Introduction to T.R.S.T v U.A.R: A Relocation Application to Israel
The recent case of T.R.S.T v U.A.R and Others (019086/2023) [2025] ZAGPJHC 399 (14 April 2025) presented the Gauteng Division of the High Court with a complex international relocation dispute involving two minor children, D and B. Heard by Senyatsi J, this case centred on an application by the children’s mother, an Israeli and American citizen, for permission to permanently relocate her two minor children from South Africa to Israel. The applicant’s situation was particularly challenging as she was residing in South Africa illegally following the expiration of her spousal visa (which she had obtained through a previous marriage), a subsequent fraudulent visa application, and eventual criminal conviction for violating the Immigration Act 13 of 2002. This legal predicament meant she faced potential deportation to Israel, prompting her application to take her children with her.
The first respondent—the children’s South African father opposed the application on the primary ground that relocation would not serve the children’s best interests. Significantly, though the parents were never married, they both exercised joint parental responsibilities and rights under section 18 of the Children’s Act 38 of 2005, with contact arrangements regulated by a previous court order following recommendations from a forensic clinical psychologist. The court benefited from extensive expert testimony presented between 25-29 November 2024, including evidence from multiple psychologists with different perspectives on the proposed relocation. The judgment navigates the delicate balance between the applicant’s precarious immigration status, her desire to return to Israel with her children, the respondent’s opposition based on concerns about Israel’s safety amid ongoing conflict, and ultimately, the paramount consideration of the children’s best interests as mandated by section 28(2) of the Constitution of the Republic of South Africa.
Legal Framework: The Paramount Importance of Children’s Best Interests in Relocation Disputes
The legal principles governing relocation disputes in South Africa firmly centre on the best interests of the child standard. This framework begins with section 28(2) of the Constitution of the Republic of South Africa, which unequivocally states that “a child’s best interests are of paramount importance in every matter concerning the child.” This constitutional imperative is further developed in the Children’s Act 38 of 2005, particularly section 7, which outlines specific factors courts must consider when determining children’s best interests. In relocation disputes specifically, South African courts have developed nuanced approaches through case law.
In Jackson v Jackson [2001] ZASCA 139; 2002 (2) SA 303 (SCA), Scott JA articulated that while courts generally don’t lightly refuse permission for children to relocate with a custodian parent whose decision is bona fide and reasonable, “each case must be decided on its own particular facts.” The Jackson case explicitly warns against “elevat[ing] to rules of law the dicta of judges made in the context of the peculiar facts and circumstances with which they were concerned.” This case-by-case approach requires courts to evaluate numerous competing factors, as established in Van Rooyen v Van Rooyen 1999 (4) SA 435 (C). The applicability of different approaches to relocation whether a pro-relocation approach or neutral approach depends significantly on the caregiving arrangement. As Senyatsi J noted, a pro-relocation approach underscored by a presumption favouring the primary caregiver cannot apply in cases of joint caregiving, as in this matter. Instead, a neutral approach was appropriate, where neither parent begins with a presumption in their favour.
In F v F [2006] 1 All SA 571 (SCA), Maya AJA (as she then was) highlighted the importance of courts being “acutely sensitive” to the possibility that differential treatment of custodian parents might indirectly constitute unfair gender discrimination. In S v M (CCT 53/06) [2007] ZACC 18, Sachs J emphasised the contextual nature and inherent flexibility of section 28, noting that the best interests principle has “never been given exhaustive content” and must remain adaptable to each unique situation. The judgment in Cunningham v Pretorius 2008 JDR 1022 (T) succinctly captures the court’s task in relocation disputes: to acquire “an overall impression,” bring “a fair mind to the facts,” and make “a structured value-judgment” about what serves the child’s best interests.
The Competing Parental Positions and Expert Evidence
The judgment reveals starkly contrasting positions between the parents regarding the proposed relocation to Israel. The applicant mother contended that upon arrival in Jerusalem, she would initially live with her father until securing employment—a right she could not exercise in South Africa due to her illegal immigration status. She highlighted that her father operated a supermarket business in Jerusalem and could support her and the children temporarily. The applicant’s father provided a sworn statement confirming his willingness to accommodate his grandchildren in his large house, despite never having met them. He also noted that while as an observant Jew he would have preferred his grandsons to be circumcised, he would accept them without this procedure.
