Guest Article: Our children are the future

Our children are the future and every one of them deserves the best chance at a healthy and happy childhood

Hotel Hope Ministries is a fully registered South African non-profit organisation established with aim of ensuring that each and every child is brought up in a safe, happy and healthy home so that they can grow up and develop into responsible and positive adults. Although children are our main focus, we have a holistic approach to the problem of orphaned and abandoned children. We realise that we need to focus on the cause of the problem too and not only the symptoms. So we have projects to focus on assisting Mothers and Fathers so that they can look after themselves and their children. The team at SLKB Attorneys want to extend a heartfelt thank you to the Hotel Hope Ministries team for all the hard work and dedication over the last decade.

We are proud to assist this amazing team with generous donations.

When parents get divorced, our children are inevitably stuck in the war. So how do you navigate relocating a minor child with one parent outside the borders of South Africa?
Is it possible and what did the Johannesburg High Court consider?

On the 19th of December 2022 Judge Mia in the case of D v D ruled that a minor child was allowed to relocate to Croatia with her father despite her mother still being in South Africa. Now before you all jump to conclusions, we have to unpack the facts and the law applied in this case carefully as decisions by the courts made about children are not taken lightly as the courts are the upper guardians of children.

The child is 13 years old, and her parents are about to start divorce proceedings. The father of the child has found a job in Croatia (where he originates from and has family and friends). The father would like to relocate with his daughter and place her in a private school in Croatia.

Prior to the matter being enrolled on the urgent court, the child is sent to a social worker who spends time with the child to understand the child’s decision and what is in the best interest of the child.
The report is lengthy considering every aspect of the child’s life namely:

  • The child’s relationship with each parent;
  • The parenting style of each parent;
  • The personal relationship the child has with each parent;
  • The home and school life of the child;
  • The child’s relationship with extended family both in South Africa and Croatia;
  • How the child spends each day and the weekends;
  • The type of lifestyle the child will be leading in the new country versus the child’s current lifestyle;
  • More importantly, taking into consideration the child’s decision, whether the child wants to relocate (The Voice of The Child Report).

The Voice of The Child Report (written by the social worker) is then shared with the Office of the Family Advocate.

The child and parents are then interviewed separately by the Family Advocate and a Family Counsellor appointed by the Family Advocate. Both of them made further recommendations to the Court. The judge has to take into consideration both the Voice of The Child Report and the Family Advocate’s recommendations when making a decision. In this case all the reports indicate the child’s wishes to relocate to Croatia. Furthermore, all the reports recommendations state that the child has a secure emotional attachment with the father and the child experiences stability with the father. The court further found that the child’s relationship with the mother was strained. It was held that the child remains with the parent with whom she has a secure relationship during the parents’ divorce proceedings. It is fair to say that both parents interpersonal, social skills, parenting styles and financial considerations were carefully analyzed and scrutinized in the report and by judge Mia before making a lifechanging decision for the child. The judgement does not follow a specific precedent, but the judge held that; relocation matters must be decided on its own facts.

There is no set procedure or list of requirements that must be compiled with for an application for relocation. South African legislation does not set out a framework for such applications therefore each case must be decided on separately based on its own facts. SLKB Attorneys represented the father in this matter and instructed counsel to argue the matter in the Johannesburg High Court. SLKB Attorneys ensured that this matter was carefully handled, and the attorney guided the client in each step of the process from obtaining the reports to understating the client and the child’s needs.

To access the full judgement please click on this link.

The article was written by Naadhirah Mayet a candidate attorney at SLKB Inc. SLKB is a member of the Austrian Business Chamber. Fernando Lengert is a partner at SLKB Inc. and the attorney in the matter of D v D

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