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Child Relocation - T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024). - Family Laws South Africa
Shaping the Future of Family Law: A Pivotal South African Case on Child
Relocation – T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024).
Home » Shaping the Future of Family Law: A Pivotal South African Case on Child Relocation – T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024).
19/01/2024
Bertus Preller Adversarial Legal System, Children, Parental Rights, Relocation Child Custody, child maintenance, child welfare, Child's Best Interests, children's act,
Constitutional Rights, court judgement, custodial parent rights, family advocate report, family court decision, Family Law, family law practice, international child relocation,
international family law, International Relocation, Johannesburg High Court, landmark ruling, Legal Analysis, legal precedent, MAHOMED AJ, new case on child relocation,
non-custodial parent, parent-child relationship, parental consent, Parental Responsibilities, relocation consent, relocation rights, South African legal system, T.R v S.M
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17/04/2024, 21:06 Shaping the Future of Family Law: A Pivotal South African Case on Child Relocation - T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024). - Family Laws South Africa
Shaping the Future of Family Law: A Pivotal South African Case on Child Relocation – T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January
2024).
Background
Parties and Relationship: From 2009 to 2012, T.R (the applicant) and S.M (the respondent) were in a relationship but never married. They had a daughter who, at
the time of the case, was 12 years old.
Child’s Circumstances: The daughter attended a private school in Johannesburg, excelling academically. The applicant had been solely responsible for her care,
while the respondent exercised contact sporadically.
Family Dynamics: The child lived with the applicant, her stepfather, and her 4-year-old half-sister.
Relocation Issue: The applicant secured an executive position in Nairobi, Kenya, and decided to relocate with her family, including the minor child. However, the
respondent withheld his consent for the child’s relocation.
Applicant’s Submissions
Respondent’s Submissions
Application of Law
Legal Framework
Children’s Act: The court referred to Section 18(1) of the Children’s Act, highlighting that a person may have either full or specific parental responsibilities and
rights concerning a child.
Parental Consent: Section 18(3) stipulates that a parent must give or refuse any consent required by law in respect of the child, including consent to the child’s
departure or removal from the Republic.
Respondent’s Concerns: The court noted the respondent’s concerns about what would happen to him once the minor child relocated to Kenya. However, it was
observed that he conceded the applicant’s bona fide intention to relocate but failed to present evidence as to why it was not in the child’s best interest.
Parental Responsibility and Contact: The court acknowledged the respondent’s sporadic contact and limited involvement in the child’s life, contrasting it with the
applicant’s consistent care and involvement.
Best Interests of the Child: The court emphasized the paramount importance of the child’s best interests, as stated in Section 28(2) of the Constitution Act.
Child’s Welfare and Relocation Impact: The court considered the evidence regarding the child’s welfare, her educational achievements, and the proposed
support in Kenya. It was noted that the child was well-adjusted and would likely continue to thrive in the new environment.
Respondent’s Financial Contribution: The respondent’s inconsistent financial support was acknowledged, alongside the applicant’s sustained financial
responsibility.
Digital Age and Parenting: The court recognized the opportunities the digital age offers for the respondent to maintain contact with the child despite the distance.
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Maintenance vs. Contact: The court agreed with the applicant’s counsel that the respondent conflated maintenance with contact. His limited financial
contributions were noted, especially in light of his ability to afford luxury expenses.
Family Advocate Report: The court noted the respondent’s insistence on a family advocate report but observed that he could have obtained such a report
himself. The court suggested that the logical arrangement for contact would be during school holidays, as previously proposed by the respondent.
Jackson v Jackson
JvJ
Godbeer v Godbeer
FvF
Court’s Decision
1. Grant of Leave for Relocation: The court granted the applicant leave to remove the minor child, P.R., a female born on 29 March 2011, permanently from the
Republic of South Africa to relocate to Kenya.
2. Leave for Child’s Residence in Kenya: The court granted the applicant leave to remove the minor child from the Republic of South Africa to reside with her in
Kenya.
3. Dispensation of Respondent’s Consent: The court dispensed with the respondent’s consent for the departure of the minor child from the Republic of South Africa
to travel with the applicant to Kenya, as required in terms of section 18 (3) (c) (iii) of the Children’s Act.
4. Travel Formalities: The court permitted the minor child to depart from the Republic of South Africa, accompanied by the applicant or her appointed nominee,
without the requirement of a parental consent affidavit from the respondent. This is subject to compliance with the remaining provisions of regulation 6 (12) (b) to
the Immigration Act 13 of 2022.
5. Full Parental Responsibilities and Rights to Applicant: The court declared that the applicant holds full parental responsibilities and rights in respect of the minor
child, as provided for in section 18 of the Children’s Act 38 of 2005.
6. Respondent’s Parental Responsibilities and Rights: The court limited the respondent’s parental responsibilities and rights to those provided for in section 18(2)(d)
of the Children’s Act. These include maintaining contact with the minor child and contributing to her maintenance needs.
7. Contact Arrangements Post-Relocation: Upon relocation to Kenya, the respondent was entitled to exercise contact with the minor child during every alternate
long school vacation, at his cost. Additionally, the respondent was permitted to have telephonic or video contact with the minor child three times per week, in
accordance with the minor child’s school schedule.
8. Costs: The respondent was ordered to pay the applicant’s legal costs on an attorney-client scale.
The judgment rendered by MAHOMED AJ in the case of T.R v S.M represents a well-considered application of the legal principles governing parental rights and the best
interests of the child. The decision reflects a deep understanding of the complexities involved in cases of international relocation involving minor children.
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17/04/2024, 21:06 Shaping the Future of Family Law: A Pivotal South African Case on Child Relocation - T.R v S.M (035901/2023) [2024] ZAGPJHC 35 (17 January 2024). - Family Laws South Africa
The judge’s application of the relevant statutes, particularly the Children’s Act, and the adherence to the Constitution’s paramountcy of a child’s best interests, were both
appropriate and commendable. By granting the applicant leave to relocate with the minor child to Kenya, the court acknowledged the fundamental rights of the custodial
parent to pursue career opportunities and personal growth, which, in turn, benefit the child. The judge recognised that the applicant had been the primary caregiver and had
consistently provided for the child’s needs, both emotionally and financially.
MAHOMED AJ’s reliance on pertinent case law, including Jackson v Jackson and F v F, further solidified the rationale behind the decision. These precedents underscore the
importance of allowing custodian parents the freedom to make life choices that they deem beneficial for their children, without undue obstruction, as long as these choices
are made in good faith and with rational consideration.
The court’s approach to the respondent’s concerns and rights was balanced and fair. While the respondent’s consent was dispensed with, his parental rights were not entirely
disregarded. The judge facilitated a means for the respondent to maintain contact with the child, thus upholding the child’s right to have a relationship with both parents.
Furthermore, the judge’s critical evaluation of the respondent’s sporadic involvement in the child’s life and his inconsistent financial contributions added a layer of pragmatism
to the decision. It acknowledged the realities of the child’s existing familial bonds and the environment in which she had been thriving.
In conclusion, MAHOMED AJ’s judgment in T.R v S.M was a judicious blend of legal precedent, statutory interpretation, and a sensitive understanding of the human elements
involved in family law. The decision rightly prioritised the child’s welfare and upheld the custodial parent’s rights, while still considering the non-custodial parent’s role and
affording him reasonable contact rights. This case exemplifies the delicate balance courts must strike in family law matters, especially in cases involving the relocation of
children across international borders.
Written 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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