Relocating A Minor Child Abroad: When The Non Relocating Parent Refuses To Provide Consent

A couple who were in a relationship but never married had a daughter together now aged 12 years. The mother who had since married decided to relocate with her family to Nairobi, as she received a job offer in Kenya.

The father of the minor child refused to consent to the relocation which resulted in the mother turning to the court for assistance. In her papers the mother said that she merely wanted the court to make an order dispensing with the need for the father to provide consent to relocation, but still preserving some of his parental rights and duties to the child.

She argued that the father's opposition to the application was not bona fide,saying that he did not provide substance on merits to justify his refusal to consent to the relocation. She said that the father was never an active parent in the child's life, his contact with her has been sporadic often he needed to be reminded of his duty as a parent.

The father lived in Dubai and exercised contact on only limited occasions. The mother said that she carried the full financial responsibility for the minor child since 2021. The father stopped paying maintenance for the child,saying his business suffered following the pandemic.

In her application, the mother also asked for a punitive cost order to be made against the father saying he had no bona fide reason to withhold consent and could not show that it was not in the best interest of the minor child to relocate with her family to Kenya.

The father denied these arguments. He said that he was concerned that the mother was using her husband to replace him as a parent and that she denied him the opportunities to bond with his daughter. He felt Kenya was a dangerous place which put the child at risk of harm.

The court looked at the impact of the relocation had on the mother and the father and the relationship between each of the parties and the child and concluded that there was no evidence suggesting the child was unwilling to relocate with her mother.

As the court remains the upper guardian of all minor children, it had to consider whether the minor's relocation was in her best interest. After weighing all the evidence and submissions made, found that it was in the child's best interests that she be allowed to relocate with her mother, stepdad and half sister to Kenya.

It ordered that the mother could remove the child from South Africa to relocate to Kenya and that the rule requiring the father's consent to do so be dispensed with. The court also ordered the father to pay the mother's costs for bringing the application to court.