F v F (9985/2022) [2022] ZAGPJHC 202 (6 April 2022)

80 Reportability

Family Law

Brief Summary

Family Law — Child relocation — Urgent application for permission to relocate children — Mother, as primary caregiver, seeks court's approval to move with daughters to the United Kingdom without father's consent — Court considers best interests of children as paramount — Father’s consent to relocation and parental rights terminated due to unreasonable withdrawal of consent — Application granted, allowing relocation and establishing contact rights for the father.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned an opposed urgent application in the Gauteng Division, Johannesburg, relating to parental responsibilities and rights and, specifically, an application by a parent for authority to relocate minor children internationally.

The applicant was the mother of two minor daughters (aged nine and six). The respondent was the father of the children. The mother sought orders permitting her to relocate with the children to the United Kingdom, including relief dispensing with the father’s consent for visa applications and travel, and an order terminating certain of the father’s parental responsibilities and rights.

In terms of the procedural history, there was already an existing Rule 43 order (pendente lite) granted on 16 November 2021 (Clark AJ). That order provided that both parties had full parental responsibilities and rights, that the mother had primary care and that the children’s primary residence was with her, and it regulated the father’s contact. The present application was brought urgently after the father withdrew cooperation previously given in relation to the proposed relocation.

The general subject-matter was a relocation dispute in the context of separated parents, requiring the court to determine whether relocation would serve the best interests of the minor children, and whether urgent relief dispensing with the father’s consent should be granted.

2. Material Facts

The court accepted that, under the operative Rule 43 order, both parents held parental responsibilities and rights, with the mother having primary care and the children residing primarily with her. The order also regulated the father’s contact, including conditions, and provided for maintenance in respect of the children.

It was common cause that the mother had always been the children’s primary caregiver, that the children had lived with her all their lives, and that she had been the main breadwinner, making the greater financial contribution to their upbringing. It was also accepted that arrangements had been put in place for the children’s relocation to the United Kingdom, including school-related documentation.

On the issue of urgency, the court relied on the chronology that the mother had received a final appointment letter for employment in the United Kingdom on 18 October 2021, and thereafter engaged the father to obtain his consent for relocation and related administrative processes. During December 2021, the father indicated agreement to the children relocating and participated in steps consistent with that agreement, including signing documentation connected to the children’s schooling. As late as 9 February 2022, he signed documentation required by the UK school.

The pivotal fact underpinning urgency was that on 18 February 2022 the father withdrew his consent to relocation. The court accepted that this withdrawal occurred after earlier cooperation and created a risk of serious consequences for the mother’s employment opportunity, with potential adverse knock-on effects for the children. The father’s subsequent refusal to sign visa-related documentation left the mother with no practical alternative but to approach the court urgently.

The father raised in correspondence a point concerning an assault charge arising from a 2017 incident and suggested the mother should withdraw it. The court recorded that this point was not pursued with vigour at the hearing and rejected it as lacking a legal or factual basis for conditioning consent to relocation.

In relation to contact, the mother tendered that the father would continue to have contact with the children while they were in the United Kingdom, subject to reasonable arrangements and the children’s schedules. The court also relied on the mother’s case that relocation would produce financial and social benefits for the children, including improved security and expanded educational opportunities, and that failing to relocate would carry negative consequences for the mother and the children.

3. Legal Issues

The court identified two principal issues requiring determination.

First, whether the application satisfied the requirements for urgency, including whether the mother had shown that she could not obtain substantial redress in due course if the matter were not heard urgently.

Second, on the merits, whether the mother had established entitlement to the relief sought—most centrally, whether the proposed relocation of the children to the United Kingdom would be in the best interests of the children. This involved the application of legal principles to largely common-cause facts, together with an evaluative assessment directed at the children’s welfare.

A further issue embedded in the relief sought was whether it was appropriate to terminate specified components of the father’s parental responsibilities and rights (as identified in the order), and to dispense with his consent for visa applications and removal of the children from South Africa.

4. Court’s Reasoning

On urgency, the court accepted the mother’s explanation that the need to relocate arose from her UK employment, that she had attempted to secure the father’s cooperation over a period following her appointment letter, and that the father’s late withdrawal of consent created immediate practical obstacles to visa applications and travel. The court reasoned that delay in obtaining the necessary documentation could jeopardise the mother’s employment opportunity, which had been presented as requiring her presence in the United Kingdom urgently. The court also considered that the uncertainty and disruption were unsettling for the children and could affect their education. On these facts, the objection that the mother was improperly “jumping the queue” was rejected.

