International relocation of children in South Africa: overview
A Q&A guide to international relocation of children in South Africa.
This Q&A gives a high level overview of matters relating to rights and responsibilities of parents, right to remove, procedure for relocation, dispute resolution in relocation matters, right to appeal, as well as child abduction.
This Q&A is part of the global guide to international child relocation law. For a full list of jurisdictional Q&As visit www.practicallaw.com/relocation-guide. To compare answers across multiple jurisdictions, visit the International Relocation country Q&A tool.
For an introduction to the guide, see the foreword to the International Relocation of Children Global Guide by Mr Justice Stephen Cobb.
Rights and responsibilities of parents
Legal responsibility for upbringing
Parental responsibilities and rights are regulated by sections 18 to 21 of the Children's Act 38 of 2005 (Children's Act). Both married and unmarried biological parents of a child can legally have and exercise full parental responsibilities and rights. There is a strong emphasis in the Children's Act on joint parenting and on resolving differences without litigation, whenever possible. Parental responsibilities and rights include those to:
Care for the child.
Maintain contact with the child.
Act as guardian of the child.
Contribute to the maintenance of the child.
A person is no longer a child for any purpose under the Children's Act after the age of majority (that is, 18 years).
A major biological mother automatically has full parental responsibilities and rights.
The biological father who is married to the child's mother, or who was married to the child's mother either at the time of conception, at the time of the child's birth, or at any time between conception and birth, automatically acquires full parental responsibilities and rights.
An unmarried biological father also automatically acquires full parental responsibilities and rights where either (section 21, Children' s Act):
He was living with the mother in a permanent life-partnership at the time of the child's birth.
He, regardless of whether he has lived or is living with the mother:
contributes or has attempted in good faith to contribute to expenses in connection with the maintenance of the child for a reasonable period;
consents to be identified as the father; and
contributes to the upbringing of the child, or has attempted in good faith to do so.
Where a father's name does not appear on the child's birth certificate, this implies that the parents are not married and the question of whether the father has full parental responsibilities and rights will therefore be subject to section 21 of the Children's Act. An unmarried father's name can only appear on the child's birth certificate with the consent of the child's mother.
Important points to note regarding section 21 of the Children's Act and its practical implications include the following:
Section 21 also applies to children born before this section came into operation in July 2007.
An unmarried father always has a duty to contribute towards the maintenance of the child, irrespective of whether or not he obtains full parental responsibilities and rights.
The term "permanent life-partnership" is not defined or described in the Children's Act. According to Skelton & Davel's "Commentary on the Children' s Act" (RS 7 2015), the relationship should be analogous to, or have many of the characteristics of, a marriage. It is submitted that the relationship, in the minds of the parties at the time of the child's birth, should be considered to be a permanent one in the same way as a marriage is permanent (that is, until one or both parties decide for whatever reason that it has irretrievably broken down).
The term "reasonable period" in respect of the unmarried father's contribution to maintenance expenses is not defined or described, but should be assessed on the facts of each case.
A contribution towards the maintenance of the child requires only that contribution. It does not require the father to have complied with his full maintenance obligation for a reasonable period.
Where a dispute exists between the parents as to whether the unmarried father meets the requirements set out in section 21, the parties cannot immediately approach the court. The Children's Act provides that the dispute must be referred for mediation and the parties can only approach the court for an order if mediation is unsuccessful. However, the High Court of South Africa, as the upper guardian of all minors, retains the power to make an order in this regard without the parties having engaged in mediation, if it is in the best interests of the child.
Where both parents have full parental responsibilities and rights, either of the parents' rights can be terminated, or the exercise of their rights can be limited, if it would be in the child's best interests.
Rights and responsibilities post-separation
Both parents continue to share parental responsibilities and rights after the parents separate or divorce, unless the exercise of these rights is terminated or restricted by the High Court exercising its jurisdiction as upper guardian of the minor child. In most cases, the rights and responsibilities are shared and parents are on equal footing, both during and after the marriage or separation.
When both parents retain full parental rights and responsibilities (which always include the right of guardianship), each of them can act without the consent of the other when exercising their respective rights, unless the Children's Act specifically provides otherwise. The consent of all persons who have guardianship is required in respect of the following acts (section 18(3)( c), Children' s Act):
The child's marriage.
