By Shani van Niekerk
It is expected of divorced parties to close the old book and start a new life after what is a life-changing and usually traumatic experience. Often, a new life includes a new province or even country.
Relocation disputes between parents are frequently served before our courts. Relocation disputes have increased due to the outflux of South Africans wishing to emigrate.
A relocation dispute will arise when one parent, normally the parent with primary residence and with whom the child(ren) usually resides, decides to move town/province/country. In the absence of an agreement between the parties, a court is approached by the party wishing to relocate. The request is for the court to grant consent for the relocation. Alternatively the parent left behind requests the court to prevent the relocation.
What does the Law say? The guiding principle of the Children’s Act 38 of 2008 is: “in all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9).
The Children’s Act, however, neither makes specific reference to the relocation of one parent or the other, nor does it legislate consent procedures. Section 18, however, makes it clear that if one parent wishes to emigrate, the consent of both parents is needed.
For relocation within South Africa, the situation is less well defined.
In the absence of legislative controls, our courts have dealt with the issue of relocation case by case. Various factors are taken into account, including the best interest of the child(ren), the welfare of the child(ren) and the effect the relocation will have on the parent who remains behind. The court will always take into consideration whether the decision to relocate is reasonable and bona fide. Relocation with a child can become a stressful, litigious and costly drawn-out process.
The Hague Convention is an international treaty aimed at initially discouraging:
– The abduction/removal of a child from the country in which he/ she normally resides, by a parent or caregiver to another country, without the consent of the other parent or caregiver.
– The retention of a child in another country and refusal by a parent to return the child to the other parent in the country in which the child normally resides.
The Convention creates a mechanism and procedure to assist the parent not relocating and the involved countries’ authorities to facilitate the return of the child. It also makes provision for assistance where contact between a parent and a child in a different country is being obstructed.
Member countries are bound to assist the parent seeking assistance. Most European and Commonwealth countries as well as the US are members. In Africa, only South Africa, Mauritius and Zimbabwe subscribe to the Convention.
The disputes can be drawn out and require a desperate parent wishing the child to be returned, or his/her contact to be restored, to traverse a minefield of procedures and obstacles. The child’s best interests remain paramount and this can often lead to real or fictitious claims being made in an attempt to sway the pendulum.
The process often requires expert assistance from a knowledgeable team that can assist, both locally and abroad, to ensure the best possible outcome.
Shani van Niekerk is a senior associate at Adams & Adams.
The Star