Campher v Cushing (CA 113/2009) [2009] ZAECGHC 35 (9 June 2009)

Campher v Cushing (CA 113/2009) [2009] ZAECGHC 35 (9 June 2009)

The court found that the trial judge misdirected herself by treating the matter as adversarial and applying an onus to the appellant, rather than conducting a judicial investigation into the child’s best interests. The evidence established that the minor child has a close, dependent relationship with his mother, and that separation would cause significant emotional harm, amounting to emotional abuse and abandonment. The concerns about the appellant’s ability to care for the child during treatment were not substantiated by the medical evidence, and arrangements were in place to provide support in London. The uncertainties cited by the respondent regarding the appellant’s medical condition...

Citation
[2009] ZAECGHC 35
Parties
Appellant: Rosemary Assunta Campher; Respondent: Richard David Cushing
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
9 June 2009
Case Number
CA 113/2009
Procedural Posture
Civil Appeal / Appeal From Urgent Application Under S 18(5) of the Children’s Act
Outcome
Appeal allowed. The order of the trial court is set aside and replaced with an order dispensing with the respondent’s consent for the child’s travel and passport.
Judges
Jones, Jansen, Sandi
Legal Topics
Children S Act Section 18, Best Interests of Child, Parental Consent for Travel, Primary Care Giver, Urgent Application, Custody and Access
Family and Children Children S Act Section 18 Best Interests of Child Parental Consent for Travel Primary Care Giver Urgent Application Custody and Access

Case Brief

Summary, issues, holding and outcome

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Parties

Rosemary Assunta Campher

Appellant

Richard David Cushing

Respondent

Procedural Posture

Civil Appeal / Appeal From Urgent Application Under S 18(5) of the Children’s Act

Legal Issues

  1. 1 Whether the consent of the respondent is required for the appellant to take the minor child out of South Africa for medical treatment.
  2. 2 Whether dispensing with the respondent’s consent serves the best interests of the child under section 18(5) of the Children’s Act.
  3. 3 Whether the trial court erred in its approach to factual disputes and the assessment of the child’s welfare.

Ratio Decidendi

The court found that the trial judge misdirected herself by treating the matter as adversarial and applying an onus to the appellant, rather than conducting a judicial investigation into the child’s best interests. The evidence established that the minor child has a close, dependent relationship with his mother, and that separation would cause significant emotional harm, amounting to emotional abuse and abandonment. The concerns about the appellant’s ability to care for the child during treatment were not substantiated by the medical evidence, and arrangements were in place to provide support in London. The uncertainties cited by the respondent regarding the appellant’s medical condition...

Court Disposition

Appeal allowed. The order of the trial court is set aside and replaced with an order dispensing with the respondent’s consent for the child’s travel and passport.

Orders

  • The appellant is authorized to take the minor child out of South Africa to London for medical treatment for a period not exceeding six months.
  • The respondent’s consent for the child’s departure and passport is dispensed with.