S v Daniel Makibi (3451/2021) [2022] ZAFSHC 77 (18 March 2022)

S v Daniel Makibi (3451/2021) [2022] ZAFSHC 77 (18 March 2022)

The court found that the applicant had complied with section 31 of the Children’s Act by involving the respondent in the decision to relocate, despite his refusal to cooperate. Mediation was attempted but proved futile due to the parties’ acrimonious relationship and deadlock on the issue of relocation. The court held that further psychological assessment of the minor child would not be in her best interests, given her young age and the history of repeated assessments. The allegations of parental alienation were not substantiated, as the child maintained a relationship with both parents and was permitted to visit the respondent. The High Court, as upper guardian, determined that the best...

Citation
[2022] ZAFSHC 77
Parties
Applicant: Angela Roberts; Respondent: Brendan Scott Kearney
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
18 March 2022
Case Number
3451/2021
Procedural Posture
Urgent Application / Final Determination After Supplementary Affidavits and Family Advocate Report
Outcome
Application for relocation granted; respondent’s counter-application dismissed.
Judges
Chesiwe
Legal Topics
Child Relocation, Parenting Plan, Parental Responsibilities and Rights, Best Interests of Child, Parental Alienation, Mediation Requirement
Family and Children Child Relocation Parenting Plan Parental Responsibilities and Rights Best Interests of Child Parental Alienation Mediation Requirement

Case Brief

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Parties

Angela Roberts

Applicant

Brendan Scott Kearney

Respondent

Procedural Posture

Urgent Application / Final Determination After Supplementary Affidavits and Family Advocate Report

Legal Issues

  1. 1 Whether the applicant complied with section 31 of the Children’s Act 38 of 2005 before seeking relocation.
  2. 2 Whether the applicant was required to enter into a parenting plan with the respondent prior to approaching the court.
  3. 3 Whether the applicant should be granted a court order permitting relocation to Ireland with the minor child.

Ratio Decidendi

The court found that the applicant had complied with section 31 of the Children’s Act by involving the respondent in the decision to relocate, despite his refusal to cooperate. Mediation was attempted but proved futile due to the parties’ acrimonious relationship and deadlock on the issue of relocation. The court held that further psychological assessment of the minor child would not be in her best interests, given her young age and the history of repeated assessments. The allegations of parental alienation were not substantiated, as the child maintained a relationship with both parents and was permitted to visit the respondent. The High Court, as upper guardian, determined that the best...

Court Disposition

Application for relocation granted; respondent’s counter-application dismissed.

Orders

  • The applicant is granted permission to relocate to Ireland with the minor child, IGK.
  • The respondent’s counter-application for further psychological assessment is dismissed.