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Child relocation in South Africa is treated differently depending on the destination: a move within South Africa does not automatically require the other parent’s consent, while permanent removal from South Africa will ordinarily require the necessary guardian consent or a court order.
The child’s best interests, existing court orders or parenting plans, and each parent’s parental responsibilities and rights must still be considered.
Relocation can substantially affect a child’s schooling, routine and relationship with both parents. A move from Johannesburg to Cape Town may change regular care and contact arrangements. Permanent relocation overseas may make future contact dependent on international travel.
This article explains the distinction between domestic and international child relocation, when consent may be required, what South African courts consider, and what parents should address before moving.
| Type of move | Is the other parent’s consent automatically required? |
Within South Africa | Not automatically under the Children’s Act. Section 31, existing court orders or parenting plans, the other parent’s parental responsibilities and rights, and the child’s best interests still matter. |
Outside South Africa | The necessary guardian consent will ordinarily be required for the child’s departure or removal from South Africa. If consent is refused, appropriate court relief may be required. |
This is a high-level distinction only. The precise legal position depends on the parental responsibilities and rights held. It also depends on any existing order or parenting plan and the facts of the proposed relocation.
This article provides general information about South African family law. It is not legal advice and does not predict the outcome of any individual matter.
Child relocation generally refers to a change in a child’s primary place of residence that materially affects the child’s living arrangements or another person’s exercise of parental responsibilities and rights.
Relocation may involve:
Not every change of address becomes a relocation dispute. The legal significance increases when the move affects schooling, established routines, care and contact, or important relationships. Support networks and the child’s general wellbeing may also be relevant.
The distinction between domestic and international relocation is fundamental.
The Children’s Act 38 of 2005 expressly deals with a guardian’s consent to a child’s departure or removal from South Africa. It does not create the same express consent requirement merely because a child is moving from one South African province to another.
That does not make a domestic relocation legally insignificant. Existing court orders and parenting plans may affect what should happen. So may the parental responsibilities and rights held by each parent, the impact of the proposed move and the child’s best interests.
The Children’s Act does not expressly require another co-holder’s consent merely because a child is moving from one South African province, city or town to another.
Section 31 is nevertheless important. It applies where a person holding parental responsibilities and rights intends taking a decision that is likely significantly to change or adversely affect a child’s living conditions, education or wellbeing.
It also applies where the decision is likely significantly to affect another co-holder’s exercise of parental responsibilities and rights. Relevant views and wishes expressed by the other co-holder must receive due consideration.
Recent Gauteng High Court decisions illustrate the important distinction between consent and due consideration.
In T.L.K v E.E.E.B (2024/149673) [2025] ZAGPJHC 101, a father sought an urgent order declaring his former partner’s interprovincial relocation with their daughter unlawful.
He also sought the child’s immediate return. The court held that section 31 does not expressly require the other parent’s consent to an interprovincial relocation. On the evidence, the court found that the mother’s decision to relocate had been bona fide and reasonable.
It also found that she had given due consideration to the father’s views as required by section 31. The father’s application for a declaratory order and the child’s return was accordingly dismissed.
T.L.K v E.E.E.B nevertheless illustrates the practical risk of a disputed relocation. The mother’s position was ultimately upheld, but the dispute still resulted in urgent High Court proceedings.
It also led to a Family Advocate investigation into primary residence, care and contact, an interim regime of supervised contact for the father, and a costs order against him. A move that later proves lawful can still be expensive, disruptive and uncertain while it is being contested.
Similarly, in B.M.S v J.N.W (2024/110526) [2025] ZAGPJHC 112, the court distinguished two concepts. One is the duty to give due consideration to another co-holder’s views. The other is an absolute consent requirement for interprovincial relocation.
Importantly, B.M.S v J.N.W should not be read as endorsing unilateral relocation in disregard of an existing court order.
The mother had initially relocated to Cape Town without notice, after which an urgent order was obtained requiring that the children not relocate to Cape Town or elsewhere and the children were returned.
The later judgment arose after further processes and ultimately confirmed the children’s residence in Cape Town. The case therefore illustrates both the distinction between due consideration and an automatic consent requirement, and the risks of relocating before an existing order or active dispute has been properly addressed.
The legal position may also be affected by:
A unilateral domestic move can therefore still result in urgent litigation. The Children’s Act does not impose the same express consent requirement that applies to international removal, but disputes can still arise.
If the other parent has already moved with your child, or is threatening to, our companion article on responding to a unilateral relocation sets out the practical and legal steps available.
Parents contemplating a move that will substantially affect a child’s relationship with the other parent should obtain advice before changing the child’s residence, school or established care arrangements.
International relocation is different.
Section 18 of the Children’s Act deals with guardianship. It includes giving or refusing consent required by law for a child’s departure or removal from South Africa.
