The best interests of the child (under the age of 18 years) is often a contentious and common dispute amongst parents who are separated or raising their children in a co-parenting structure. This has become more of an issue with a lot of South Africans relocating (“emigrating”) to other provinces and countries for employment opportunities. A common dispute in such cases is the question of where the child should be raised and which parent should be considered the primary caregiver. Each parent often has various reasons why each location is in the best interests of the child.

In the recent case of Heidi Nicole Koch N O and Another v The Ad hoc Central Authority for the Republic of South Africa and Another (188/2021) (2022) ZASCA 60 (26 April 2022), the Supreme Court of Appeal (“SCA”) had to make a decision in a case where a father based in the United Kingdom (“UK”) requested the return of his child from South Africa (“SA”). Before we go into what the courts decided in this matter, let’s look at what South African law regards as being in the best interests of the child.

What does South African law state in regards to the best interests of the child?

  • Section 28 of the Constitution of the Republic of South Africa 108 of 1996, read with section 9 of the Children’s Act 38 of 2005 (“Children’s Act”), provides that the child’s best interest is of paramount importance in all matters concerning the child.
  • The standard for the best interests of the child is set out in section 7 of the Children’s Act, and some of the factors that a court has to consider when looking at the best interests of the child are:
  • the nature of the personal relationship between the child and the parent/s, or any other caregiver or person relevant in those circumstances;
  • the attitude of the parent/s towards the child, or the exercise of parental responsibilities and rights in respect of the child;
  • the capacity of the parent/s, or of any other caregiver or person, to provide for the needs of the child, including emotional and intellectual needs; and
  • the need to protect the child from any physical or psychological harm that may be caused by maltreatment, abuse, neglect, exploitation or degradation, or exposing the child to violence or exploitation or other harmful behavior.

What is the parental responsibility to care for a child?

  • Under the Children’s Act, parents have the responsibility to care for a child (in the past known as custody). This includes providing a child with suitable living conditions, which are encouraging to the child’s health, well-being, and development.
  • Generally, parents who are married have joint care of the children born of their marriage. Should the parents get divorced or in the case where they are not married, they have to decide who will be the primary caregiver of the child. This decision must, however, be made in the best interest of the child.
  • When one parent (“primary caregiver”) has care of a child and the other parent (“non-primary caregiver”) is not happy with the way the child is being raised, s/he can apply to the court for an order for care of the child. Such an application will only be granted if it is in the best interest of the child.
  • Where there is an order of the court dealing with the care of a child or visitation, it is a criminal offense for the primary caregiver to unreasonably refuse or prevent another person from having contact with the child, or if the primary caregiver does not advise the other parent in writing of any change of his/her residential address.

What happens where the primary caregiver wishes to emigrate?

  • South African law allows for relocation, where the decision is reasonably and genuinely taken.
  • A relocation may be considered to be reasonably and genuinely in good faith (“bona fide”) if the proposed relocation is motivated by:
  • career opportunities;
  • a desire to live with a foreign-based partner; or
  • a desire to return to one’s country.
  • In F v F  (2006) (3) SA 42 (SCA), the mother resigned from her job, sold the house and motor vehicle, shipped her furniture to England, and informed the school that she and her daughter will be moving. She did not, at this time, have any plans for employment after relocation. The court did not find it in her favor and it could be stated that her relocation was not reasonable.
  • Other factors the court may take into account is the competing advantages and disadvantages of relocating. This is where the court will look into whether the advantages of a new location outweigh the distress caused by moving.
  • It can in certain circumstances be said that the disadvantages may weigh more than the advantages where the child has to learn a new language, or where there is a very close relationship between the child and the non-primary caregiver.

What was the situation in the Heidi Nicole Koch case and what did the court decide?

  • In this case, a mother who was diagnosed with cancer while living in the UK decided to come to SA for medical treatment with her child and the child’s father.
  • The child’s father subsequently returned to the UK while the mother was receiving treatment, with the understanding that the child would return with the mother when the treatment was successfully completed.
  • Whilst in SA, the child was cared for by the child’s aunt and maternal grandmother.
  • When the mother realized that her chances of recovery were non-existent, she expressed that in the event of her death, she would like the child to remain in SA and be raised by the aunt.
  • The child’s father opposed the mother’s wishes and approached the Central Authority for England and Wales, and submitted a request for the return of the child in terms of the Hague Convention on the Civil Aspects of International Child Abduction, 1980 (“Convention”).
  • The mother opposed the applicant for the return of the child to the UK on the grounds that:
  • the father had consented to the child remaining with her in SA for as long as she was undergoing treatment for cancer; and
  • there was a grave risk that the child’s return to the UK would expose her to physical and psychological harm, as well as place the child in an intolerable situation.
  • The SCA held that the SA courts would be bound to order the return of the child to the UK unless circumstances exist where a person opposing the application for the child’s return establishes that “…there is a grave risk that the [child’s] return would expose [him or her] to physical or psychological harm or otherwise place the child in an intolerable situation…”
  • The SCA dismissed the father’s application and recognized the mother’s evidence which showed that the removal of the child from her primary attachment figure in the form of her aunt, and safe and secure environment, will expose her to the risk of grave psychological and physical harm, or otherwise place her in an intolerable situation, and that the mechanisms in place in the UK are not sufficient to avoid such harm to which the child will be exposed on her return to the UK.

In light of the above, the best interests of the child weighs so much that in some instances the parent/s of the child might not be given the right to be the primary caregiver of the child. Each case will be dealt with after considering the unique facts applicable in line with what will be in the best interests of the child.