F v F

• Jurisdiction: South Africa
• Judge: Zulman JA, Cameron JA, Van Heerden JA, Ponnan JA and Maya AJA
• Judgment Date: 01 December 2005
• Citation: 2006 (3) SA 42 (SCA)
• Docket Number: 52/05
• Hearing Date: 07 November 2005
• Counsel: K I Foulkes-Jones SC for the appellant. R A Kuper SC for the respondent.
• Court: Supreme Court of Appeal

Maya AJA:

[1] This matter raises difficult emotional issues for the parties and their young daughter, the subject of the dispute. The parties are both British citizens who settled in the Republic of South Africa as newlyweds in 1986. They were divorced during 2001. The F appellant, who has custody of the child, wishes to return to the country of her birth permanently and take the child with her. The respondent refused to consent to the child's removal from the country. The appellant's application to the Johannesburg High Court for leave to remove the child from South Africa was refused by Weiner AJ, after hearing oral evidence. So was an appeal to the Full Court of G that Division (Cachalia J and Fevrier AJ concurring, Satchwell J dissenting). The appellant appeals further with the special leave of this Court.

[2] In addition to the two parties and S's day-mother since birth, Mrs Saskia Sinclair, three experts testified in this matter: Dr Engelbrecht (a counselling psychologist) on behalf of the appellant, H and Dr Strous (an educational psychologist) and Ms Henig (a social worker) on behalf of the respondent. The evidence of the parties, Mrs Sinclair, and their experts is fully set out in the judgment of the Court of first instance*[*] and I proceed to give a summary only of the salient portions. I

[3] The appellant and the respondent, aged 47 and 53 years respectively, were both born and grew up in the United Kingdom. Following their marriage there in April 1986, they came to South Africa to pursue J

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careers in the field of information technology. The appellant worked in that field, rising through the ranks to management level, A until her resignation in March 2003, partly due to dissatisfaction with her working conditions and partly in anticipation of her return to the UK. The respondent, on the other hand, branched off into other ventures over the years and has successfully established himself in the business world. B

F v F[4] When the parties were divorced on 26 April 2001, they concluded an agreement of settlement which was made an order of Court. In terms of the order, custody of the child, 'S', born on 7 November 1995, was awarded to the appellant. The award was made subject to the respondent's reasonable rights of access which include sleep-over access to S every Tuesday and Thursday nights, C every alternate weekend, alternate short school holidays and half of the long school holidays in July and December. The practical effect of this arrangement is that, although the appellant is the custodian parent and S's primary caregiver, the parties spend almost equal amounts of time with S and share responsibility for her various needs. D The respondent's relationship with S was initially strained after the divorce but, through the appellant's intervention, the problems were ironed out with the professional help of a social worker. The parties live within easy access of each other and, until the appellant's decision to relocate to the United Kingdom in late 2002, exercised their shared parenting arrangement without problems. E

[5] The appellant wishes to return to the country which she regards as her 'home', where all her family (and, indeed, all of the respondent's family) reside. Save for two close friends, she feels that she has no support system in South Africa, where she is unhappy F and depressed. She is concerned about the high level of violent crime and her perceived lack of financial and employment security here. By contrast, she believes that both she and S will have an improved quality of life and more safety and security in the United Kingdom. In her view, she will be able to provide S with better educational and other life-enhancing opportunities in that country, where she (the G appellant) will have better employment prospects and a far superior social security structure, in addition to very affordable health care for both herself and S. She tendered to the respondent liberal visitation blocks and regular telephonic, visual electronic and internet contact with S should her application be successful. The H respondent's main contentions were that the child would be removed from her present stable and secure environment, that she would suffer a decline in her standard of living and that, most importantly, she would lose the benefit of her close and meaningful relationship with him. I

[6] There were material points of variance in the respective approaches, findings and recommendations of the experts called by the parties. They, however, agreed, as the parties had, that S is well adjusted and developmentally on track, excels at school, enjoys excellent relationships with and is deeply attached to both her parents and is settled, happy and J

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stable in her present environment. Separation from either of her parents would be detrimental to her well-being. A

[7] The essence of their findings is captured in their joint report, the relevant part of which reads as follows:

'3.

S is attached to both her parents. We generally agree that separation from either parent would be deleterious to her well-being. B We agree that separation from her mother is likely to be severely detrimental to her. Henig and Strous believe that separation from her father has the potential to be severely detrimental to S. Engelbrecht C believes that she will be negatively affected by separation from her father but that the effect of this impact would be moderated by the nature, regularity and predictability of contact that she will have with her father.

4.

The experts noted that they applied different primary evaluation criteria in preparing their reports and recommendations in this matter. Henig and Strous based their recommendations primarily on the best interest criterion whereas Engelbrecht utilised the criterion of whether there are compelling reasons for S not to go to the United Kingdom.

5.

All the experts believe that according to the best interest criterion it is in a child's best interest to have both her parents in D close proximity.'

[8] As was accepted by both the Court of first instance and the majority of the Court a quo, the point of departure of Dr Strous and Ms Henig was clearly the correct one. The criterion consistently applied by the Courts in deciding matters of this nature is now entrenched in s 28(2) of the Constitution which provides that E '(a) child's best interests are of paramount importance in every matter concerning the child'. [1] The 'best interests of the child' standard is, however, of necessity an indeterminate and relative one as the circumstances of each child within each family unit will vary across a wide spectrum of factors. [2] F

[9] The legal principles applicable in relocation cases were recently set out by this Court in the majority judgment of Scott JA in Jackson v Jackson [3] as follows:

'It is trite that in matters of this kind the interests of the children are the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian G parent wishes to emigrate, a Court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so-called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interests of the children that the custodian H

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parent be thwarted in his or her endeavour to emigrate in pursuance of a decision A reasonably and genuinely taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration which would adversely affect the children. But what must be stressed is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts may provide useful guidelines, they do no more than that. By the same token, care should be taken not to B elevate to rules of law the dicta of Judges made in the context of the peculiar facts and circumstances with which they were concerned.'

[10] In deciding whether or not relocation will be in the child's best interests the Court must carefully evaluate, weigh and balance a myriad of competing factors, [4] including the child's wishes in appropriate cases. [5] It is an unfortunate reality of marital C breakdown that the former spouses must go their separate ways and reconstitute their lives in a manner that each chooses alone. Maintaining cordial relations, remaining in the same geographical area and raising their children together whilst rebuilding their lives will, in many cases, not be possible. Our Courts have always recognised and will not lightly interfere with the right of a parent who has properly D been awarded custody to choose in a reasonable manner how to order his or her life. Thus, for example, in Bailey v Bailey, [6] the Court, in dealing with an application by a custodian parent for leave to take her children with her to England on a permanent basis, quoted - with approval - the following extract from the judgment of Miller J in Du Preez v Du Preez: [7] E

'[T]his is not to say that the opinion and desires of the custodian parent are to be ignored or brushed aside; indeed, the Court takes upon itself a grave responsibility if...