Custodianship and moving children to another country

Custodian parents who wish to “pack and leave for Perth” with their children, but whose ex-husbands refuse to let them go – what does the Court say?

The matter of Ford versus Ford raises difficult emotional issues for the parties and their young daughter, the subject of the dispute. The parties are both British citizens who settled in the Republic of South Africa as newlyweds in 1986. They were divorced during 2001. The appellant, who has custody of the child, wishes to return to the country of her birth permanently and take the child with her. The respondent refused to consent to the child’s removal from the country. The appellant’s application to the Johannesburg High Court for leave to remove the child from South Africa was refused by Weiner AJ, after hearing oral evidence. So was an appeal to the full court of that division (Cachalia J and Fevrier AJ concurring, Satchwell J dissenting). The appellant appeals further with the special leave of this court.

In addition to the two parties and S.’s day mother since birth, Mrs S.S., three experts testified in this matter: Dr Engelbrecht (a counselling psychologist) on behalf of the appellant, and Dr Strous (an educational psychologist) and Ms Henig (a social worker) on behalf of the respondent.

The appellant and the respondent, aged 47 and 53 years respectively, were both born and grew up in the United Kingdom. Following their marriage there in April 1986, they came to South Africa to pursue careers in the field of information technology. The appellant worked in that field rising through the ranks to management level until her resignation in March 2003, partly due to dissatisfaction with her working conditions and partly in anticipation of her return to the UK. The respondent on the other hand branched off into other ventures over the years and has successfully established himself in the business world.

When the parties were divorced on 26 April 2001, they concluded an agreement of settlement which was made an order of court. In terms of the order, custody of the child, S.R., born on [day/month] 1995, was awarded to the appellant. The award was made subject to the respondent’s reasonable rights of access which include sleep-over access to S. every Tuesday and Thursday night, every alternate weekend, alternate short school holidays and half of the long school holidays in July and December. The practical effect of this arrangement is that, although the appellant is the custodian parent and S.’s primary caregiver, the parties spend almost equal amounts of time with S. and share responsibility for her various needs. The respondent’s relationship with S. was initially strained after the divorce but, through the appellant’s intervention, the problems were ironed out with the professional help of a social worker. The parties live within easy access of each other and, until the appellant’s decision to relocate to the United Kingdom in late 2002, exercised their shared parenting arrangement without problems.

The appellant wishes to return to the country which she regards as her ‘home’, where all her family (and, indeed, all of the respondent’s family) reside. Save for two close friends, she feels that she has no support system in South Africa, where she is unhappy and depressed. She is concerned about the high level of violent crime and her perceived lack of financial and employment security here. By contrast, she believes that both she and S. will have an improved quality of life and more safety and security in the United Kingdom. In her view, she will be able to provide S. with better educational and other life-enhancing opportunities in that country, where she (the appellant) will have better employment prospects and a far superior social security structure, in addition to very affordable health care for both herself and S.. She tendered to the respondent liberal visitation blocks and regular telephonic, visual electronic and internet contact with S. should her application be successful. The respondent’s main contentions were that the child would be removed from her present stable and secure environment, that she would suffer a decline in her standard of living and that, most importantly, she would lose the benefit of her close and meaningful relationship with him.

There were material points of variance in the respective approaches, findings and recommendations of the experts called by the parties. They however agreed, as the parties had, that S. is well-adjusted and developmentally on track, excels at school, enjoys excellent relationships with, is deeply attached to both her parents and is settled, happy and stable in her present environment. Separation from either of her parents would be detrimental to her well-being.

The essence of the expert’s findings is captured in their joint report, the relevant part of which reads as follows: ‘3. S. is attached to both her parents. We generally agree that separation from either parent would be deleterious to her well-being. We agree that separation from her mother is likely to be severely detrimental to her. Henig and Strous believe that separation from her father has the potential to be severely detrimental to S.. Engelbrecht believes that she will be negatively affected by separation from her father but that the effect of this impact would be moderated by the nature, regularity and predictability of contact that she will have with her father. 4. The experts noted that they applied different primary evaluation criteria in preparing their reports and recommendations in this matter. Henig and Strous based their recommendations primarily on the best interest criterion whereas Engelbrecht utilised the criterion of whether there are compelling reasons for S. not to go to the United Kingdom. 5. All the experts believe that according to the best interest criterion it is in a child’s best interest to have both her parents in close proximity.’