On the merits, the court treated the best interests of the children as the decisive consideration, relying on the approach articulated in LW v DB 2020 (1) SA 169 (GJ) that children’s interests are the first and paramount consideration in relocation matters. The court further referred to considerations distilled in LW v DB, including that both parents share responsibility for raising children and maintaining contact, that a court will not lightly refuse relocation where a custodial parent’s decision is shown to be bona fide and reasonable, and that courts are sensitive to the position of the parent left behind, although the extent and role of such sensitivity remains complex.

Applying those principles, the court emphasised that the mother was the established primary caregiver, that the children were young, and that they had lived with her throughout their lives. The court considered the practical reality that the mother’s career opportunity in the United Kingdom would materially improve the financial position of the household and thereby the children’s welfare, and that remaining in South Africa was not presented as a viable option for her in light of the consequences described. The court accepted that relocation would offer advantages to the children in respect of safety, stability, and future educational and career prospects.

The court also considered the impact of relocation on the father’s contact. It relied on the mother’s willingness to facilitate contact in the United Kingdom and through electronic communication, with arrangements structured around school holidays and travel. While recognising that relocation would alter the manner in which contact could be exercised, the court regarded the proposed contact regime as a meaningful mechanism for maintaining the parental relationship.

In its evaluative assessment, the court contrasted two alternatives: the mother staying in South Africa (which the court viewed as not realistically available given the consequences asserted), or the children remaining in South Africa in the father’s care. The court questioned how the latter could serve the children’s best interests given their established residence and bond with their mother. The court also noted that the children had indicated agreement and excitement about emigrating.

On costs, the court applied the general principle that costs follow the result, with reference to Myers v Abramson, 1951(3) SA 438 (C) at 455, and found no basis to depart from that principle. Although a punitive costs order was sought by the mother, the court was not persuaded that exceptional circumstances justifying punitive costs had been established.

5. Outcome and Relief

The court held that the application was urgent and granted substantive relief enabling relocation.

The court ordered that specified parental responsibilities and rights of the father, as provided for in sections 18(3)(c)(iii) and (iv) of the Children’s Act 38 of 2005, read with section 28 and section 18(5), were terminated in relation to the two minor children.

The court dispensed with the father’s consent in respect of the children’s visa applications for the United Kingdom and their removal from South Africa to the United Kingdom, and further dispensed with any consent, signature, or participation required to effect the relocation forthwith.

The mother was granted leave to relocate the children to the United Kingdom. The father was granted rights of contact while the children resided in the United Kingdom, including daily electronic contact and holiday contact arrangements (including alternation over Christmas), subject to the children’s activities and reasonable travel arrangements.

The father was ordered to pay the mother’s costs of the urgent application on the ordinary High Court scale.

Cases Cited

LW v DB 2020 (1) SA 169 (GJ).

Myers v Abramson 1951 (3) SA 438 (C) at 455.

Legislation Cited

Children’s Act 38 of 2005.

Rules of Court Cited

Uniform Rule of Court 43.

Held

The court found that the application met the requirements for urgency because the mother’s imminent relocation for employment, coupled with the father’s late withdrawal of cooperation and refusal to sign necessary documentation, created immediate prejudice that could not practically be addressed in due course.

On the merits, the court held that the best interests of the minor children were served by permitting relocation with their mother to the United Kingdom, given her role as primary caregiver, the arrangements in place for the children’s schooling and wellbeing in the United Kingdom, and the material benefits and consequences identified if relocation were refused.

The court accordingly terminated specified parental responsibilities and rights of the father to the extent necessary for the relocation, dispensed with his consent for visas and travel, granted leave to relocate, regulated post-relocation contact, and awarded costs against the father.

LEGAL PRINCIPLES

The court applied the principle that in relocation disputes involving minor children, the children’s best interests are paramount and constitute the controlling consideration.

The court applied the approach that, while both parents share responsibility for the upbringing of the child and maintaining contact, a court will not lightly refuse leave for children to relocate where the primary caregiver’s decision to emigrate is shown to be bona fide and reasonable, and where arrangements can be made to preserve the relationship with the parent remaining behind.

The court further applied the principle that the position of the left-behind parent is a relevant consideration, but it is assessed within the overarching inquiry into the children’s best interests, requiring a contextual evaluation of the family’s circumstances and the practical realities of the proposed move.

On costs, the court applied the principle that, absent good grounds to depart, costs follow the result, and punitive costs require exceptional circumstances not established on the facts of the case.