Holderness AJ
INTRODUCTION
Application by the Mother: The applicant, the mother of two children, S (15 years old) and K (11 years old), sought several legal reliefs. These included:
- Permission to permanently relocate the children from South Africa to Dubai, United Arab Emirates (UAE) to live with her and her fiancé..
- A directive for further provisions of the notice of motion to substitute relevant sections of the divorce order and parenting plan.
- The continuation of maintenance terms from a previous order.
- Costs of the application on an attorney and client scale.
BACKGROUND
Divorce History: The applicant and respondent were married and divorced on 19 January 2016, with the children then aged 8 and 3. Following the divorce, both parties resided in Durban.
Parental Rights and Responsibilities: According to the divorce order, both parties retained joint parental responsibilities, which included decisions about schooling, extramural activities, medical care, and international travel.
Residency and Contact Arrangements: The children primarily resided with the applicant. The respondent had alternate weekend visits and half of the school holidays for contact.
Living Arrangements and Maintenance: After separating in 2015, the children primarily lived with the applicant. The respondent, who moved to Johannesburg in 2016, paid R10,000 per month per child for maintenance from May 2018. The applicant bore the costs of the children’s education, medical expenses, and additional daily needs.
Respondent’s Efforts to Maintain Contact: Following his move to Johannesburg, the respondent’s contact with the children was limited to school holidays. He purchased an apartment in Durban to facilitate contact, which the applicant disputed regarding its use.
Applicant’s Relocation to Cape Town: In March 2019, the applicant relocated to Cape Town with the children, considering that it would not adversely affect the respondent’s contact since he remained in Johannesburg. The applicant offered to cover the respondent’s travel costs for visits, but he independently managed the visits and expenses.
Children’s Education and Well-being: The children, enrolled at the American International School of Cape Town with the respondent’s approval, thrived academically and socially.
New Partnerships and Family Dynamics: Both parties entered new partnerships. The respondent remarried, and the applicant got engaged to Mr J, an American citizen. The children developed a close relationship with Mr J and had been living with the applicant and Mr J in Cape Town for the past eighteen months.
Family Visit to the USA: In January 2023, the applicant and children traveled to the USA with Mr J to meet his family, further integrating into his extended family network.
THE PROPOSED RELOCATION TO DUBAI
Mr J’s Professional Requirement in Dubai: Mr J, a consultant for a London-based law firm, had been working from Cape Town but was required to resume his role in Dubai.
Initial Discussion about Relocation: In 2021, the applicant discussed the potential move to Dubai with Mr J and informed the respondent of these considerations.
Initial Hesitation for Relocation: Initially, the applicant decided against relocation, citing her inability to move without the children and the lack of resources to litigate in case of the respondent’s opposition.
Renewed Relocation Discussion: At the end of 2022, the applicant revisited the idea of relocating and discussed it with the children before consulting the respondent.
Respondent’s Discovery and Reaction: The respondent became upset upon learning about the renewed relocation plans, particularly because the children had been interviewed by a Dubai school without his prior knowledge. The applicant’s rationale was to first assess the feasibility of the move.
Respondent’s Opposition Based on Process: The respondent opposed the relocation, citing the applicant’s failure to consult him as required by the parenting plan and the Children’s Act, and not involving the Family Advocate or an independent professional.
Respondent’s Discovery from Child: The respondent learned about the relocation plans from his child, K, and was disappointed that the applicant had not directly communicated with him.
Ongoing Conflict: The parties’ ongoing conflict, including financial disputes from the divorce, hindered an amicable resolution of the relocation issue.
Respondent’s Stance: The respondent was not opposing the applicant’s relocation but insisted on respecting his rights as outlined in the divorce settlement and parenting agreement. He stressed the need for an independent evaluation of the children’s best interests.
Binding Nature of Agreements: The respondent emphasized that the divorce settlement and parenting plan were binding and could only be varied through a written agreement signed by both parties.
Respondent’s Willingness to Relocate: The respondent was willing to move to Cape Town if the applicant relocated without the children, to maintain continuity in their lives.
