It often happens that after divorce the “custodian” parent of a child wishes to emigrate. Should the other parent withhold consent for emigration, which is required by s18(3)(c)(iii) of the Children’s Act, 38 of 2005, the custodian parent may apply to the court for an order which dispenses with that parent’s consent and authorizes the removal of the child from the Republic. The approach followed by our courts in this type of application and the circumstances under which such applications are granted were recently considered in various cases. In some decisions the courts held that the child’s best interests must be weighed against the custodian’s right to carry on with his or her life, and the impact which emigration would have on the non-custodian’s right of access. In Jackson v Jackson 2002 (2) SA 303 (SCA) the supreme court of appeal rejected this view and emphasized that the child’s best interests must always be the determining factor. It further stated that as a rule, a court would not lightly refuse the custodian permission to emigrate with his or her child if the decision to emigrate was bona fide and reasonable. The court explained that this is so, not because of the rights of the custodian, but because, in most cases, even if the access by the non-custodian parent would be materially effected, it would not be in the best interests of the children that the custodian parent be thwarted in his or her endeavor to emigrate in pursuance of a decision reasonably and genuinely taken.

The supreme court of appeal stressed that each case must be decided on its own facts. In establishing the best interests of the children in the present case, the court attached great weight to the fact that there had been no real separation between them and either parent because the non-custodian enjoyed such extensive access rights that the children spent more or less equal amounts of time with both parents. Expert evidence revealed that the children would suffer a great deal of pain and trauma if they were separated from the non-custodian parent. The court therefore denied the custodian permission to emigrate with the children.

Factors the courts have considered in deciding whether the custodian’s decision to emigrate is bona fide, have included his or her desire to return home if he of she is a foreigner, the presence of family members in the foreign country, the non-custodian’s employment opportunities, and his or her financial and other prospects in the foreign country.

In Ford v Ford (2006) 1 ALL SA 571 (SCA), the appellant, a custodian mother of a 10 year old daughter, sought permission of the court to relocate to the United Kingdom with her, citing among other factors fear of violent crime and lack of job security in South Africa. By comparison, in the UK, she would be reunited with her family and live in a peaceful environment that offered better social security. The non-custodian husband opposed the relocation of the child, indicating that, while he was in a position to provide for the financial needs of the child in South Africa, the mother did not have concrete financial arrangements for both herself and the child in the UK. The High Court as well as the full bench, and eventually the Supreme Court of Appeal, said that, in deciding whether or not relocation would be in the child’s best interests, the court should carefully evaluate, weigh and balance the myriad competing factors, including the child’s wishes in appropriate cases. In the instant case the custodian parent faced just too many imponderables relating to her financial position in the UK as she had only a promise of temporary low-paying employment, without a formal appointment. Such imponderables made it difficult for a court to determine their likely effect on the psychological, emotional and physical wellbeing of the child. The application was dismissed.

Child relocation disputes are a reality that parents often encounter after divorce. The courts have recognised the need for children and parents to continue relationships with, and have support from, both parents following a divorce.