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Legal Talk
Legal Talk
Date: 2015-07-03
The English court had to decide whether or not the removal of the child from South Africa was wrongful. They were unable to decide that question and referred the question to be determined by a South African court. The father brought an application out of the Durban High Court. The mother opposed the application and argued that save for consenting to being the child's father, the father never contributed towards the child's upbringing or maintenance and therefore did not fully satisfy the provisions of the Children's Act.
The High Court did not agree and found that the father did indeed meet all the requirements as set out in the Children's Act 38 of 2005. The High Court also held that the father had acquired full parental rights and responsibilities in respect of the child and therefore the mother ought to have obtained his prior consent before removing the child out of the country.
The mother took the decision of the High Court on appeal to the Supreme Court of Appeal ("the SCA"), in Bloemfontein. The SCA said it could not fault the reasoning of the Durban High Court and dismissed the mother's appeal with costs.
The SCA stated that in deciding whether or not a father has met the requirements as set out in the Children's Act, requires a factual enquiry to be made. This is where all the relevant facts and circumstances of the matter must be considered. Once that enquiry was done, the court would be able to clearly assess whether or not the father had acquired co-parental rights and responsibilities towards a minor child. The SCA held that in the present case the father met all the requirements needed to grant him co- parental rights and responsibilities to the child as well as that of being co-guardian of the child. On that basis, the father's prior consent allowing for the removal of the child out of the country was therefore required.
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