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[2024] ZALMPPHC 80
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In re X.S (7265/2024) [2024] ZALMPPHC 80 (18 July 2024)
FLYNOTES:
FAMILY
– Children –
Consent
to travel
–
Father
reported deceased – Child having opportunity for educational
trip to United States – Court satisfied that
trip
well-structured and supervised – Tour's educational nature
aligns with constitutional right to education –
Child
participation – Court hearing child’s views in
chambers – Court satisfied that granting application
is in
child’s best interests – Consent of father dispensed
with –
Children's Act 38 of 2005
,
ss 10
and
18
.
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7265/2024
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES: YES/NO
REVISED
Delivered
on 18 July 2024
In
the ex parte application:
N.S.
Applicant
In
re: X.S (a minor child)
JUDGMENT
GAISA
AJ:
INTRODUCTION
[1]
This urgent application concerns a child's fundamental right to
pursue enriching educational and cultural experiences in an
unfortunate family situation. The applicant, N.S., seeks an order
dispensing with the consent of the child's biological father,
C.J.S.,
as required in terms of
Section 18(2)(c)
and
18
(3) of the
Children's
Act, Act
38 of 2005, to allow their minor daughter, X.S. (born 14
July 2008), to travel to the United States of America for an
educational
tour.
[2]
The application raises essential questions about balancing parental
rights and responsibilities with the best interests of the
child in
circumstances where one parent is deceased or unavailable to provide
consent. It also highlights families' challenges
in an increasingly
globalised world, where educational and cultural enrichment
opportunities often necessitate international travel.
BACKGROUND
[3]
C.J.S. reportedly passed away in Brazil in April 2024 under
circumstances that the South African authorities have not fully
verified.
[4]
X.S. has been invited to participate in an Academic Achiever's Tour
to the United States from 19 September 2024 to 30 September
2024.
This tour offers a valuable opportunity for academically gifted
students to visit renowned educational institutions and gain
international exposure.
[5]
The applicant requires either the consent of the child's father or a
court order dispensing with such consent to apply for the
necessary
visa for X.S.'s travel. Due to C.J.S.’s reported death and the
lack of an official South African death certificate,
the applicant
has approached this Court for relief.
LEGAL
FRAMEWORK
[6]
The paramount
consideration in matters concerning children is the best interests of
the child, as enshrined in section 28(2) of
the Constitution and
sections 7
and
9
of the
Children's Act
("the Act").
[1]
This principle guides all decisions affecting children. It is the
cornerstone upon which this judgment is built.
[7]
Section 18(2)(c)
of the Act states that a person with parental
responsibilities and rights concerning a child has the responsibility
and right to
act as guardian of the child.
Section 18(3)
further
specifies that the guardianship of a child includes the right to give
or refuse consent required by law in respect of the
child, including
consent to the child's departure or removal from the Republic of
South Africa.
[8]
These provisions are directly relevant to the present case, as they
establish that N.S, as X.S.’s mother and guardian,
would
generally have the right to consent to her daughter's international
travel.
[9]
However, due to the reported death of X.S.’s father, C.J.S,
obtaining his consent as the other guardian is impossible.
This
creates the need for the court to consider whether to dispense with
the requirement for the father's consent, weighing the
child's best
interests and right to parental care against the legal requirement
for consent from both guardians for international
travel.
[10]
Section 18(5)
of the Act provides that a person may apply to the High
Court for an order granting permission for a child to leave the
Republic
if the consent required in terms of subsection (3) cannot be
obtained. This provision recognises that there may be circumstances
where obtaining consent from both parents is impossible or
impractical. It empowers the court to intervene in the best interests
of the child.
[11]
In evaluating what constitutes the child's best interests, the court
is guided by the factors of the Act and the jurisprudence
developed
in cases such as those mentioned below. These cases emphasise the
need to consider the child's physical and emotional
security,
intellectual stimulation, and maintaining relationships with both
parents.
[12]
The Act establishes comprehensive principles and procedures for
protecting children’s rights and best interests in South
Africa.
