What are the Legal Principles applicable to minor Children’s Relocation matters? Are there differences between Local or provincial and International Relocation?

The challenges with minor children relocation matters

How contact is exercised when minor children relocation

Minor children relocaiton and the Legal Principles applicable

What does our courts say in relocation matters?

Principles applicable to relocation of children Certain guidelines may be distilled from the Constitution, judgments of South African courts, and conventions to which South Africa is a signatory: (a) The interests of children are the first and paramount consideration. (b) Each case is to be decided on its own particular facts. (c) Both parents have a joint primary responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibility to ensure that contact is maintained. (d) Where a custodial parent wishes to emigrate, a court will not lightly 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. (e) The courts have always been sensitive to the situation of the parent who is to remain behind. The degree of such sensitivity and the role it plays in determining the best interests of children remain a vexed question. The best interests of the child Our courts adhere to the ‘best interests’ approach as they are required to do by the Constitution. On the papers, which include the founding, answering and supplementary affidavits as also the report emanating from the Office of the Family Advocate, reference was made to a number of issues associated with the life, circumstances, wellbeing activities, relationships, dependencies of R — all of which contribute to a greater or lesser extent, and in isolation or in conjunction, to determining his ‘best interests’. Amongst these issues are R’s attachment to both parents and grandparents, the disruption of R’s bond with his father if he were to move to Cape Town, the somewhat conflicted relationship between LW and DB, the demands made on both parents to hold down employment and earn livings to support their child, the arrangements made for the care of R in Vereeniging, Vanderbijlpark and Cape Town, the personal needs and desires of all adults involved in this issue, taking into account the constitutional acknowledgments of the rights of human dignity, freedom and equality. In the unreported judgment dissenting from the majority of the court in Ford v Ford WLD 5001/04, I discussed the manner in which one may attempt to give meaning and content to the concept of the ‘best interests of the child’. The majority of the court expressed no view on this issue and the Supreme Court of Appeal did not disagree therewith. It is convenient to repeat those portions of the judgment which are relevant to the issue before us today. Our law has developed the ‘best interests of the child’ approach which has now been enshrined in the Constitution which, in s 28(2), proclaims that ‘a child’s best interests are of paramount importance in every matter concerning the child’. This principle has become known, in one form or another, in many national legal systems and has been recognised in international instruments. However, some writers suggest that the principle has yet to acquire much specific content or to be the subject of any sustained analysis designed to shed light on its precise meaning. The result is that diverse interpretation may be given to the principle in different settings. I suggested that care also be taken to avoid slavish adoption of such content as has been given to specific legislation or instruments, since language, as also constitutional, cultural, familial, social and other traditions, inform contrasting interpretations. The full complexity of the South African Constitution is continually being explored. Section 28(2) and the ‘best interests’ principle do not represent and are not situate within a Constitution which envisages a monolithic or unidimensional approach reflecting a single, unified philosophy of children’s rights. There can be no specific and readily ascertainable recipe for resolving the inevitable tensions and conflicts that arise in each given situation. The respective concerns and entitlements of different actors involved cannot be assumed to always be clearly defined and delineated. In different situations, other interests to be balanced may include, not only the particular child but also siblings, parents, nuclear and extended families and sometimes the local community, society and the state. The ‘best interests’ principle is used to provide a framework for addressing the entire range of major issues affecting children. The principle may be invoked in relation to and in the context of the separation of the child from the family setting, adoption and comparable practices, parental responsibility for the upbringing and development of the child, the child’s involvement with the police and the justice system, the provision of housing and social services, access to schooling and so on.

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Carletonville Children’s Court

Family law legal matters can be very stressful. This is so whether you live in Carletonville or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Carletonville. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Carletonville or any other city in South Africa.

What to do before visiting the Carletonville Children’s Court

Before you approach the Children’s Court in Carletonville, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Carletonville has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Carletonville Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Carletonville Children’s Court

The Carletonville Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Carletonville Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Carletonville Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

• PART A: PARTICULARS OF CHILD(REN)
• PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
• PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
• PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

• Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
• Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Carletonville.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Carletonville Children’s Court

Once you complete the Form A and submit it to the Clerk of the Carletonville Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Carletonville Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

• Get a social worker involved in the matter;
• Appoint a legal representative for the minor child;
• Implement interim care and contact arrangements;
• Having the parties attempt to agree on a parenting plan;
•  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Carletonville Children’s Court

Once the Carletonville Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Carletonville Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Carletonville, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester