Divorce Attorney Cape Town

Relocation of a Child – A court is not bound by the recommendations of the Family Advocate


Relocation of parents with children after divorce

Celimene v Scholtz [2011] ZAGPJHC 170

In a recent matter before the South Gauteng High Court, the mother of a child approached the High court to grant its consent for her to leave the Republic of South Africa after her former spouse and the father of the child refused to grant his consent to remove the child from the Republic of South Africa and to reside permanently in France with the mother and her new husband. The report and recommendations of the Family Advocate and those made by a family counsellor that it would not be in the best interest of the minor child should the court grant the removal was found not to be valid and was disregarded by the court. From this case it is evident that a court is not bound by the recommendations of the Family Advocate.

Parents sometimes consider that it will be in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. A parent can not be expected to tailor his/her life so as to ensure that the children and their father or mother as the case may be have ready access to one another. That would be quite unrealistic. A parent, after separation must  fend for himself/herself in the world and must perforce have the freedom to make such choices as he/she considers best for him/her and his/her family. Most parents are undoubtedly fully aware of the value to be placed on close contact between the children and their father/mother.

The mother maintained contrary to a report of the Family Advocate that it was in the best interest of the minor child that he should be allowed to relocate to France with her and the rest of the family and that the father’s refusal to grant his consent was unreasonable. The mother conceded that the father has always been considered to be a good father to the child.  She has never felt any need to reduce the child’s contact with the father.

Her reason for relocating to France was firstly that her new husband’s contract in South Africa has come to an end and that her husband wanted to remain in the employment of his company where he had a bright future.

In his opposition to the application the father relied mainly on the report of the Clinical Psychologist and maintained that it would not have been in the best interest of the child that he should be allowed to relocate to France.

His main contentions were that the minor child will be removed from his present stable and secure environment and most importantly would lose the benefit of his close and meaningful relationship with him and the extended family.

The legal principles applicable in relocation cases was eloquently set out by the Supreme Court of Appeal in the matter of Jackson v Jackson 2001 (2) SA 303 (SCA) para [2] at 318E-I where His Lordship Scott JA said the following:

It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent 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 custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian 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 endeavour to emigrate in pursuance of a decision reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token care should be taken not to elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.

The parties as well as in the reports of the Clinical Psychologist, the Family Advocate and a Family Counsellor all agreed that the child had a close relationship with both his parents.  The child is also bonded closely with his stepmother and his stepbrother.  According to the Clinical Psychologist the child did not have the same relationship with his stepfather with whom he had to relocate permanently to France.

The only dispute between the parties was what would be in the best interest of the minor child. The mother took the view that it was in the child’s best interests that he be allowed to leave the Republic of South Africa with her whilst on the other hand it is the father’s view that it was not in his interests to leave the country.

The court noted that a dispute of fact does not exist in matters relating to the question what will be in the best interests of the child and that cases like these give rise to anxious considerations and pose the knottiest and most disturbing problems.  See in this matter Godbeer v Godbeer 2000 (3) SA 976(W) and Ford v Ford [2004] 2 Al l SA 396(W).  In the as yet unreported case of Maryke Cunningham v Daniel Johannes Jacobus Pretorius Case No. 31187/08 Gauteng North High Court His Lordship Murphy J expressed himself on para [10] thereof as follows:

The letter and spirit of the new framework giving supremacy to the best interest of the minor child, sets a standard which is not proof on a balance of probability.  What is required is that the Court acquires an overall impression and brings a fair mind to the facts set up by the parties.  The relevant facts, opinions and circumstances must be assessed in a balanced fashion and the Court must render a finding of mixed fact and opinion, in the final analysis a structured value judgment, about what it considers will be in the best interests of the minor child.

Section 7 of the Children’s Act sets out factors to be taken into consideration in determining what is in the best interests of the minor child. Not all these factors are always relevant, but what was key in this application was what is set out in section 7(1)(d), (e) and (f) which must be read in conjunction with the opinion expressed by the Clinical Psychologist and the Family Advocate.  I quote hereunder in full section 7(1)(d), (e) and (f):

 Section 7(1):  Whenever a provision of this Act requires the best interest of the child’s standard to be applied, the following factors must be taken into consideration where relevant namely:-

 d)       the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from –

 (i)           both or either of the parents or

 (ii)          any brother or sister or other child, or any other care-giver or person with whom the child has been living;

 e)       the practical difficulty and expense of a child having contact with the parents or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents or any specific parent on a regular basis;

 f)         the need for the child –

(i)         to remain in the care of his or her parent, family and extended family and to maintain a connection with his or her family, extended family, culture or tradition.

A Clinical Psychologist was instructed to assess the minor child, his mother and his father the with a view to recommending what would be in his best interest with regard to the mother’s desire to relocate to Paris in France.