[13]
Section 7 of the Act outlines the “
best interest of the
child
” standard, which must be applied whenever the Act
requires it. This section provides a comprehensive list of facts that
must
be considered when determining what is in a child’s best
interests, including the nature of the child’s relationship
with parents and caregivers, the attitudes of the parents towards the
child and their parental responsibilities, the capacity of
parents or
caregivers to provide for the child’s needs, the likely effect
of any changes in the child’s circumstances,
and the child’s
age, maturity and background.
[14]
The section emphasises the need to consider the child’s
physical and emotional security, intellectual and social development,
and any special needs arising from disability or chronic illness.
[15]
The section also highlights the importance of protecting the child
from physical or psychological harm and maintaining stability
in the
child’s life. This standard aligns closely with the
considerations in this matter, where the court had to weigh the
potential benefits of international travel against the child’s
need for stability and relationship with both parents.
[16]
Other key provisions of the Act which are relevant to this case
include the paramountcy of the child’s best interests
in all
matters (section 9), the right of children to participate in
decisions affecting them (section 10), and the framework of
parental
responsibilities and rights (Chapter 3). The act also outlines
decision-making processes about children’s care,
contact, and
guardianship.
[17]
In the present case, the court must apply these principles in
deciding whether to allow X.S. to travel internationally without
her
father’s consent.
[18]
The Act requires considering factors like the child’s age and
maturity, her relationship with both parents and the potential
impact
on her well-being and development.
[19]
The court should also consider X.S.’s views on the proposed
trip, given that she is 16 and in grade ten.
[20]
The Act’s provisions on guardianship (sections 18 and 24) are
particularly relevant, as the court is being asked to dispense
with
the consent typically required from both guardians for international
travel. In making its decision, the court must balance
X.S.’s
right to pursue educational opportunities against the principle of
joint decision-making by guardians.
[21]
As the Act mandates, the overarching consideration must be
determining what outcome best serves X.S.’s interests.
[22]
Furthermore, South Africa's ratification of the United Nations
Convention on the Rights of the Child (UNCRC) on 16 July 1995
underscores its commitment to promoting and protecting children's
rights. Article 3 of the UNCRC emphasises that the child's best
interests shall be a primary consideration in all actions concerning
children.
[23]
In
M
v S
[2]
the
Constitutional Court extensively referenced the UNCRC in considering
children's rights when sentencing a primary caregiver.
The court
emphasised that South Africa’s ratification of the UNCRC in
1995 underscores the country’s commitment to
promoting and
protecting children’s rights.
[24]
Regarding the status of the UNCRC, the Constitutional Court held
that:
“
[16]
Secondly, section 28 must be seen as responding in an expansive way
to our international obligations as a State party to the
United
Nations Convention on the Rights of the Child (the CRC). Section 28
has its origins in the international instruments of
the United
Nations. Thus, since its introduction, the CRC has become the
international standard against which to measure legislation
and
policies, and has established a new structure, modelled on children’s
rights, …..”
[25]
M v S
supra
is just one example demonstrating how the
Constitutional Court has incorporated UNCRC principles into its
reasoning when dealing
with cases involving children's rights,
showing the convention's influence on South African jurisprudence in
this area.
[26]
This court has used the UNCRC to interpret and give content to
children's constitutional rights, particularly in applying the
"
best
interests of the child
" principle.
[27]
The African Charter on the Rights and Welfare of the Child (ACRWC or
the Charter) provides an essential context for interpreting
the best
interests principle from an African perspective.
[28]
In summary, Article 4 of the Charter states that in all actions
concerning the child undertaken by any person or authority,
the
child’s best interests shall be the primary consideration; in
all judicial or administrative proceedings affecting a
child who can
communicate his/her views, an opportunity shall be provided for the
child’s views to be heard directly or through
an impartial
representative as a party to the proceedings. The relevant authority
shall consider those views following the provisions
of any
appropriate law.
[29]
The Constitutional Court
in
M v S
supra
said, “
South
Africa’s obligations under international law underscored the
special requirement to protect the child’s interests
as far as
possible”
.
[3]
[30]
Notably, the Constitutional Court footnotes this statement,
mentioning the Charter:
“
Article
4 of the African Charter on the Rights and Welfare of the Child
provides:
“
In
all actions concerning the child undertaken by any person or
authority, the best interests of the child shall be the primary
consideration.”