Section 18(5) provides that, unless a competent court orders otherwise, the consent of all persons who have guardianship of the child is required for the matters listed in section 18(3)(c), including the child’s departure or removal from South Africa. Accordingly, where more than one person holds guardianship, all guardians must consent to the child’s permanent removal from South Africa unless a competent court orders otherwise.
Whether an unmarried father’s consent is required depends on whether he holds guardianship. Under section 21 of the Children’s Act, an unmarried biological father who satisfies the statutory requirements acquires full parental responsibilities and rights, which include guardianship. His legal status should therefore be established before deciding whether his consent is required for an international relocation. For more detail, see Unmarried Parents and Child Law in South Africa.
A parent should therefore not assume that having primary residence of a child, or having possession of the child’s passport, is enough to authorise permanent emigration. If the required consent is withheld, a court application may be necessary.
A refusal of consent does not by itself determine whether an international relocation will occur. Where agreement cannot be reached, the relocating parent may ask a court to determine the issue.
The question is not simply whether the parent has a genuine reason for moving. The central enquiry remains the child’s best interests. Depending on the facts, the court may consider:
The outcome is inherently fact-specific.
Section 28(2) of the Constitution makes a child’s best interests paramount in every matter concerning the child. Section 7 of the Children’s Act sets out the statutory factors that must be considered, where relevant, when determining a child’s best interests. The considerations below reflect that statutory framework as applied to the facts of a relocation dispute. The Children’s Act gives further content to that principle. It does so through its best-interests provisions and the framework governing parental responsibilities and rights.
In a relocation dispute, relevant considerations may include:
There is no mechanical formula for deciding a relocation case. The enquiry concerns the particular child and the practical consequences of the particular proposed move.
Jackson v Jackson (18/2001) [2001] ZASCA 139; 2002 (2) SA 303 (SCA) remains an important South African relocation authority.
The Supreme Court of Appeal recognised the importance of respecting a bona fide and reasonable decision by a primary caregiver when the proposed relocation is compatible with the children’s best interests.
That does not create an automatic entitlement to relocate. Jackson emphasised that relocation cases are fact-sensitive. Principles drawn from earlier cases are guidelines rather than rigid rules.
The safer formulation is: bona fides and reasonableness matter, but neither replaces the best-interests enquiry. The court must consider the practical effect of the move on the child.
F v F 2006 (3) SA 42 (SCA); [2006] 1 All SA 571 (SCA) confirms that the child’s best interests remain the governing criterion. The court must evaluate, weigh and balance the competing factors in the particular case, including the child’s wishes where appropriate, and scrutinise the reasonableness and practical consequences of the proposed relocation.
A serious relocation application requires more than an intention to move. Depending on the circumstances, evidence may be needed about:
A credible relocation plan should explain the child’s proposed life after relocation, not merely the parent’s reasons for wanting to move.
A child’s views can be important. The Children’s Act recognises the participation of children who are of an appropriate age, maturity and stage of development. The Department of Justice similarly explains that children’s views should be considered when decisions concerning them are made, although those views do not necessarily determine the result.
A child’s preference therefore does not automatically decide the relocation dispute. The question is not simply “Where does the child want to live?” It is “What weight should the child’s properly obtained views carry within the overall best-interests enquiry?”
The method by which those views are obtained may also matter. Children should not be placed in the middle of parental litigation or pressured to choose between parents.
The Office of the Family Advocate may play an important role in disputes concerning care, contact, guardianship and relocation.
The Family Advocate can investigate disputes affecting children and may be assisted by Family Counsellors with social-work or psychological expertise. Its function is child-focused rather than to advance either parent’s litigation position.
A Family Advocate report or recommendation can be important evidence, but the court remains responsible for deciding what is in the child’s best interests. Parents should therefore not assume that a recommendation automatically determines the final outcome.
Not every relocation dispute requires a private psychologist, social worker or other expert. Expert evidence adds cost and can increase the complexity of proceedings. An expert should therefore be instructed to answer a defined question that genuinely requires specialist knowledge.
Depending on the facts, expert evidence may assist with:
The court remains the ultimate decision-maker. An expert opinion supporting or opposing relocation is evidence to be evaluated, not a substitute for the court’s best-interests enquiry.
The required evidence depends on the proposed move.
For international relocation, this may include: a confirmed employment opportunity, income information, proposed accommodation, school information, healthcare arrangements, immigration or visa status, family and community support, expected living costs, travel arrangements, proposed future contact, flight costs, holiday arrangements, and a workable revised parenting plan.
Domestic relocation may require a different evidential focus. A move from Johannesburg to Cape Town, for example, may turn primarily on schooling, accommodation, employment, domestic travel, existing care arrangements and whether meaningful contact with the other parent can continue.
A parent opposing relocation should also focus on the child’s interests. Saying only “I do not want my child to move away from me” is unlikely to address the full legal enquiry.
