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Article by listed attorney: Fawzia Khan

The issue of relocating children after a divorce sometimes to another part of the world is a reality that many families have to work through, often in an emotionally charged environment. The High Court recently heard an opposed application in which a mother, who after leaving South Africa for Luxemburg in May 2013, approached the court for permission to allow her to remove her grade 7 daughter from SA to go and live with her permanently in Luxemburg. The court heard that the parents were divorced and had two children, a son who was a grade 11 boarder in a private school as well as the grade 7 child. In terms of the divorce order, the mother was granted primary residency of both children and the father was given rights of reasonable access. When the mother emigrated to Luxemburg in May 2013, the daughter went to live with the father. (See also: Emigration after Divorce). Both parents were in agreement that the son would stay with the father when he was not at school but they could not agree on the relocation of the younger child.

In order to assist in reaching in reaching its decision, the court looked at a number of professional reports by the various role players. These included two reports by the Family Advocate (an initial and supplementary report), together with a report of the family counsellor, as well as two clinical psychologists reports.

The court referred to the family advocate’s report, which made extensive reference to sections from the Children’s Act, the most important being what was in the child’s best interest. The report reminded the Court that it was to also look how the child would be affected by her change in circumstances including the effect of separation from either of the parents, or the brother. In the final analysis the family advocate did not believe that uprooting the child from her father’s care was in the child’s best interest and recommended that both children should reside primarily with the father and that the mother have certain defined rights of contact, including Skype and telephonic contact at reasonable times.

After hearing all the evidence, the court found that the child was well adjusted in her father’s care. School reports indicated that the child had “flourished intellectually, physically, emotionally and socially”. It therefore held that to uproot the child, under those circumstances, was not in the child’s best interest.

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