Factual Background: A Tale of Parental Acrimony and Non-Cooperation
The case of B.U v C.M and Others presents a deeply troubling portrait of how parental discord can prejudice a child’s fundamental rights and interests. The applicant, Ms B.U, and the first respondent are the natural parents of O, a minor female child born out of wedlock on 4 May 2013. What should have been a straightforward matter of securing travel documentation for a child’s overseas holiday became mired in years of litigation, mutual antagonism, and deliberate obstruction.
The roots of this dispute trace back to contested paternity proceedings. Initially, the first respondent disputed his biological relationship to O, leading to protracted litigation until DNA testing in September 2014 confirmed his paternity. This resolution paved the way for a comprehensive parenting order granted by Kose AJ on 26 September 2016, which established both parties as co-holders of parental responsibilities and rights under the Children’s Act 38 of 2005. Crucially, this order stipulated that the applicant held primary residence and care of O, whilst both parents retained co-guardianship rights.
The 2016 order also addressed international travel arrangements, limiting overseas trips to six weeks and requiring the first respondent’s name to appear on O’s unabridged birth certificate and both South African and German passports before any international travel could occur. However, the first respondent’s systematic failure to comply with these directives necessitated further court intervention. In August 2019, Erasmus J was compelled to issue specific orders compelling the first respondent to attend to passport applications and consent procedures.
The current application arose from the first respondent’s continued non-cooperation regarding O’s expired South African passport and his refusal to provide the necessary consent documentation for planned travel to the Czech Republic in September 2025. Despite receiving two months’ notice, the first respondent failed to attend scheduled appointments at Home Affairs, citing work commitments as justification for his non-compliance.
Perhaps most telling was the court’s observation regarding the “foul language” and “profanity” that characterised the parties’ court papers, particularly emanating from the first respondent’s filings. These included accusations that the applicant was “a con artist” exhibiting “borderline and narcissistic traits.” The court correctly identified that such personal invective demonstrated that the dispute had little to do with O’s welfare and everything to do with the parents using litigation as a vehicle for mutual recrimination.
Legal Framework: Section 18 of the Children’s Act and Parental Consent Requirements
The legal architecture governing parental consent for children’s overseas travel is primarily anchored in section 18 of the Children’s Act 38 of 2005, read with section 28 of the Constitution of the Republic of South Africa, 1996. This framework establishes a careful balance between parental autonomy and judicial oversight in circumstances where co-guardians cannot reach consensus.
Section 18(3)(c)(iii) of the Children’s Act specifically empowers guardians to “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.” The default position under section 18(5) requires “the consent of all the persons that have guardianship of a child” for such departures, unless a competent court orders otherwise.
The Constitutional imperative that “a child’s best interests are of paramount importance in every matter concerning the child” under section 28(2) provides the overarching normative framework. However, the relationship between parental decision-making and the best interests standard requires careful analysis.
In LA v EFV (2024-017275) [2024] ZAGPPHC 213, the court provided crucial guidance on this tension. The LA v EFV decision emphasised that when parents exercise their section 18(3) responsibilities, they are not required to apply the best interests standard in their decision-making process. Rather, they exercise parental responsibilities and rights autonomously. The court noted that “a parent may, in an attempt to spite the other parent, refuse to give consent for very flimsy reasons and in advancement of self-interest.”
This recognition of potential parental abuse of the consent mechanism explains the legislative inclusion of section 18(5), which empowers courts to intervene where consent is unreasonably withheld. The LA v EFV case clarified that courts act as “the upper guardian of all minors” to “unlock the legal impediment of consent” when one guardian unreasonably refuses cooperation.
The court’s jurisdiction extends beyond the Children’s Act through section 172(1)(b) of the Constitution, which empowers courts to make “any order that is just and equitable” when constitutional rights are at stake. This provision becomes particularly relevant where children’s constitutional rights to dignity, freedom of movement, and family life intersect with parental disputes.
When Conditions Amount to Refusal: The Court’s Analysis of “Unreasonable” Consent Requirements
A critical aspect of this judgment concerns the court’s determination of when seemingly conditional consent crosses the threshold into unreasonable refusal. The first respondent maintained throughout proceedings that he was not opposed to O’s travel to Europe, but insisted upon a comprehensive “mirror order” incorporating stringent conditions before providing his consent affidavit.
These demanded conditions included requirements that the applicant provide paid-up return flight tickets three months prior to travel, deposit an unspecified amount into an escrow account as security for O’s return, furnish detailed contact schedules specifying South African GMT times for telephonic communication, and obtain written confirmation from the German Embassy regarding the proposed travel. Additional conditions sought to interdict the applicant from approaching courts without obtaining legal opinions from practitioners with more than ten years’ standing, with costs payable by the applicant.