As was accepted by both the court of first instance and the majority of the court a quo, the point of departure of Dr Strous and Ms Henig was clearly the correct. The criterion consistently applied by the courts in deciding matters of this nature is now entrenched in s 28(2) of the Constitution which provides that ‘[a] child’s best interests are of paramount importance in every matter concerning the child’.

The legal principles applicable in relocation cases were recently set out by this court in the majority judgment of Scott JA in Jackson v Jackson as follows: ‘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. 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.’

In deciding whether or not relocation will be in the child’s best interests the court must carefully evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. It is an unfortunate reality of marital breakdown that the former spouses must go their separate ways and reconstitute their lives in a manner that each chooses alone. Maintaining cordial relations, remaining in the same geographical area and raising their children together whilst rebuilding their lives will, in many cases, not be possible. Our courts have always recognised and will not lightly interfere with the right of a parent who has properly been awarded custody to choose in a reasonable manner how to order his or her life. 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”.’

A frustrated and bitter parent cannot, as a matter of logic and human experience, provide a child with that environment. This being so, I cannot agree with the views expressed by the full court that ‘the impact on S. of the appellant’s feelings of resentment and disappointment at being tied to South Africa, or the extent to which her own desires and wishes are intertwined with those of S.’ did not deserve ‘any attention’ and that ‘[i]n arriving at a just decision [a court] cannot be held hostage to the feelings of aggrieved litigants’.

The reasonableness of the custodian’s decision to relocate, the practical and other considerations on which such decision is based, the extent to which the custodian has engaged with and properly thought through the real advantages and disadvantages to the child of the proposed move are all aspects that must be carefully scrutinised by the court in determining whether or not the proposed move is indeed in the best interests of the child.

In coming to her conclusion that it was not in S.’s best interests that the appellant be permitted to remove her permanently to the United Kingdom, the trial judge relied heavily on the following passage from the majority judgment of Scott JA in the Jackson case. ‘To afford less weight to something as important as the relationship between mother and young daughters simply because the former is the non-custodian parent is to prefer the rights of the custodian parent over the interests of the children. That is a wrong approach. It is particularly so on the facts of the present case, where both parents continued to exercise a more or less equal parenting role and where there had been no real separation between children and the “non-custodian” parent. It cannot be over-emphasised that each case must be decided on the basis of its own particular facts. The question in issue was whether it was in the interests of the children that they be separated from the mother and taken to Australia. That she was the “non-custodian” parent was of no relevance to this enquiry.’

[16] The Jackson case involved an appeal against the refusal of an application by the custodian father of two young girls for leave to emigrate with them to Australia. The non-custodian mother had previously approved the move and was to emigrate as well, but changed her mind after the divorce. As in this case, the children had, after the divorce, continued to spend more or less equal amounts of time with both parents and enjoyed very secure attachments to them both. As Scott JA stated: ‘Of particular importance in the present case is the fact that there has as yet been no real separation between mother and children. To this extent therefore this present case differs materially from all those where the access of the non-custodian parent is limited to something in the region of alternate weekends. Were the children to be taken to Australia the consequence would be the replacement of the mother’s almost equal parenting role with what in effect would be bi-annual visits of a few weeks each…. What emerges from the evidence, viewed in its totality, is that if removed from their mother and taken to Australia both young girls …will suffer “a great deal of pain and trauma”. Although opinions may differ, as far as the younger child Tasya concerned there must, at the least, be a real risk of psychological harm. The father made it clear that his primary reason for wishing to emigrate to Australia was for the sake of the children. The question is therefore whether the advantages of a move to Australia at this stage in the lives of these young children justify the pain and trauma they will undoubtedly both experience and the real possibility of Tasya suffering psychological harm.’

In some cases a non-custodian parent’s relationship with his minor children in the particular circumstances of those cases. What is evident from both Jackson and the cases which preceded it is that children’s interests are more often than not intertwined with those of their caregivers and that courts must thus properly consider the impact on the custodian parent of a refusal to remove a child in so far as such refusal may have an adverse effect on the custodian parent and in turn the child.

Notwithstanding these reservations about the interpretation of the majority judgment in the Jackson case, I cannot endorse the submission by counsel for the appellant that the learned Judge placed undue weight on the consideration of not ‘interrupting [the] close psychological and emotional bond which a child has with the non-custodian parent’. In the present case, all three experts testified that S. had a close psychological and emotional bond with both her parents. The joint minute complied by the experts is very telling, in that all three agree that it is in her best interests to have both her parents in close proximity and that separation from either parent would be deleterious to her well-being. Even Dr Engelbrecht, who held the view that any long-term detrimental consequences of separation from the respondent would be moderated by the envisaged extent and regularity of contact between them, conceded in her testimony that the relocation had real risks. These included the ‘thinning’ of S.’s relationship with her father, which could result in feelings of abandonment, deprivation, loss, shame and anger. Furthermore, from the evidence, it is apparent that S. herself is adamant that she does not want to live in any country if both her parents do not live there. Despite her young age and comparative immaturity, her views cannot be totally ignored.

