Often times, a parent would want to travel overseas, relocate or emigrate, and take the child with. However, the practical aspects thereof are not that easy. For starters, your child requires a passport. And what does the law say about passports of a minor child? As you would see later, both parents holding parental responsibilities and rights of guardianship should consent to a minor child obtaining a passport. That is a requirement in Law. But let’s say your child already has a passport. Can you still take your minor child out of the country or relocate? Yes, you can, as long as you have the consent of the other parent. This article does not only apply to parents of minor children who are not married to each other or separated. It applies to all parents of children holding parental responsibilities and rights over them, married, separated, or divorced. Before we move on, let us look at the most popular countries South African’s relocate to.
If you wish to emigrate from South Africa, there are many places in this world to consider. Some would be more ideal than others. But it all depends on the reason for the relocation. Here is a list of the top countries South Africans and emigrating to:
If you intend to relocate to a country or region not mentioned above, read on, this article still applies to you.
Parents of minor children differ on many things. Sometimes it’s minor issues. For instance, which clothes the child should wear. However, some disagreements are serious and exhausting. For instance, what school should the minor child attend, or extra-mural activities to partake in? What school a child attend can affect the contact rights of parents when they live in separate homes. Now turning to this article. What if one parent wants to go away on holiday or relocate with the child, and the other parent refuses to give consent.
One obvious reason to object to a relocation would be that the parent that remains in South Africa may not see the child for some time. This becomes a problem if the reason for the relocation is work-related, or for a better life. Does this now mean a parent must not better his or her situation in life in consideration of the other parent? And what if the other parent does not pay child maintenance? Must you still give up the job offer overseas? Worst yet, if the reason for the relocation is due to the parent having custody of the child remarried, and his or her spouse wants to relocate due to work reasons. Now let’s unpack the law.
The South African Constitution, Act 108 of 1996 affords everyone certain basic human rights. These rights are entrenched in its Chapter 2, of the Bill of Rights. Section 21 of the Bill of Rights deals with freedom of movement and residence. It states the following:
21 (1) Everyone has the right to freedom of movement.
(2) Everyone has the right to leave the Republic.
(3) Every citizen has the right to enter, to remain in and to reside anywhere in, the
(4) Every citizen has the right to a passport.
Now, seeing that every child has a right to freedom of movement, and a passport, what does this mean to the parent who wants to take a child out of the Country for relocation or holiday?
Section 18 of the Children’s Act 38 of 2005 deals with Parental responsibilities and rights in relation to minor children. According to section18 (3) read with section 18(5) of the Act, a co-guardian of a child must consent to the child’s departure or removal from the Republic as well as to the child’s application for a passport. The only exception would be if a court decides otherwise. Therefore, even if the child lives with the father and he cares for her, if the mother has guardianship over the child, her consent is required.
Now that we know that everyone has the right to obtain a passport, and leave the Republic, what does this mean to the parent who now wants to relocate with the minor child, but the other parent does not want to give consent? An application to the competent court has to be made if this happens. And in this case, it would be the High Court where the child resides. The Court would have to determine what is in the minor child’s best interest. The High Court would listen to why the parent wants to leave, and also why the other parent does not want the child to accompany that parent. Once all the information is before the Court, the court would make a decision. The decision would be based solely on the minor child’s best interests.
The Court may also consider reports and recommendations from other experts. For example, the Office of the Family Advocate, a Social Worker or Psychologist. Obviously, their experts need to consult with both parents and the child and have all the facts before them before they can provide recommendations to the Court. They may decide to consult with the child’s school teachers, family member etc. A good report would deal with the actual circumstances overseas. For example, verifying the job, the school the child will be going to, and so on.
If one parent leaves the country with the child, it would mean no physical contact for the other parent. This would be the major objection. On the other hand, a parent could object due to the country visiting being dangerous. In the case of relocation, an objection could be that the child’s education would be compromised. One other obvious reason would be that the child would not see the remaining parent and his or her family in South Africa. Counter-arguments could be the use of Skype, and holiday visits etc.
If you need to relocate, with a child, and the other parent refuses to give consent, speak to a legal advisor, or to us. They would advise you on your case, and if need be, assist or direct you to the proper people for an Application to court for an order that the requirement of consent is dispensed with. Should you be successful in such an application, the Order would be shown to the Department of Home Affairs when applying for a passport and when leaving the Country. The Officials would comply with the Order. The Order of Court can also be shown to the officials overseas should they want to know where the consent of the father is.
In the same manner, should you want to leave South Africa to go overseas on holiday with the minor, approach us for advice should the other parent refuse to give consent. Your visit overseas could be to visit a family member, or just for a break. There should be no reason why you cannot take the minor child with you on holiday.
This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf to assist people with various family law related issues they may have. If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below.