Shaping the Future of Family Law: A Pivotal South African Case on Child Relocation – T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024).

Facts of the Case

Background

• Parties and Relationship: From 2009 to 2012, T.R (the applicant) and S.M (the respondent) were in a relationship but never married. They had a daughter who, at the time of the case, was 12 years old.
• Child’s Circumstances: The daughter attended a private school in Johannesburg, excelling academically. The applicant had been solely responsible for her care, while the respondent exercised contact sporadically.
• Family Dynamics: The child lived with the applicant, her stepfather, and her 4-year-old half-sister.
• Relocation Issue: The applicant secured an executive position in Nairobi, Kenya, and decided to relocate with her family, including the minor child. However, the respondent withheld his consent for the child’s relocation.

Applicant’s Submissions

• Represented by: Advocate Van der Walt.
• Respondent’s Opposition: The applicant argued that the respondent’s opposition to the relocation was not bona fide. She claimed that he failed to substantiate his reasons for withholding consent, particularly regarding his fears for the child’s safety due to alleged terrorist activity in the region.
• Conditions for Relocation: The applicant pointed out that the respondent had initially agreed to the relocation, subject to certain conditions. These included changing the child’s surname to his, a future relocation of the child to Dubai to live with him, spending school holidays with him, and a parenting plan being made an order of court.
• Respondent’s Parenting: It was argued that the respondent had not been an active parent, often needing reminders of his parental duties. His contact with the child had been minimal, and he had ceased to pay maintenance since 2021.
• Financial Responsibility: The applicant had borne the full financial responsibility for the child since 2021. The respondent alleged his business was not performing well, but he made a payment of R16 000 towards school fees in September 2023.

Respondent’s Submissions

• Represented by: Advocate Mlilo.
• Procedural Points: The respondent highlighted procedural issues, such as the lack of a family advocate report, and suggested that the matter was not ripe for hearing. He also argued that the applicant should have resolved the dispute through mediation.
• Active Involvement: The respondent countered the applicant’s claims, stating his involvement in the child’s life, including contributing to her maintenance before 2019 and taking her on a holiday to Dubai.
• Family Advocate Report: He emphasized the importance of a report from the Family Advocate, arguing that without it, the court could not determine if the relocation was in the child’s best interest.
• Contact Plan: The respondent expressed concerns about his future contact with the child if she relocated and feared being replaced by the applicant’s husband as the child’s father.

Application of Law

Legal Framework

• Children’s Act: The court referred to Section 18(1) of the Children’s Act, highlighting that a person may have either full or specific parental responsibilities and rights concerning a child.
• Parental Consent: Section 18(3) stipulates that a parent must give or refuse any consent required by law in respect of the child, including consent to the child’s departure or removal from the Republic.

Considerations by the Court

• Respondent’s Concerns: The court noted the respondent’s concerns about what would happen to him once the minor child relocated to Kenya. However, it was observed that he conceded the applicant’s bona fide intention to relocate but failed to present evidence as to why it was not in the child’s best interest.
• Parental Responsibility and Contact: The court acknowledged the respondent’s sporadic contact and limited involvement in the child’s life, contrasting it with the applicant’s consistent care and involvement.
• Best Interests of the Child: The court emphasized the paramount importance of the child’s best interests, as stated in Section 28(2) of the Constitution Act.

Assessment of the Evidence

• Child’s Welfare and Relocation Impact: The court considered the evidence regarding the child’s welfare, her educational achievements, and the proposed support in Kenya. It was noted that the child was well-adjusted and would likely continue to thrive in the new environment.
• Respondent’s Financial Contribution: The respondent’s inconsistent financial support was acknowledged, alongside the applicant’s sustained financial responsibility.
• Digital Age and Parenting: The court recognized the opportunities the digital age offers for the respondent to maintain contact with the child despite the distance.

Court’s View on Respondent’s Position

• Maintenance vs. Contact: The court agreed with the applicant’s counsel that the respondent conflated maintenance with contact. His limited financial contributions were noted, especially in light of his ability to afford luxury expenses.
• Family Advocate Report: The court noted the respondent’s insistence on a family advocate report but observed that he could have obtained such a report himself. The court suggested that the logical arrangement for contact would be during school holidays, as previously proposed by the respondent.

Reference to Cases Cited by the Court

Jackson v Jackson

• Citation: Jackson v Jackson 2001 (2) SA 303 (SCA)
• Relevance: This case set a precedent regarding the relocation of minor children. The Supreme Court of Appeal (SCA) stated that generally, the court would not refuse leave to remove a minor child if the custodian parent’s decision to emigrate is shown to be bona fide and reasonable. The SCA acknowledged that even if the non-custodial parent’s rights are materially affected, the best interests of the children are usually served if custodian parents are not thwarted in their endeavour to emigrate pursuant to a decision rationally and genuinely taken. This case was relevant in T.R v S.M as it provided a framework for evaluating the applicant’s decision to relocate to Kenya with the child.

