This thesis discusses the adjudication of child relocation disputes (CRDs) in South Africa. The central thesis is that judges require adequate legislative guidance when exercising their discretion in CRDs. At present, judges adopt widely different reasonings when adjudicating CRDs and this has led to inconsistent CRDs jurisprudence. Due to lack of legislative guidelines, judges can choose to rely on any factor to reach their desired outcomes while at the same time rejecting those factors that might contradict their intended outcomes. In typical CRDs, parents who have been awarded the care and residency (usually mothers) wish to relocate with their children. They usually attempt to justify the proposed relocation on factors such as: their right to freedom of movement; pursuit of new romantic relationships; better work opportunities; improved standard of living; concern about crime; attainment of quality education; reuniting with family members; lack of family support; and abuse from non-custodial parents among others. Non-custodial parents often object to the proposed relocation on the basis that relocation will affect their rights to maintain contact with their children. To substantiate this claim, they usually indicate the extent of their interest in their children's lives and the amount of time they spend with their children. They often question the genuineness and good faith of the intended relocation and cast doubt on the ability of relocating parents to provide a better life for their children post-relocation. Occasionally, they invoke arguments relating to the disruption of the child's life and routine, including schooling, faith, and extramural activities. This thesis argues that CRDs are not as unique as they are often made out to be. For every CRD, there is likely to be precedent, local or foreign that can shed light on how such dispute should be adjudicated. However, many CRDs cases, both in South Africa and in foreign jurisdictions deal with similar CRDs differently. This makes it easy for judges who are adjudicating CRDs to reject certain precedents and follow others, or to reject the approaches of all previous cases and formulate their own novel approaches. This thesis argues that judges through their discretion can formulate their own approaches, which they can use to reject evidence that is contrary to their desired outcomes and rely instead on evidence that supports their intended outcomes. As a result, CRDs jurisprudence invokes many judicial approaches such as: reliance on predetermined presumptions for and against relocation; the reasonableness test; tender years and maternal preference; and the exceptional or compelling circumstances test. Judges can use these tests to either grant or refuse custodial parents' permission to relocate. When the application of certain tests works against their intended outcomes, judges have skilfully deviated from such tests to suit their subjective views on parenting. Judicial discretion is usually exercised in the name of the Best Interests of the Child (BIC) principle, which is thoroughly discussed in this thesis. Most importantly, this thesis argues for the limitation of judicial discretion in CRDs through the provision of legislative guidelines which will assist judges when determining CRDs. This thesis proposes an amendment to the Children's Act 38 of 2005, to incorporate a specific chapter dealing with CRDs which considers the involvement of both parents in their children's lives to the extent possible. There is a shift in thinking regarding CRDs in some jurisdictions, where the roles of both parents in their children's lives are adequately assessed when CRDs are determined. The proposal of this thesis is centred around the establishment of a legislative mechanism that will enable judges to identify, select, weigh, and adequately balance competing factors in CRDs to ensure that all cases are thoroughly investigated and considered.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/33789 |
| Date | 17 August 2021 |
| Creators | Marumoagae, Motseotsile Clement |
| Contributors | Barratt, Amanda |
| Publisher | Faculty of Law, Department of Private Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Doctoral Thesis, Doctoral, PhD |
| Format | application/pdf |
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