The child's adoption.
The child's departure or removal from South Africa.
The child's application for a passport.
The alienation or encumbrance of any immovable property owned by the child.
Before a parent takes a decision that is likely to significantly change, or have an adverse effect on, the other parent's exercise of parental rights and responsibilities, he or she must give due consideration to the views and wishes of the other parent.
The Children's Act encourages parties to enter into a parenting plan to regulate the exercise of their respective parental rights and responsibilities after separation or divorce, particularly if they are experiencing difficulties in exercising their rights and responsibilities. A parenting plan is usually mediated by a social worker, psychologist or other "suitably qualified person", who in practice is usually a lawyer. The plan must comply with the broad-ranging "best interests" standard set out in the Children's Act. The parenting plan can determine any matter in connection with parental rights and responsibilities, including:
Where and with whom the child will live.
The maintenance of the child.
Contact between the child and the other parent, or any other person.
The educational and religious upbringing of the child.
A parenting plan also sets out mechanisms for resolving disputes that may arise between the parties in the future.
Custody and access
Since the Children's Act came into force in 2007, the concepts of custody and access are no longer recognised. These concepts have been replaced by the concepts of "care" and "contact". "Care" is the all-encompassing concept of ensuring that the child's best interests are paramount, and includes:
Providing the child with a suitable place to live.
Safeguarding the child's wellbeing.
Protecting the child from maltreatment and abuse.
Protecting the child's rights under the Bill of Rights.
Ensuring that the child is educated.
Guiding and assisting the child.
Maintining a sound relationship with the child.
Accommodating the child's special needs.
"Contact" means having a relationship with the child through visits and communication. When the terms "custody" and "access" are used in any law, they must now be construed to also mean care and contact as defined in the Children's Act. Custody used to denote not only residence of a child, but also decision-making powers. South African law now grants equal and parallel decision-making powers to both parents, regardless of where the child has primary residence. Therefore, the concept of "primary residence" is largely a practical description of where the child spends most of his or her time, and confers no greater rights on the residential parent.
A court granting a decree of divorce in which minor or dependent children are involved will not grant the divorce unless it is satisfied that the provisions made or contemplated with regard to the welfare of these children are satisfactory, or the best that can be effected in the circumstances. Unmarried parents can approach the court for an order confirming and/or defining their rights and responsibilities, including when, how and where they will exercise contact, and what maintenance they will pay.
Relocation/right to remove
Some of the most common reasons for relocation disputes/parents seeking to relocate found in South African case law are:
The remarriage of one of the parents to a foreigner, or a person who has emigrated or is wishing to emigrate from South Africa.
The desire by one of the parents to return to their home country after divorce or separation.
The opportunity of more financially rewarding or secure employment in another country.
One or both parents' concern about the high crime rate and specifically the high rate of violent crimes in South Africa, especially if they have in fact been victims of crime in South Africa.
General principles and guidance
In the absence of a court order to the contrary, all persons who have guardianship of a child must consent to the child's departure or removal from the country and to an application for a passport for the child (section 18, Children's Act). In most instances, this will therefore require the consent of both of the child's parents. If a parent refuses to grant consent for the child to leave the country (either temporarily or permanently), the parent wishing to take the child must bring an application to the High Court for an order dispensing with the consent of the other parent.
In addition, new Immigration Regulations relating to minor children travelling internationally were promulgated under the Immigration Act 13 of 2002. These Regulations officially came into operation on 1 June 2015, and were designed primarily to prevent attempts at child trafficking and parental abduction. The Regulations require parents leaving South Africa with a minor child (even if both parents are travelling together) to produce an unabridged birth certificate when leaving the country. This birth certificate shows the details of both parents.
Where one parent is leaving the country with the child, he or she will require written consent from the other parent in the form of an affidavit if:
The travelling parent has no court order indicating that he or she is the sole holder of full parental responsibilities and rights or guardianship.
Both parents are cited on the child's unabridged birth certificate.
Where one parent is leaving the country with the child, and the child's other parent is deceased, the relocating parent will need the following documentation:
An unabridged birth certificate of the child.
The death certificate of the deceased parent.
If a child is travelling alone, he or she will need:
An affidavit from both parents/guardians.
