodial parents are most often mothers. A limitation on the freedom of movement of a primary caregiver would for that reason impact more considerably upon women than men. Satchwell J stated that "careful consideration needs to be given to applying the best interest principle in a manner which does not create adverse effects on a discriminatory basis - in this case gender discrimination." In F v F the court was also very sensitive to the issue of indirect gender discrimination. It held that "despite constitutional commitments to equality, the division of parenting roles in SA remains mostly gender based. Considering women are in many instances the custodial parent, the refusal of relocation applications impacts disproportionately upon them."
- The views of the child
Section 10 of the Children’s Act provides as follows:
‘Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.’
In terms of s 31(1)(a), a person holding parental responsibilities and rights must, before taking a decision on a matter inter alia listed in s 18(3)(c) (this includes removal from South Africa), ‘give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development’. In terms of s 10, the court must do likewise. The statutory provisions do not mean that a child’s view must prevail, only that it must be taken into account if the preconditions for doing so are satisfied.
Particularly at the time of a contemplated move, the court should be responsive to the child's voice, amplifying it above the din of competing parents. Only in this way can it ascertain and respect "the best interests of the child." In the HG v CG 2010 3 SA 352 (ECP) case the court stated that the Children's Act brought about a fundamental shift in the parent/child relationship and not only vested a child with particular rights but also provided the child the opportunity to take part in any decision affecting him or her. The court was enjoined by the Act to give due consideration to the views of the children in a case. In the present case the minor children were of an age and level of maturity (14 and 11 years of age) to make an informed decision, namely, to preserve the status quo of joint care by both parents and to reject relocation to Dubai.
Do the principles applicable to relocation disputes vary in cases in which the parent is attempting to relocate for the short term rather than permanently?
There is no differentiation in the Children's Act between "departure" from South Africa and "relocation". Nevertheless, in practice, the principles vary where one parent merely intends to remove the children for a vacation. Even though the travelling mother or father will still have to launch an application to the High Court, a mother or father resisting consent will normally have to demonstrate either that:
Other factors that the courts will consider are:
What is the legal procedure for trying to relocate?
When the parents are not able to consent on relocation, then the parent wanting to move need to launch an application to the High Court on notification to the other parent. The application must be backed by a well-researched and detailed founding affidavit setting out all the relevant details pertaining to the planned move, in as much detail as available, such as the:
What is the length of such a procedure?
Normally, applications for relocation take roughly six to eight months, including the period for getting expert reports. Nevertheless, if there are legitimate reasons for urgency, that are not self-created (such as an unexpected offer of employment that calls for an urgent move by the parent, or an abrupt family crisis or illness overseas), the application can be heard in roughly eight weeks.
Normally, in relocation cases, the Family Advocate, a state body advise the courts on matters pertaining to the best interests of children in divorce and ancillary matters, will also evaluate the child and the family to make a suggestion as to what they think will be in the child's best interests.
When a parent is unhappy with the determination made by a court in a relocation case, will the parent have a legal right to appeal?
The Uniform Rules of Court are applicable to appeals in relocation cases. In practice, this means that that the aggrieved parent can apply for leave to appeal in opposition to the judgment of the particular High Court judge either to:
This application for leave to appeal is heard on notice by the judge who heard the case. If the judge can be swayed that another court may have come to another conclusion, he or she will grant leave to appeal.
If one of the parents is unhappy with the determination made by either the full bench on appeal or the Supreme Court of Appeal, that parent can (if granted leave) appeal the decision to the Supreme Court of Appeal or the Constitutional Court, respectively. The Constitutional Court is the highest court in South Africa, and its judgements can't be appealed.
Summary
The best interests of children are the first and predominate consideration and every case is to be determined on its own specific facts. Both the parents have a shared primary responsibility for raising the child and where the parents are separated, the child has the right and the parents the responsibility to make sure that contact is properly maintained. Where a custodial parent wants to emigrate, a court will not without due consideration resist leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. The courts have constantly been sensitive to the position of the parent who is to stay behind. The level of such sensitivity and the role it plays in determining the best interests of children continue to be a difficult question.
