Relocation of Minor Children: Urgency and Best Interests

This past week I had discussions with our candidate attorneys regarding this particular question, as to whether applications regarding the relocation are urgent and what requirements there are to fulfill to enable a Court to consider the application as a matter of urgency.  

The answer to that question is in my view not an easy one, and depends on the facts of each case. 

Therefore upon reading this recent Judgment I thought it prudent to share same. 

In the matter CK v JJS [2024] ZAGPJHC 292, the applicant wished to relocate with her minor child aged 11 from Johannesburg to Ballito at the end of the school term. 

The application was before the Court in two parts.  

Part A had been unopposed and Judge Kunye ordered on 26 September 2023 that the Family Advocate must investigate and make recommendations within one month of the Order and Professor Gertie Pretorius (clinical psychologist) was to investigate and make recommendations regarding the best interest of the minor child, in relation to the proposed relocation. 

Professor Pretorius released her report on 30 March 2023. 

The Family Advocate filed its report on 18 March 2024, the day before the hearing of 19 March 2024. 

The applicant launched part B of an application on an urgent basis on 26 February 2024 on the basis that she received a call on 21 February 2024 indicating that there was only one place left in the Afrikaans stream at Curro Ballito for the minor child for the second term, which commenced on 3 April 2024. 

Applicant’s Counsel submitted that the legal test for relocation matters is the reasonableness of the decision to relocate and whether the relocating parents’ decision is bona fide. 

The Judge stated that there is no doubt in his mind that the decision by the applicant to relocate was taken in a thoughtful manner and that her decision had nothing to do with creating distance between the respondent and the minor child.  Likewise the respondent had justifiable reasons for his refusal to agree to the relocation and the Judge recorded that he sees “……..nothing to sensor the respondent in his dogged refusal to agree to the relocation.” 

Judge Lange further recorded that it was clear from all the affidavits, the reports of Professor Pretorius and the Family Advocate that the relocation was causing the minor child enormous stress and anxiety – he had told both Professor Pretorius and the Family Advocate that he does not want to move and he wants everything to remain the same. 

Judge Lange referred to section 9 of the Children’s Act 38 of 2005 which states “in all matters concerning the care, protection well-being of a child the standard the child’s best interest is of paramount importance must be applied”. 

Judge Lange stated that he cannot escape the conclusion that forcing the minor child to relocate will not in his best interest.  The minor child is equally bonded to both his parents and forcing the child to leave Johannesburg will negatively impact his relationship with the respondent.  Electronic contact and alternate weekend do not make up for the lived experience of seeing both parents weekly.  Furthermore, he is entrenched in his school and social circles and disruptions to this, on top of the disruption to his relationship with the respondent which weighs heavily against the reasons for relocation.

Judge Lange mentioned that applicant’s Counsel correctly pointed out that regard must be had to the applicant’s constitutional right freedom of movement, of association and freedom pursue her professional aspirations, this has to be weighed against the potential harm to the minor child if he is forced to relocate. 

The Judge further held “….(t)here is no proof that the applicant cannot pursue her professional aspirations by remaining in Johannesburg and travelling to Ballito when she is required to be there in person.  The applicant has a partner who is already in Ballito to assist her. In the same way that the applicant maintains that electronic contact between the minor child and the respondent is a mitigating factor in support of her relocation, the same thinking can be applied to her business.” 

Furthermore, Counsel for the respondent provided a very helpful table in her heads of argument which I have appropriated hereunder:

In conclusion, the Judge did not find in favor of the applicant and refused her application to relocate with the minor child. 

The aspect in my view that the Court placed value on was evidence at its disposal regarding the applicant’s professional aspirations – whether the applicant can pursue that in Johannesburg or Ballito – the Court made an interesting comment to ask but why the applicant cannot conduct her business remotely (in a sense) from Johannesburg to Ballito since she has already had a business partner in Ballito. 

When one launches an application specifically with regard to minor children, I recommend erring on the side of caution – carefully consider if a matter is truly urgent, whether sufficient grounds have been set forth, that there is no alternative relief available and (if applicable) that for the particular parent to relocate there must not be any other prospect for that parent’s professional aspiration but for physical relocation of that parent. 

Lastly, I recommend that if you should find yourself in such a situation, approach an attorney to assist you.  These matters are complex, there is no easy answer and clearly the Judges of our Courts, when faced with such an urgent application, will consider various aspects in reaching a determination, the utmost of which is the best interest of the minor child.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.