Authored By: Zandile Nhlapo
University of South Africa
Introduction
Parents may relocate for the sake of employment, remarriage, further education, gaining assistance from relatives, securing their safety, or simply gaining opportunities in a more dynamic cultural environment. But in case one of the parents’ wishes to take the kid along after separation or divorce and the other parent is against the relocation; this becomes a serious legal problem.
Consider a scenario in which a divorced mother, who was a primary caregiver of the child all this time, has an offer of a job overseas. This way, she would provide the child with an opportunity of getting better housing and education, as well as improving their financial position immensely. At the same time, the father of the child is actively engaged in the process of raising the child and insists that relocating would deprive him of the possibility to communicate with the child regularly in person.
In relocation cases in South Africa, the constitutional value that is used is the best interest of the child principle. The Constitution of the Republic of South Africa, 1996 in section 28(2) states that the best interest of the child is of primary importance in any matter concerning the child. It is through the Children’s Act 38 of 2005 (“Children’s Act”) where the constitutional value is operationalized with several factors that must be taken into consideration before the determination of the best interest of the child.
However, relocation cases remain difficult because it might be hard to separate the interests of the child and the parents. Conversely, permitting the relocation case would hurt greatly the child’s relationship with the remaining parent.
In this particular case, it is important to demonstrate that South African law rightly refuses to follow any rigid principle in relation to whether there will be support or rejection of relocation. Instead, in each situation, it would be more appropriate for the court to make an individualized assessment of the best interests of the child.
The Existing Legal Framework
The Constitutional Foundation
Any analysis of the relocation dispute must start with section 28 of the Constitution. Section 28(1) contains certain rights of children, such as the right to parental or family care and protection against ill-treatment, neglect, abuse, and degradation. In particular in relation to relocation disputes, section 28(2) states that the best interests of the child are of paramount importance in every matter relating to the child. Constitution of the Republic of South Africa, 1996 § 28(1)– (2).
The relocation case is not a dispute between two opposing adults, but a case involving a child whose best interests should be the central point of consideration.
The concept of “paramount importance” does not imply that the interests of parents are of no account. Parents still enjoy certain constitutional and common-law interests with regard to their family, dignity, and autonomy. However, in a matter in which the child’s best interests are to be considered, parents’ interests must be considered too. This approach was reaffirmed by the Supreme Court of Appeal in Jackson v. Jackson, 2002 (2) SA 303 (SCA).
The Children’s Act 38 of 2005
The Children’s Act revolutionized the child laws of South Africa by providing statutory content on the constitutional provision of the best interests of the child. Children’s Act 38 of 2005 §§ 7, 9, 18.
Section 7 outlines the matters to consider when considering the best interests of the child. They are among others, the nature of the child’s relationship with each parent, the ability of each parent to meet the needs of the child, the potential effects of any change in the circumstances of the child, the practical implications and costs of the child having contact with a parent, the need of the child to maintain relationships with family members and his/her communities, and the child’s safety and well-being. Id. § 7.
These aspects become very important in the context of relocation. Where a move from Cape Town to Johannesburg is in question, it could be that although it would impact upon a child’s schooling and everyday activities, it would still be possible to ensure frequent physical contact between the child and the other parent. Where a move is to occur from South Africa to Australia, however, it could be that ordinary contact over weekends would no longer be possible.
Section 18 of the Children’s Act is also important since it provides for parental responsibilities and rights. This includes responsibilities and rights relating to care, contact, guardianship and maintenance. The Children’s Act regulates matters relating to when the consent of a guardian would be needed for a child to leave the country of South Africa. Id. § 18(3)(c)(iii), (5).
The Role of the Family Advocate
Relocation disputes frequently go beyond mere legal considerations, as they entail the need to determine the emotional and psychological needs of the child concerned.
The Family Advocate is a service provided in South African family law, which aids the court in making decisions regarding the best interests of the children. The Family Advocate can facilitate the agreement between the parents and make reports to the courts in litigation involving children.