Legal Compliance Issue: The respondent argued that the applicant’s approach to relocation violated Section 31(2)(a) of the Children’s Act.
Applicant’s Reasons for Relocation: The applicant cited several reasons for relocating, including being the primary caregiver, her engagement and family unit with Mr J, career opportunities, educational and societal benefits for the children in Dubai, the respondent’s minimal involvement in the children’s lives, and offering to cover the cost of two annual return flights for each child.
Applicant’s Argument Against Respondent’s Concerns: The applicant contended that the respondent had not raised any legitimate concerns about the impact of the proposed relocation on the children’s welfare.
THE VIEWS AND WISHES OF S AND K
Legal Framework for Child Participation: Section 10 of the Children’s Act recognizes the right of children of sufficient age, maturity, and developmental stage to participate in matters concerning them, with their views given due consideration.
Children’s Desire to Relocate: The applicant reported that both children expressed a desire to relocate to Dubai with her and Mr J’s, understanding the associated challenges. They communicated their views directly to the respondent.
Independent Legal Representation for Children: To ensure the children’s views were independently represented, experienced family law practitioners were appointed as their legal representatives.
Constitutional Right to Legal Representation: Section 28(1)(h) of the Constitution provides for state-appointed legal representation for children in civil proceedings if substantial injustice would otherwise result.
Children’s Rights in the Act: The Children’s Act supplements the rights in the Bill of Rights, ensuring broader protection for children.
Children’s Right to Bring Matters to Court: The Act allows children to bring and be assisted in bringing matters to court within its jurisdiction.
Scope of Legal Representation: The Act, broader than the Constitution, places no constraints on how children should be represented in court, prioritising their best interests.
Role of Legal Practitioners for Children: Legal practitioners for children are tasked with presenting the children’s wishes and providing adult insight and legal expertise to their perspectives.
Views and Wishes of S and K: The children’s legal representative reported:
- A close relationship with both parents, enjoying different activities with each.
- A good relationship with Mr J, including academic support and recreational activities.
- Willingness to marry Mr J and the children’s acceptance of this.
- Regular digital communication with the respondent.
- Positive impressions of Dubai from a holiday and desire to relocate.
- Understanding of the academic challenges and opportunities in Dubai.
- Preferences for living arrangements in case of non-relocation, emphasizing K’s need for the applicant.
Supplementary Report Post-Dubai Visit: The children felt familiar and at home in Dubai, mixing with other South Africans and were keen to relocate in time for the academic year.
Children’s View on Relationship with Respondent: Both children believed their relationship with the respondent would remain unchanged post-relocation, hoping to maintain similar visitation frequencies.
APPLICATION FOR POSTPONEMENT AND CONCERNS REGARDING PROPOSED RELOCATION
Respondent’s Attorney Withdrawal: The respondent’s attorney, Mr. Maponya, withdrew from the case in August 2023, leaving the respondent without legal representation for the October hearing.
Respondent’s Lack of Legal Representation: Despite appearing in person, the respondent informed the Court of his inability to secure alternative legal representation for the hearing scheduled on 17 October 2023.
Sufficient Time for Preparation: The Court noted that the respondent had ample time since March 2023 to secure a new attorney and prepare for the case.
Urgency in Child-Related Matters: The Court emphasised the urgency of matters involving minor children, with the benefit of a timely determination of the proposed relocation.
Impact of Postponement on Children: The children’s legal representative reported that further delays in the case were negatively impacting the children, particularly affecting S’s schooling plans.
Decision to Proceed with Hearing: Given the preparedness of the case and the urgency involved, the Court decided to proceed with the hearing without postponement.
Respondent’s Argument for Postponement: The respondent argued that the matter was not ready for hearing due to his lack of time to appoint a childcare expert and secure legal representation.
Respondent’s Feelings of Disrespect: The respondent felt his views as a father were not properly considered, criticising the applicant for proceeding with relocation plans without consulting him.
Respondent’s Concerns: He expressed concerns about maintaining contact with the children in Dubai, potential further relocations, and the children’s stability.
