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The issue of determining the best interests of a child under the age of 18 is a common and contentious dispute among separated parents or those co-parenting. This issue has become more prevalent in South Africa due to the increasing number of South Africans relocating to different provinces or countries for employment opportunities. Disagreements often arise regarding where the child should be raised and which parent should be designated as the primary caregiver. Each parent presents their own reasons as to why their preferred location is in the child’s best interests.

According to Section 28 of the Constitution of the Republic of South Africa and the Children’s Act, the best interests of the child are of utmost importance in all matters concerning the child. The Children’s Act outlines factors that the court must consider when determining the child’s best interests. These factors include the nature of the child’s relationship with the parents or caregivers, the attitude of the parents towards the child, the ability of the parents or caregivers to meet the child’s needs, and the need to protect the child from any harm or abuse.

Under the Children’s Act, parents have the responsibility to care for their child and provide suitable living conditions that promote the child’s health, well-being, and development. In cases where parents are divorced or unmarried, they must decide on a primary caregiver for the child based on the child’s best interests. If one parent is unhappy with the care provided by the primary caregiver, they can apply to the court for custody or visitation rights, but such an application will only be granted if it is in the best interests of the child.

If the primary caregiver wishes to relocate, South African law allows for such a move as long as it is reasonably and genuinely motivated. Factors such as career opportunities, living with a foreign partner, or a desire to return to one’s home country can be considered as legitimate reasons for relocation. However, the court will also take into account the advantages and disadvantages of the relocation, weighing whether the benefits of the new location outweigh the potential distress caused by moving. In certain cases, the court may determine that the disadvantages of relocation, such as language barriers or disruption of a close relationship, outweigh the advantages.

In a recent case, Heidi Nicole Koch N O and Another v The Ad hoc Central Authority for the Republic of South Africa and Another (188/2021) (2022) ZASCA 60 (26 April 2022), the Supreme Court of Appeal (SCA) had to make a decision regarding the return of a child from South Africa to the United Kingdom. The facts of the case were that, the mother, who was diagnosed with cancer while living in the UK, came to South Africa for medical treatment with her child and the child’s father. The father returned to the UK while the mother continued with her treatment, under the understanding that the child would return to the UK with the mother after the treatment. During the mother’s stay in SA, the child was cared for by the child’s aunt and maternal grandmother. When the mother realized her chances of recovery were slim, she expressed her desire for the child to remain in SA and be raised by the aunt in the event of her death. However, the father opposed this and applied for the child’s return to the UK under the Hague Convention on the Civil Aspects of International Child Abduction.

The SCA held that SA courts would order the child’s return to the UK unless there was evidence of a grave risk of physical or psychological harm or an intolerable situation for the child upon return. In this case, the SCA dismissed the father’s application and recognized the mother’s evidence showing that removing the child from her primary attachment figure, her aunt, and the safe environment in SA would expose the child to grave harm and an intolerable situation. The court determined that the mechanisms in place in the UK were not sufficient to prevent such harm.

Overall, the best interests of the child are given significant weight, and in some cases, parents may not be granted the right to be the primary caregiver based on what serves the child’s best interests. Each case is decided based on its unique facts, considering what will ultimately benefit the child the most.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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