H.M.F v M.G.W.F (52/2005) [2005] ZASCA 123; [2006] 1 All SA 571 (SCA); 2006 (3) SA 42 (SCA) (1 December 2005)

H.M.F v M.G.W.F (52/2005) [2005] ZASCA 123; [2006] 1 All SA 571 (SCA); 2006 (3) SA 42 (SCA) (1 December 2005)

The Supreme Court of Appeal held that the best interests of the child are the paramount consideration in relocation cases. While the appellant’s motivation to return to her country of birth was genuine and undertaken in good faith, her plans for relocation were not sufficiently researched or structured to ensure the child’s welfare. All expert evidence agreed that the child was deeply attached to both parents and that separation from either would be detrimental. The child herself expressed a desire not to live in any country unless both parents resided there. The court found that the imponderables in the appellant’s plans, weighed against the agreed expert opinion that proximity to both...

Citation
[2005] ZASCA 123
Parties
Appellant: H[...] M[....]; Respondent: M[….] G[…] W[…] F[…]
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2005
Case Number
52/2005
Procedural Posture
Civil Appeal / Appeal From Full Bench of High Court; Special Leave Granted by Supreme Court of Appeal
Outcome
Appeal dismissed except as to costs; costs order of the full court set aside; respondent’s application to canvass child’s views dismissed with costs.
Judges
Zulman, Cameron, Van Heerden, Ponnan, Maya
Legal Topics
Child Relocation, Custody and Access, Best Interests of Child, Constitutional Rights, Gender Discrimination
Family and Children Child Relocation Custody and Access Best Interests of Child Constitutional Rights Gender Discrimination

Case Brief

Summary, issues, holding and outcome

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Parties

H[...] M[....]

Appellant

M[….] G[…] W[…] F[…]

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Bench of High Court; Special Leave Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether the custodian parent should be granted leave to permanently remove the minor child from South Africa to the United Kingdom.
  2. 2 What weight should be given to the best interests of the child in relocation applications.
  3. 3 How the interests of the custodian parent and non-custodian parent should be balanced in determining relocation.

Ratio Decidendi

The Supreme Court of Appeal held that the best interests of the child are the paramount consideration in relocation cases. While the appellant’s motivation to return to her country of birth was genuine and undertaken in good faith, her plans for relocation were not sufficiently researched or structured to ensure the child’s welfare. All expert evidence agreed that the child was deeply attached to both parents and that separation from either would be detrimental. The child herself expressed a desire not to live in any country unless both parents resided there. The court found that the imponderables in the appellant’s plans, weighed against the agreed expert opinion that proximity to both...

Court Disposition

Appeal dismissed except as to costs; costs order of the full court set aside; respondent’s application to canvass child’s views dismissed with costs.

Orders

  • Save for the costs orders, the appeal is dismissed and each party is ordered to pay his or her own costs.
  • The costs order of the court a quo is set aside and replaced with: 'Each party is ordered to pay his or her own costs.'