Many recently divorced parents find themselves in a situation wherein their ex-spouse, likely to be the primary caregiver of their minor child wishes to emigrate with their child. Such a situation can give rise to a multitude of issues especially in absence of an agreement between the parties relating to consent and the parental rights of the respective parents and/or guardians.
The Children’s Act, 38 of 2008 (“the Children’s Act”) governs all dispute/matters relating to children in South Africa. Section 18 of the Children’s Act provides that if a parent wishes to emigrate from South Africa to another country; the consent of both parents is required. In general terms, South African Courts in relocation disputes will only grant the relevant permission based on the best interests of the child. Another consideration to be made by the Court is whether the decision by the relevant parent to relocate is reasonable and bona fide. In looking at what is in the best interests of the child, the Court will also consider whether relocation will be compatible with the child’s welfare. Moreover, where the parties are divorced, the Court is required to consider any existing Court Order or settlement agreement and whether same restricts the removal of the child from the Republic of South Africa.
Our Courts have dealt with relocation disputes at length creating a useful guideline for present or future disputes and the manner in which same should be disposed of. The Court in N F v M C (17845/2012)  ZAWCHC 198 was faced with a factual situation wherein the Applicant (the father of his then 6-month-old daughter), and the Respondent (the mother of the child) dealt with such an issue. In short, the Applicant was a US citizen who resided and worked in the USA, whilst the Respondent, a South African citizen, was residing and studying in the USA in terms of her J-1 visa. Upon the expiry of her J-1 visa, the Respondent returned, with the minor child, to South Africa to reside with her mother pending the issuing of her new O-1 visa to allow her permanent living and working in the USA, and further in light of the child’s illness. The Applicant launched the application against the Respondent for purposes of obtaining an order for the return of his daughter to the USA as well as costs.
The relief sought by the Applicant in this case was primarily based on Article 3 and 12 of the Hague Convention on the Civil Aspects of International Child Abduction Act 72 of 1996 (“the Hague Convention”). In terms thereof, the wrongful removal or retention of a child are governed by jurisdictional prerequisites set out by Article 3. In this regard, an Applicant in such a case is required to establish that:-
(a) The child was habitually resident in the other State;
(b) The removal or retention constitutes a breach of custody rights; and
(c) The Applicant was actually exercising such rights (either jointly or alone) at the time of removal or retention, or would have exercised such rights but for the removal or retention.
In terms of Article 12 of the Hague Convention, in the case where a child has been wrongfully retained or removed in terms of Article 3, the judicial authority in the State concerned shall order the return of the child should the proceedings for his/her return be commenced within 1 year of the removal or retention of the child. That is, of course, where court proceedings are instituted. The courts will also typically have regard to various considerations, such as how long the status quo has been in place as well as what decision would be in the best interests of the minor child.
In considering the case above, the Court dismissed the application for the return of the child concerned. It has considered several factors including the onus of the parties involved. The Court established that the Applicant had the onus to show that the child was habitually resident in the country from which it was removed immediately prior to the removal from the USA, and that the removal or retention was wrongful in accordance with Article 3 of the Hague Convention. In turn, the onus placed on the Respondent included an obligation to show that the refusal would be justified in terms of the Hague Convention. The Court furthermore considered Article 13 of the Hague Convention, which required the Applicant to actually exercise care and contact rights at the time of removal or retention, or that there would not be a grave risk that the child’s return to the USA would expose her to physical/psychological harm or place the child in an intolerable situation.
The Applicant averred that there was an express agreement that the child would return to the USA no later than 29 December 2012. The Court rejected the Applicants’ version that there was an express agreement to this effect and accepted that it was rather anticipated that the child would return during December 2012. In this regard, the Court held that more weight should be attached to the express communications and conduct of the Applicant in order to infer consent rather than to his subsequent evidence as to what he claims is his state of mind.
It is therefore advisable for any parent to take cognizance of his/her rights when faced with the potential relocation of their minor child. Steps to enforce such parental rights must be taken promptly in order to give effect to existing rights as such applications are usually and typically brought on an urgent basis.
Should you have any inquiries relating to your parental rights in respect of the relocation of your minor child and any steps relating thereto – please reach out to our team at Spence Attorneys at our Johannesburg or Cape Town branch.