Relevant evidence may concern the existing relationship with the child and the parent’s involvement in daily care. It may also address the current care and contact arrangement, schooling, and the effect of reduced physical contact.
Other relevant issues can include the child’s emotional or developmental needs, weaknesses in the relocation plan, unrealistic travel arrangements, affordability, the child’s views, viable alternatives and the effect on stability.
The court may need to compare the consequences of both outcomes: allowing the relocation and refusing it.
Relocation does not end the child’s relationship with the parent who remains behind. A workable future contact plan is therefore often central to a relocation application.
Depending on the circumstances, it may provide for extended school-holiday contact, alternating holiday periods, scheduled video calls and telephone contact.
It may also deal with travel, collection and handover, communication about schooling and healthcare, attendance at significant events, and review mechanisms as the child grows older.
The plan must be realistic. For international relocation in particular, arrangements that appear workable on paper may become impractical once flight costs, school commitments, travel time and the child’s age are considered.
There is no single rule that one parent must always bear all travel expenses arising from relocation. The appropriate arrangement depends on the circumstances and the parents’ financial positions.
A relocation plan should address the main costs of maintaining contact. These may include flights, domestic transport, airport transfers, accommodation, accompanying-adult costs where necessary, and passport or visa expenses.
If the proposed contact arrangement depends on travel that neither parent can realistically afford, that may affect whether the plan is workable.
Some relocation disputes genuinely become urgent. Examples include an imminent school start, a visa deadline, time-sensitive employment, a threatened move, a threatened international removal, or a material unilateral change to the child’s residence.
Urgency is nevertheless a procedural issue that must be properly established. Recent relocation litigation shows that an application may be struck from the urgent roll if urgency is not established.
A court may also approach an urgent relocation dispute cautiously even where some urgency exists. Parents should therefore seek advice early rather than allow foreseeable deadlines to create avoidable procedural difficulties.
Moving first and attempting to resolve the legal dispute afterwards can create substantial risk. This is especially so where the move conflicts with an existing court order, materially changes contact or changes the child’s school.
Risk also increases where the move occurs without appropriate consultation, creates a new status quo during pending litigation, or involves removing the child from South Africa.
T.L.K v E.E.E.B is a useful illustration here too. The mother’s relocation was ultimately found to have been lawful and reasonable, and the court found that she had given the required consideration to the father’s views.
Even so, the dispute produced urgent litigation, a Family Advocate investigation and a period of reduced, supervised contact for the other parent. A parent contemplating a disputed relocation should therefore obtain advice before taking irreversible steps. The consultation process with the other parent should also be properly documented.
Relocation outside South Africa may involve issues beyond the relocation decision itself. These can include guardianship consent, passport applications, immigration permission, school admission, travel documents and visas.
Future contact arrangements, recognition or implementation of parenting arrangements, and practical implementation of the court order may also need attention.
These matters should be considered during the planning stage rather than after permission to relocate has already been obtained.
A relocation application and an international child-abduction matter are legally different.
A relocation application asks whether a proposed move should be permitted. A Hague Convention matter may arise after a child has been wrongfully removed from, or retained outside, the child’s country of habitual residence. The Convention applies only where its requirements are met.
The Children’s Act gives effect in South African law to the Hague Convention on the Civil Aspects of International Child Abduction.
The Department of Justice provides a specific procedure for applications concerning wrongfully removed or retained children. The Office of the Family Advocate also performs South Africa’s Central Authority role in international child-abduction matters.
A parent facing a threatened or completed international removal should obtain advice promptly about the appropriate legal process rather than assuming that an ordinary relocation application is sufficient.
Yes. Not every relocation dispute needs to proceed to a contested hearing. Where parents can agree, the arrangement should deal clearly with the practical consequences of the move.
This may include primary residence, schooling, holiday and electronic contact, travel arrangements and travel costs. It may also address passports, international travel consent, healthcare decisions, information-sharing, significant family events and future review of the arrangements.
Where an existing parenting plan or court order applies, advice should be obtained about formally changing it.
Before committing to a move, consider:
These questions are better addressed before major decisions become difficult to reverse.
Relocation disputes are difficult because legitimate interests can point in different directions. One parent may have sound reasons for wanting to move.
The other may have a genuine concern about losing meaningful involvement in the child’s life. Neither parent’s preference determines the outcome. South African law places the child’s best interests at the centre of the enquiry.
A strong relocation case therefore depends on more than why a parent wants to move. The proposed arrangements must provide a credible, evidence-based and workable plan for the child’s life after relocation.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving child relocation, parental responsibilities and rights, care and contact, international relocation and related High Court proceedings.
Parents considering relocation, or responding to a proposed relocation, should obtain advice before taking steps that may materially alter a child’s residence, schooling or relationship with another parent.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys Inc. | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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