The Facts: A Relocation, an Expert Report, and a Jurisdictional Challenge
The applicant, HMM, and the respondent, DM, were in a relationship for seven years and lived together for much of that time. DM contended that the parties were married at customary law, but HMM denied this. Their son, O, was born in 2021. DM and O initially lived with HMM at a house owned by him in Johannesburg. The parties separated in 2022, and shortly thereafter HMM, who wished to sell the house, required DM and O to vacate it.
DM moved with O to her sister’s house in Boksburg. In late 2024, DM’s sister decided to sell that property. DM had been unable to secure regular employment, largely because she was O’s primary caregiver, and she had no other accommodation in Johannesburg. At the end of 2024, DM accordingly relocated with O to her parents’ home in the Eastern Cape. HMM unsuccessfully opposed the relocation in the High Court. At the time of the hearing, DM and O had been living with her parents for approximately eighteen months.
In August 2025, HMM launched an application in the Gauteng Division, Johannesburg, seeking both interim and final relief. Oosthuizen-Senekal AJ granted the interim relief, which permitted DM to take O on a short overseas holiday. The final relief sought was that the recommendations of a clinical psychologist, Dr D, be made an order of court. Dr D had assessed both parties’ parental fitness, mostly while DM was still in Boksburg, and had recommended that, unless DM returned to Johannesburg, O should be removed from her primary care and placed with HMM. The final relief was postponed pending a recommendation from the Family Advocate.
The Family Advocate’s recommendation, dated 27 February 2026, drew on a detailed assessment of O’s home environment in the Eastern Cape conducted by a registered social worker, Ms S. Despite Ms S’s positive findings about O’s circumstances in his mother’s care, the Family Advocate affirmed Dr D’s original view and recommended that O be brought to Johannesburg to live with HMM. HMM accordingly approached Wilson J for an order making the Family Advocate’s recommendation an order of court.
DM opposed the application on two grounds. First, she contended that the Gauteng Division lacked jurisdiction over O, who was ordinarily resident with her in the Eastern Cape, and that section 29 of the Children’s Act 38 of 2005 therefore precluded the court from entertaining the matter. Second, she argued that the Family Advocate’s report was not rationally connected to the facts upon which it relied. Although the notice of motion framed relief that was no longer being pursued, both parties accepted that the substantive issue throughout the proceedings had been whether O should reside primarily with HMM in Johannesburg or with DM in the Eastern Cape, and they were content for Wilson J to determine that issue on the evidence before him.
Section 29 of the Children’s Act: A Jurisdiction of Convenience, Not an Inflexible Territorial Bar
Counsel for DM argued that, because O was ordinarily resident in the Eastern Cape, section 29 of the Children’s Act deprived the Gauteng Division of the power to entertain HMM’s application. Wilson J rejected that contention. The use of the word “may” in section 29 indicated that the provision did not exclude the jurisdiction of another court that would otherwise have it. Properly construed in light of its purpose, section 29 established a jurisdiction of convenience: it created a general rule that applications for rights of care and contact should be brought in the High Court having jurisdiction over the area of the child’s ordinary residence, but it did not preclude a litigant from approaching another court that had some other basis to exercise jurisdiction, provided that doing so would be in the child’s best interests.
Wilson J grounded this conclusion in two related considerations. The first was the warning of the Supreme Court of Appeal in FS v JJ 2011 (3) SA 126 (SCA) against “reliance on formalism and a resort to inflexible rules” in matters concerning children. The second was the overriding constitutional injunction in section 28(2) of the Constitution, 1996 that a child’s best interests are of paramount importance in every matter concerning the child, an injunction whose implementation is one of the main objects of the Act itself in terms of section 2(b)(iv).
The judgment then engaged with a line of authority that suggested the contrary position, including BLFM v GJM [2026] ZAGPJHC 140, JS v WF [2020] ZAGPPHC 350 and SH v MLH 2026 (1) SA 615 (ECGq). Wilson J traced each of these decisions back to the judgment of Goosen J in NAN v CN [2017] ZAECPEHC 61, in which the court had stated that the terms of section 29 were “clear and unambiguous” and served as “an overriding determinant of jurisdiction” amounting to a territorial limitation. Wilson J held that, read on its own terms and in isolation from the rest of the judgment, that proposition could not be correct, as there was nothing in section 29 or in the Act itself that bespoke such a rigid jurisdictional regime.
