Hi  

In the case of de Groot v de Groot heard in the High Court in September 2009, Mom applied to court for leave to emigrate to Dubai with her husband-to-be over the objection of her ex husband who refused to give her permission to take the children with her.

Both parents were very close to their children. The Family Advocate instituted an enquiry into whether it would be in the best interests of the children for them to leave South Africa for Dubai. Mom’s husband-to-be had a very well-paid job there and they would enjoy the best schooling and a high standard of living. The Family Advocate referred the matter to a clinical psychologist.

The rights of the children are paramount, as entrenched in section 28 of the Constitution and in the Children’s Act that deals at length with the best interests standard.

The Act deals in Section 10 with child participation by providing that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.  Section 31 of the Act similarly requires a child’s contribution to any decision affecting him or her (bearing in mind his or her age, maturity and stage of development).

The clinical psychologist appointed by the mother recommended in her report that relocation would be in the best interests of the children. Her finding was based solely on financial considerations. The judge was critical of the report in that it failed to take into account the findings of the expert appointed by the family advocate that a deep bond existed between Dad and his children and the resultant trauma to which they would be subjected to should they be separated from Dad. All the children indicated that they were against the proposed relocation. The eldest child was 14 and his sibling triplets, 11.

The judge concluded that I am enjoined by the Act to give due consideration to the view of the children. It appears from all the reports that they are of an age and level of maturity to make an informed decision and refused the mother’s application that she be allowed to relocate to Dubai with the children.

Roy Bregman

tel: (011) 646-0335

fax: (086) 680-9142

mobile: (082) 881-2360

roy@bregmans.co.za 
http://www.roylaw.co.za