This is especially helpful in relocation cases since there are certain considerations that cannot be assessed only from legal paperwork. The quality of the bond between the child and each of the parents and the effect of the move on the child should be professionally evaluated.
III. The Judicial Approach to Relocation
Jackson v. Jackson
An important South African judgment in this area is the case of Jackson v. Jackson, 2002 (2) SA 303 (SCA).
In this matter, the father desired to move himself and the children with him to Australia. In this case, the court had to decide whether the benefits of the move would overcome the difficulties that would arise because of the geographical separation between the children and their mother.
The case is an important judgment in that it rejects the automatic right of a parent in possession to move the children with him.
The importance of children as a consideration was stressed by the court. The mere fact that the parent is the custodian does not mean that the decision will automatically be accepted. The court had to decide whether the decision is made for the benefit of the children and if the benefits are greater than the disadvantages of moving. Id.
It has been recognized by Jackson that the interests of the parent who desires to move cannot be overlooked. The inability to move can cause frustration, economic hardships and even disruption in family relationships that could indirectly affect the child.
From the judgment, therefore, there emerges a delicate balance that needs to be struck between the interests of the parents and those of the children.
F v. F
Subsequently, the approach was refined by the Supreme Court of Appeal in F v. F, 2006 (3) SA 42 (SCA).
It was acknowledged that there is a tendency for such decisions to disproportionately impact women due to the historical burden of childcare having been borne to a greater degree by women. An approach that precluded relocation would thus potentially limit career prospects and freedom of choice.
But at the same time, the court did caution against assuming that the views of the primary carer are always in line with the best interests of the child. The court must assess the reasonableness of the choice, the pros and cons of the move, and whether the parent has considered its effect on the child and the other parent. Id.F thus has two important implications. The first one is that it respects the rights of the parents. The second one is that it does not make such rights a justification for moving.
Cunningham v. Pretorius
The approach was further illustrated in the decision of Cunningham v. Pretorius, [2008] ZAGPHC 258.
The case was concerned with an application by a mother for relocation with her child from South Africa to the United States. The father objected to relocation on the basis of the strong relationship between the child and him and other members of the family in South Africa.
In the case, expert evidence was considered regarding the child’s developmental stage, language skills, relationships and adjustment to new surroundings. The case also assessed the proposed living circumstances of the child in the US and the ability of the mother to provide suitable accommodation.
More importantly, the case highlighted the principle that the issue of relocation should not be resolved in a process where the burden of proof lies on one parent as in ordinary litigation. The court has to form an overall impression from the evidence and form an opinion about the child’s best interest. Id.
Ultimately, the court allowed the relocation of the child on account of the mother’s custodial role, quality of the environment and her ability to sustain contact with the father.
The case demonstrates that relocation cases cannot be solved solely on the basis of geographical distance. The relevant issue is what the move would mean to the particular child.
The Principal Challenges in Relocation Disputes
The Conflict Between Parental Autonomy and Children’s Interests
The main issue is that there can be overlap between the interest of the moving parent and the interests of the child.
For example, the mother wants to move because she has been offered an excellent job. If you prevent her from doing so, you decrease her capacity to financially care for her child. On the other hand, she might want to move in order to be closer to her husband and relatives who can help her both emotionally and financially.
At the same time, there is a possibility that the other parent has established a good and stable relationship with the child. Thus, moving can turn the close, physical relationship into distant phone and online connection.
Thus, the court cannot simply decide if the motivation of the parent to move is legitimate. What matters is how the move affects the welfare of the child as a whole.
Maintaining Contact with the Non-Relocating Parent One of the most persuasive arguments against relocation is that it is very difficult to maintain contact.
Under the Children’s Act, it is accepted that the maintenance of contact between the child and his/her parents is of utmost significance and that it is quite difficult and costly to maintain relations when a parent lives elsewhere. Children’s Act 38 of 2005 §§ 7, 18.