[4]
[31]
In reaching its decision,
the Constitutional Court in
C
and Others v Department of Health and Social Development, Gauteng and
Others
[5]
explicitly considered
South Africa's obligations under international law, particularly the
UNCRC and ACRWC.
[6]
The Court's
reasoning demonstrates a precise alignment with these international
instruments, emphasising the importance of family
care and the need
for robust safeguards when interfering with this right.
[32]
That judgment (
C and Others
) is a powerful example of the
Constitutional Court's serious consideration of international
children's rights conventions in interpreting
and applying domestic
law.
ANALYSIS
[33]
In considering this application, I am mindful of the unique
circumstances surrounding C.J.S.’s reported death and the
challenges it presents for the applicant in obtaining official
documentation. While the court would ordinarily require definitive
proof of death before dispensing with parental consent, we must
balance this requirement against the pressing timeframes and the
potential loss of opportunity for the child.
[34]
The following factors weigh heavily in the present case:
34.1
the educational value of the proposed tour, which aligns with X.S.’s
academic achievements and aspirations;
34.2
the limited duration of the trip, which does not constitute a
permanent relocation;
34.3
the applicant's demonstrated commitment to X.S.’s welfare and
education;
34.4
the absence of any evidence suggesting that C.J.S, were he alive,
would have opposed this opportunity;
34.5
the psychologist's report indicating X.S.’s enthusiasm for the
trip and her ability to express her wishes;
34.6
the potential negative impact on X.S.’s academic and personal
development if she is denied this opportunity due to administrative
hurdles beyond her control.
[35]
While the court recognises the importance of both parents'
involvement in major decisions affecting a child's life, the reported
death of C.J.S. creates an exceptional circumstance. As the upper
guardian of all minor children, the court must step into this
void to
ensure that the child's best interests are served.
[36]
The applicant has demonstrated diligence in attempting to secure
official confirmation of C.J.S.’s death through appropriate
channels. The documentation delays should not prejudice X.S.’s
academic growth and development opportunities.
[37]
The applicant's evidence suggests that she has been the primary
caregiver and has borne most responsibility for X.S.'s upbringing.
[38]
This court considered the confirmatory affidavit from I.C, who
identifies herself as C.J.S.’s biological mother and X.S.’s
paternal grandmother. She confirms that she has been informed of
C.J.S.’s passing in April 2024 in Brazil. A friend advised
her
of her son in Brazil, who provided her with what purports to be a
copy of the Brazilian Death Certificate.
[39]
I.C. confirms her awareness that X.S. has been invited to participate
in an Academic Achiever's Tour to visit academic institutions
in the
USA. The tour is scheduled from 19 September 2024 to 30 September
2024, after which X.S. will return to her mother's (the
Applicant's)
care in Polokwane.
[40]
I.C. expresses that X.S. is very excited to attend the tour, and as
her paternal grandmother, she is proud of X.S. 's achievements.
This
affidavit provides confirmation from a family member about C.J.S.’s
reported death, supports the applicant's claim,
and shows support
from the paternal side of the family for X.S.’s participation
in the Academic Achiever's Tour.
[41]
This court considered the report, dated 6 May 2024, authored by
A.E.P., the Principal Psychologist at the Pietersburg Hospital
(Department of Health) in Polokwane.
[42]
The report indicated that X.S. was enthusiastic about the proposed
trip to the United States and demonstrated an ability to
express her
wishes. This is highly relevant to the case as it provides insight
into the child's perspective and emotional readiness
for the proposed
travel, a critical consideration in determining the child's best
interests.
[43]
The report's findings are particularly significant because they help
the court evaluate the potential impact of allowing X.S.
to travel
internationally without her father's consent.
[44]
The psychologist's report highlights the child's enthusiasm and
ability to articulate her desires, supporting the argument
that the
educational opportunity aligns with X.S.’s interests and
developmental needs.
[45]
This professional assessment serves as an essential and additional
piece of evidence for the court in balancing the potential
benefits
of the trip against any risks associated with the separation from the
father, who has recently been reported deceased
in Brazil.
[46]
This court took the vital step of inviting the applicant’s
legal representative to bring the minor, X.S, and the applicant
to
the judge’s chambers for a direct meeting on 17 July 2024. This
allowed this court to interact with X.S. and assess her
views on the
proposed trip to the United States. During this meeting, this court
could observe and experience the enthusiasm described
in the
psychologist’s report.