The applicant later claimed having secured a job offer with a gross earning of Israeli NIS 9500, though the court found this insufficient without clarity on living expenses. Conversely, the first respondent father argued that the children’s interests would be better served by remaining in South Africa under his care. As a practicing attorney with sufficient income, he could provide suitable accommodation in his free-standing house with enough rooms for the children. He emphasised that his fiancée had agreed to help raise the children and had filed a supporting affidavit. Additionally, he employed a full-time helper and noted that the children had established relationships with his extended family members. Critically, he expressed serious concerns about Israel’s safety, characterising it as “a violent country involved in a war not just with Hamas but with most of its neighbours.”
The expert evidence presented to the court came from three professionals with different mandates: Dr. R. Fasser (court-appointed to conduct a care and contact evaluation), Mr. L. Carr (jointly appointed to conduct a relocation assessment), and Dr. A. Townsend (appointed by the applicant to provide a peer review of Mr. Carr’s report). The experts’ positions diverged significantly—Dr. Fasser remained neutral on relocation while acknowledging both parents had good parenting qualities; Mr. Carr opposed relocation, citing concerns about Israel’s ongoing conflict and the children’s adjustment challenges; and Dr. Townsend criticised Mr. Carr’s report as biased and one-sided, arguing it should be disregarded entirely.
Senyatsi J’s Analysis: Balancing Relocation Factors During Conflict in Israel
Senyatsi J’s analysis focused meticulously on whether relocating the children to Israel would serve their best interests amid challenging circumstances. The court took judicial notice of the ongoing conflict in the region, specifically referencing the Hamas attack on Israel that claimed over a thousand Israeli lives and Israel’s retaliatory actions resulting in over 61,700 casualties. The judgment noted continuing rocket attacks on Jerusalem and Tel Aviv that force Israeli citizens to seek refuge in bomb shelters. Through this security lens, the court examined several critical factors regarding the children’s potential life in Israel. Regarding family support, the judgment highlighted concerning gaps in the applicant’s relocation plan. The children’s maternal grandfather—described as “an absent father” during the applicant’s upbringing had never met his grandchildren despite claiming willingness to support them. Both the grandfather and the children’s uncle worked long hours (11:00-21:00) at a supermarket in Modi’in, 60km from Gaza strip, making their practical availability for childcare questionable.
The maternal grandmother, living separately in a one-bedroom apartment, worked two jobs as a hairdresser and radio presenter. The court noted that the applicant’s three sisters collectively had 19 children of their own and lived at considerable distances requiring lengthy commutes. The judgment also identified significant informational deficiencies in the applicant’s case: no details about school costs and benefits, childcare arrangements should the applicant secure employment, neighbourhood safety, or comprehensive financial planning beyond the claimed job offer.
Particularly concerning to the court was the Israeli military conscription law, noting that “when the children turn 18 years of age, they will be conscripted into the Israeli army as required by the law of Israel.” This contrasted sharply with South Africa, where “they will continue to live as civilians as opposed to being soldiers.” The court rejected counsel’s argument that the father’s financial capacity to travel for contact rights should favour granting relocation. While acknowledging that refusing relocation would adversely impact the mother-child relationship, Senyatsi J concluded that under the specific circumstances, the court must “exercise its discretion to rise above the conflicting interests of both parents” to prioritise the children’s best interests as constitutionally required.
Implications for South African Family Law and International Relocation Applications
The judgment in T.R.S.T v U.A.R provides significant guidance for practitioners and parents involved in cross-border relocation disputes, particularly where joint parenting arrangements exist. The case reinforces the primacy of individualised assessment in relocation matters, rejecting formulaic approaches in favour of what Sachs J in the S v M case described as “a close and individualised examination of the precise real-life situation of the particular child involved.” This judgment demonstrates the continued evolution away from gender-based presumptions in family law, emphasising that in joint caregiving arrangements, neither parent enjoys a presumptive advantage.
