When can a divorced parent of a minor child remove the child from South Africa

In the case of Helen Margaret Ford V Michael George William Ford, the Supreme Court of Appeal (Case 52/05) rejected an application by the custodian parent of young child for leave to remove the child permanently from South Africa on the basis that it was not in the interests of child.

In relocation applications the role of expert witnesses should not be underplayed. On 1 December 2005, the Supreme Court of Appeal was persuaded by the expert’s opinion and dismissed an appeal by a mother and custodian parent of a minor child born of her failed marriage with the respondent against a refusal of her application for leave to remove the child from South Africa in order to relocate with her to the United Kingdom. The child was strongly bonded to both parents and the interests of the child were the first and paramount consideration. The respondent father had refused to consent to the child’s removal. The parents spent almost equal amounts of time with their daughter and shared responsibility for her various needs. This shared parenting arrangement had worked well until the appellant’s decision to relocate.

The court restated that the test in matters of this nature is ‘the best interests of the child’. The court must evaluate, weigh and balance a myriad of different factors, including the child’s wishes where she is adequately mature to articulate her wishes.

The court cautioned that the refusal of such applications may impact negatively on a custodian parent’s rights to dignity, privacy and freedom of movement and result indirectly in unfair gender discrimination as women still predominantly care for children in South African society.

The court held that the appellant’s decision to relocate was ill-researched and precipitate and that, in the light of an agreed opinion of experts called by the parties that the child’s interests would be best served by remaining in South Africa, the move would be prejudicial to her emotional and psychological well-being.

It was, however, pointed out by the court that the refusal to grant the appellant leave to relocate with her daughter was not immutable and that, should the circumstances be right, she may well be in a position to obtain such leave in the not too distant future.

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