The best interests of the child are enshrined in section 28 of the Constitution of the Republic of South Africa, 1996. This section expressly sets out that in any matter involving the child, including litigation, the child’s best interests are of paramount importance.
In the recent judgment of S v S the Kwa-Zulu Natal High Court was required to determine whether it was in a minor child’s best interest to return a minor child from South Africa, where they resided with their mother, to the United Kingdom (“UK”).
Issue in dispute
This matter deals with a minor child who is currently living in South Africa with their mother, a South African citizen. The child’s father, a UK citizen, alleges that the mother is violating a mirror court order issued by a South African court. Therefore, the court is required to determine whether the mirror order issued on 29 May 2019 (“mirror order”) is in the best interests of the child or if such enforcement is unfair as the mother has been denied entry to the UK.
After the parties began experiencing marital problems the Swansea Family Court determined that both parents would have shared custody of the minor child with the child residing with the father and spending periods of time with the mother. However, when this decision was made the immigration status of the mother was uncertain. This made a final child arrangement order. This decision was appealed, and the Appeal Court in the UK found that it was necessary to first determine the mother’s immigration status before a final arrangement regarding where the minor child should reside could be made. This is important as the mother is not a UK citizen and as such cannot exercise her parental rights and responsibilities unless she is allowed entry into the UK. However, prior to this appeal being instituted, a mirror order was granted in South Africa in terms of the final child arrangement order.
The mother was subsequently refused entry into the UK twice. If the mirror order was to be enforced, then the minor child would be returned to the UK and be separated from his mother and primary caregiver. The child had been in South Africa, and the mother’s care, for 30 months and such an order has the potential to cause severe psychological distress to the child.
In order for the court to settle such an issue it needs to utilize a child-sensitive approach which places the best interests of the minor child at the forefront.
The father had requested the mirror order to be enforced and therefore the onus rested on him to prove that such an enforcement was in the best interests of the child, on a balance of probabilities.
When determining the best interests of the child it is important to note that the list of factors taken into account by a court is not exhaustive. Determining what is in a child’s best interests is a factual question and depends on the circumstances of each case. Therefore, Steyn J highlights that it is necessary for courts to follow a child-centered approach which is flexible and follows an individualized approach considering the lived experiences of the child. In this matter the father did not demonstrate that enforcement of the mirror order would be in the child’s best interests.
The court found that the minor child had settled in South Africa, was doing well in their environment and as such it is in the child’s best interest to remain with his mother in South Africa. The court acknowledged the importance of having both parents present in the child’s life and set out that the father shall be entitled to contact with the minor child whenever he visits South Africa.
The best interests of the minor must always be paramount in assessing custodial issues. This is often a factor that many couples engaged in litigation do not always address and therefore require the kind of legal support, advice and guidance offered by Van Wyk Van Heerden Attorneys. The importance of good legal support from the outset is critical to both parties to ensure that the child’s best interests are served by their actions.
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