J v J

• Citation: J v J 2008 (6) SA 30 (C)
• Relevance: In this case, it was held that the law permits parents to act independently in certain instances as long as there is consideration for the other party’s view, and their “agreement” is not necessarily required. This case was significant in T.R v S.M for the court to determine the extent of the respondent’s consent or disagreement in the context of the applicant’s relocation plans.

Godbeer v Godbeer

• Citation: Godbeer v Godbeer 2000 (3) SA 976 (C)
• Relevance: The case of Godbeer v Godbeer established that if a party has carefully considered relocation, then the court is not to interfere with the decision, especially by a primary caregiver. This precedent was pertinent in the case of T.R v S.M, particularly in supporting the applicant’s carefully considered decision to relocate for her career, underscoring the respect for the primary caregiver’s role in determining the child’s best interests.

F v F

• Citation: F v F 2006 (3) SA 42 (SCA)
• Relevance: In F v F, the court emphasized the constitutional perspective on the rights of the custodian parent to pursue their own life or career, which involves fundamental rights to dignity, privacy, and freedom of movement. This case was referenced to underscore the potential adverse impact on the welfare of the child when a custodian parent is thwarted in the exercise of these rights. The relevance in T.R v S.M was in considering the impact of refusing the applicant’s application for leave to emigrate with the child on both the custodian parent and, in turn, the child.

Order Made by the Court

Court’s Decision

1. Grant of Leave for Relocation: The court granted the applicant leave to remove the minor child, P.R., a female born on 29 March 2011, permanently from the Republic of South Africa to relocate to Kenya.
2. Leave for Child’s Residence in Kenya: The court granted the applicant leave to remove the minor child from the Republic of South Africa to reside with her in Kenya.
3. Dispensation of Respondent’s Consent: The court dispensed with the respondent’s consent for the departure of the minor child from the Republic of South Africa to travel with the applicant to Kenya, as required in terms of section 18 (3) (c) (iii) of the Children’s Act.
4. Travel Formalities: The court permitted the minor child to depart from the Republic of South Africa, accompanied by the applicant or her appointed nominee, without the requirement of a parental consent affidavit from the respondent. This is subject to compliance with the remaining provisions of regulation 6 (12) (b) to the Immigration Act 13 of 2022.
5. Full Parental Responsibilities and Rights to Applicant: The court declared that the applicant holds full parental responsibilities and rights in respect of the minor child, as provided for in section 18 of the Children’s Act 38 of 2005.
6. Respondent’s Parental Responsibilities and Rights: The court limited the respondent’s parental responsibilities and rights to those provided for in section 18(2)(d) of the Children’s Act. These include maintaining contact with the minor child and contributing to her maintenance needs.
7. Contact Arrangements Post-Relocation: Upon relocation to Kenya, the respondent was entitled to exercise contact with the minor child during every alternate long school vacation, at his cost. Additionally, the respondent was permitted to have telephonic or video contact with the minor child three times per week, in accordance with the minor child’s school schedule.
8. Costs: The respondent was ordered to pay the applicant’s legal costs on an attorney-client scale.

Conclusion and Analysis of the Judgment

The judgment rendered by MAHOMED AJ in the case of T.R v S.M represents a well-considered application of the legal principles governing parental rights and the best interests of the child. The decision reflects a deep understanding of the complexities involved in cases of international relocation involving minor children.

The judge’s application of the relevant statutes, particularly the Children’s Act, and the adherence to the Constitution’s paramountcy of a child’s best interests, were both appropriate and commendable. By granting the applicant leave to relocate with the minor child to Kenya, the court acknowledged the fundamental rights of the custodial parent to pursue career opportunities and personal growth, which, in turn, benefit the child. The judge recognised that the applicant had been the primary caregiver and had consistently provided for the child’s needs, both emotionally and financially.

MAHOMED AJ’s reliance on pertinent case law, including Jackson v Jackson and F v F, further solidified the rationale behind the decision. These precedents underscore the importance of allowing custodian parents the freedom to make life choices that they deem beneficial for their children, without undue obstruction, as long as these choices are made in good faith and with rational consideration.

The court’s approach to the respondent’s concerns and rights was balanced and fair. While the respondent’s consent was dispensed with, his parental rights were not entirely disregarded. The judge facilitated a means for the respondent to maintain contact with the child, thus upholding the child’s right to have a relationship with both parents.

Furthermore, the judge’s critical evaluation of the respondent’s sporadic involvement in the child’s life and his inconsistent financial contributions added a layer of pragmatism to the decision. It acknowledged the realities of the child’s existing familial bonds and the environment in which she had been thriving.

In conclusion, MAHOMED AJ’s judgment in T.R v S.M was a judicious blend of legal precedent, statutory interpretation, and a sensitive understanding of the human elements involved in family law. The decision rightly prioritised the child’s welfare and upheld the custodial parent’s rights, while still considering the non-custodial parent’s role and affording him reasonable contact rights. This case exemplifies the delicate balance courts must strike in family law matters, especially in cases involving the relocation of children across international borders.

Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.

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