The case, moreover, in my view clear from the judgment of the trial court that it did indeed pay regard to factors other than the potential negative effect of the proposed relocation on the relationship between the respondent and his daughter.

The trial court that the practicalities of her decision were certainly not as well-researched and investigated as they should have been.

By the time the matter went to oral evidence, she had secured a temporary, low-paying job in the United Kingdom, but still had no letter of appointment which provided the precise details of her working conditions, income and tax obligations. She had no idea what the child benefit with which she hoped to augment her income would be or what after-care for S., on the days when she would not be able to fetch her after school, would cost. She was uncertain if she would keep her current temporary job and what her future employment prospects were. The only real and readily accessible source of emotional and physical support that the appellant would have in her homeland would be her near-octogenarian mother with whom she planned to live. Confronted with her obvious lack of any structured plan for the relocation, she admitted that her plans were ‘constantly changing’. There are just too many imponderables in the appellant’s plans to enable the court to assess the likely effect of the move on S.’s physical, emotional and psychological well-being. When these imponderables are ‘weighed up’ against the agreed opinion of all three experts that S.’s interest would best be served by remaining in proximity to both parents and that a separation from either parent would be prejudicial to her well-being, the decision of both the trial court and the majority in the full court not to permit the appellant to relocate to the United Kingdom with her daughter cannot be faulted.

This finding will obviously disappoint the appellant. However, almost two years have elapsed since the judgment of the trial court was delivered and there is no suggestion that she has not coped with the reality of her situation in the interim. Her evidence was that, since her daughter’s birth, her mother visits them in South Africa for two to three months every year. The appellant likewise visits the United Kingdom on a regular basis. These visits should assist in alleviating any feelings of isolation, homesickness and disenchantment that she may suffer from time to time.

Furthermore, the court’s refusal to grant the appellant leave to relocate with S. now is not immutable and does not mean that she may not obtain leave to return home with her daughter in the not too distant future if circumstances so justify. As the respondent’s counsel pointed out, S. will be going to high school in three years’ time. Changes to her social and scholastic life will then be inevitable. She will also be older and thus in a better position to form responsible judgments and state her own preferences. These changed circumstances may well make the feasibility and desirability of a move to the United Kingdom much easier to evaluate. There is nothing to prevent the appellant in the interim from re-establishing herself in her chosen profession and earning a decent income in this country. Should she require additional financial support for S. until such time as she is able to do so, it would seem that the respondent’s financial position is such that he would be easily able to provide such support.

1 2002 (2) SA 303 (SCA) para 2 at 318E-I.

2 See eg Van Rooyen v Van Rooyen 1999 (4) SA 435 (C).

3 In terms of one of the key tenets of the United Nations Convention on the Rights of the Child, the courts must ‘assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child’ (article 12). Thus, if the court is satisfied that the child in question has the requisite intellectual and emotional maturity to make an informed and intelligent judgment, then the court should give serious consideration to the child’s expressed preference (see McCall v McCall 1994 (3) SA 210 (C) at 207H-J).

4 Elsje Bonthuys ‘Clean Breaks: Custody, Access and Parents’ Rights to Relocate’ (2000) 16 SAJHR 487 refers in this regard to ‘a systematic lack of reciprocity when dealing with the parents of the child. While the custodian may be prevented from relocating by the interests of the children, the non-custodian may relocate at will. While the custodian can be compelled to facilitate access to the child, the non-custodian parent cannot be compelled to contact the child, whether or not such contact would be beneficial to the child’ (at 496).

5 See eg the remarks of several judges in the Constitutional Court case of President of the Republic of South Africa v Hugo 1997 (4) SA 1 (CC) paras 37-38 (per Goldstone J), paras 80 and 83 (per Kriegler J), para 93 (per Mokgoro J) and paras 109-110 and 113 (per O’Regan J).

6 Para 14 at 323C-D.

7 Paras 10 and 12 at 321B-C and 332D.

2019-01-23T10:18:27+00:00January 23rd, 2019|Child Custody, Family Law|0 Comments