SOUTH AFRICA Law and Practice Contributed by: Zenobia du Toit and Samantha Lewis, Miller du Toit Cloete Inc
2.3.4 Importance of Keeping Children Together Section 7 (1)(d)(ii), CA provides that the likely effect on the child of any separation from a sibling must be taken into account when considering the best inter - ests of the child. Experts are often hesitant to recom - mend that siblings are separated and this will usually only occur in exceptional circumstances. As the court is guided by the experts, they too are loath to make an order that will result in the separation of children. Expert evidence should be independent and present - ed for the benefit of the court. 2.3.5 Loss of Contact Section 7 (1)(d)(i), CA provides that when considering the best interests of the child, the likely effect on the child of any separation from the other parent must be taken into account. Section 7 (1)(e), CA requires that the practical difficulty and expense of a child having contact with the parents, or any specific par - ent, and whether that difficulty or expense will sub - stantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis must be consid - ered. “Although our courts have recognized and con - tinue to appreciate both the need of the child and the right of the non-resident parent to have regular and meaningful contact, no single factor can be treated as dispositive or given such disproportionate weight the consequence of which would be a predictable out - come” ( AR v AT (2022/2513) [2023] ZAGPJHC 380 (25 April 2023)). 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? Each case is decided on its own specific circumstanc - es, so there are no specific reasons in support of the relocation that garner more or less sympathy with South African courts. At the end of the day, the court considers the child’s best interests as paramount and these interests “may or may not be in irreconcilable conflict with those of one or both parents” ( AR v AT (2022/2513) [2023] ZAGPJHC 380 (25 April 2023)). 2.3.7 Grounds for Opposition to Relocation See 2.3.6 Which Reasons for Relocation Are Viewed Most Favourably? There are no specific reasons in opposition to a relocation that garner more or less
Where children are unable to express their views clear - ly with/without concern, their views can be voiced in a care and contact assessment and/or through thera - peutic intervention and/or through the appointment of their own attorney. Section 29 (6), CA provides that the court can appoint a legal representative for the child in all care, contact and guardianship matters concern - ing them (and the court may direct the parties to the proceedings, or any one of them, or the state if sub - stantial injustice would otherwise result, to pay the costs of such representation). In AR v AT (2022/2513) [2023] ZAGPJHC 380 (25 April 2023), the court took the view that the children who were involved were able to participate in an age- appropriate matter, and it was their codified and con - stitutional right to have their voices heard. Here the judge chose to speak to the children himself to obtain their views about the proposed relocation. The wishes and views of the child will, however, not be the determining factor but will be considered in con - junction with the other facts of the case. The child’s best interests will be paramount and, in disputed relo - cation matters, an expert in disputed care and contact arrangements, alternatively the Office of the Family Advocate, will be appointed to render the court with a report and recommendations as to whether the pro - posed relocation is in the best interests of the child. “The court concerns itself with the rights and interests of the minor children and not of those of the parents” ( TR v SM (035901/2023) ZAGPJHC 35 (17 January 2024). In RH v NM [2024] ZAWCHC 77, the court placed sig - nificant reliance on the evidence of the experts (after interviews and evaluations with parents, collaterals and, more importantly, the child) to reach a decision
in the best interests of the child. 2.3.3 Age/Maturity of the Child
Section 7 (1)(g)(i), CA requires that the child’s age, maturity and stage of development must be consid - ered when considering the best interests of the child. (See also 2.3.2 Wishes and Feelings of the Child .)
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