Navigating Family Dynamics: Granting Relocation Orders for Minor Children’s Best Interests. – H F v P F ; In Re: E F and Others (2022/028593) [2024] ZAGPJHC 88 (31 January 2024).

On 21 June 2023, NDLOKOVANE AJ delivered a pivotal order addressing the contested interim removal of three minor children, aged 14, 13, and 10, from the Republic of South Africa to the United States of America. The application arose amidst the intricate dynamics of parental rights and responsibilities shared between the biological parents of the minors, as established under Section 18 of the Children’s Act 38 of 2005. The request for this order to be substantiated with reasons was received by the end of October 2023, with the transcribed record following in late November, just before the December court recess. This timing contributed to the delay in providing the comprehensive reasons behind the decision, which aimed to balance the intricate web of familial relations, legal obligations, and the paramount principle of the children’s best interests.

The applicant sought judicial consent for the relocation of minor children to the United States of America. The relief requested aimed to authorize the applicant to annually take the children to the USA for a period of three months, ensuring their return to South Africa in the care of the respondent upon the visitation period’s conclusion. This request was anchored in the desire for the children to maintain a meaningful relationship with both parents across continents, reflecting the complexities of parenting in a globalized context.

The application detailed specific arrangements for the children’s travel, including the respondent’s obligation to consent to passport and visa applications and to sign all necessary documentation to facilitate the relocation process. A fail-safe was proposed whereby, should the respondent not comply, the Sheriff would be authorized to sign on his behalf, ensuring the children’s travel plans were not unduly hindered by administrative delays.

Additionally, the financial responsibilities for travel were delineated between the parents, with the applicant responsible for inbound flights to the USA and the respondent for outbound flights back to South Africa. This division aimed to balance the financial burden of international travel, recognizing the shared commitment to the children’s welfare.

The application highlighted the practical considerations of transnational parenting, seeking to establish a framework that would allow the children to benefit from the cultural, educational, and familial opportunities available in both countries. Through this relief, the applicant sought to navigate the challenges of separation and divorce, proposing a solution that prioritized the children’s best interests while respecting the logistical and financial realities of international relocation.

The court embarked on a thorough examination of the legal principles underpinning the application for the interim removal of minor children to the United States of America. Central to this deliberation was the paramountcy of the children’s best interests, as enshrined in Section 28(2) of the Constitution of the Republic of South Africa and reinforced by the Children’s Act 38 of 2005. This foundational principle dictated that every decision concerning the child must prioritize their welfare above all else.

The application also invoked Section 18 of the Children’s Act, highlighting the shared parental responsibilities and rights, including the need for mutual consent regarding the children’s departure from South Africa. This aspect of the law underscores the importance of cooperative parenting and the legal mechanisms designed to facilitate decisions that significantly impact the children’s lives.

The court further referenced pertinent case law, such as LW v DB 2020 (1) SA 169 (GJ), to underscore that the determination of parental adequacy is not the focus but rather the enhancement of the children’s overall welfare. This perspective shifts the emphasis from evaluating parental qualities to assessing the practical and emotional benefits to the children.

Cases like Van Deijl v Van Deijl 1966 (4) SA 260 (R) at 261 and French v French 1971 (4) SA 298 (W) 298H, were cited to delineate the multifaceted considerations that inform what constitutes the children’s best interests, ranging from emotional ties and security to material well-being and the children’s own wishes.

Through these legal prescripts and case law references, the court aimed to navigate the complex terrain of relocating minor children across international borders. The legal framework provided a comprehensive backdrop against which the court could assess the merits of the application, ensuring that the decision was rooted in a well-established legal and ethical commitment to safeguarding the interests of children within the family law context. In the case of French v French, the court set out four categories to consider when considering what is in the child’s best interest: the preservation of the child’s sense of security; the suitability of the caregiving parent regarding the parent’s character; material considerations; and the child’s wishes.

The court was tasked with determining the intricate balance between the minor children’s best interests in relation to their relocation to the United States of America and the establishment of suitable visitation arrangements. This deliberation was guided by the paramount principle enshrined in the Constitution of the Republic of South Africa, which stipulates that a child’s best interests are of utmost importance in every matter concerning the child, as well as the stipulations of the Children’s Act 38 of 2005.

The court meticulously considered the period and the conditions under which the children would maintain contact with the applicant in the USA, emphasizing the need for regular and meaningful engagement with both parents despite geographical distances. This was aligned with the understanding that fostering strong relationships with both parents is integral to the children’s emotional and psychological well-being.

Additionally, the respondent’s obligation to contribute towards the costs of the minor children’s outbound flight tickets from the USA to South Africa was examined, reflecting on the shared parental responsibility in ensuring the children’s ability to maintain close ties with their home country and family network therein.

The court also evaluated the adequacy of visitation arrangements when the applicant is present in the Republic of South Africa for an extended period, ensuring that such arrangements do not disrupt the children’s established routines and educational commitments, while also allowing for quality time with both parents.

Central to the court’s considerations was the overarching question of what arrangement would serve the children’s best interests. This included assessing the children’s wishes, the quality of care provided by both parents, the children’s sense of security and stability, and the potential impact of the relocation on their social, emotional, and educational development.

