Our expert says:
Family law expert
The Children’s Act does not set out consent procedures for relocation within South Africa. The Act does stipulate however that co-holders of guardianship over a child can exercise their parental rights and responsibilities independently and without the consent of the other guardians rights. This means that a parent, with whom the child permanently resides, can independently and without the consent of other parent, decide to relocate with the child within the country.
However, section 6 of the Act states that a child given his age and maturity and a person who has parental rights and responsibilities in respect of that child must be informed of decisions in matters concerning the child which would significantly affect the child. Furthermore section 30 of the Act stipulates that a co holder of parental rights and responsibilities must consult and give consideration to the views of other co-holders of rights and responsibilities as well as the child when making decisions which is likely to change significantly, or to have a significant adverse effect on, the co-holder’s exercise of parental responsibilities and rights in respect of the child. This includes decisions which would affect contact between the child and the other co-holder of parental rights and responsibilities, such as decisions to relocate with the child to another province or city.
In a recent judgment by the Cape High Court Judge Erasmus had an opportunity to consider some of the parental rights and responsibilities provisions of the Children’s Act. The court found that although the custodian parent had to consult the other parent who also had rights and responsibilities in respect of the child it did not mean that the custodian parent was bound to give effect to the views and wishes of the other parent. The court held further that a failure to give consideration to the views and wishes of the other parent and failure to inform him of her decision did not render her decision void or invalid. However, the decision would be subject to review.
Our courts have not been ad idem on the approaches to be followed when ruling on relocation applications. Different approaches appear to be used to cater for different circumstances.
The following trends have been observed in relocation matters:
1 Relocation applications are generally brought by women. The case of Jackson v Jackson was the exception where the applicant who wanted to remove the children to Australia was the father.
2 Most cases concerns relocation to another country, however the case of B v M which is the only one of its kind to date, dealt with relocation within the country.
3 The motivation for an application to allow relocation with the child usually stems from employment opportunities for either the applicant (Van Rooyen) (H v R) (Coetzee) or his/her spouse B v M; a loss of confidence in the country’s economy and the escalating crime rate (Jackson v Jackson) ( H v R) and a lack of a family support system in SA ( Van Rooyen).
In an application to approve a decision to relocate with a child (whether internal or outside the country) courts usually take the following into account (these factors don’t serve as a closed list but arise from past relocation decisions).
The best interest principle has been applied in relocation cases even before the advent of the Constitution or the Children’s Act. It is generally considered in the best interest of the child to remain with the custodial parent. The Court in Joubert v Joubert found that the custodian parent generally has the right to have the child with him/her. However in F v F it was found that courts must not readily assume that the custodial parent’s proposals are necessarily compatible with the child’s welfare. Different factors will be considered to assess what is in the best interest of the child including the need to preserve a particular family unit that the child is part of, the advantages and disadvantages that the move will have on the children (whether or not they would suffer trauma if separated from one of the parents).
The motive for the relocation must be genuine; reasonable and bona fide and should not serve merely to frustrate the access rights of the other parent (or holder of parental rights and responsibilities). The Court found in F v F that the mother’s plan to relocate was ill researched and unstructured. The application to approve her decision to relocate was dismissed.
In B v M the court found that South African judgments have explicitly accepted that married persons are and should be free to create their own lives post divorce untrammelled by the needs or demands of their former spouses. The applicants’ right to freedom of movement and family life is thus always a factor taken into account by the court.
The court will consider whether the applicant has taken into account the non-moving parents’ right of access to the child and whether a plan has been put in place to preserve the relationship of the child with the non-moving parent.
The amount of time the child spends with each parent is also a factor considered by the court. Where parties basically share the same amount of time with the children relocation could have a more detrimental affect on the children and their relationship with the non moving parent.
In appropriate circumstances depending on the age and maturity of the child the court will have regard to the views of the child regarding the proposed relocation. This is in line with the child’s right to participate in decisions affecting the child.
A decision to relocate with a child from a previous marriage or other relationship affects the rights and responsibilities of the parent who will be staying behind. The law thus requires all guardians to consent to the removal of a child from the republic and requires the views of that parent to be taken into account when the child is moved from one province to another. The best interest of the child is always central to a decision concerning the removal of the child from the Republic or to another province. Many of the factors the court considers are set out in section 7 of the Children’s Act but these factors are not a mathematical list to be checked for compliance, they must be considered as a whole to assess the best interest of the child.
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