Legal Talk

The facts of the case briefly were that the couple were in a love relationship but were not married to each other. The couple had two minor children. Both parents were co-holders of full parental responsibilities and rights of the children in accordance with the Children's Act. The children lived with the mother and the father reasonable rights of contact with them on reasonable basis. The father paid R2000,00 per child per month towards the children's' maintenance. The mother wanted to relocate to the United Kingdom, saying that she would be able to get a better job there and wanted to take the children with her. She needed the father's consent to remove the children from SA, which the father refused to do.

The mother then approached the High Court for assistance. The father's refusal to allow the children to relocate to the UK was that the mother "has not properly investigated the practicalities of her decision as she inter alia has no structured plan for the proposed relocation". He said that her reasons to relocate with the children was based on speculation and uncertainty and that the children had a better and stable life in South Africa. The mother on the other hand said it would be in the children's best interest to move to the UK. The mother earned a salary of R22576. The father paid the sum of R4000 as maintenance.

However she said that this was not enough to cover all the expenses and she always had a shortfall at the end of the month. She argued that her ability to earn more than she was currently earning in South Africa was remote and taking into account her education and experience, she has reached her ceiling in terms of salary in this country. She said her parents lived in the UK, as did her brother and his family. These people would be able to provide the mother with her support system. After hearing all the evidence before him, Judge Madondo held that it was to be in the best interests of the minor children that they allowed to relocate overseas.

He used the Children's Act as well as the Constitution of Republic of South Africa 1996 to support his position. He said " the court has to weigh and evaluate the circumstances impacting directly and immediately to the basic care, well-being and the education of the minor children. To this balancing exercise, fairly and correctly a court needs to be apprised of all the relevant information.

Equipped with this information, the court needs to balance the interest of the minor children remaining in South Africa, so that their father will have easy access to them, against the risks to the minor children of not getting appropriate care and adequate education in the country where they relocate to. In the exercise of her parental responsibilities and rights, the mother, as a custodian parent, has a broad discretion to choose where to reside with the minor children. However, such discretion shall be exercised subject to the limitation that the responsibilities and rights in respect of the minor children must, at all times, be exercised and performed in the best interest of the children".

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