INTERNATIONAL RELOCATION WITH MINOR CHILDREN

The legal position, and available remedies in the case of unreasonable withholding of consent
Sally and Peter have a lovely little boy, named John. Sally’s employer has given her the opportunity to work in Germany for 5 years and has indicated that they will pay for the schooling of John for that period. Sally wishes to remove John from South Africa for the said 5-year period, but Peter refuses to consent and has subsequently launched an urgent interdict to prevent Sally from removing John from the Republic of South Africa.

The Children’s Act, 38 of 2005 , deals with the rights and obligations of parents under circumstances where either parent wishes to remove a minor child from the Republic of South Africa. More specifically Section 18(3)(c)(iii) provides that all co-holders of Guardianship must consent to the removal of minor child from the borders of South Africa. {Guardianship is usually assigned to the parents; for convenience sake, the terms “parent” / “parents” will be used in this article when referring to guardians of the minor child}

The consent of one parent for the removal of the minor child from the borders of South Africa is simply not sufficient. By law, both parents must consent to the departure of the minor child from the Republic.

Should a parent unreasonably refuse to consent to the removal, however, the parent wishing to relocate has a legal remedy available to them. This remedy entails approaching the Court to dispense with the consent of the obstructive parent in terms of Section 18(5) of the Children’s Act

Conversely, if the parent refusing consent believes that their refusal is justified, and they suspect that the other parent will attempt to remove the minor child from South Africa even though they refused consent, they can approach the Court to interdict (legally restrain) the other parent from removing the child from the borders of South Africa.

Relocation matters revolve around the concept of Guardianship. These matters are, therefore, invariably adjudicated in the High Court.

In cases where a parent approaches the Court to dispense with the consent of the other parent, the emphasis will overwhelmingly be on whether the relocation is in the best interests of the minor child. This is in accordance with the sentiment in Section 2(b)(iv) of the Children’s Act that:

“the best interests of a child are of paramount importance in every matter concerning the child;”

This does not mean that the parent who wishes to relocate will not be considered by the Court; there will always be a weighing up of the interests of the relocating parent (i.e to pursue their career in the scenario above) and the effect that the relocation will have on the relationship between the parent staying behind and the minor child. All this will be viewed through the lenses of the best interests of the child standard, as set out in Section 7 of the Children’s Act.

The Courts are not inclined to adjudicate on relocation matters in the absence of expert reports, simply because they have severe implications for family units – this is evident from the recent Pretoria High Court judgment of B v B (16606/2015) [2021] ZAGPPHC 383

Expert reports usually entail some the following (or a combination of them):

1.1. An investigation and subsequent recommendation by the Office of the Family Advocate; and/or
1.2. An investigation and subsequent recommendation by a mental health professional in private practice (such as a psychologist and/or social worker)
2. Child participation in terms of Section 10 of the Children’s Act

Reevese vs Cummins South Africa (Pty) Ltd 2020 JDR 1019 (GJ) is a good example of a matter where the relocation order was granted. The Court re-emphasized the principles above; specifically, that the best interests of the minor child should be the paramount consideration and that that minor child has the right to participate in terms of Section 10 of the Children’s Act.
Relocation matters are, because of the profound impact they have on the relationship between the minor child and the non-relocating parent, very complex. The underlying principle, however, is simple – is the relocation in the best interests of the minor child.

If you would like to get into contact with one of our experienced family attorneys.