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

If parents cannot agree on the issue of relocation of minor children with a parent, a court of law would have to step in. If the parent who wishes to relocate is successful, it would mean the other parent would not have contact with the minor child as he or she used to. This is a difficult situation to deal with if you are not the custodial parent of the minor child. For one, you may not see you child face to face every day or every weekend as you used to. You will, therefore unfortunately not see your child grow and be there during his or her various developmental stages in life.

The challenges with minor children relocation matters

That is why relocation matters can be difficult to deal with by the parents due to the high amount of emotions involved. The usual issues that parents would “fight” over are contact and care issues while the parents are living in the same town or suburb. The court would decide whether a parent can see a child from 11:00 or from 14:00 or on a Monday or Sunday. However, in relocation matters, the effect of the court order is that contact would not take place in person, and as often and regularly by the nature of the relief sought.

How contact is exercised when minor children relocation

We do agree that there are other means of contact if relocation is allowed. That includes video contact, text and email etc. The minor child can also visit the parent during school holidays, or the parent can visit the minor child. In the case of international relocation, the option can become very costly and sometimes impossible. Therefore, parties should strongly look into those alternative means of contact in the event the application for relocation is successful.

Minor children relocaiton and the Legal Principles applicable

This article deals with the issue of the best interest of minor children in relocation matters and the principles applicable. Each case is different, just as each family and its dynamics differs vastly from the next. What follows is an extract of a court case that dealt with the issue of relocation. You can apply those principles to your case.

What does our courts say in relocation matters?

In the matter of LW v DB 2020 (1) SA 169 (GJ), the Gauteng High Court dealt with the issue of the best interest of minor children specifically in relocation matters. It outlined the principles that follows.

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.

If you wish to relocate with your minor child to a different province or abroad, consider the above principles. It would make your case much easier if you understand them.