Disputed Claim About S’s Wishes: The respondent claimed that S did not want to relocate, a point not supported by the evidence or the Family Advocate’s findings.
FAMILY ADVOCATE REPORT
Court Order for Family Advocate Report: Acting Judge President Goliath ordered the Family Advocate to file a report by 31 August 2023, with provisions for supplementary affidavits.
Report Timing and Hearing Date: The report, dated 16 October 2023, was delivered two days before the hearing, scheduled for 19 October 2023.
Opportunity for Further Submissions: Due to the late report delivery, the respondent was given until 2 November 2023 to file a note on the report, with the applicant’s deadline being 4 November 2023.
Family Advocate’s Observations: The report emphasised the best interests of the children as central in relocation cases, considering factors like the application’s bona fide nature, the children’s age and developmental needs, and the impact on familial relationships.
Primary Caregiver’s Role: The Family Advocate highlighted the importance of the primary caregiving parent’s position in relocation matters.
Family Advocate’s Findings:
- Strong bond of children with both parents, with primary attachment to the applicant.
- Concern over the negative attitudes between parties.
- Children’s preference for the applicant, who meets their needs.
- Previous successful relocations and maintained contact with the respondent.
- Children’s maturity to participate in decisions.
- No apparent attempt by the applicant to alienate the children from the respondent.
- Children’s eagerness to relocate.
- Agreement on potential opportunities in Dubai.
Contact with Respondent: No evidence suggested the applicant would restrict the respondent’s future contact with the children.
Compliance with Court Orders: The Family Advocate believed the applicant would comply with care and contact arrangements.
Impact of Separation from Primary Caregiver: The Family Advocate found that separating the children from the applicant, their primary attachment figure, would be against their best interests.
CHILD RELOCATION – THE LEGAL POSITION
Criterion for Relocation Decisions: The Court followed the standard set by Section 28(2) of the Constitution, emphasising that a child’s best interests are paramount in every matter concerning the child.
Legal Principles in Relocation Cases: As established in the Supreme Court of Appeal’s judgment in Jackson v Jackson, the interests of the children are the primary consideration. A custodian parent’s decision to emigrate is generally respected if it is bona fide and reasonable.
Balancing Competing Factors: In Du Preez v Du Preez, it was acknowledged that the custodian parent’s opinions and desires are significant, and the Court takes great responsibility in overriding these decisions.
Custodian Parent’s Decision: The Jackson case clarified that while the custodian parent’s decision was influential, it does not create a presumption of correctness. The focus remained on the child’s best interests.
Constitutional Perspective: In F v F, it is recognised that thwarting a custodian parent’s rights to dignity, privacy, and freedom of movement can impact the child’s welfare.
Gender-Based Parenting Roles: The Court noted that in South Africa, parenting roles were still predominantly gender-based, affecting custody arrangements and relocation applications.
Challenges in Relocation Cases: Relocation cases are complex, particularly impacting the nature and quantity of time the child spends with the non-relocating parent.
Shawzin v Laufer on Disruption of Contact: The case recognized that relocation would disrupt close contact with the non-relocating parent but considered compensatory factors like maintaining the bond through regular visits.
Absence of Legislative Framework: Courts rely on various factors to determine relocation disputes due to the lack of a specific legislative framework.
Non-Uniform Approach: South African Courts have varying approaches to relocation disputes, sometimes favouring the primary caregiver.
Pro-Relocation Approach: Some cases, like Jackson v Jackson, favoured a pro-relocation approach if the primary caregiver’s decision was reasonable and bona fide.
AC v KC Case: This case followed the pro-relocation approach, using a reasonableness test to determine the mother’s decision to relocate.
Best Interests of the Child: The best interests of the child can sometimes be overlooked in favour of the custodian parent’s interests.
Neutral Approach in Cunningham v Pretorius: This approach balances both parents’ interests fairly against the child’s best interests, requiring a balanced assessment of all relevant facts.