An unabridged birth certificate that names both parents.
The Immigration Regulations are applicable where both parents are indicated on the unabridged birth certificate, regardless of the status of the relationship between the parents.
Therefore, in the absence of a court order ordering otherwise, a parent seeking to relocate a child internationally will need:
An unabridged birth certificate.
Written consent to leave the country with the child from the other parent, in the form of an affidavit.
Where one parent refuses to grant consent for the other parent to relocate internationally, the High Court, as upper guardian of all minors, must be approached for an order allowing the relocation.
There is no legislative guidance on this issue in South Africa. The law develops on an ongoing basis through cases heard by the courts.
The main (but not the only) criterion consistently applied by the courts in deciding matters of this nature is entrenched in section 28(2) of the Constitution of the Republic of South Africa, which provides that E "(a) child's best interests are of paramount importance in every matter concerning the child".
What is in the best interests of a child can vary greatly from one family unit to another, depending on various factors. The legal principles that must be considered by a court in deciding a relocation matter were set out by the Supreme Court of Appeal in Jackson v Jackson 2002 (2) SA 303 (SCA). These were affirmed and followed by that court in F v F 2006 (3) SA 42 (SCA) , and in several cases since then. In Jackson, Scott JA stated that in relocation disputes, "the interests of the children are the first and paramount consideration" and that "a Court will not lightly refuse F leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable". Scott JA noted that even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian parent be G prevented from emigrating on the basis of a decision reasonably and genuinely taken.
There is no "onus" (in the conventional sense) on the party applying for an order to prove that relocation is in the best interests of the child (Van Rooyen v Van Rooyen 1999 (4) SA 435 (C)).
There is no distinction in the Children's Act between "departure" from South Africa and "relocation". However, in practice, the principles differ where one parent only seeks to take the children on holiday. In this case, a parent refusing consent will usually need to show either that:
They reasonably believe, on the basis of actual evidence, that the travelling parent may not return with the children, despite promises to the contrary being made.
There is some other compelling reason why the children should not accompany the other parent on a vacation.
Relocation is well known to be among the most difficult issues that courts have to deal with in family law matters. The High Court's guidance on the correct approach to adopt in determining whether a relocation will be in the child's best interests was best summarised in the Supreme Court of Appeal judgment in Jackson v Jackson. In this case, the Court held that each case must be decided on its own particular facts. Past decisions based on other facts can only provide useful guidelines, and should not be elevated to rules of law.
The courts will consider, weigh and balance a wide spectrum of competing factors and considerations in order to reach a decision on whether relocation is in the child's best interests. Generally, the courts consider:
The interests of the relocating parent, including the motivation for and purpose of the proposed relocation, taking into account this parent's right to independence and freedom of movement.
Whether the motivation is reasonable and whether the attempt to relocate is done in good faith (as opposed to being designed to frustrate the contact rights of the other parent).
The interests of the non-relocating parent, in particular the ease, practicality and cost of continued contact with the child.
Whether separation from the non-relocating parent will severely prejudice the child. The more of an involved relationship this parent has had with the child, the more likely it is that the child will suffer emotionall, as a result of being deprived of the relationship with the parent in the same form as he or she had been used to in the past.
The likely effect of the move on the physical, emotional and psychological well-being of the child.
The gender issues. Historically, women were more often the primary carers of minor children. To a certain extent, in South Africa, this is still the general position. As such, the applicants in relocation matters have often been, and continue to be, women. Courts therefore must be mindful of the discriminatory impact that refusal of relocation applications could have on the constitutional prohibition of gender discrimination.
All relevant factors of the specific matter, as well as individual justice.
In appropriate cases, the views and wishes of the child concerned, depending on the age, maturity and stage of development of the particular child. The Children's Act specifically gives the child the right to participate in any decision affecting him or her.
A relocation application also triggers the application of section 7 of the Children's Act, which lists specific factors that must be considered when determining what is in a child's best interests. In the specific context of relocation, these factors include, among others:
The nature of the personal relationship between the child and both parents, or a specific parent. In most relocation applications, the court will require the opinion of expert mental health professionals into the psychological and emotional ramifications for the child of either allowing or blocking, a relocation.
The attitude of the parents towards the child and towards the exercise of parental responsibilities and rights.