More importantly, Wilson J considered that Goosen J had not in fact intended to lay down such an inflexible rule. Goosen J had expressly declined to decide the jurisdictional issue, having found that the order sought was not in the child’s best interests in any event. The dictum in paragraph 22 of the NAN case had to be read in the context of the judgment as a whole, in which Goosen J had nevertheless entertained an application concerning a child resident in New Zealand on the footing that the court had granted the original divorce order. Properly understood, the NAN case could not be read as precluding the exercise of a jurisdiction that a court would otherwise have, where the exercise of that jurisdiction was in the child’s best interests. That conclusion was consistent with the text, context and purpose of the Children’s Act, and with the approach in the FS case.
Applying these principles, Wilson J held that he would in any event have jurisdiction on a separate basis. HMM lived in Johannesburg and O had been born there. In terms of either section 21 of the Act (if HMM was not married to DM) or section 20 (if he was), HMM had acquired his parental rights and responsibilities over O in Johannesburg when O was born. That alone entitled him to engage the court’s jurisdiction. It remained necessary to consider whether it would serve O’s best interests for the Gauteng Division to determine the question of his primary residence. An extensive investigation had already been conducted, involving the offices of the Family Advocate in both provinces; neither party wished to supplement the reports; and DM’s counsel had made full submissions on her behalf. There was nothing for O to gain from the court declining jurisdiction only to require the parties to start afresh in the Eastern Cape. The jurisdictional objection accordingly failed.
Reassessing Expert Evidence: When Psychological Vulnerability is a Symptom of Economic Precarity
Wilson J emphasised at the outset that the court was not bound by Dr D’s report or by the Family Advocate’s recommendation. Although both had an admissible factual substrate, a court remained obliged to satisfy itself that the conclusions drawn were based on admissible facts and could reasonably be drawn from those facts. That duty arose both from the constitutional imperative that the best-interests question is ultimately for the court to decide, and from the well-established principles governing reliance on expert evidence articulated in Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA 352 (A) and MV Pasquale Della Gatta 2012 (1) SA 58 (SCA).
Two fundamental flaws in Dr D’s report were identified. The first was its failure to draw the obvious link between DM’s psychological vulnerability and her precarious material position in Johannesburg. DM had been required to leave the home she had shared with HMM and was left to care for O at her sister’s house without any obvious means of support. It was a lack of material support that had driven her to relocate to the Eastern Cape in the first place. Dr D’s report did not consider the extent to which DM’s psychological fragility was simply a function of her economic and social precarity.
This passage of the judgment is of particular significance to family-law practitioners. Wilson J observed that it was important to avoid recasting what was essentially a practical economic problem as a pathology afflicting the party who had to deal with it. The more economically vulnerable parties in care and contact disputes were almost always women, and their responses to their situation had to be assessed in light of that vulnerability. It was too easy to conclude that a litigant lacked psychological stability without considering whether the dominant explanation for any anxiety, and for any “suboptimal” behaviour flowing from it, was the material vulnerability caused by the breakdown of the relationship that had given rise to the custody dispute. Dr D’s report showed no evidence of any attunement to that reality. In any event, Dr D had not considered that DM’s psychological fragility would have prevented shared primary residence had DM been able to remain in Johannesburg, and it was therefore at best a marginal consideration.
The second flaw was that Dr D had expressed a view on O’s primary residence without having acquainted herself with his home environment in the Eastern Cape. Her conclusions were based on a home visit conducted while DM was still living with O in Boksburg. By the time the report was finalised in September 2025, O had been living in the Eastern Cape for approximately nine months. It was inappropriate to rely on a report based on an assessment of an environment in which O and DM no longer lived, particularly when DM’s supposed unsuitability as a sole custodial parent was intimately linked to her lack of a settled home in Johannesburg.
