Aucamp v Aucamp

The parties were married on 21 December 2019 and divorced on 8 August 2023. They have one child, S, born 3 June 2021 (3½ years old at time of hearing). Both parties are co-holders of parental rights and responsibilities under section 18(2)(a) of the Children's Act. In terms of a deed of settlement made an order of court, the respondent (mother) was designated as primary carer, with the applicant (father) having substantial contact (6 nights out of 14). On 25 October 2024, the respondent relocated with S from Gqeberha to East London without the applicant's consent or knowledge. The applicant discovered this on 27 October 2024 when he arrived to collect S for his contact. The respondent had raised the possibility of relocation in October 2023 and February 2024, but her attorneys had provided an undertaking on 23 February 2024 that she would not relocate pending mediation. Mediation on 26 February 2024 was unsuccessful. The respondent informed the applicant's attorneys of the relocation only on 25 October 2024 (just before 16:00 on Friday), stating she had secured employment in East London commencing 1 November 2024. The applicant sought an urgent order for S's return to Gqeberha.

• Whether the child should be returned to Gqeberha pending a Family Advocate's investigation
• Whether interim primary care should be transferred from the mother to the father
• What contact arrangements are in the best interests of the child pending a full investigation
• The distinction between applications for return of a minor child and spoliation remedies
• The application of the best interests of the child standard in urgent interim custody matters
• Whether the mother's failure to comply with her attorney's undertaking and failure to consult properly under section 31(2)(a) of the Children's Act warranted immediate return of the child

1. Pending the Family Advocate's report, S shall remain in the respondent's (mother's) primary care in East London, subject to the applicant's (father's) interim contact as follows: 1.1. Daily video/Facetime call of no less than half an hour between 17:00 and 19:00; 1.2. Alternate weekend contact from Saturday 09:00 to Sunday 17:00 commencing on Saturday 23 November 2024. 2. Costs are reserved. 3. The Family Advocate was directed to undertake an investigation and file a report.

In urgent applications for return of a minor child, the paramount consideration is the best interests of the child, not the wrongfulness or surreptitious nature of the removal. Such applications are fundamentally different from spoliation remedies. Courts must exercise their wide discretion in children's matters by considering not only present circumstances but also what may happen in the future if a particular order is made. Where a child of tender age has been with a primary carer without complaint and any interim order may be reversed following a Family Advocate's investigation, the court should avoid destabilizing the child by using them as a "shuttle-cock" between parents. Stability and continuity of care are critical factors in determining interim arrangements for very young children. While a parent's failure to consult properly under section 31(2)(a) of the Children's Act and breach of undertakings are relevant factors, they do not automatically entitle the other parent to interim primary care - the determining factor remains whether the proposed order is in the child's best interests.

The court expressed criticism of the respondent's "impulsive and clandestine" manner of approaching the relocation and her failure to honor her attorney's undertaking not to relocate pending mediation. The court acknowledged this was "far from ideal" and stated "This is not what co-parenting entails." The court noted there was merit in the applicant's criticism of the respondent's conduct. The court also observed that section 31(2)(a) of the Children's Act entitles a parent holding parental responsibilities to act independently after considering (but not necessarily obtaining agreement from) the other parent's views. Failure to give proper consideration does not render the decision void but subjects it to review on the basis of the child's best interests (citing J v J). The court emphasized that guardianship and custody should not be viewed as vesting rights in parents, but as duties imposed upon parents to be exercised in the interests of the child, with the biological bond between parent and child regarded as "almost sacrosanct" since Roman times, to be disrupted only if dictated by the child's interests.

This case illustrates the application of the best interests of the child standard in urgent interim custody disputes following relocation. It reinforces that applications for return of a child are not akin to spoliation remedies - the surreptitious or wrongful removal of a child does not automatically entitle the other parent to the child's return. The paramount consideration is always the child's best interests. The case demonstrates judicial restraint in making interim orders that could destabilize a young child pending a proper investigation, even where one parent has acted improperly. It emphasizes the "shuttle-cock" principle from Gordon v Gordon - that courts should avoid making interim orders that may need to be reversed after investigation, thereby unsettling the child. The judgment also illustrates that while breach of undertakings and failure to properly consult under section 31(2)(a) of the Children's Act are relevant factors, they do not automatically determine the outcome in urgent interim applications concerning children of tender years.