CR v SR
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Cloete J |
| Judgment Date | 28 August 2023 |
| Citation | 2023 JDR 3274 (WCC) |
| Hearing Date | 18 August 2023 |
| Docket Number | 11646/2022 |
Cloete J:
This is an opposed application in which the applicant (“the father”) seeks leave of the court for the two minor children of his erstwhile marriage to the respondent (“the mother”) to relocate permanently from South Africa to reside with him (and his fiancée) in the United Kingdom (“UK”). The children, a girl (“Y”) and a boy (“T”) are 10 year old twins who were born on 31 August 2012.
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Cloete J
The following relevant facts are common cause. The father is a British, and the mother a Zimbabwean, national. They, together with the children, have permanent residence in South Africa. The children were born in Cape Town, South Africa, and have lived here all their lives save for a period of about 10 months from June 2016 until March/April 2017 in Australia, when the mother returned here with the children and the father stayed on in Australia until December 2018.
During the period December 2018 until August 2022 (when the father left for the UK and has resided in Manchester ever since) the parties had shared residency of the children, initially on a two week rotational basis and later, on a week on, week off one. The children adapted to the arrangement and became comfortable and settled over time. The parties, who had married on 10 June 2006, divorced during this period on 15 March 2019.
The father launched the current application on 11 July 2022, shortly prior to his departure for the UK. The grounds advanced in his founding affidavit were summed up in the following paragraph:
‘. . .Not just due to the schools and medical facilities, but because the mother neglects them and. . . they would be best cared for by me.’
The father describes himself as a senior software engineer. In his founding affidavit he alleged that his primary reason for moving back to the UK was ‘better employment and subsequent income’. On 28 June 2022 he accepted a position in this capacity with a company in Manchester with a commencement
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date of 1 September 2022 subject to a 3 month initial probationary period, at a salary of £120 000 per annum excluding bonuses. This, he alleged, would significantly improve his financial position.
He asserted that the benefits for the children if they were permitted to relocate were automatic access to free education and healthcare, since at the time he was unable to afford to keep them on a medical aid scheme and pay any additional medical expenses as well as their educational costs as agreed in the Consent Paper incorporated in the parties’ Decree of Divorce. He did not explain why he would not be able to resume these payments given the substantial increase he would be receiving in his income.
Subsequently the applicant appointed Dr Joan Campbell (“Campbell”), a forensic and clinical social worker in private practice to conduct an assessment regarding the children’s proposed relocation, and the Family Advocate was also authorised to conduct a parallel investigation. It would seem that both parties co-operated in these processes and ensured that the children were also made available to the experts concerned.
There are material disputes of fact in the parties’ respective affidavits about the mother’s ability to care for the children. This issue was extensively investigated by Campbell (attempts by Ms Mabaso, the appointed counsellor in the office of the Family Advocate, to contact certain independent collaterals were fruitless). At the end of the day, and after the experts obtained valuable input from two
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schools attended by the children, it is evident that the father’s claims are exaggerated and without substantial merit.
The picture that rather emerges from the reports of Campbell and Mabaso is that the mother has at times struggled to cope because of financial constraints, difficult working hours (as a contracted online English tutor for students in China earning about R20 000 per month), and the special needs of T who has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). This was exacerbated by the father claiming he was unable to pay for the children’s continued private schooling at a certain college, where they had settled and T was receiving the special attention he needed, as well as terminating their medical aid cover, while at the same time accusing the mother of neglecting the children’s medical care because she was forced as a consequence to take them to a government clinic.
Campbell’s assessment led her to conclude the following:
The children have ‘primary attachments with both parents’ which I understand to mean they are equally securely attached to both of them;
Both parents have demonstrated an inability or lack of insight into the academic struggles T is experiencing, and the negative consequences of ‘their’ decision to remove the children from the college and place them in a school in which they share the same class and which has no
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Cloete J
separate remedial facility, despite T expressing to her that he wanted to return to the college;
Both parents have ‘adequate’ parenting capacity and the mother’s parenting style is ‘good enough’ although the father provides the children ‘with more opportunities for stimulating activities and engages in more quality time with them’;
Both parents have not provided adequate support to the children concerning their homework and have allowed T to fall behind academically;
The mother has played a significant role in the children’s upbringing and she should continue to play an important role in their lives. However preventing the children from living with the father ‘who is more than capable of caring for them and with whom they have a very secure attachment, will only contribute to emotional distress and a longing to be in their father’s care’;
It is however important to note that the mother’s parenting can be improved with professional intervention and there is no guarantee that the father will be able to provide better parenting in the long run compared to the mother; and
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Cloete J
Considering the children’s expressed desire to Campbell to relocate to the UK and live with the father (an aspect to which I return below), not allowing them to do so would carry ‘a higher risk of negative psychological and educational outcomes’.
On the issue of the mother’s contact with the children post-relocation Campbell – incorrectly – stated that if she wishes to have more contact there is little that would prohibit her from relocating to ‘another EU country’. Apart from the fact that England is no longer part of the European Union, the father himself was categoric in his replying affidavit that the mother would not qualify to reside in Portugal – one of the options previously mooted by the parties – because she will not meet the required financial threshold. In addition Campbell provided no evidence to back up her opinion on this score, and seems to have merely proceeded from the premise that as an online tutor the mother ‘can teach from anywhere in the world’.
Campbell did however emphasise that it is crucial the children are ensured regular contact with the mother if a relocation is granted. Herein lies one of the fundamental difficulties. The mother lacks the...
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