SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
• the child is in need of a permanent alternative placement; • the child is the stepchild of the person intending to adopt; or • the child’s parent or guardian has consented to the adoption, unless consent is not required.
• Each case is to be decided on its own particular facts. • Both parents have a joint responsibility for raising the child and, where the parents are separated, the child has the right and the parents the responsibil - ity to ensure that contact is maintained. • “Generally speaking … where the custodian par - ent wishes to emigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodial parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the cus - todian parent; it is because, in most cases, 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 thwarted in his or her endeavo[u]r to emigrate in the pursuance of a decision reasonable and genu - inely taken” ( Jackson v Jackson ). “From a consti - tutional perspective, the rights of the custodian parent to pursue his/her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights may well have a severe impact on the welfare of the child or children involved … the welfare of the child is, undoubtably, best served by being raised in a happy and secure atmosphere” ( F v F 2006 (3) SA 42 (SCA)). • The courts have always been sensitive to the situation of the parent who is to remain behind. A vexing question surrounds the degree of such sensitivity and the role it plays in determining the best interests of the children. In JB v RE [2023] ZAWCHC 3, there were detailed specific arrange - ments for contact between the child and the non- relocating parent, addressing international travel, maintenance and the enforcement of orders under the Hague Convention. 2.3.2 Wishes and Feelings of the Child Section 10, CA requires that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way, and views expressed by the child must be given due con - sideration. This provision is in compliance with Article 12 of the UNCRC.
2. Relocation 2.1 Whose Consent Is Required for Relocation?
The consent of all co-guardians is required for the relocation/removal of a child from South Africa (Sec - tion 18 (5), CA). 2.2 Relocation Without Full Consent An application will have to be brought to the High Court, as upper guardian of all minor children, to dis - pense with the co-guardian’s consent and it will have to be shown that the proposed relocation is in the child/children’s best interests. 2.3 Application to a State Authority for Permission to Relocate a Child 2.3.1 Factors Determining an Application for Relocation “It is trite that in matters of this kind the interests of the children are the first and paramount considera - tion” ( Jackson v Jackson [2001] ZASCA 139; 2002 (2) SA 303 at para 2). Section 28 (2) of the SA Constitution provides that “a child’s best interests are paramount in every matter concerning the child”. Section 7, CA sets out what factors are required to be considered when determin - ing what is in the best interests of a child. In a relocation application, courts are required to eval - uate, weigh and balance a myriad of competing fac - tors, including the child’s wishes in appropriate cases. In LW v DB 2015 JR 2617 (GJ), in addition to rein - stating that the first and paramount consideration is the interests of the children , the court set out further principles and guidelines applicable to considering an opposed relocation.
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