With the development of modern technology, the problem could be solved to some extent because videoconferencing and other methods of communication provide parents with an opportunity to stay connected with their children. But it is not possible to rely totally on it.
A parent is needed at some important occasions in a child’s life like going to a parent-teacher meeting, doctor’s appointment, birthday parties and normal family interactions.
The courts must therefore take a realistic approach in considering any proposed arrangement. It is not enough that the relocating parent promises to ensure the other parent is guaranteed “reasonable contact”. These considerations include costs involved, school holidays, passports, accommodation, and the age of the child among other factors.
The Child’s Own Views
Other equally critical questions relate to the child’s involvement.
According to the Children’s Act, there are provisions for the participation of children in any decisions about their own affairs. The amount of consideration given to a child’s view will depend upon the child’s age, maturity and the facts of each case. Children’s Act 38 of 2005 § 10.
An older teenager, compared to a four-year-old, can hold a very different viewpoint. While an older child may have close friends, educators, extended family members and a community of his or her own, the view expressed by a younger child may largely be shaped by the parent the child lives with.
Thus, the child’s wishes cannot be given either too much or too little weightage.
Economic Opportunity and Quality of Life
Relocating parents often claim that the new country provides better opportunities for work, education, health care, accommodation, or security.
This is a valid argument. The courts must not make an automatic assumption that it is better for the parents and the children to stay in South Africa than anywhere else or that any other country would provide a better standard of living.
The court must look at concrete factors.
If a parent simply claims that some other country is “better,” that shouldn’t win an argument for relocation automatically. The court must take into consideration the job prospects, financial situation, accommodation, schooling, health care, network of support and stability of the place of relocation.
In the Cunningham case, the courts analysed the positive aspects of the new environment and negative consequences of the separation from significant individuals.
Domestic Relocation
Relocation does not need to go across the international frontier for it to present some real challenges.
For instance, when one relocates from Durban to Cape Town, there may be real challenges experienced with the relationship of the child with a particular parent, depending on the frequent physical contact the parents had before. Again, relocation from a rural area to a city might change relationships culturally, linguistically, and with family members.
The South African laws should therefore not treat international relocation as a separate kind of issue under the law. The distance involved is relevant in terms of the impact, not simply that it crosses the international frontier.
Recent Developments and the Direction of South African Law
South African recent jurisprudence on relocation confirms that it is still an important issue of family law.
In T.R.S.T. v. U.A.R. & Others, [2025] ZAGPJHC 399, the High Court was faced with the question whether minor children should be relocated to Israel or stay in South Africa. The court reiterated section 28(2) of the Constitution and the best interest test in the Children’s Act for determining the dispute.
Likewise, in S.H. v. M.L.H., [2025] ZAECQBHC 34, 2026 (1) SA 615 (ECGq), the court dealt with the issue of relocation and noted that section 7 of the Children’s Act obliges to undertake a comprehensive evaluation of the child’s emotional, physical, educational and social needs, including the consequences of separation from a parent and relocation.
The jurisprudence shows that the legal principle has remained unchanged – relocation cannot be decided by a simple presumption in favour of any of the parents. On the contrary, courts should consider all circumstances.
This methodological approach is better than a rigid statutory rule since there are great differences between families. What is helpful for one child may be harmful for another.
Proposals for a More Effective Relocation Framework
Require Detailed Relocation Plans
The South African court should require those parents who wish to move to provide a relocation plan that is comprehensive.
The plan should cover:
the reasons for relocation;
the new home;
financials and employment;
education and medical care;
the relationship of the child with both parents;
communication with grandparents and relatives;
transportation;
the cost of transportation;
vacation from school; and
telecommunication.
This will allow the court to compare the future that is proposed against the current situation rather than make their decision based on generalities.
Give Greater Attention to Continuity of Relationships
The relationship between the child and the non-moving parent must be carefully considered.
