Section 31(2) of the Children’s Act imposes an obligation on parents before taking a major decision which would materially change, or adversely alter, the exercise of parental responsibilities and rights of the other parent. This obligation is to consider the views and wishes expressed by the other parent in respect of the proposed decision.
The recent Pretoria High Court case of DM v CHP (B6773/23)  ZAGPPHC 76 (4 January 2024) serves as a cautionary tale against parents simply making big and far-reaching decisions before consulting with their co-parents.
In this instance, the parties had a 50/50 contact and care regime in respect of their child. The mother unilaterally decided to move approximately 550km away from the father, taking the child (5) with her. The father approached the Court on an urgent basis to order the return of the child.
As indicated above, the judgment DM v CHP (B6773/23)  ZAGPPHC 76 (4 January 2024) revolves around a dispute concerning contact rights with a 5-year-old child, following the mother’s unilateral decision to relocate, significantly altering the father’s ability to maintain contact. This case, adjudicated in the North Gauteng High Court, Pretoria, underscores several key legal principles and practical considerations regarding children’s welfare and parental responsibilities under South African law, particularly referencing the Children’s Act 38 of 2005, s 31(2).
Legal Principles Highlighted in the Judgment:
- Respect for Parental Agreements and Rights: The court emphasized the importance of adhering to agreements between parents concerning their children’s care, underlining the stability and access to both parents as crucial for the child’s best interest.
- Children’s Act 38 of 2005, s 31(2): The judgment reinforces the statutory requirement that a parent must not make decisions that significantly change or adversely affect the co-holder’s exercise of parental responsibilities without giving due consideration to their views and wishes.
- Best Interest of the Child: The paramount consideration in disputes concerning children is their best interest, necessitating stability and avoiding unnecessary changes in their lives.
- Judicial Approach to Parental Disputes: The court’s role is not merely to enforce agreements or apply statutory provisions rigidly but to consider the child’s best interest comprehensively, balancing stability with the need for flexibility in changing circumstances.
Key Quotes from the Judgment:
- “There can be no debate that to move a child 550 km away and restrict access to supervised contact for 4 hours every second weekend in a public place, from a previous 50% contact regime, is a decision which significantly changes and adversely affects the applicant’s exercise of parental responsibilities.” [Paragraph 19]
- “The best interest of the child, the legislative framework, and the enforcement of the contract, in these circumstances, dovetail.” [Paragraph 21]
- “The Court requires more… before depriving a child of access to her father and bringing a large scale change to her life, the Court requires more.” [Paragraph 34]
The court granted the urgent relief sought by the applicant, restoring the status quo ante regarding the father’s parental responsibilities and rights to maintain contact with his daughter, pending an investigation and report by the Family Advocate. This decision underscores the court’s commitment to the child’s best interest, emphasizing stability and the need for both parents’ involvement in significant decisions affecting their child.
The Children’s Act aims to give effect to children’s rights as outlined in the Constitution, defining parental responsibilities and rights, and providing for matters related to children’s care and protection. This case exemplifies the Act’s application in resolving disputes that significantly impact a child’s welfare and parental access, reinforcing the judiciary’s role in safeguarding children’s best interests amidst parental disagreements.
1. What does the Children’s Act 38 of 2005, s 31(2) say about parental decisions affecting a child?
Section 31(2) of the Children’s Act mandates that before making any decision significantly changing or adversely affecting the exercise of parental responsibilities by another parent, the decision-making parent must consider the views and wishes of the other parent holding parental rights.
2. Can a parent unilaterally relocate a child without the other parent’s consent?
No, unilateral relocation that significantly changes or adversely affects the other parent’s contact rights is not permitted under the Children’s Act, as it requires consideration of and, in some cases such as international relocation, consent from the other parent.
3. What is meant by the “best interest of the child” in legal terms?
The “best interest of the child” is a guiding principle in all decisions and actions concerning children. It considers the child’s well-being, stability, and the benefit of maintaining relationships with both parents, among other factors. The Best Interests of the Child Standard can be found in Section 7 of the Children’s Act
4. How does the court determine what is in the best interest of the child?
The court considers various factors, including the child’s physical, emotional, and educational needs, the child’s relationship with both parents, and the impact of any change in the child’s circumstances, among others.
5. What happens if a parent violates an agreement on parental rights and responsibilities?
Violating an agreement can lead to legal action, where a court may enforce the agreement, restore the status quo, or make new orders to protect the child’s best interests.
6. Can a parent be prevented from moving to pursue personal or professional opportunities?
While the court will be slow to restrict a parent’s freedom of movement if the reason for relocating is bone fide, it can interdict the move if the child’s best interests so dictate.
7. What role does the Family Advocate play in disputes over parental rights and responsibilities?
The Family Advocate investigates matters concerning the child’s welfare, providing the court with reports and recommendations to assist in making decisions in the child’s best interests.
8. What is the status quo ante, and why is it important in custody disputes?
The status quo ante refers to the existing state of affairs before any disputed changes were made. It’s important in custody disputes as it represents the child’s routine and stability, which courts often aim to preserve pending a full investigation. It is not the be-all and end-all in matters revolving around children, but it is certainly a factor which is considered
9. What are supervised visits, and when are they ordered?
Supervised visits are contact sessions between a parent and their child that occur in the presence of an appointed supervisor. They are ordered when there are concerns about the child’s safety or well-being during unsupervised visits.
10. How does the court handle urgent applications regarding parental rights?
Urgent applications are expedited through the court system to address immediate concerns about a child’s welfare, ensuring that any disruptions to the child’s life and routine are minimized and resolved quickly.