Whatshot

2026
All
September
2025
All
November
All
2024
All
June
All
April
All
2023
All
March
All
2022
All
2021
All
2020
All
March
All
February
All
2019
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
2018
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
2017
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2016
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2015
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
DHS
April
All
March
All
February
All
January
All
2014
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
KZN
May
All
April
All
March
All
February
All
January
All
2013
All
December
All
November
All
October
All
September
All
August
All
July
All
June
All
May
All
April
All
March
All
February
All
January
All
2012
All
December
All
November
All
October
All
September
All
August
All
July
All

Legal Talk

Legal Talk

Author: Fawzia Khan
Date: 2015-10-09
A case came before the Durban High Court in September 2015, which dealt with the rights of a single parent wanting to relocate with the minor children overseas, has made headline news in the media recently. In this case the judge granted a single mother the right to relocate abroad on a permanent basis, taking the minor children with her and gave the mother leave to obtain passports on behalf of the minor children.

The facts of the case briefly were that the couple were in a love relationship but were not married to each other. The couple had two minor children. Both parents were co-holders of full parental responsibilities and rights of the children in accordance with the Children's Act. The children lived with the mother and the father reasonable rights of contact with them on reasonable basis. The father paid R2000,00 per child per month towards the children's' maintenance. The mother wanted to relocate to the United Kingdom, saying that she would be able to get a better job there and wanted to take the children with her. She needed the father's consent to remove the children from SA, which the father refused to do.

The mother then approached the High Court for assistance. The father's refusal to allow the children to relocate to the UK was that the mother "has not properly investigated the practicalities of her decision as she inter alia has no structured plan for the proposed relocation". He said that her reasons to relocate with the children was based on speculation and uncertainty and that the children had a better and stable life in South Africa. The mother on the other hand said it would be in the children's best interest to move to the UK. The mother earned a salary of R22576. The father paid the sum of R4000 as maintenance.

However she said that this was not enough to cover all the expenses and she always had a shortfall at the end of the month. She argued that her ability to earn more than she was currently earning in South Africa was remote and taking into account her education and experience, she has reached her ceiling in terms of salary in this country. She said her parents lived in the UK, as did her brother and his family. These people would be able to provide the mother with her support system. After hearing all the evidence before him, Judge Madondo held that it was to be in the best interests of the minor children that they allowed to relocate overseas.

He used the Children's Act as well as the Constitution of Republic of South Africa 1996 to support his position. He said " the court has to weigh and evaluate the circumstances impacting directly and immediately to the basic care, well-being and the education of the minor children. To this balancing exercise, fairly and correctly a court needs to be apprised of all the relevant information.

Equipped with this information, the court needs to balance the interest of the minor children remaining in South Africa, so that their father will have easy access to them, against the risks to the minor children of not getting appropriate care and adequate education in the country where they relocate to. In the exercise of her parental responsibilities and rights, the mother, as a custodian parent, has a broad discretion to choose where to reside with the minor children. However, such discretion shall be exercised subject to the limitation that the responsibilities and rights in respect of the minor children must, at all times, be exercised and performed in the best interest of the children".

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.