When parents are divorced or raising their children in a co-parenting arrangement, the best interests of the child (under the age of 18) are frequently in contention.
The fact that many South Africans are moving (or “emigrating”) to other states and countries in search of better employment opportunities has made this a more serious issue.
The issue of where the child is supposed to be raised and whichever parent should be regarded as the primary caregiver is frequently in dispute in these situations.
Each parent frequently has different justifications for why each option is in the child’s best interests.
In terms of the child’s best interests, what does South African law state?
- In accordance with sections 9 of the Children’s Act 38 of 2005 (“Children’s Act”) and section 28 of the Constitution of the Republic of South Africa 108 of 1996, the child’s best interest must always come first in all decisions involving the child.
- Section 7 of the Children’s Act specifies the criteria for what constitutes a child’s best interests, and among the things a court must take into account are the following:
- the nature of the child’s personal relationship with the parent or parents, or with any other significant caregiver;
- The parenting method of the parent(s), or the execution of parental rights and responsibilities with regard to the child;
- the ability of the parent(s) or other caretaker(s) to fulfil the child’s needs, particularly their mental, emotional, and intellectual requirements; and
- the necessity of protecting the child from any possible bodily or mental harm brought on by mistreatment, neglect, exploitation, abuse, or degrading behaviour, as well as from being exposed to violence, exploitation, or additional damaging actions.
What is a parent’s duty of care for their child?
Parents are responsible for a child’s care (formerly known as custody) under the Children’s Act. This includes giving a child suitable living circumstances that promote his or her well-being, health, and growth.
The children born to married parents typically receive joint care from both parents. In the event of a divorce or if the parents are not married, they must decide who will act as the child’s primary caregiver.
However, the child’s best interests must come first while making this decision.
The other parent (“non-primary caregiver”) may ask the court for an order for care if one of the parents (“primary caregiver”) is raising the children and the non-primary caregiver is unhappy with how the child is being raised. Only if it is considered to be in the child’s best interest would such a request be granted.
It is regarded as a criminal offence for the primary caregiver to unreasonably deny or prevent another person from seeing the child when there is a court order governing the child’s care or visitation (commonly, contempt of court).
What occurs if the main caregiver wants to go emigrate?
- Relocation is permitted by South African law where the decision to move is reasonable and genuine.
- If the proposed relocation is driven by one of the following, it may be seen to be reasonable and in good faith (“bona fide“):
- career prospects;
- a desire to cohabitate with a partner who is located overseas; or
- a longing to go back to one’s country.
- In the case of F v. F (2006) (3) SA 42 (SCA), the mother quit her job, sold the family home and motor vehicle, transported the furnishings to England, and notified the school that both she and her daughter would be relocating. She had no immediate intentions for employment after moving at this time. It can be said that the court did not rule in her favour and that her move was not reasonable.
- The contrasting benefits and drawbacks of relocation are additional factors the court may consider. The court will consider whether the benefits of moving to another location outweigh the discomfort brought on by relocating at this point.
What happened in the case of Heidi Nicole Koch N.O. v. The Ad hoc Central Authority for the Republic of South Africa and Others? What ruling did the court reach?
In this particular case, a mother who was living in the UK at the time of her cancer diagnosis made the decision to travel to South Africa with her child and the child’s father for medical treatment. Subsequently, while the mother underwent treatment, the child’s father left for the UK with the agreement that they would return together once the mother’s treatment was complete. The infant’s aunt and maternal grandmother looked after the child while they were in South Africa.
Once the mother realized that she had little hope of recovering, she stated that if she passed away, she wanted the child to stay in South Africa and be cared for by the aunt. In opposition of the mother’s requests, the father of the child filed a request for the child’s return under the rules of the Hague Convention on the Civil Aspects of International child Abduction, 1980 (“Convention”) with the Central Authority for England and Wales.
- The mother opposed the application for the child’s return to the UK on the basis that:
- The father had given his consent for the child to continue living with her in South Africa while she had cancer treatment, and
- The child’s return to the UK posed a serious risk of putting her in an unfavourable setting, exposing her to physical and psychological harm.
Unless a person opposing the application for the child’s return can demonstrate that “…there is a grave risk that the [child’s] return would expose [him or her] to physical or psychological harm or otherwise place the child in an intolerable situation,” the SCA held that the SA courts must order the child’s return to the UK.
The SCA rejected the father’s application and accepted the mother’s testimony that the child’s removal from her aunt, who serves as her primary attachment figure, and her environment of safety and security will put her at risk of severe psychological and physical harm or otherwise put her in an intolerable situation, and that the UK’s current safeguards are insufficient to protect the child from such harm when she returns to the country.
In light of the aforementioned, the best interests of the child weighs so heavily that in some cases, the child’s parent(s) may not be allowed the right to be the child’s primary caretaker.
Each case will be addressed after taking into account the particular facts that apply in accordance with that which will be in the child’s best interests.
Each matter is, as a result judged on its own facts and merits – no two matters are alike, and we do not treat them as such, as a result.
Should you require any assistance or advice, do not hesitate to contact us.
Written by:
Charlene Hefer (Candidate Attorney)