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Relocation with a minor child and consent

Updated: Mar 7, 2023

Not having physical control over and/or a say in a minor child’s day to day activities is something that most divorced or separated parents battle to grasp which is why it is imperative that they understand their rights when it comes to travelling and/or relocating with their minor child/children, inside and outside the Republic of South Africa as well as the requirements for same.


What happens if circumstances arise necessitating that the minor child travels or relocates with one parent?


It is not uncommon, especially for divorced or separated parents, that one parent seeks to travel outside the Republic of South Africa or obtains enriching opportunities which necessitates permanent relocation outside the borders of South Africa. While this doesn’t pose a problem in general, issues may arise when the parent seeks to travel and/or relocate with the minor child/children.


What recourse will the other parent have?


The Children’s Act 38 of 2005 (“Children’s Act”), records that all parents have equal rights and responsibilities in relation to their minor child/children. These rights and responsibilities, save for certain instances as provided in the Children’s Act, are not limited by any circumstances and/or inabilities of the parent, but may be limited, suspended and/or terminated by a court order.


However, notwithstanding that parents have equal rights and responsibilities, parents are necessarily required to consult each other and/or obtain consent in respect of certain aspects relating to the minor child/children. Such as section 18(3) read together with section 18(5) of the Children’s Act which provides, inter alia, that both parents are required to consent to the departure and/or removal of the minor child/children from the Republic of South Africa, whether it be permanently or only for a limited duration.


To this end, it is therefore not unlawful for a parent to refuse to grant consent for the removal and/or departure of the minor child/children from the Republic of South Africa as this is within a parent’s rights, as set out in the Children’s Act. However, such right is not absolute and therefore, a parent’s decision to refuse to grant consent for the departure or removal of the minor child/children from the Republic of South Africa, must be reasonable in the circumstances.


Accordingly, in circumstances where a parent unreasonably refuses to give consent to the removal and/or departure of the minor child/children from the Republic of South Africa, the other parent may approach the court, by way of application, wherein they request an order granting them consent to remove and/or travel with the minor child/children from the Republic of South Africa.


What happens if a parent seeks to remove or relocate with a minor child within the Republic:


Unfortunately, the Children’s Act does not detail the requirements for the traveling and/or relocation of a minor child within the borders of the Republic of South Africa and accordingly, the removal of the minor child/children within the Republic of South Africa would not necessarily be unlawful, however, depending on the circumstances, such removal may violate other rights, such as the other parent right to exercise contact with the minor child/children.


In this regard, it is also important to note that section 31 of the Children’s Act requires, inter alia, that parents consult each other with regards to major decision involving the minor child/children before taking a decision on same, and further, requires that the views and wishes of the minor child/children be taken into consideration when making such decisions.


However, in an attempt to circumvent disputes regarding the removal of the minor child/children within the Republic of South Africa (such as to another province or city) separated and/or divorced parents conclude parenting plan agreements which are intended to regulate, inter alia, the rights and responsibilities of the parents in relation to contact, maintenance, and care of the minor child/children.


A common clause included in such a parenting plan agreement is what is known as the non-relocation clause which regulates what will happen in instances where one parent seeks to relocate, whether permanently or on a temporary basis and/or seeks to travel with the minor child/children and usually requires that the other parent must grant consent in such situations, which consent must not be unreasonably withheld.


Failure by a parent to abide by the provisions of such a clause would entitle the other parent to approach the Court for the appropriate relief wherein the Court will consider a multitude of factors in making its determination, the best interest of the minor child /children, the reasons for the relocation and/or removal and the relationship between the child/children and both parents.


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