A mother succeeded in the high court in Johannesburg against her former husband and father of her children to relocate with them to England. This despite his laying criminal charges against her — allegations that threatened her reputation — and opposing the move to London.
The mother, known as “AR” due to the nature of proceedings, had two children with the father “AT”. They were married for several years before divorcing in 2020. The children are aged 7 and 9. After the divorce, AR became the main caregiver, with her new husband. A unique opportunity to work in the UK then arose and AR sought to relocate, wanting to take the children with her.
She informed her former husband of her intention to relocate during the Covid pandemic of 2020. AR then caught Covid after informing him, while the children were still with him. He refused to return the children until AR showed him a negative Covid test. Upon showing him the test, the father claimed it was fake. After repeating the test and coming back negative, he maintained she again faked it. He laid criminal charges against her, claiming fraud.
There was no merit to this claim according to the National Prosecuting Authority. He retained the children for weeks. Only after she brought a high court application, were the children returned.
He repeatedly brought criminal charges against her. At one point she relented and took a diversion programme to satisfy lingering concerns. (These avoid a criminal record by attending workshops.)
While all this was happening, he also filed numerous complaints of fraud at her work, KPMG. He did this for two years. He also later laid a formal complaint with the SA Institute of Chartered Accountants. AR’s immediate superior noted the harsh consequences of even reporting accountants for criminal conduct. This made AR seem untrustworthy to the partners at the firm at which she had only just started working.
However, the matter appeared to have resolved.
Last year, while all this was happening, AR applied to court to have the relocation to the UK sanctioned. After opposing it, the father brought his own application to become the children’s primary caregiver.
As a result of their dispute AR and AT appointed an independent psychologist to see whether relocating to London was in the best interests of the children and to assess the father as primary caregiver.
The psychologist, Robyn Fasser, investigated the family homes, spoke to the parents, their new spouses and with the children themselves.
After analysing the extensive evidence gathered by Fasser and provided by the parties, acting judge Franciska Bezuidenhout noted what is central to relocation disputes in court: “A relocation issue contrasts the relocating parent’s reasonable wish to better their circumstances — by moving — against the non-relocating parent’s reasonable desire to maintain frequent normal and essential contact with the children.”
Courts have no strict rules on such matters. However, academics and previous court decisions help guide judges in their determination. A key factor is to look at the parent wanting to move. In assessing AR, Bezuidenhout concluded: “All evidence points to the fact that the applicant is a hands-on mother whose life revolves around her children as they are the most important thing in her life. She makes decisions based only on what would be in their best interests.”
Emotional distress
Despite his conduct towards his former wife, the psychologist found the former husband to be “appropriately parental with his children.” However, Bezuidenhout held that he used “the children as an emotional crutch.” This resulted in emotional distress. The judge held there were also indications he “may very well have inappropriate conversations with his children regarding the relocation”, by, for example, threatening to never visit them overseas.
The court found that because she had properly planned a smooth exit for the children at the end of the school year and had been a consistently good mother, her desire to move was well-founded. Meanwhile, while the former husband would lose further contact, he was not the primary caregiver and, in any event, would still be in communication with the children and see them over extended periods.
Bezuidenhout concluded: “I am satisfied that a relocation of the children with the applicant will be in their best interests.”
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