Washington Declaration on International Family Relocation: This declaration recommends a neutral approach without presumptions for or against relocation, considering various factors such as the child’s right to maintain contact with both parents, the child’s views, practical arrangements for relocation, reasons for or against relocation, history of family violence, quality of care and contact arrangements, impact on the child, nature of relationships between family members, enforceability of contact provisions, mobility issues, and any other relevant circumstances.
CHILD RELOCATION – LEGAL POSITION AND CONCLUSION
Additional Guidelines from Domingo: Courts should consider alternatives to proposed relocation, the feasibility for the opposing party to move closer to the child, and the ability of the opposing party to assume primary care if the relocation proceeds without the child.
Was the Proposed Relocation in the Children’s Best Interest?
Neutral Viewpoint Preferred: The Court adopted a neutral starting point in determining whether to grant a relocation order.
Current Care Arrangement: The parties did not have a shared care arrangement, with the respondent’s contact mostly during school holidays. The proposed order increased his holiday contact with the children.
Applicant as Primary Caregiver: The applicant had been the primary caregiver for the past eight years, contributing significantly to the children’s maintenance and daily needs.
Children’s Relationship with Both Parents: The children had a deep attachment with both parents, and the applicant had encouraged their relationship with the respondent.
Children’s Views on Relocation: The children were eager to relocate to Dubai, seeing it as an exciting opportunity despite acknowledging challenges.
Relationship with Mr J: The children had a good relationship with Mr J and were comfortable with the upcoming marriage, establishing a stable family routine.
Maintenance of Contact with Respondent: Regular communication between the children and the respondent could continue through calls and video chats.
Applicant’s Consideration for Relocation: The move had been carefully planned by the applicant, who prioritised the children’s interests and had offered to facilitate increased holiday contact and bear travel costs.
Enforceability of the Order in Dubai: The Court considered a memorandum on the registration of a South African court order in the UAE.
UAE Law on Foreign Judgments: The UAE’s legal framework for enforcing foreign judgments was outlined, emphasising mutual recognition and several conditions for enforcement.
Process for Ratification of Foreign Judgment: The UAE required a petition for ratification of foreign judgments, which is then enforced upon approval.
Capability of Ratification in Dubai: An order from the South African Court appeared capable of ratification in Dubai, with arrangements made for a Dubai-based attorney to handle the process.
Addressing Respondent’s Enforcement Concerns: The Court was satisfied that the ratification process in Dubai should address the respondent’s concerns regarding enforcing his rights.
Issue of Costs: The Court recognised the respondent’s understandable concerns and did not find his opposition wholly unreasonable. Consequently, the Court decided not to impose costs on him.
CONCLUSION
Decision on Relocation: The Court, after reviewing the evidence and reports from Mr. van Embden, who was appointed on behalf of the children, and the Family Advocate, concluded that the applicant’s decision to relocate was bona fide, reasonable, and in the best interests of the children, S and K.
Court Order:
- The applicant was authorised to permanently relocate the children to Dubai by 11 December 2023.
- The respondent had to sign necessary documentation for the children’s relocation within three days of request, or the Registrar of the Court will do so in his stead.
- The parties retained joint parental responsibilities and rights as per the Children’s Act, with the applicant not allowed to move the children from the UAE without the respondent’s consent.
- Decisions regarding the children’s schooling, medical care, cultural and religious practices, and well-being were to be made jointly by the parties.
- The children would primarily reside with the applicant and attend D A School in Dubai.
- The respondent would have contact with the children for two-thirds of the school vacation time, with specific arrangements detailed in the order.
- Communication arrangements between the children and both parents were outlined, including electronic communication and in-person visits.
- The applicant was responsible for informing the children’s school in Dubai about the co-holdership of parental rights and responsibilities.
- Both parents hadrights to communicate directly with the children’s medical practitioners.
- The applicant had to file a petition in Dubai for the enforcement of this order as a foreign judgment, and inform the respondent about the process.
- The parenting plan from the divorce and the maintenance order remained in effect.
- Each party had to pay their own costs.
Summarised 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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