Relocation disputes between parents are frequently brought before our courts. Where both parents have guardianship the consent of the “left behind” parent is needed in order to relocate with a minor child. Typically, a relocation dispute will arise when one parent, normally the parent who has primary residence, decides to relocate to another town, province, or country. Often, the left behind parent will refuse to consent to such relocation. The primary caregiver can then approach the High Court for an order dispensing with the other parent’s consent. Such cases are decided on a case-by-case basis depending on the specific circumstances involved.
The primary consideration is the best interests of the child. Other factors include whether the decision by the parent to relocate is reasonable and bona fide and the impact on the left behind parent and his/her relationship with the child. For example, the court rejected a mother’s application to relocate with her daughter despite finding that the decision to leave was bona fide. The court found that the practicalities of the mother’s decision to move were ill-researched and outweighed by the child’s need to not be separated from either parent.
South Africa is a party state to The Hague Convention on Civil Aspects of International Child Abduction (“The Hague Convention”), an international treaty aimed at preventing the unlawful removal of a child from the jurisdiction in which he/she normally resides, without the consent of the other parent or caregiver, and to facilitate the return of a child wrongfully removed.
The purpose of the Convention is to secure the prompt return of any child wrongfully removed to, or retained in, a contracting state. The purpose of obtaining the child’s return is that the court with jurisdiction is better appraised to deal with the merits of the matter. Furthermore, the left behind parent is at a considerable disadvantage in litigating a contested claim for care and contact in the courts of a country other than those of the place of habitual residence. Few people can readily afford litigation in their own jurisdiction, let alone in foreign courts, where the legal system may be different, laws and even language unfamiliar, costs substantial, and facilities for legal assistance difficult to obtain or non-existent.
A court in the other country may refuse to return the child if:
If someone ‘acquiesces’ to something, they consent to it or allow it to happen. Under The Hague Convention, one of the reasons a court may decide not to return a child to its habitual residence is if the court believes the applicant ‘subsequently acquiesced’ to the removal of the child, or their retention in the other country. It is up to the court to decide what constitutes ‘subsequent acquiescence’ and whether or not the applicant did in fact acquiesce.
However, common actions that may raise a question of acquiescence include:
We have a team of highly experienced professionals who have successfully handled Hague Convention cases emanating from a number of countries around the world. As with all our matters, our first priority is always to attempt to find resolution without the need for litigation, however, in most Hague Convention matters this is unavoidable given the urgency of the proceedings.
For direct answers to your specific personal questions, please contact us directly.