[47]
The firsthand interaction provided valuable insight for this court
beyond what was conveyed in the founding papers and the
written
reports.
[48]
This court could gauge X.S.’s level of understanding about the
trip, her emotional state, and her genuine interest in
participating
in the Academic Achiever’s Tour. The minor indicated that if
allowed to go on this trip, she would only miss
two days of school
since the tour takes place during the school holidays and that an
arrangement was in place to help her catch
up.
[49]
By speaking with X.S. directly, this court fulfilled its obligation
under section 10 of the Act (to allow appropriate child
participation
in matters concerning them). This court gave the views expressed by
X.S. during this meeting due consideration in
making its final
determination about whether to grant permission for international
travel.
[50]
While valuable for gaining firsthand insight into her views and
wishes, the court’s decision to meet directly with X.S,
in this
case, should not be seen as setting a binding precedent for all
future cases involving children. There are several important
reasons
why such a meeting may not always be feasible or appropriate, to name
but a few:
50.1
Resource constraints: Courts often face heavy caseloads and time
pressures, which may make it impractical to arrange personal
meetings
with children in every case;
50.2
Child’s age and maturity: Not all children may be at a
developmental level/stage where they can effectively express their
views directly to a judge. The appropriateness of such meetings
depends on the child’s age, maturity and capacity to form
and
articulate their opinions;
50.3
Nature of the case: Some cases may involve issues or circumstances
where direct interaction with a judge could be distressing
or
inappropriate for the child;
50.4
Alternative methods: In many cases, the child’s views can be
adequately represented through other means, such as reports
from
social workers, psychologists, or appointed legal representatives, a
recorded interview with a person the child may be comfortable
expressing themselves to,
50.5
Consistency and fairness: If such meetings were to become an
expectation in all cases, it could potentially lead to
inconsistencies
in how children’s views are considered across
the different courts or judges;
50.6
Potential for undue influence: There may be concerns about the
potential for a child to be unduly influenced by the formality
of a
meeting with a judge.
[51]
While this court’s decision to meet with X.S. demonstrates a
commitment to hearing the child’s voice and thoughts
directly,
it should be viewed as one possible approach among many for
considering a child’s best interests and wishes. The
appropriateness of such meetings should be assessed on a case-by-case
basis, considering the specific circumstances of each matter
and the
child’s needs.
[52]
In
Du
Preez v Du Preez
[7]
,
Miller J said, among
other things:
“
This is not to
say that the opinion and desires of the custodian parent are to be
ignored or brushed aside; indeed, the Court takes
upon itself a grave
responsibility if it decides to override the custodian parent’s
decision as to what is best in the interests
of his child and will
only do so after the most careful consideration of all the
circumstances, including the reasons for the custodian
parent’s
decision and the emotions or impulses which have contributed to it.”
[53]
What Miller J said above
was approved by the majority of the then Appellate Division (now the
Supreme Court of Appeal (SCA) Court
in
Bailey
v Bailey.
[8]
[54]
In essence, the SCA in
Bailey
supra
approached the issue of
the child's best interests by giving substantial weight to the
custodian parent's judgement while also considering
the broader
emotional and practical factors that could impact the children's
well-being in the long term. The court emphasised
that interfering
with a custodian parent's reasonable decision should only be done
when compelling reasons clearly show it would
not be in the
children's best interests.
[9]
[55]
In Baily
supra,
the court reaffirmed that the children’s
best interests are paramount in relocation cases. While the present
case is not
a relocation case, the principle directly applies to it,
as the court must consider whether allowing X.S. to travel to the USA
for the Academic Achiever’s Tour within the mentioned period is
in her best interests.
[56]
As in Baily
supra
, the court gave significant weight to the
custodian parent’s view on what is best for X.S. As the
applicant is now the sole
surviving parent and guardian, her
assessment of what is best for X.S. should be given considerable
weight.
[57]
In the present case, allowing X.S. to participate in the educational
opportunity could positively impact the applicant’s
emotional
well-being, which benefits the child.