The court’s thorough consideration of safety concerns in the destination country establishes an important precedent for future relocation applications involving regions experiencing political instability or armed conflict. By taking judicial notice of the ongoing conflict in Israel and considering its potential impact on the children’s wellbeing, Senyatsi J affirmed that geopolitical realities form a legitimate and significant factor in the best interests analysis. The case highlights the substantial evidentiary burden facing parents seeking relocation, particularly regarding practical living arrangements, financial planning, educational opportunities, and support systems in the proposed new environment. The applicant’s inability to provide comprehensive information on these matters proved detrimental to her case.
Notably, the court considered long-term implications for the children, including conscription laws that would affect them upon reaching adulthood suggesting that courts may properly consider not only immediate circumstances but also foreseeable future impacts of relocation. While acknowledging the personal hardship faced by the applicant due to her immigration status, the court maintained that even compelling parental circumstances cannot override children’s best interests. This reinforces that regardless of sympathetic parental situations, South African courts will consistently prioritise children’s welfare above all other considerations in family law matters. The judgment demonstrates judicial willingness to engage critically with expert evidence, evaluating competing professional opinions rather than automatically deferring to expertise. This approach encourages legal practitioners to carefully select and prepare expert witnesses who can withstand rigorous examination of their methodologies and conclusions.
Judge Senyatsi’s decision to refuse the relocation of the minor children to Israel demonstrates exemplary judicial reasoning that truly prioritises children’s welfare above all other considerations. By adopting a neutral approach rather than a pro-relocation stance, the court properly recognised that in joint parenting arrangements, neither parent begins with an advantage. This methodical, unbiased assessment of all relevant factors—including the security situation in Israel, the children’s established support networks in South Africa, and the questionable support structures awaiting them in Israel reveals a careful balancing act that puts the children’s interests at the center of deliberation.
The judgment shows foresight in considering not just immediate concerns but long-term implications for the children. The court correctly identified that the ongoing conflict in Israel posed genuine safety risks, while the mandatory military conscription awaiting the children at age 18 represented a significant future concern. These considerations, coupled with the applicant’s inadequate relocation plan including vague financial arrangements, unproven family support, and unclear educational provisions clearly justified refusing the application regardless of the mother’s sympathetic immigration predicament.
Judge Senyatsi demonstrated judicial independence in evaluating expert evidence, not simply deferring to professional opinions but critically assessing their methodologies and conclusions. This case stands as an excellent example of South African courts’ commitment to Section 28(2) of the Constitution elevating children’s best interests above all else, including parental preferences or circumstances. In refusing to allow relocation simply because one parent faced deportation, the court reinforced the principle that children are not extensions of their parents’ legal situations but individuals with independent rights deserving paramount protection.
Relocation cases involving joint custody arrangements present courts with perhaps the most heart-wrenching decisions in family law jurisprudence. When both parents share loving, meaningful relationships with their children as evidenced by Dr. Fasser and Mr. Carr’s reports confirming equal attachment any decision inevitably causes significant emotional harm to one parent-child relationship. The court faces the unenviable task of weighing competing rights: the applicant’s right to freedom of movement against the respondent’s right to maintain close contact with his children, all while prioritising the children’s right to stability, safety and continued meaningful relationships with both parents. Judge Senyatsi’s acknowledgment that refusing relocation “will have an adverse impact about separation of the minor children from the applicant” demonstrates the painful awareness that no perfect solution exists. In such cases, courts must make the least detrimental choice available, accepting that some degree of hardship is unavoidable for at least one party a Solomon-like burden that requires exceptional judicial wisdom.
Questions and Answers
What was the main legal issue in T.R.S.T v U.A.R? The main legal issue was whether it would be in the best interests of two minor children to be permanently relocated to Israel with their mother (who faced deportation due to her illegal immigration status) or to remain in South Africa with their father.
What is the constitutional foundation for decisions regarding children’s interests in South Africa? Section 28(2) of the Constitution of the Republic of South Africa states that “a child’s best interests are of paramount importance in every matter concerning the child.” This constitutional principle formed the fundamental basis for the court’s approach to the relocation application.