Njokweni AJ’s analysis revealed the artificial distinction between conditional consent and outright refusal. The court recognised that conditions can function as practical barriers that achieve the same result as explicit refusal, thereby circumventing the legislative scheme protecting children’s rights. The judgment emphasised that where conditions are “unreasonable and tantamount to a refusal,” courts must exercise their discretionary powers under the Children’s Act.
The court’s reasoning extended beyond mere procedural analysis to examine the underlying motivations driving the conditional approach. The observation that both parties had “used this application to have a go at each other and to ventilate issues that are irrelevant to this application” exposed how personal animosity had infected what should have been child-focused decision-making.
Significantly, the court noted the absence of any evidence that the first respondent had consulted O regarding her views on the proposed travel, despite her age of twelve years making such consultation both appropriate and legally relevant under section 31(1) of the Children’s Act. This omission reinforced the court’s conclusion that the conditional consent strategy prioritised parental control over genuine child welfare considerations.
The judgment establishes important precedent that courts will scrutinise not merely whether consent is formally withheld, but whether conditional consent creates practical impediments that achieve the same obstructive effect while maintaining a veneer of cooperation.
Mirror Orders and Hague Convention Considerations in Cross-Border Child Travel
Despite finding the first respondent’s proposed conditions unreasonable, Njokweni AJ nevertheless granted a modified mirror order incorporating tailored safeguards for cross-border enforcement. This approach demonstrates judicial recognition of the complex jurisdictional challenges inherent in international child travel cases and the practical need for legal certainty across multiple legal systems.
The court’s mirror order addressed the reality that South African custody and travel orders require recognition in destination countries to be legally effective. The judgment specifically contemplated travel not only to the Czech Republic but also to Germany and other European Union member states, recognising the interconnected nature of modern European travel arrangements.
Central to the court’s reasoning was the distinction between Hague Convention signatory states and non-signatory jurisdictions. The order permits O to travel from the Czech Republic to other countries “provided that such countries are signatories to the Hague Convention” without requiring fresh consent from the first respondent. This provision acknowledges the enhanced legal protections and reciprocal enforcement mechanisms available within the Hague Convention framework.
The court imposed specific obligations requiring the applicant to seek recognition of the South African order in relevant European jurisdictions. This includes instructing legal representatives to obtain parallel orders in Czech Republic, Germany, and other European countries that are Hague Convention signatories. The judgment demonstrates awareness that South African court orders cannot simply be assumed to have extraterritorial effect without proper legal processes in destination countries.
Particularly noteworthy is the court’s reference to the United Kingdom’s “no order principle” in children’s welfare cases. This acknowledgment reflects sophisticated understanding of differing jurisdictional approaches to child law across European legal systems, where some courts prefer substantive orders while others favour minimal judicial intervention.
The practical mechanics established by the court require the requesting party to bear costs associated with foreign court recognition, with proof of successful registration to be provided within seven days. This framework balances legitimate security concerns with the practical realities of international legal cooperation, creating enforceable obligations while facilitating rather than obstructing legitimate travel.
Practical Implications: Balancing Parental Rights with Children’s Best Interests in Travel Disputes
This judgment offers crucial guidance for family law practitioners navigating the increasingly common terrain of international child travel disputes in an interconnected world. The decision establishes important precedents regarding professional conduct standards and strategic considerations that extend well beyond the immediate parties.
The court’s pointed criticism of the “foul language” and “profanity” decorating the parties’ court papers serves as a stern reminder to the profession about maintaining dignity in family law proceedings. Njokweni AJ’s observation that such invective revealed the dispute’s true nature—personal vendetta rather than child welfare—underscores how unprofessional conduct can undermine clients’ positions and expose underlying motivations that contradict stated concerns.
For practitioners representing non-compliant parents, the judgment demonstrates the futility of delay tactics and procedural obstruction. The first respondent’s pattern of failing to attend Home Affairs appointments despite receiving adequate notice ultimately strengthened the applicant’s case for dispensing with consent requirements. This reinforces that courts will scrutinise conduct patterns rather than isolated incidents when assessing reasonableness.
The decision also highlights the importance of engaging with children’s voices in travel applications. The court’s criticism that no evidence existed of consulting twelve-year-old O about her travel preferences signals that practitioners should actively canvass and present children’s views where age-appropriate, particularly given the Children’s Act’s emphasis on participatory rights.