[58]
In
Jackson
v Jackson
[10]
,
the
SCA stated:
“
[30]
The reason why the court should not interfere with the reasonable
decision of the custodial parent, assuming, as this case
does, that
the custodial parent is still going to be responsible for the
children, is, as I have said, the almost inevitable bitterness
which
such an interference by the court is likely to produce. Consequently,
in ordinary, sensible human terms, the court should
not do something
which is, prima facie, unreasonable unless there is some compelling
reason to the contrary. That I believe to
be the correct approach.’”
[59]
Again, in
Jackson
,
the SCA explained that:
“
[34]
The fact that a decision has been made by the custodian parent does
not give rise to some sort of rebuttable presumption that
such
decision is correct. The reason why a court is reluctant to interfere
with the decisions of a custodian parent is not only
because the
custodian parent may, as a matter of fact, be in a better position
than the non-custodian parent in some cases to evaluate
what is in
the best interests of a child but, more importantly, because the
parent who bears the primary responsibility of bringing
up the child
should as far as possible be left to do just that. It is, however, a
constitutional imperative that the interests
of children remain
paramount. That is the ‘central and constant consideration.”
[60]
In
F
v F
[11]
,
the SCA highlighted the strong connection between the children's
interests and those of their primary caregivers. The court noted
that
restricting the wishes of the custodian parent might often not serve
the children's best interests. This principle is fundamental
when
supporting the custodian parent's choices, as it can enrich the
children's experiences.
[61]
The
F v F
case
supra
underscored that the primary caregiver's well-being and satisfaction
directly affect the children's well-being in their care. While
the
court did not explicitly state this, it implied that courts should be
cautious about making decisions that could significantly
hinder the
primary caregiver's wishes, decisions, or opportunities, as this
could indirectly harm the children. Ultimately, while
the best
interests of the child remain paramount, the case gives considerable
weight to the decisions and desires of the primary
caregiver that
benefit the child.
[62]
This principle is particularly relevant in the present case, where
granting this application would support the applicant's
efforts to
provide enriching experiences for X.S.
[63]
The authorities highlighted here suggest that courts should not
lightly interfere with reasonable decisions made by custodian
parents
regarding their children’s welfare unless there are compelling
reasons to do so. In the present case, the applicant’s
desire to allow X.S. to participate in the Academic Achiever’s
Tour appears reasonable and in X.S.’s best interests.
[64]
In those cases, the courts considered the long-term implications of
allowing or denying the wishes of the caregiver parent
rather than
focusing solely on short-term disruptions. Similarly, in the present
case, the court should consider the long-term
benefits of this
educational opportunity for X.S.
[65]
In Baily
supra
, for example, the court took a comprehensive
view of the children’s circumstances, considering factors such
as family relationships,
emotional well-being and future prospects.
The present case should similarly consider all aspects of X.S.’s
well-being and
development.
[66]
The principles established by the authorities here strongly support
granting this application. The court should give significant
weight
to the applicant’s assessment of what is best for X.S, consider
the long-term benefits of the educational opportunity,
and take a
holistic approach to determining the child's best interests. Unless
there are compelling reasons to deny the application,
the court
should not lightly interfere with the applicant’s reasonable
decision to allow X.S. to participate in this enriching
experience.
[67]
This court is satisfied that the proposed trip is well-structured and
supervised, with appropriate measures to ensure X.S.’s
safety
and well-being. The tour's educational nature aligns with the
constitutional right to education and the principle that children
should be afforded opportunities to reach their full potential.
[68]
While this court is mindful of the need to preserve the child's
connection to both parents, the unfortunate circumstances of
C.J.S.’s
reported death necessitate a pragmatic approach. The limited duration
of the proposed trip ensures that it will
not unduly disrupt X.S.’s
life or her connections to her home country.
[69]
This court has also considered the potential benefits of
international travel for children's development. These benefits
include
improved language skills, cultural awareness, adaptability,
and problem-solving abilities. Exposure to different cultures can
positively
impact a child's personal growth, empathy, and global
perspective.
[70]
It is important to note that this judgment should not be interpreted
as diminishing the importance of both parents' involvement
in a
child's life. Instead, it recognises that in exceptional
circumstances, the court must act to protect and promote the child's
best interests, even in the face of procedural challenges.