In carrying out the mandate the Clinical Psychologist obtained information through interviews, clinical observations as well as various psycho-diagnostic tests in which the child and his parents participated.

The psycho-diagnostic tests employed were the following:

 The Draw-A-Person Test

This projective test is used to obtain necessary information regarding self-image, personality functioning and developmental information with children.

Kinetic Family Drawing Test

This test is designed to assess the child’s perception of the relationships and dynamics in his/her nucleur family.

Bere Anthony Family Relations Questionnaire

This assessment tool is extremely effective in measuring a child’s emotional response to his/her family, the words for which may be difficult to express.

The Tree Test

The tree is a projective test.  It is based on the assumption that the tree form with its symmetrical construction around a central axis can be used to interpret the projection of psychic content.  As a non-threatening test and easy for children, it adds to the battery that is designed to describe the personality.

The Personality Assessment Inventory

It is a self-administered objective inventory of personality designed to provide information on critical clinical variables.

The Minnesota Multiphasic Personality Inventory-2

It is a broadband test designed to assess a number of the major patterns of personality and emotional disorders.  It is a self-administered objective inventory designed to provide objective scores and profiles determined from well-documented norms.

 The Clinical Multiaxal Inventory-III

It is a self-administered inventory designed to profile the respondent along certain scales that include basic personality styles, pathological personality syndromes and symptom disorders.

The child was not questioned by the Clinical Psychologist about the proposed relocation to France.  However, the following conclusions were drawn from the opinion of the psychologist based on the abovementioned tests are of importance. They were:

  • How the child experiences his mother the applicant as his primary care-giver.
  •  The child was equally bonded to both his parents despite the difference in the nurturing responses.
  •  Although he has a bonded relationship with his stepmother and a dilute relationship with his stepfather when compared to other adult relationships there is nothing unhealthy in that relationship.
  •  He experiences all adult relationships in his life as safe and secure.
  •  His relationship with his younger half-brother is a positive and healthy relationship.  He does not evidence any jealousy or sibling rivalry.

The child has internalised that he had two families and that he can happily reside within each.

  •  The mother has evidenced good parenting decisions in that she has facilitated good contact between the child and his father and has worked constructively and positively with the fact that the child has two sets of parents and two home bases.
  •  There is no historical evidence of malice or interference in the manner in which she has worked with the respondent as the parents of the child.
  •  Both the mother and the father responded to all assessments tools with a positive test taking set.  They both evidenced no clinical pathology that would preclude them from performing their parental roles.
  •   The father’s reticence and opposition to the child’s proposed relocation is bona fide, appropriate and understandable given the nature of his relationship with his son.
  •  There are no negative findings on both step-parents that could preclude them from playing a meaningful role in the upbringing of the child.

In support of his opposition to the application the father said that the child had an extended family in the Republic of South Africa with whom he has and maintains a close relationship and is exposed to them on a regular basis.

The child on relocation would have to learn a new language being French.  There was evidence that he had already commenced doing so whilst in South Africa.  The mother enrolled him at a French school in Johannesburg. The father promoted the aspect of a new language as an obstacle to the child’s development. The court did not agree with the father’s contention.

THE BEST INTEREST OF THE MINOR CHILD

In determining what is in the best interest of the minor child a Court must decide which of the parents is better able to promote and ensure the child’s moral, physical emotional welfare whether it is in South Africa or in France.

Section 7(1)(a)(i) and (ii) of the Children’s Act refers to the personal relationships between the child and the parents or any specific parent and the child and any other care-giver or person relevant in those circumstances.  The personal relationship between the child and his parents were excellent.  This was confirmed by the clinical psychologist as well as in the interview report of the child by the Family Advocate when he said the following:

It appears as if the parties are the significant people in the child’s life.  It appears as if he looks for comfort from both parties if he is in distress.

There was no adverse report about the personal relationship that the child had with his stepfather and his stepmother.  The fact that the relationship was not on the same level was explainable by the fact that his stepmother has known the child for a longer period than the stepfather.

Section 7(b)(i) and (ii) refers to the attitude of the parents or any specific parent towards the child and the exercise of parental responsibilities and rights in respect of the child:

  •  As regards this standard requirement both sets of parents exhibited a good attitude towards the child.  The mother has not only been the primary care-giver and provider for the minor child since his birth.  The stepfather has taken special interest in the child and teached him the French language.
  •  In the report of the Family Advocate it was reported that the father confirmed that the child was happy at his new French school.  

The court regarded Section 7(1)(d)(i) and (ii) most important and crucial for a decision in this matter.  In this section an enquiry is undertaken regarding the likely effect on the child of any change in the child’s circumstances including the likely effect on the child of any separation from both or either of the parents or any brother or sister or other child or any care-giver with whom the child has been living.

