021 671 9322

In recent months there appears to be an upward trend in families and individuals emigrating abroad. When a parent wishes to relocate abroad with a child under the age of 18, the other parent’s consent is required.

It’s at this point where relocation may become contentious as the other parent, in instances where the parents are divorced or were not married, may not agree with and consent to the relocation.

You want to emigrate to Australia with your children…now what???

If the non-relocating parent does not consent to the removal of a child, then you have no choice but to bring an application to the High Court.

The fundamental consideration in relocation (and other matters pertaining to children) is the overriding principle of what is in the best interest of the child. As upper guardian of a child the High Court will make a decision which they deem to be in the best interests of the child.

The parent wishing to relocate with a minor child will have to show that his/her decision to relocate is bona fide, reasonably and genuinely taken and most importantly taken with the best interests of the minor child in mind.

Section 7 of the Children’s Act 38 of 2005 sets out factors to be considered when determining what is in the best interests of a minor child. Section 7(1) of the Children’s Act states that when the best interests of a child are considered, the following factors must be taken into account:

  • The nature of the personal relationship between the parents and the children;
  • The attitude of the parents towards the children and the exercise of parental responsibilities and rights;
  • The capacity of parents to provide for the needs of the children;
  • Changes in the child’s circumstances;
  • The practical difficulty and expense of a child having contact with the parent;
  • The need of the child to remain in the care of a parent and to maintain a connection with his/her family;
  • The child’s age, maturity, gender and background;
  • The child’s physical and emotional security;
  • Any disability or chronic illness;
  • The need for a stable family environment;
  • The need to protect the child from any physical or psychological harm;
  • Any family violence involving the child or a family member;
  • Which action or decision would minimize further legal action?

Although the Children’s Act does not specifically make provision for relocation of minors, case law remains the leading precedent in determining issues that need to be taken into account when dealing with relocation.

In recent case law the Court has drawn attention to the fact that although the best interest of the child is paramount, other factors are also taken into consideration, which factors include:

  • The purpose of relocation;
  • The interest of the relocating parent;
  • The interest of the non-relocating parent;
  • The relationship between the child and the parent; and
  • The views of the child (if they are able to convey same).

The Courts continuously emphasize that each case must be decided upon its own particular facts and that the best interests of the minor child/children are the first and paramount consideration.

It is essential to seek expert advice when applying the applicable principles to your particular set of facts. For assistance in this regard contact our family law specialist, Ashley Curran, on (021) 671 9322 or ashley@curranattorneys.co.za.