[71]
This court is mindful of the potential concerns regarding
international child abduction. However, given the applicant's strong
ties to South Africa, her demonstrated commitment to X.S.’s
welfare, and the structured nature of the proposed trip, the
risk of
non-return is considered minimal. Nonetheless, as a safeguard, this
court will impose certain conditions below to ensure
X.S.’s
safe return to South Africa after the trip.
[72]
This court notes that obtaining a certified Brazilian death
certificate from the Brazilian authorities may be complex and
time-consuming, especially for non-Brazilians. In light of this, this
court finds it reasonable to grant the relief sought by the
applicant.
CONCLUSION
[73]
After carefully considering all relevant factors, I am satisfied that
granting this application is in X.S.’s best interests.
The
educational and cultural benefits of the proposed tour outweigh the
potential risks, and denying this opportunity based on
administrative
or other hurdles would not serve the child's welfare.
[74]
The order granted herein is specifically tailored to the unique
circumstances of this case. It should not be seen as a general
relaxation of the requirements for parental consent in matters of
international travel. Each case must be evaluated on its own
merits,
with the best interests of the child remaining the paramount
consideration.
[75]
This judgment balances the need for parental consent and the child's
right to educational and cultural opportunities. It emphasises
the
court's role as upper guardian of minor children and the importance
of considering the child's views in matters affecting their
lives.
ORDER
[76]
In light of the above, I make the following order:
76.1
The application is granted.
76.2
The consent of the biological father, C.J.S, of the minor child, X.S,
as required in terms of
Section 18(2)(c)
and
18
(3) of the
Children's
Act, Act
38 of 2005, is hereby dispensed with.
76.3
The applicant is authorised to apply for the necessary visa(s) or
permit(s) for the minor child to visit the United States
of America
or to depart or remove the aforementioned minor child from the
Republic of South Africa or to consent/allow that the
aforementioned
minor child depart/is temporarily removed from the Republic of South
Africa.
76.4
The minor child is permitted to depart from the Republic of South
Africa, accompanied by the applicant or her appointed nominee,
without requiring a parental consent affidavit from C.J.S. This is
subject to compliance with the remaining provisions of
regulation
6(12)(b)
to the
Immigration Act 13 of 2002
.
76.5
For this educational tour, the applicant is declared to hold full
parental responsibilities and rights regarding the minor
child, as
provided in
section 18
of the
Children's Act 38 of 2005
.
76.6
The applicant is ordered to:
76.6.1
provide the court with a detailed itinerary of the trip, including
accommodation details and contact information, at least
seven days
before departure;
76.6.2
ensure that X.S. has means of communication to maintain contact with
family members in South Africa during the trip;
76.6.3
report to the court within seven days of returning to South Africa.
76.7
Based on this court order, the Department of Home Affairs is directed
to issue the necessary travel documentation for X.S.
for this trip.
76.8
The Department of International Relations and Cooperation is directed
to assist the applicant in obtaining official confirmation
of
C.J.S.’s death from the Brazilian authorities, including a
certified copy of the Brazilian death certificate if available.
76.9
The Registrar of this court is directed to furnish a copy of this
order to the Department of Home Affairs, the Department of
International Relations and Cooperation, and the United States
Embassy in South Africa to facilitate the processing of the necessary
travel documents for the minor child.
76.10
The applicant has leave to approach this court on the same papers,
duly supplemented if necessary, for further relief should
circumstances require it.
76.11
No order as to costs.
GAISA
AJ
ACTING
JUDGE OF THE HIGH COURT
Heard
on: 16 July 2024
Delivered
on: 18 July 2024
Appearance:
For
the applicant - Adv D Chuene (Limpopo Society of Advocates)
[1]
Act 38 of 2005
[2]
(CCT
53/06) [2007] ZACC 18
[3]
M
v S
supra
at
[31].
[4]
M
v S
supra
at
footnote 31 of that case.
[5]
(CCT
55/11)
[2012] ZACC 1
;
2012 (2) SA 208
(CC);
2012 (4) BCLR 329
(CC)
(11 January 2012),
[6]
C
and Others
supra
at
[24].
[7]
1969(3)
SA 529(D) at 532C-G
[8]
1979(3)
SA 128(A)
[9]
Bailey
supra
at
135D-136D at 136 A-C
[10]
(18/2001)
[2001] ZASCA 139
(29 November 2001)
[11]
2006
(3) SA 42
(SCA),