Section 7(1)(f) deals with the need of the child to remain in the care of his or her parent’s family and extended family and to maintain a connection with his or her family, extended family, culture or tradition. The mother has always been the primary care-giver of the child.  The father admitted and conceded this and has in no way said that the mother was incapable of carrying out her duties as the child’s primary care-giver.  It therefore did not matter whether she was the primary care-giver in South Africa or in France.  Her ability to at all times act in the best interest of the minor child was unquestionable.  The mother said that the father and the child had a close relationship and spoke to one another telephonically. The father argued about the loss of contact with his and the mother’s extended family in South Africa if the child relocated to France.  The clinical psychologist says that the child would lose the input of his extended paternal family who have become his friends (cousins) and the connection that this relationship offers. He has become used to this resource and would not immediately or necessarily over time replace this source.

Besides contact with the extended family it was not been demonstrated by the father how it will be in the best interest of the child that he should stay in South Africa in order to maintain contact with his cousins.  There was no evidence that the cousins spent extended periods with each other in contrast it seems as if this is limited to weekends or holiday visits by the families.  The loss of this contact was unlikely to negatively affect the child.

The welfare of any child is best served if that child has the good fortune to live with both parents in a loving and united family. In this case that was not to be.  The mother and the father broke up in 2006 and they considered that to be in the best interests of themselves to live separate lives.  They did not at that stage anticipate or foresee that their separate lives might take them on different paths. The move to France was bona fide.

The steps that the mother took leading up to the application had shown that there was no malice.  She had taken the decision in the best interest of the child and her family and her undertaking did not to estrange the child from the father and could not be doubted in view of her past record.

The mother demonstrated that it would be in the best interest of the minor child to relocate with her rather than let him stay in South Africa with the father.

The interests of the child are paramount in all matters relating to children.  It is the ultimate determinant.  Section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 reads as follows:

A child’s best interests are of paramount importance in every matter concerning the child.

In the matter of J & J 2008 (6) SA 30 (C) it was decided that a court as the upper guardian of minors are empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to deciding the issue which is of paramount importance the best interest of the minor child.

In Terblanche v Terblanche 1992 (1) SA 501(W) at p 504C-D His Lordship Van Zyl J said the following:

From this it follows that, when a Court sits as upper-guardian in a custody matter, it has extremely wide powers in establishing what is in the best interests of minor or dependent children. It is not bound by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.

In the matter of Maryke Cunningham (born Ferreira) v Daniel Johannes Jacobus Pretorius (unreported GNP Case No. 31187/08) Murphy J concluded as follows in respect of the loss of contract by the non-custodian parent:

Perhaps the most vexing of the issues in balancing all relevant factors is the practical difficulty and expense involved in B having contact with the respondent if he relocates and the substantial impact it is likely to have on B’s right to maintain a meaningful personal relationship with his biological father – Section 7(1)(e).  In the modern world, marked by globalisation and increased mobility, when marriages break up, one parent’s interests invariably will have to yield to those of the other.  When the balance of factors (in this case the age of the child, the bond, the favourable environment and opportunities available at the place of relocation and the custodian parent capacity) all favour the custodian parent, the best the court can do is to ensure that meaningful contact and access continues with the non-custodian parent albeit in a less satisfactory manner and will not be thwarted by the non-custodian parent.

The Clinical Psychologist notwithstanding the fact that she had done extensive tests and consultation with all the stakeholders in this matter concluded that a firm recommendation was extremely difficult as this is indeed a difficult matter and left the decision to the Court.  On the other hand the Family Advocate and the Family Counsellor reached a conclusion that the child should remain with the father in South Africa if the applicant relocates to Paris.

The recommendation by the Family Advocate and Counsellor was rejected as it was wanting and unconvincing.  A Court must and has decided the issue of the best interest of the child itself and is free to reject any contrary opinion on that question expressed by any expert.

It is so that the removal will undoubtedly cause some disruption to the relationship between the child and his father.  As a result of the relocation his rights of contact will be drastically curtailed and the child will be deprived of the advantage of being in close contact with his father during his early boyhood stage leading up to adolescence.

No court can predict the future with certainty. The Honourable Nugent J as he then was expressed the following in the matter of Godbeer v Godbeer 2000 (3) SA 976 at p 981J:

The respondent and the applicant considered that it was in the best interests of themselves, and no doubt the children, that they should live separate lives, thereby anticipating that their lives might take them on different paths. I do not think the applicant can be expected to tailor her life so as to ensure that the children and their father have ready access to one another. That would be quite unrealistic. The applicant must now fend for herself in the world and must perforce have the freedom to make such choices as she considers best for her and her family. She is undoubtedly fully aware of the value to be placed on close contact between the children and their father and I think that is borne out by the nature of the access arrangements which have existed until now and the ease with which they have been exercised.

The passage referred to above was in the court’s mind appropriate in many respects with the facts.  The application succeeded.

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