The capacity of the parents or any specific parent to provide for the needs of the child, including emotional and intellectual needs.
The likely effect on the child of a separation from a specific parent and/or any sibling the child has been living with.
The child's age, maturity, stage of development, background, physical and emotional security, and intellectual, emotional, social and cultural development.
The need for the child to maintain a connection with extended family and his or her culture or tradition.
The need for the child to be brought up in a stable family environment.
The approach followed by South African courts used to favour relocation, that is, there was an apparent presumption in favour of the primary residential parent, with whose decisions the courts did not lightly interfere. With the adoption of the Children's Act and the increasing emphasis on shared parenting and dual primary caregiving, the courts are moving towards a more neutral position. This approach neither favours relocation nor seeks to block relocation, but instead carefully assesses each case on its own merits. In Cunningham v Pretorius (31187/08)  ZAGPHC 258 (21 August 2008) (unreported case), it was held that courts must acquire "an overall impression and bring a fair mind to the facts set up by the parties. The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the child".
The perception of the public and legal profession has changed over the years. There used to be a presumption that mothers could generally relocate with their children (see Question 9). This view persists to some extent among the public. However, people are generally aware that there is no maternal preference in South African courts and that each case relating to children is judged on the basis of its own facts and circumstances.
Procedure for relocation
The parent wishing to relocate must bring an application to the High Court on notice to the other parent. The application must be supported by a comprehensive founding affidavit setting out all the relevant facts relating to the proposed relocation, in as much detail as possible, including the:
Motivation for wishing to relocate.
Plans for him/herself in the new location (including proof of employment and remuneration, and expected monthly expenses).
Plans for the child or children, including where they will go to school (supported by a letter of acceptance from the school), how they will get to and from school, and who will look after them after school.
Area and specific home they expect to live in.
Facilities available in the area, including hospitals, parks, transport and other amenities.
Reasons why they believe the move to be in the child's best interests.
Consequences if they are not allowed to take the child, including whether they would relocate without the child.
Proposals, in detail, for maintenance from and contact with the other parent.
The non-relocating parent will then file a detailed answering affidavit, and sometimes a counter-application for care of the child. The parent who wishes to relocate has a right to reply.
Both parties will then file heads of argument, and a date will be allocated for a hearing.
Duration of procedure
Usually, applications for relocation take about six months, including the period for procuring expert reports. However, if there are valid grounds for urgency which are not self-created (such as an unexpected transfer or offer of employment that requires urgent relocation by the parent, or a sudden family emergency or illness abroad), the application can be heard within about six weeks.
Under the new Immigration Regulations, it should technically not be possible for one parent to remove the child from South Africa without the other parent's written consent (given on affidavit) where that parent's name appears on the child's unabridged birth certificate (see Question 6).
Alternative dispute resolution (ADR)
Factors in relocation cases
Every child who is of an age, maturity and stage of development to be able to participate in a matter concerning him or her, has the right to participate in an appropriate way, and the views expressed by the child must be given due consideration (section 10, Children's Act).
The child's wishes and feelings are usually ascertained by experts, such as psychologists or social workers who assess the child for this purpose. The child's recorded views and wishes are then presented to the court in the expert's written report and if necessary, by the expert testifying in court as a witness.
Usually, in relocation matters, the Family Advocate, a state body set up to advise the courts on matters pertaining to the best interests of children in divorce and ancillary matters, will also assess the child and the family in order to make a recommendation in the child's best interests.
Courts often have to weigh up competing evidence produced by different experts, as illustrated by the case of HG v CG 2010 (3) SA 352 (ECP). In this case, reports were provided by experts appointed by the applicant as well as by a family counsellor and clinical psychologist who were appointed by the Family Advocate. Chetty J held that "the Act has brought about a fundamental shift in the parent/child relationship, from that which prevailed in the pre-constitutional era, and now not only vests a child with certain rights, but moreover gives a child the opportunity to participate in any decision-making affecting him or her". The Court held that it was obliged to consider the children's opinions under the Children's Act and that it appeared from all reports that they were of an age and level of maturity to make an informed decision. The children's views remained consistent and their views, as recorded by the family counsellor and clinical psychologist, had not been duly considered by the experts appointed by the applicant. In these circumstances, the judge dismissed the application and held that relocation was not in the children's best interests.