From a strategic perspective, the judgment warns against using conditional consent as a disguised refusal mechanism. Practitioners advising clients who harbour genuine security concerns about international travel must craft conditions that demonstrably serve child welfare rather than parental control. The court’s willingness to grant a modified mirror order shows that reasonable safeguards will be accommodated, but these must be proportionate and child-focused.
Finally, the case emphasises the evolving nature of international family law practice, where practitioners must understand cross-border enforcement mechanisms, Hague Convention implications, and the practical realities of securing recognition orders across multiple jurisdictions. Modern family law increasingly requires international legal literacy alongside traditional domestic expertise.
Questions and Answers
What is the primary legislative provision governing parental consent for children’s overseas travel?
Section 18(3)(c)(iii) of the Children’s Act 38 of 2005 empowers guardians to give or refuse consent required by law for a child’s departure from the Republic. This provision operates in conjunction with section 18(5), which requires consent from all persons holding guardianship unless a court orders otherwise.
Does the best interests standard apply when parents make decisions about overseas travel consent?
The LA v EFV case clarified that parents exercising section 18(3) responsibilities are not required to apply the best interests standard in their decision-making. They exercise parental responsibilities and rights autonomously, though courts may intervene where consent is unreasonably withheld.
What constitutional provision empowers courts to grant just and equitable relief in children’s travel cases?
Section 172(1)(b) of the Constitution enables courts to make any order that is just and equitable when constitutional rights are at stake. This provision becomes relevant where children’s constitutional rights intersect with parental disputes over travel consent.
When do conditional consent requirements constitute unreasonable refusal?
Conditions become tantamount to refusal when they create practical impediments that achieve the same obstructive effect as explicit denial whilst maintaining a veneer of cooperation. Courts will scrutinise whether conditions genuinely serve child welfare or merely facilitate parental control.
What role does a child’s voice play in travel consent applications?
Section 31(1) of the Children’s Act requires consideration of a child’s views bearing in mind their age, maturity and stage of development. Courts may criticise parties who fail to consult age-appropriate children about their travel preferences.
How do courts address enforcement of South African travel orders in foreign jurisdictions?
Courts may require applicants to seek recognition of South African orders in destination countries, particularly through legal representatives obtaining parallel orders in relevant jurisdictions. This ensures enforceability across multiple legal systems.
What is the significance of Hague Convention signatory status in travel orders?
The Hague Convention framework provides enhanced legal protections and reciprocal enforcement mechanisms. Courts may permit travel between signatory countries without requiring fresh consent, whilst maintaining stricter controls for non-signatory jurisdictions.
Can courts dispense with parental consent entirely in travel applications?
Yes, section 18(5) of the Children’s Act empowers courts to order that consent from unreasonably refusing guardians is not necessary. This removes the legal impediment preventing a child’s departure from the Republic.
What constitutes unreasonable delay in passport and travel documentation processes?
Systematic failure to attend scheduled appointments despite adequate notice, citing unsubstantiated work commitments, and ignoring court orders requiring cooperation with passport applications can constitute unreasonable delay warranting judicial intervention.
How do mirror orders function in international travel cases?
Mirror orders impose reciprocal conditions on travelling parents whilst facilitating legitimate travel. They balance security concerns with practical travel needs, often requiring information sharing, contact arrangements, and recognition procedures in destination countries.
What professional conduct standards apply in family law travel disputes?
Courts expect dignity and professionalism in family proceedings. Use of profanity, personal invective, and irrelevant accusations undermines parties’ positions and may reveal that disputes prioritise personal vendetta over child welfare.
Can courts make findings of perjury in travel consent applications?
Courts cannot make perjury findings without proper counter-applications supported by founding affidavits. Mere allegations in answering papers or heads of argument are insufficient to establish criminal conduct requiring formal adjudication.
What happens when passport renewal becomes necessary during ongoing litigation?
Courts may truncate time periods for compliance with renewal obligations to accommodate urgent travel plans. Existing orders remain binding, but practical deadlines may be adjusted to give effect to current applications.
How do courts handle contact arrangements during overseas travel?
Courts typically preserve existing contact rights whilst accommodating geographical realities. This may include reasonable electronic contact provisions, with costs of maintaining contact borne by the non-travelling parent.
What cost implications arise from seeking foreign court recognition of travel orders?
The requesting party typically bears costs associated with obtaining recognition orders in foreign jurisdictions. Courts may require advance payment to legal representatives before steps are taken to secure such recognition.
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. For free and useful Family Law tech applications visit Maintenance Calculator and Accrual Calculator.
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