The proposed relocation of children with a parent, generally primary care-givers, either within the Republic of South Africa or to a destination abroad, is considered to be of the most problematic family law matters our courts have to deal with. While there has been a shift away from the traditional automatic primary caregiver roles of mothers, and contact parent positions of fathers, to one of shared parental responsibilities and rights and increasingly more or less equal physical care arrangements (depending on the best interests of the child), mothers in most instances still feature as primary caregivers, evidenced in the vast majority of parenting plans entered into by parties on divorce or termination of relationships from which a child has been born.

The reasons for relocations are vast and range from wishing to join new partners or spouses abroad to viable and lucrative job opportunities elsewhere, a declining state of the economy, escalating crime levels, the AIDS epidemic, wanting to return home to take advantage of support structures available from family members living abroad, educational and health care opportunities, and a multitude of other possible reasons. The non-primary caregiver parent (also referred to as the left-behind parent) more often than not opposes the relocation to prevent a change in the status quo, particularly to avoid changes to existing contact arrangements. Parties on divorce generally retain co-guardianship of their children. S18(3)(c)(iii) of the Children’s Act 38 of 2005 requires that co-guardians consent to a child’s departure or removal from the Republic alternatively, a court is requested to dispense with such consent in the face of opposition.     

 The determination of relocation disputes necessitates the weighing up of competing rights of parties, including constitutionally-based rights of freedom of movement and association (of the primary caregiver), the rights of contact of the left-behind parent, and the rights of the child to maintain contact with both parents. The Children’s Act 38 of 2005 is the main legal framework in South Africa relating to children. It is however silent on the issue of relocation which means that guiding principles that can be extracted from the Act are used to assist courts in the determination of these disputes, based on the facts of each case and the best interests of the child. S9 of the Act requires that in all matters concerning the care, protection, and well-being of a child, the standard of the child’s best interests is paramount and must be applied. Guidance is provided in S7 of the Act through a comprehensive list of factors that courts are to apply in the best interest determination. Relevant case law, from which a collection of factors, principles, and guidelines may be extracted, also offers insight and guidance in the determination of relocation disputes on a case-by-case basis. This includes whether the relocation has been properly considered by the primary care-giver and a structured plan is in place as it cannot readily be assumed that a parent’s relocation proposal is necessarily compatible with a child’s welfare. A well-structured plan with measures to protect the best interests of the children may offer a measure of contentment to a court that the children’s relocation will be to a safe, secure environment abroad. 

International legal frameworks are also relevant. Article 9(3) of the United Nations Convention on the Rights of the Child require State Parties to respect the rights of children who are separated from one or both parents to maintain personal relations and direct contact with both parents, regularly, except where such contact is contrary to the child’s best interests. Where relocation is the end result, the focus should be on maintaining contact and fostering the relationship between the child and the left-behind parent.