South Africa

Substitute permission

If a parent wants to move with the children and the other parent with custody refuses to give permission, the parent who wants to move can request permission from the High Court.

Criteria

The child’s best interest are of paramount importance in every matter concerning the child (section 28(2) of the Constitution of the Republic of South Africa).

Section 7 of the Children’s Act mentions a number of factors that can be relevant:

• The nature of the personal relationship between the child and both parents, or a specific parent. This can be assessed by an expert mental health professional.
• The attitude of the parents towards the child and towards the exercise of parental responsibilities and rights.
• The capacity of the parent(s) to provide for the needs of the child, including emotional and intellectual needs.
• The likely effect on the child of a separation from a specific parent and/or any sibling the child has been living with.
• The child’s age, maturity, stage of development, background, physical and emotional security, and intellectual, emotional, social and cultural development.
• The need for the child to maintain a connection with extended family and his or her culture or tradition.
• The need for the child to be brought up in a stable family environment.  

In the case Wolter v Bensch (22987/2015) guidelines for the courts to follow were summarized: 

• The interest of children are the first and paramount consideration.
• Each case is to be decided on its own particular facts.
• 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.
• 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.
• 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. 

From this case we can also see what factors courts will consider in a relocation case:

• The interests of the relocating parent, including the motivation for and purpose of the proposed relocation, taking into account this parent’s right to independence and freedom of movement.
• Whether the motivation is reasonable and whether the attempt to relocate is done in good faith (as opposed to being designed to frustrate the contact rights of the other parent).
• The interests of the non-relocating parent, in particular the ease, practicality and cost of continued contact with the child.
• Whether separation from the non-relocating parent will severely prejudice the child. The more of an involved relationship this parent has had with the child, the more likely it is that the child will suffer emotionally as a result of being deprived of the relationship with the parent in the same form as he or she had been used to in the past.
• The likely effect of the move on the physical, emotional and psychological well-being of the child.The likely effect of the court refusing relocation on the physical, emotional and psychological well being of the relocating parent.
• The gender issues. Historically, women were more often the primary carers of minor children. To a certain extent, in South Africa, this is still the general position. As such, the applicants in relocation matters have often been, and continue to be, women. Courts therefore must be mindful of the discriminatory impact that refusal of relocation applications could have on the constitutional prohibition of gender discrimination.
• All relevant factors of the specific matter, as well as individual justice.
• In appropriate cases, the views and wishes of the child concerned, depending on the age, maturity and stage of development of the particular child. The Children’s Act specifically gives the child the right to participate in any decision affecting him or her.

The procedure for relocation normally takes about 7 months, but in an urgent case, the court can take a decision within about 6 weeks.

The child’s view

Section 10 of the Children’s Act determines that every child who is of an age, maturity and stage of development to be able to participate in a matter concerning him/her, has the right to participate in an appropriate way, and the views expressed by the child must be given due consideration. 

In relocation matters the Family Advocate (a governmental organisation) advises the court. They will assess the child and the family.

Besides that advice, psychologists or social workers can assess the child and report to the court.

And in more complex cases a curator ad litem can be appointed for young children, or a legal representative can be appointed for older children.