Source: Wesahl Domingo. BSosc LLB LLM. Senior Law Lecturer, University of the Witwatersrand
There is no differentiation in the Children's Act between "departure" from South Africa and "relocation". Nevertheless, in practice, the principles vary where one parent merely intends to remove the children for a vacation. Even though the travelling mother or father will still have to launch an application to the High Court, a mother or father resisting consent will normally have to demonstrate either that:
- The existence of convincing reasons why the children must not accompany the other parent on a holiday.
- They reasonably believe, on the basis of real evidence, that the travelling parent might not come back with the children, regardless of assurances to the contrary being made.
Other factors that the courts will consider are:
- If the travelling parent has displayed by way of previous conduct that they do not encourage the relationship between the child and the other parent.
- If the country that the parent desires to take the child to is a signatory to the Hague Convention.
- The links that the travelling parent has to South Africa and the probability of them cutting these ties.
What is the legal procedure for trying to relocate?
When the parents are not able to consent on relocation, then the parent wanting to move need to launch an application to the High Court on notification to the other parent. The application must be backed by a well-researched and detailed founding affidavit setting out all the relevant details pertaining to the planned move, in as much detail as available, such as the:
- Motivation for wanting to move.
- Regarding the child or children, such as exactly where they will go to school backed by a letter of approval from the school), the ways they will get to and from school, and who will care for them after school.
- Their life in the new location like, if they are going to be employment, proof of a job and remuneration, and anticipated monthly expenditures.
- The neighborhood and the specific residence they anticipate living in.
- Facilities around and in the neighborhood, such as medical facilities, parks, transportation and other facilities.
- Repercussions if they are not permitted to remove the children, including whether they would relocate without the child.
- Good reasons exactly why they think the relocation will be in the children's best interests, although they will be leaving behind one parent.
- Proposals, regarding maintenance/child support from the other parent. Contact with the other parent, inclusive of details of whom will cover the child’s traveling and the cost
- Normally, the relocating parent will request that the non-relocating parent must cooperate with an investigation and assessment by a forensic social worker or psychologist, who will put together an extensive report on the child’s relationships with both the parents, and the impact on every member of the family in the event that they move and in the event that they don’t.
- The non-relocating parent will likely file an opposing affidavit, and occasionally a counter-application for primary care of the child. The relocating parent then has a right to reply.
- Both parties will then file heads of argument, that will consist of detailed reference to case law, and a time and date will then be allocated for a hearing.
- The matter is then argued in court
What is the length of such a procedure?
Normally, applications for relocation take roughly six to eight months, including the period for getting expert reports. Nevertheless, if there are legitimate reasons for urgency, that are not self-created (such as an unexpected offer of employment that calls for an urgent move by the parent, or an abrupt family crisis or illness overseas), the application can be heard in roughly eight weeks.
Normally, in relocation cases, the Family Advocate, a state body advise the courts on matters pertaining to the best interests of children in divorce and ancillary matters, will also evaluate the child and the family to make a suggestion as to what they think will be in the child's best interests.
When a parent is unhappy with the determination made by a court in a relocation case, will the parent have a legal right to appeal?
The Uniform Rules of Court are applicable to appeals in relocation cases. In practice, this means that that the aggrieved parent can apply for leave to appeal in opposition to the judgment of the particular High Court judge either to:
- A full bench of the High Court division where the case was heard at first instance.
- The Supreme Court of Appeal.
This application for leave to appeal is heard on notice by the judge who heard the case. If the judge can be swayed that another court may have come to another conclusion, he or she will grant leave to appeal.
If one of the parents is unhappy with the determination made by either the full bench on appeal or the Supreme Court of Appeal, that parent can (if granted leave) appeal the decision to the Supreme Court of Appeal or the Constitutional Court, respectively. The Constitutional Court is the highest court in South Africa, and its judgements can't be appealed.
Summary
The best interests of children are the first and predominate consideration and every case is to be determined on its own specific facts. Both the parents have a shared primary responsibility for raising the child and where the parents are separated, the child has the right and the parents the responsibility to make sure that contact is properly maintained. Where a custodial parent wants to emigrate, a court will not without due consideration resist leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. The courts have constantly been sensitive to the position of the parent who is to stay behind. The level of such sensitivity and the role it plays in determining the best interests of children continue to be a difficult question.
Source: Wesahl Domingo. BSosc LLB LLM. Senior Law Lecturer, University of the Witwatersrand