Nevertheless, “contact” must not be defined as merely the number of days a year spent together. The quality of the relationship must also be considered, since a parent attending meetings at school, helping with homework, and taking part in other everyday activities has a relationship which is irreplaceable by holiday contact.
Courts must therefore evaluate the relationship rather than just its frequency.
Encourage Mediation Before Litigation
Relocation disputes can be very harmful because the parents will continue being co-parents for many years even after the legal proceedings have ended.
Conciliatory and problem-solving methods are already supported by South African family law. In the case of Cunningham, the court stated how significant it is to take a conciliatory approach. Cunningham, [2008] ZAGPHC 258.
Thus, mediation must be strongly promoted before the dispute reaches contested litigation.
The parents may reach some creative solutions through negotiation that cannot be easily imposed by the court, such as extended holiday visits, splitting travel expenses, use of video communication, and notification about future relocation plans.
Strengthen the Child’s Participation
Where children are developmentally ready enough, they must have the chance to state their point of view.
This does not imply giving a child the chance to “choose” between the two parents. It may be too much of a burden for the child. Instead, the child must be given a chance to state what they value and why they are afraid of the proposed relocation.
It is also important to consider the views of the child in relation to other statutory considerations and professional opinion.
Avoid Gender-Based Assumptions
Relocation law also needs to ensure it is not making old-fashioned presumptions about mothers and fathers.
While it may be true that mothers have often been the primary caregivers, this does not mean that there should automatically be an assumption that it will be the mother. Fathers could be primary caregivers, and both could play substantial equal roles in the parenting.
The right thing to do is take an individualized approach.
VII. Conclusion
Relocation cases are among the most complex issues in South African family law due to competing but legitimate rights which may not always be harmonized.
The relocating parent may have a legitimate right to improve their economic position, marry, work, and create a safe environment for the family. On the other hand, the child may have formed a meaningful bond with the non-relocating parent. A court that denies relocation may restrict the parent’s freedom, whereas allowing relocation may negatively impact the child’s well-being.
An acceptable point of departure in South African law is section 28(2), which places the best interest of the child paramount. The Children’s Act outlines this concept in detail, and the courts have elaborated on this approach through cases like Jackson, F, and Cunningham.
First and foremost, there must not be any automatic winner. The parent who wants to relocate is not guaranteed the right to move with the child. Conversely, the parent who wants to stay in South Africa is not guaranteed the right to stop the relocation simply because contact will become more difficult.
The court’s job is to determine which of all the possible options would suit this specific child the best. A well-thought-out decision should consider the child’s relationship with both parents, age and maturity, opinion when appropriate, reasons for moving, living conditions, economic and educational possibilities, ties with relatives, the influence of geographic distance, and the feasibility of continuing contact.
Finally, the “best interest” principle should not become just a slogan allowing any desired result. It has to work as an evidence-based process.
Relocation law must ensure this development is maintained through a process which does not rely on the convenience of the parent or preference for maintaining the status quo, but on assessing the manner which will enable the child to develop in the context of a safe, loving and stable family.
The task of the South African court therefore is not to assess relocation as inherently positive or negative, but to determine in each case if the relocation is in the best interests of the child concerned.
Bibliography
Constitution
Constitution of the Republic of South Africa, 1996.
Legislation
Children’s Act 38 of 2005.
Cases
Cunningham v. Pretorius, [2008] ZAGPHC 258 (S. Afr.).
F v. F, 2006 (3) SA 42 (SCA) (S. Afr.).
Jackson v. Jackson, [2001] ZASCA 139, 2002 (2) SA 303 (SCA) (S. Afr.).
S.H. v. M.L.H., [2025] ZAECQBHC 34, 2026 (1) SA 615 (ECGq) (S. Afr.).
T.R.S.T. v. U.A.R. & Others, [2025] ZAGPJHC 399 (S. Afr.).
