R.H v N.M

The applicant (father) and respondent (mother) are the unmarried biological parents of L, an 8-year-old boy born in 2016. The father resides in Australia, while the mother lives in South Africa with L. An acrimonious relationship developed between the parties, with disputes over the father's contact with L. In 2021, a court order directed investigations and assessments by the Family Advocate and other experts regarding L's care and contact, pending finalisation of which L's primary residence vested with the mother. Expert reports were compiled, highlighting the mother's obstruction of the father's contact and concerns about her capacity as primary caregiver. The father sought leave to permanently relocate L to Australia and to have primary care transferred to him. The mother opposed this and counter-applied for leave to relocate permanently with L to Aix-en-Provence, France, where her new husband is from and where she had employment prospects.

• What is in the best interests of the minor child, L, regarding his primary care and residence?
• Should the applicant (father) be granted leave to permanently relocate L to Australia and to have primary care transferred to him?
• Should the respondent (mother) be granted leave to permanently relocate L to France with her?
• How should the court resolve the competing relocation applications where both parents seek to move the child to different foreign countries?

1. The applicant's application is dismissed. 2. The respondent is granted leave to remove L permanently from South Africa and to relocate him with her to France. 3. The applicant's consent to L's removal is dispensed with. 4. The applicant must sign necessary travel documents for L's relocation to France within 7 days, failing which the respondent may approach the court. 5. The respondent is granted leave to renew L's passport or apply for a foreign passport for him, and to obtain necessary visas for travel between Australia, South Africa, and France, with the applicant's consent dispensed with. 6. The respondent shall take steps to register this order in a competent court in France. 7. The applicant shall assist the respondent in securing such registration, with the respondent bearing the costs. 8. The respondent shall reimburse the applicant for any expenses incurred in complying with this. 9. From her relocation, L remains in the primary care of the respondent. 10. Both parties shall make joint decisions on major issues concerning L. 11. The respondent may enrol L in a specified school without the applicant's consent. 12. The applicant is not liable for schooling costs for the first 3 years; thereafter costs are shared equally. 13. The respondent must provide proof of school registration. 14. The respondent must secure appropriate accommodation within 20 km of the school and provide proof. 15. Pending relocation, contact is per a prior court order. 16. After relocation, the respondent must provide school holiday calendars annually. 17. The applicant shall have detailed telephonic/electronic contact and holiday contact, mostly in Australia, for specified periods, with costs borne by the applicant. 18. The parties must agree on exact holiday contact dates by 28 February each year. 19. Terms for the applicant's visits to France/Europe are set out. 20. The applicant must provide an itinerary and proof of accommodation 60 days before such visits. 21. The respondent shall have similar electronic contact when L is with the applicant. 22. Parties bear L's living costs when L is in their respective care. 23. The respondent assumes full responsibility for L's medical expenses. 24. The respondent shall not claim cash maintenance from the applicant, so he can use equivalent funds for contact. 25. L's habitual residence shall be France for purposes of the Hague Convention. 26. The respondent may not permanently remove L from France without the applicant's consent or a court order. 27. The respondent must ensure L's passports/visas are valid and comply with regulations. 28. The respondent needs the applicant's written consent or court order to travel outside France/South Africa with L. 29. Once L turns 13, he may spend one year with the applicant in Australia if L desires, the applicant can prove he can meet L's needs, a relocation plan and maintenance agreement are signed, therapeutic support is provided, and the applicant bears all costs. 30. The applicant must pay the respondent's costs of both his application and her counter-application.

In relocation disputes between parents, the child's best interests are the paramount consideration. Where both parents seek to relocate the child to different foreign countries, the court must determine what will best serve the child's emotional and psychological well-being. A child's expressed 'true desire', particularly when obtained through appropriate therapeutic means, carries significant weight and should only be overridden by compelling factors. The custodial parent's past conduct in frustrating contact, while relevant, is not automatically a ground to change primary care if it has not substantially harmed the child's relationship with the other parent. The court may approve a relocation plan that includes deferred options for the child to spend extended time with the non-custodial parent, as a means to respect the child's current attachments while preserving future relationships.

The court observed that the 'Plascon-Evans rule' is virtually impossible to apply in cases where the same factual disputes are relevant to both an application and a counter-application, and it may not be feasible to assign disputes neatly to either. The court also noted that expert reports often provide more valuable information for resolution than the parties' own evidence, particularly where the experts have interviewed the child and can report on the child's experience and perceptions. The judgment expressed hope that the parties, having endured tortuous litigation, would gain a more profound understanding of their duties to not let acrimony affect L's emotional well-being.

This case is significant in South African family law as it deals with competing relocation applications where both parents seek to relocate the child to different foreign countries. It reaffirms the paramountcy of the child's best interests, especially giving weight to the expressed 'true desire' of a child of sufficient maturity. It demonstrates the court's reliance on expert evidence in determining what is in the child's best interests, while reserving the court's discretion to depart from expert recommendations when they conflict with the child's own views and emotional well-being. The judgment also recognises the psychological impact on a child of overturning accepted relocation plans and provides a creative, deferred contact solution to balance the rights of a non-custodial parent with the child's immediate need for stability with the primary caregiver.