This is a summary of the present law which uses the test of what is in the best interests of the child.
After termination of the marriage by divorce in Ford v Ford [2004] 2 All SA 396 (W) the mother sought leave of the court to relocate a minor child of the marriage (who was eight years old) from South Africa to the United Kingdom (UK), as well as ancillary relief. The father counter-applied for a variation in the custody order if the mother relocated to the UK.
Weiner AJ dismissed the application pointing out that even if a custodial parent (the mother in this case) had made sufficient, reasonable and adequate arrangements for her relocation which would provide the child with an education, an acceptble standard of living and way of life, it would not necessarily mean that such a decision would be in the minor child’s best interests. The court ought also to have regard to any detrimental connsequences of the relocation.
A major consideration in deciding an application of this nature should be the consequences of interrupting a close psychological and emotional bond which a child has with the non-custodial parent. In casu the mother had failed to show that the benefits to the child of relocating outweighed the negative consequences of a drastic change in the relationship between the child and her father.
The mother took this decision on appeal and lost again.
In F v F [2006] 1 All SA 571 (SCA), the appellant, a custodian mother of a ten-year-old daughter, sought permission of the court to relocate to the United Kingdom (UK) with her, citing among other factors fear of violent crime and lack of job security in this country. By comparison, in the UK, she would be reunited with her family and live in a peaceful environment that offered better social security. The non-custodian husband opposed the relocation of the child, indicating that, while he was in a position to provide for the financial needs of the child in this country, the mother did not have concrete financial arrangements for both herself and the child in the UK.
The High Court, as well as the full bench, held that it was not in the best interests of the child to have her relocated. The SCA dismissed the appeal against the finding of the court a quo. Maya AJA (Zulman, Cameron, Van Heerden and Ponnan JJA concurring) said that, in deciding whether or not relocation would be in the child’s best interests, the court should carefully evaluate, weigh and balance a myriad competing factors, including the child’s wishes in appropriate cases. In the instant case the custodian parent faced just too many imponderables relating to her financial position in the UK as she had only a promise of temporary low-paying employment, without a formal appointment. Such imponderables made it difficult for the court to determine their likely effect on the physical, emotional and psychological well-being of the child.
The appellant was the custodian parent of a minor child and sought leave to remove the child permanently from South Africa. The respondent was the non-custodian parent of the child and refused to consent to the removal of the child from South Africa. The appellant’s application was unsuccessful in the WLD, as also, on appeal to the Full Bench of the same Division of the High Court. It appeared from the evidence that, although the appellant was the custodian parent of the child, the practical effect of the arrangement provided for in the parties’ order of divorce was that they spent almost equal time with the minor child and shared responsibility for her various needs. The expert witnesses for both parties were agreed that the child was attached to both parents, that her separation from either parent would be deleterious to her well-being and that it was in the child’s best interests that she be in close proximity to both parents. The child was 7 years old at the time of the institution of the application a quo and, as appeared from the evidence, expressed the view that she did not want to live in any country if both her parents did not live there. In the present appeal, the respondent brought an application in terms of s 22(a) of the Supreme Court Act 59 of 1959 to allow the child to express her views on the proposed relocation at the hearing of the appeal because more than three years had elapsed since the launch of the original application, and her views might be of assistance to the Court.
Held, that, in such matters, the courts consistently applied the criterion that the child’s best interests were paramount. What was in the child’s best interests, however, depended on the facts of the particular case.
Held, further, that in deciding whether or not relocation would be in the child’s best interests, the Court had to evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases.
Held, further, that, from a constitutional perspective, the rights of a custodian parent to pursue his or her own life or career involved fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of those rights might well have a severe impact on the welfare of the child involved. So, a refusal to allow a custodian parent to emigrate with the child might impact adversely on the custodian parent and, in turn, on the child. For that reason, the Courts had properly to consider the impact of a refusal of an application for leave to emigrate with the child on the custodian parent insofar as it might have an adverse effect on him or her and, in turn, on the child.
Held, further, that, the Courts were also required to be acutely sensitive to the possibility that differential treatment of custodian and non-custodian parents could, and often did, constitute indirect gender discrimination as it was still predominantly women in South Africa who were the custodian parents.
Held, further, that, in determining whether the proposed move was in the best interests of the child, the Court had to consider the custodian parent’s interests, the reasonableness of his or her decision to relocate, the practical and other considerations on which that decision was based, and the extent to which he or she had properly thought through the advantages and disadvantages to the child of the proposed move.
Held, further, that the child’s views could also not be ignored.
Held, further, that the appellant had not properly investigated the practicalities of her decision and had no structured plan for the relocation: her plans were constantly changing. There were too many imponderables in the appellant’s plans to enable the Court to assess the likely effect of the proposed relocation on the child’s physical, emotional and psychological well-being. When those imponderables were weighed up against the expert opinion that it was in the child’s best interests that she remain in close proximity to both parents and that separation from either parent would be prejudicial to her well-being, the decision of the trial Court and the Full Court could not be faulted.
Held, further, that the Court’s refusal of the appellant’s application was, however, not immutable and it was open to her, at a later stage, and if justified by the circumstances, to approach the Court once again for leave to emigrate with the child.
Held, further, in respect of the respondent’s application to allow the child to express her views to the Supreme Court of Appeal that it was not proper that she be allowed to do so. The proper route would have been to have had the child interviewed by professionals and to have placed that evidence before the Court. The application therefore had to be dismissed
Held, accordingly, that the appeal and the respondent’s application in terms of s 22 (a) of the Supreme Court Act be dismissed.
