Has the time come to amend the Children’s Act to specifically include relocation provisions?

April 8, 2020

This article was first published in De Rebus in 2020 (April) DR 26. Charnét Swart LLB (UP) is a non-practising legal practitioner in Pretoria. Ms Swart has written this article in her own capacity.

 

In P v P the topic of relocation of children received the attention of the Full Bench of the Western Cape Division of the High Court in Cape Town. The parties’ marriage was dissolved in 2013 by a decree of divorce, which incorporated the terms of the consent papers. The parties agreed to remain co-guardians and co-holders of their parental responsibilities. In terms of the decree, the mother was held as the primary care giver of all three children. In this matter, the court was tasked with determining whether the three children, being a son who had just turned 14 years old and two daughters aged 11 and 8 respectively, should be allowed to relocate to Alaska with their father.

The father of the children thereafter sought a variation order of the divorce decree.

In such cases a parent who wishes to relocate with their children must establish on a balance of probabilities that the variation should be granted, however, the court may take an inquisitorial approach in order to establish the facts.

The court a quo granted an order to allow the father to relocate to Alaska with the three children. The court a quo refused the leave to appeal, but leave was granted on petition by the Supreme Court of Appeal (SCA). It should be noted that the father was aware of the fact that an appeal was pending but nevertheless decided to unlawfully remove the children from South Africa (SA). This complicated the determination of the current case as the children were uprooted by their father’s unlawful actions.

What makes this case quite interesting is that the father was not the primary caregiver at the time of the application and did not fulfil the role of primary caregiver while in SA. Therefore, the determination of the court was twofold:

  • whether the father should be awarded primary residence; and
  • whether to grant permission for the relocation.

It is clear that the Children’s Act 38 of 2005 (the Act) does not set out certain requirements, which a court should consider before granting the permission to relocate. Over the years the courts have established criteria, which they take into account when determining whether the relocation will be in the best interests of the child. Firstly, the courts will have to determine whether it is in the best interests of the child to relocate, and secondly, whether the relocation is bona fide. The best interests of the child is always of paramount importance in each case concerning the care, protection and well-being of a child.

Factors, inter alia, which a court considers before granting permission for relocation are:

  • The best interests of the child as provided for in s 28(2) of the Constitution and ss 7 and 9 of the Act.
  • Whether the relocation request made is on reasonable and bona fide.
  • The practicalities of the relocation – availability of schools, financial expenditure, employment opportunities etcetera. The court once again highlighted the importance of providing sufficient particulars regarding the relocation before the court will permit such relocation.
  • Whether there will be sufficient direct and indirect contact opportunities between the child and the other parent (and extended family) who still resides in SA.
  • In the event that the child is mature enough to express their views, their views should be taken into account.

After careful consideration of the numerous reports the court received, the court ordered that the son shall reside primarily with the father and relocate to Alaska whereas the two daughters will reside primarily with their mother in SA. The court emphasised child participation as envisaged in s 10 of the Act and respected the wishes of the son to relocate and enjoy primary care by his father. It was clear that the daughters were influenced by their older brother and father and thus completely unaware of their own needs. The court found that even though splitting of siblings is not the ideal option, it is based on the evidence presented, in the best interests of the children concerned.

 

Access the original article here.