There is no particular age at which the child's views and wishes will hold sway. It is the particular child's level of maturity and ability to articulate a view that is relevant. For example, in MK v RK 17189/08 SGHC (6 May 2009) (unreported case), the child in question was ten years old and had expressed strong views, but the court found that her views were "naïve and unrealistic", and as such accorded them very little weight.
Offers of security
Rights of appeal
The usual South African Superior Court Rules (the Uniform Rules of Court) apply to appeals in relocation matters.
In practice, this means that the aggrieved parent can apply for leave to appeal against the judgment of the particular High Court judge either to:
A full bench of the High Court division where the application was heard at first instance.
The Supreme Court of Appeal.
This application for leave to appeal is heard on notice by the judge who heard the case. If the judge can be persuaded that another court may have come to a different conclusion, he or she will grant leave to appeal.
If one of the parents is dissatisfied with the decision made by either the full bench on appeal or the Supreme Court of Appeal, that parent can (if granted leave) appeal the decision to the Supreme Court of Appeal or the Constitutional Court, respectively. The Constitutional Court is the highest court in South Africa, and its decisions cannot be appealed.
Overview/domestic and international law
Chapter 17 of the Children's Act gives effect to the provisions of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention). Therefore, the provisions of the Hague Child Abduction Convention have full force and effect in South African domestic law.
Where one parent removes a child from South Africa to another signatory country, or retains a child in such country, after the child has been habitually resident in South Africa and without the consent of the other parent having full parental responsibilities and rights, this will constitute an unlawful removal or retention as defined in the Hague Child Abduction Convention.
Save in the exceptional cases provided in Article 13 of the Hague Child Abduction Convention, the child must be returned to South Africa, as his/her country of habitual residence, without delay.
If the child is removed to a country that is not a signatory to the Hague Child Abduction Convention, the left behind parent will face considerable difficulty in securing the return of the child, including the inevitably prohibitive costs of litigating in the other country.
The only defences a parent can raise are those specifically provided in Article 13 of the HCCH Convention on the Civil Aspects of International Child Abduction 1980 (Hague Child Abduction Convention) (for example, there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation). Neither the Children's Act nor any other domestic legislation provides for any additional defences when a matter falls within the scope of the Hague Child Abduction Convention.
Centre for Child Law
Description. The Centre for Child Law is based in the Law Faculty at the University of Pretoria. The Centre contributes towards establishing and promoting the best interests of children in the community through education, research, advocacy and litigation. Its website provides access to South African case law relating to child law.
International Child Abduction Database (INCADAT) (South African case law)
Description. INCADAT provides access to leading decisions concerning the HCCH Convention on the Civil Aspects of International Child Abduction 1980.
Office of the Central Authority for International Child Abduction
Description. This South African Government website provides access to case law relating to international child abductions.
Southern African Legal Information Institute (Saflii)
Description. Saflii publishes legal information for free public access which comprises mainly of case law and legislation from South Africa. SAFLII also hosts legal materials from other countries in the region which are obtained through partnerships, collaborative efforts and more recently through linking to other Legal Information Institutes established in these regions.
The Department of Justice and Constitutional Development
Description. This website provides access to South African legislation.
Beverley Clark, Director
Professional qualifications. South Africa, Attorney
Areas of practice. All areas of family and personal law, particularly matters with an international element. Practice includes pre-nuptial agreements; international and national adoption; children's rights; civil unions; cohabitation; curatorship; collaborative law; divorce; divorce mediation; domestic partnerships; same-sex rights; international child abduction; international and national relocation; maintenance; mediation; parental rights and responsibilities; reproductive law; surrogacy law.
Non-professional qualifications. LLB, University of Witwatersrand; BA in psychology and drama, University of Cape Town; Honours Degree in Criminology, University of Cape Town; Trained Divorce Mediator, The Arbitration Foundation of South Africa; Level III Collaborative Practice Training, International Academy of Collaborative Professionals.
Languages. English, Afrikaans, French
- Fellow, International Academy of Matrimonial Lawyers.
- Founding Member, Gauteng Family Law Forum.
- Member, International Academy of Collaborative Professionals.
- Member, Northern Provinces Law Society.