The outcome of this deliberation was a carefully crafted order that aimed to balance the various interests at play, ensuring that the children’s welfare was prioritized above all else. The court’s decision underscored the importance of facilitating ongoing and meaningful contact between the children and both parents, regardless of the physical distances that may separate them, thereby supporting the children’s right to maintain a close relationship with their family as a fundamental aspect of their best interests.

The court’s decision to authorize the interim removal of minor children to the United States of America, along with the specific visitation arrangements and the cost responsibilities regarding their travel, was underpinned by a comprehensive consideration of what constitutes the children’s best interests. This decision was informed by a careful evaluation of both the constitutional imperatives and the legal provisions of the Children’s Act 38 of 2005, particularly emphasizing the paramount importance of the children’s welfare in every matter concerning them.

The court’s judgment was shaped by the recognition that in the context of parental separation and international relocation, maintaining the children’s relationships with both parents is crucial for their emotional and psychological stability. By structuring a balanced and fair arrangement for contact with both the applicant and the respondent, the court sought to ensure that the children would benefit from the continued involvement and support of both parents, irrespective of the geographical distances involved.

Furthermore, the court’s decision took into account the practicalities of implementing such arrangements, including the logistical and financial aspects of international travel. By ordering both parents to share the responsibilities and costs associated with the children’s travel, the court underscored the importance of collaborative parenting and mutual support in fulfilling the children’s best interests.

The condonation of the late filing of the applicant’s replying affidavit and the decision on the costs of the application were also reflective of the court’s overarching aim to prioritize the substantive issues at stake over procedural technicalities. This approach ensured that the focus remained firmly on the welfare of the minor children and the facilitation of their meaningful relationships with both parents.

Ultimately, the court’s judgment in this matter serves as a testament to the judiciary’s commitment to upholding the rights and welfare of children in family law disputes. By grounding its decision in a thorough understanding of the legal, emotional, and practical considerations involved, the court provided a clear and reasoned explanation for its order, thereby fostering public confidence in the judicial process and the principles of justice and equity that underpin it. This case highlights the judiciary’s role in adapting legal principles to the realities of modern family dynamics, ensuring that the best interests of the children remain at the heart of every decision.

The court granted the relocation order for several compelling reasons, all rooted in the overarching principle of the best interests of the children, as stipulated by Section 28(2) of the Constitution of the Republic of South Africa and further emphasized in the Children’s Act 38 of 2005. The reasons for granting the relocation order include:

Children’s Welfare and Best Interests: The court’s primary consideration was the welfare and best interests of the minor children. It carefully evaluated how the relocation would impact their emotional, psychological, and educational development, concluding that the move would not detrimentally affect these aspects of their lives.

Maintaining Relationships with Both Parents: The court recognized the importance of the children maintaining strong, meaningful relationships with both parents. The relocation order included specific arrangements to ensure regular and meaningful contact with the non-relocating parent, facilitating an ongoing bond despite the geographical distance.

Children’s Expressed Wishes: The court took into consideration the expressed wishes of the minor children, who indicated a desire to relocate with the applicant to the USA. Their preference played a significant role in the court’s decision-making process, aligning with the principle of considering the views of the child in matters concerning them. The Children’s Act 38 of 2005 mandates that a child’s best interests are of paramount importance in every matter concerning the child, including giving due weight to the child’s preferences.

Economic Opportunities and Quality of Life: The court acknowledged the applicant’s intention to relocate as a means of seeking better economic opportunities and an improved quality of life for herself and the children. The decision to move was seen as a bona fide attempt to enhance the family’s living conditions, offering the children access to new opportunities.

Proactive Planning by the Applicant: The court was persuaded by the applicant’s proactive steps in planning for the relocation, including arrangements for the children’s education and social integration in the USA. This demonstrated a thoughtful approach to ensuring the children’s smooth transition to their new environment.

Mutual Agreement on Contact Arrangements: The court noted that the parties had reached a mutual agreement on the visitation arrangements, which included detailed plans for the children’s travel and communication with the non-relocating parent. This agreement was indicative of both parents’ commitment to acting in the children’s best interests.

Shared Financial Responsibility: The order’s provisions for shared financial responsibility for the children’s travel expenses reflected a fair approach to managing the costs associated with the children’s international relocation and visits. This arrangement ensured that the financial burden was equitably distributed between the parents.

Potential for Enhanced Welfare and Happiness: The court believed that the relocation, combined with the carefully structured visitation arrangements, held the potential to enhance the welfare and happiness of the minor children. This view was supported by expert recommendations and aligned with the broader aim of ensuring the children’s well-being.

In summary, the court’s decision to grant the relocation order was a multifaceted one, deeply rooted in the legal mandate to prioritise the children’s best interests above all else. The court balanced various factors, including the children’s welfare, the quality of parental relationships, economic opportunities, and the practicalities of international relocation, to arrive at a decision that it deemed most conducive to the children’s overall well-being and development. The children’s views significantly contributed to the court’s determination of their best interests. Acknowledging the children’s preferences underscored the importance of ensuring that the children felt heard and valued in the decision-making process. This approach reflects a child-centric perspective recognizing children as active participants in their own lives, with rights to express their views on matters directly impacting them.

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