The report of the Eastern Cape family counsellor, Ms S, painted a markedly different picture. Ms S, a registered social worker, had visited DM and O at their home in February 2026. She found that O was attending pre-school, was reaching his age-appropriate developmental milestones, interacted well with his peers and enjoyed school. The interaction between DM and O was good; DM presented an authoritative parenting style; O had an easy temperament and was well-mannered; he loved his mother and enjoyed staying at home with her and his grandfather, while also looking forward to visits with HMM. Ms S identified no risks to O’s well-being and described him as safe and secure in DM’s care.
The Family Advocate’s recommendation failed to engage with the determinative question, namely whether, given that DM and O were happy and settled in the Eastern Cape, there was anything to be gained from changing O’s primary residence at that stage. The recommendation proceeded as if the parties had recently separated and the issue was who should be awarded primary care against a background of shared residence. It placed extensive reliance on Dr D’s report without acknowledging how out-of-date that report was, virtually ignored Ms S’s report, and attached no significance to the reality that the relocation to the Eastern Cape had already occurred and had proved successful. The Family Advocate also failed to consider the relative ease with which each parent could exercise rights of contact. DM lacked the resources to travel regularly to Johannesburg, whereas HMM laboured under no such incapacity, a point all but conceded during argument when he tendered to pay DM’s reasonable travel costs in the event of O’s relocation.
For these reasons, Wilson J declined to endorse the Family Advocate’s report on the basis that it asked the wrong questions and arrived at a predictably flawed answer. O would remain in the primary care of DM in the Eastern Cape, and the parties were invited to agree on an appropriate regime of contact, failing which the court would determine the issue on written submissions.
Questions and Answers
What is the central jurisdictional principle established by Wilson J in this judgment?
Wilson J held that section 29 of the Children’s Act 38 of 2005 creates a jurisdiction of convenience rather than a rigid territorial bar. The provision establishes a general rule that applications for rights of care and contact should be brought in the High Court having jurisdiction over the area of the child’s ordinary residence, but it does not preclude a litigant from approaching another court that would otherwise have jurisdiction, provided it would be in the child’s best interests for that court to decide the matter.
Why did the court interpret the word “may” in section 29 permissively rather than peremptorily?
The court found that the use of the word “may” indicated that section 29 did not exclude the jurisdiction of another court that would otherwise have it. Read in its textual setting and having regard to the purposes of the Act as a whole, the provision could not be construed as imposing an inflexible territorial limitation. A permissive interpretation was also necessary to give effect to the overriding best-interests standard entrenched in section 28(2) of the Constitution and reflected in section 2(b)(iv) of the Act.
How did Wilson J reconcile his interpretation with the line of authority following the NAN case?
Wilson J accepted that the dictum at paragraph 22 of the NAN case had been repeatedly cited as authority for an inflexible territorial regime, including in the BLFM case, the JS case and the SH case. However, he found that Goosen J had not in fact intended to lay down such a rigid rule, since Goosen J had expressly declined to decide the jurisdictional issue and had nevertheless entertained the matter on its merits because doing so was in the child’s best interests. Properly understood, the NAN case could not be read as precluding the exercise of a jurisdiction a court would otherwise have where the exercise of that jurisdiction served the child’s best interests.
On what alternative basis did Wilson J find that the Gauteng Division had jurisdiction?
Wilson J found that HMM lived in Johannesburg and that O had been born there. In terms of either section 21 of the Children’s Act (if HMM was not married to DM) or section 20 (if he was), HMM had acquired his parental rights and responsibilities over O in Johannesburg when O was born. That circumstance alone would ordinarily entitle him to engage the jurisdiction of the Gauteng Division, independently of section 29.
What role did the FS case play in the court’s reasoning on jurisdiction?
The FS case provided authoritative guidance from the Supreme Court of Appeal that “reliance on formalism and a resort to inflexible rules” was to be discouraged in matters involving children. Wilson J applied this approach to section 29, holding that a supple and flexible interpretation was required, at least insofar as it was necessary to give effect to the overriding best-interests standard.
What is the constitutional underpinning of the court’s approach to jurisdiction in matters concerning children?
Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Wilson J held that section 29 of the Children’s Act had to be approached in light of this overriding constitutional injunction, and that an interpretation precluding a court from exercising a jurisdiction it would otherwise have, where doing so would serve the child’s best interests, would be at odds with that injunction.
What is the legal test for the admissibility and weight of expert evidence applied by Wilson J?
Drawing on the Coopers case and the Pasquale Della Gatta case, Wilson J held that a court must satisfy itself that the expert conclusions placed before it are based on admissible facts and that those conclusions can reasonably be drawn from those facts. A court may not, and in fact must not, adopt expert conclusions merely because they commend themselves to common sense or because they accord with the court’s evaluation of other relevant evidence.
To what extent is a court bound by the recommendation of the Family Advocate?
Wilson J emphasised that a court is not bound by the Family Advocate’s recommendation, nor by any expert report relied upon by the Family Advocate. The court is entitled and obliged to satisfy itself that the conclusions reached are the correct ones. The question of what is in the child’s best interests is ultimately for the court to decide, and the recommendations of experts and the Family Advocate are no more than evidence that must be weighed in the usual way.
What significance did the court attach to the link between a parent’s psychological state and their economic circumstances?
Wilson J held that it was important to avoid recasting what is essentially a practical economic problem as a pathology afflicting the party who has to deal with it. The more economically vulnerable parties in care and contact disputes are almost always women, and their responses to their situation must be assessed in light of that vulnerability. An expert who concludes that a litigant lacks psychological stability without considering whether the dominant explanation for that anxiety is material vulnerability caused by the relationship breakdown produces a report of diminished evidential value.
How did the court approach the currency of an expert report?
The court held that it was inappropriate to rely on a report based on an assessment of a home environment in which the child no longer lived. Dr D’s conclusions had been based on a home visit conducted while DM was still in Boksburg, but by the time of the hearing O had been settled in the Eastern Cape for approximately eighteen months. The currency of the assessment was particularly important where the very factors said to disqualify the parent were intimately linked to circumstances that had since changed.
Where two competing expert reports reach inconsistent conclusions, how should a court approach them?
Wilson J considered the inconsistencies between Dr D’s report and Ms S’s report and identified the obvious explanation, namely that the two reports had assessed DM and O at different stages of their circumstances. Dr D had assessed them during a period of flux, while Ms S had assessed them after they had settled into a stable environment. The court preferred the more recent and contextually appropriate assessment, while reiterating the general principle that the weight to be attached to expert evidence depends on whether its conclusions are rationally connected to the facts on which it relies.
What test governs an application to change a child’s primary residence where the child is already settled with one parent?
The court held that the proper question is not who would be the better caregiver against a background of shared primary residence, but whether, given that the child is happy and settled with one parent, there is anything to be gained from changing the primary residence at this stage. A recommendation that fails to engage with that question and instead proceeds as if the parties have freshly separated asks the wrong question and produces a flawed answer.
What weight should be given to the relative wealth of the parties in a residence dispute?
Wilson J accepted that HMM was considerably wealthier than DM but held that this did not in itself justify uprooting O. What a child of tender age needs most is the stability of a loving family, a consistent routine, access to education and an adequate base of material resources to support those needs. The financial superiority of one parent does not, without more, displace the value of stability and continuity in the child’s existing environment.
What considerations apply to the practicality of contact arrangements when determining primary residence?
The court held that the relative ease with which each parent would be able to exercise rights of contact is a material consideration. Where one parent lacks the resources to travel regularly to visit the child while the other has the means to do so, the practical realities of contact must inform the assessment of where the child should reside. An offer to underwrite the less-resourced parent’s travel costs may be relevant but does not displace the need to assess the contact regime as part of the overall best-interests enquiry.
What procedural directions did the court issue regarding contact in the absence of a determined regime?
Wilson J held that, although O’s primary residence would remain with DM in the Eastern Cape, it was in O’s best interests that his contact with HMM be placed on a clear and regular footing as soon as possible. The parties were directed to submit an agreed order regulating contact by 5 June 2026, failing which each party was directed to file written submissions, and if necessary an affidavit of no more than twenty pages, setting out their preferred regime of contact by 13 June 2026. Each party would pay their own costs to date.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of iDivorce 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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