How does South African law approach the relocation of children with a custodian parent? According to Jackson v Jackson [2001] ZASCA 139; 2002 (2) SA 303 (SCA), courts generally won’t lightly refuse permission for children to relocate with a custodian parent if the decision is bona fide and reasonable. However, each case must be decided on its own facts, and there are no rigid rules that apply to all situations.
What approach did Senyatsi J adopt in deciding this relocation application and why? Senyatsi J adopted a neutral approach rather than a pro-relocation approach because both parents exercised joint parenting rights. The court determined that where joint caregiving exists, there should be no presumption in favour of either parent, and a fresh inquiry must be conducted on a case-by-case discretionary basis.
What did the court in Cunningham v Pretorius say about how judges should approach relocation disputes? In Cunningham v Pretorius 2008 JDR 1022 (T), Murphy J held that judges must acquire “an overall impression and bring a fair mind to the facts,” assess all relevant facts, opinions and circumstances in a balanced fashion, and render “a structured value-judgment” about what will be in the best interests of the child.
According to F v F, what gender considerations might arise in relocation applications? In F v F [2006] 1 All SA 571 (SCA), Maya AJA noted that courts must be “acutely sensitive” to the possibility that differential treatment of custodian and non-custodian parents may constitute indirect gender discrimination, as parenting roles in South Africa remain largely gender-based and refusal of relocation can disproportionately impact women.
How does the law distinguish between a pro-relocation approach and a neutral approach? A pro-relocation approach is underscored by a presumption in favour of the primary caregiver, as seen in cases like Van Rooyen v Van Rooyen and Godbeer v Godbeer. A neutral approach, which the court applied in this case, has neither a presumption for nor against relocation and examines each case afresh without favouring either parent.
What factors regarding the conditions in Israel did the court consider in its decision? The court considered Israel’s ongoing conflict with Hamas and neighbouring countries, noting rocket attacks on Jerusalem and Tel Aviv that force citizens into bomb shelters. The court also considered the mandatory military conscription laws in Israel that would affect the children upon turning 18, compared to South Africa where they would remain civilians.
What did Sachs J in S v M say about the flexibility of the best interests principle? Sachs J stated that the strength of section 28 lies in its “contextual nature and inherent flexibility,” noting that the best interests principle has “never been given exhaustive content” and must remain flexible as individual circumstances determine which factors secure a particular child’s best interests.
What was the relevance of the Immigration Act to this case? The Immigration Act 13 of 2002 was relevant because the applicant’s illegal status in South Africa after her spousal visa expired formed the primary basis for her relocation application. Her conviction for visa fraud meant she faced deportation to Israel, which prompted her application to take her children with her.
Does a non-custodian parent have legal obligations to maintain contact with a child? According to F v F, non-custodian parents have “no reciprocal legal obligation to maintain contact with the child and may relocate at will.” The judgment cited academic work by Elsje Bonthuys highlighting this “systematic lack of reciprocity” in how the law treats custodian versus non-custodian parents.
What weight did the court give to the expert evidence in this case? The court considered all expert evidence but demonstrated that it wasn’t bound by any expert’s conclusions. Even when acknowledging criticisms of Mr. Carr’s report, the court made its own independent assessment based on all relevant factors concerning the children’s best interests rather than simply following expert recommendations.
What information did the court find lacking in the applicant’s case? The court found insufficient information about the children’s potential schooling costs and benefits, neighbourhood safety, childcare arrangements, comprehensive financial planning, and how the needs of the minor children would be met in Israel given the limited availability of family support.
How did the court respond to the argument that the father’s financial ability to travel should favour granting relocation? The court rejected this argument, refusing to base its decision merely on which parent could more easily travel for contact. Instead, it prioritised the overall best interests of the children rather than the relative convenience or financial capacity of either parent.
What does this judgment tell us about how South African courts weigh the interests of parents against those of children? The judgment reinforces that regardless of sympathetic parental circumstances (such as the mother’s immigration challenges), South African courts will consistently prioritise children’s welfare above parental interests. As Senyatsi J stated, the court must “exercise its discretion to rise above the conflicting interests of both parents” to determine what truly serves the children’s best interests.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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