H v H (35849/2005) [2005] ZAGPHC 341 (21 November 2005)

H v H (35849/2005) [2005] ZAGPHC 341 (21 November 2005)

The court found that the applicant, as the custodian parent, is entitled to make decisions regarding the child's upbringing and relocation, provided these are objectively in the child's best interests. The applicant demonstrated that the relocation to Nigeria would offer the child superior educational and living opportunities, and undertook to maintain regular contact with the respondent. The court was not persuaded that the relocation would harm the child or that the applicant intended to deprive the respondent of access. Concerns about the child's psychological development and gender identity were acknowledged but not deemed sufficient to warrant refusal of the application or referral...

Citation
[2005] ZAGPHC 341
Parties
Applicant: H., B.S.G.; Respondent: H., A.S.
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 November 2005
Case Number
35849/2005
Procedural Posture
Urgent Application / Application for Leave to Remove Minor Child From South Africa for Temporary Relocation
Outcome
Application granted. Each party to pay their own costs.
Judges
Van Rooyen
Legal Topics
Guardianship Act, Custody and Access, Best Interests of Child, International Relocation
Family and Children Guardianship Act Custody and Access Best Interests of Child International Relocation

Case Brief

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Parties

H., B.S.G.

Applicant

H., A.S.

Respondent

Procedural Posture

Urgent Application / Application for Leave to Remove Minor Child From South Africa for Temporary Relocation

Legal Issues

  1. 1 Whether the applicant, as custodian parent, may relocate the minor child to Nigeria for three years.
  2. 2 Whether the relocation is in the best interests of the child.
  3. 3 Whether a report from the Family Advocate is necessary before granting the application.

Ratio Decidendi

The court found that the applicant, as the custodian parent, is entitled to make decisions regarding the child's upbringing and relocation, provided these are objectively in the child's best interests. The applicant demonstrated that the relocation to Nigeria would offer the child superior educational and living opportunities, and undertook to maintain regular contact with the respondent. The court was not persuaded that the relocation would harm the child or that the applicant intended to deprive the respondent of access. Concerns about the child's psychological development and gender identity were acknowledged but not deemed sufficient to warrant refusal of the application or referral...

Court Disposition

Application granted. Each party to pay their own costs.

Orders

  • The applicant is permitted to relocate the minor child to Nigeria for a period of up to three years, subject to conditions detailed in the operative order.
  • Each party is to pay his or her own costs.