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If the other parent moves away with your child within South Africa, the move is not automatically unlawful merely because you did not consent. What matters is the Children’s Act, any existing court order or parenting plan, the effect on your parental responsibilities and rights, and the child’s best interests.
A relocation becomes particularly significant where it substantially changes an existing care or contact arrangement, changes the child’s school, places the child hundreds of kilometres away, conflicts with a court order or parenting plan, or removes the child from South Africa.
The important question is therefore not simply: “Did I consent to the move?” It is: “What rights and arrangements existed before the move, how has the relocation affected the child and my relationship with the child, and was the decision taken consistently with the Children’s Act and the child’s best interests?”
This article deals principally with relocation within South Africa. International removal involves additional guardianship and international child-abduction considerations.
| Question | General position |
Is a move within South Africa automatically unlawful without my consent? | No. Section 31, existing court orders or parenting plans, parental responsibilities and rights, and the child’s best interests must still be considered. |
Can a court order the child to return? | Yes, in appropriate circumstances, but return is not automatic merely because one parent objected to the move. |
Does an existing court order or parenting plan matter? | Yes. A relocation that conflicts with an existing arrangement may justify enforcement, variation or urgent interim relief. |
Can urgent relief be sought? | Potentially, where delay may materially prejudice the child or substantially disrupt established care or contact. |
Is domestic relocation the same as international removal? | No. International removal raises separate guardianship-consent and Hague Convention issues. |
What should I do first? | Preserve the relevant orders, parenting plan and communications, record the previous care and contact arrangement, and obtain advice promptly. |
Discovering that your child has been moved to another town, city or province can require immediate legal assessment.
Whether a court should order the child back depends on the circumstances.
The absence of consent is relevant, but it does not by itself determine whether a domestic relocation is lawful.
Domestic and international relocation must be distinguished.
The Children’s Act 38 of 2005 does not impose the same express consent requirement for a move from one South African province, city or town to another that applies in the context of removing a child from South Africa.
Section 31 is nevertheless important. For certain major decisions affecting a child, the child’s views and wishes must be given due consideration, having regard to the child’s age, maturity and stage of development.
Where a decision is also likely significantly to change, or adversely affect, another co-holder’s exercise of parental responsibilities and rights, due consideration must be given to that co-holder’s views and wishes.
Due consideration does not amount to an automatic right of veto.
The absence of an express consent requirement does not give one parent an unrestricted right to relocate a child without considering the effect on the child and the other parent’s parental responsibilities and rights.
T.L.K v E.E.E.B (2024/149673) [2025] ZAGPJHC 101 concerned an urgent application after a mother relocated with a young child from Gauteng to Stellenbosch.
The father sought, among other relief, an order declaring the relocation unlawful, directing the immediate return of the child to his care in Johannesburg and granting him full parental responsibilities and rights.
Those were the orders sought by the father. They were not the orders ultimately granted by the court.
The judgment is important because the High Court expressly considered the distinction between lack of consent and the requirements of section 31 of the Children’s Act.
The court held that section 31 does not expressly require the consent of another parent before an interprovincial relocation.
The enquiry instead concerned the child’s best interests, whether the other parent’s views had received due consideration and whether the relocation decision was bona fide and reasonable.
There were substantial factual disputes between the parents. The court did not resolve all of those disputes on the papers.
On the evidence properly capable of determination at that stage, the court concluded that it could not find that the mother had acted without bona fides or that the relocation was unreasonable.
It also found that she had given due consideration to the father’s views as required by section 31.
The father therefore did not establish the declaratory and ancillary relief he sought.
The court instead directed the Family Advocate to conduct an urgent investigation into primary residence, care and contact.
Pending that investigation, the father received supervised physical contact on alternate weekends and daily electronic contact. He was ordered to pay the costs of the application.
T.L.K therefore illustrates an important principle: the absence of another parent’s consent does not, by itself, make an interprovincial relocation unlawful.
The court must examine the applicable parental responsibilities and rights, the decision-making process, the child’s circumstances and the child’s best interests.
B.M.S v J.N.W (2024/110526) [2025] ZAGPJHC 112 concerned a mother who sought to relocate with two children from Johannesburg to Cape Town.
By the time the application was heard, the mother and children had already moved.
The court considered the parents’ circumstances, the history of conflict, the children’s living arrangements, the mother’s employment and proposed stability, the father’s working arrangements and professional evidence concerning the children.
The court ultimately confirmed that the children could remain primarily resident with their mother in Cape Town and attend school there.
The case reinforces the point that domestic relocation is not decided simply by asking whether the other parent gave consent. The enquiry is broader and remains child-focused.
B.M.S v J.N.W should not be understood as authority for moving first and dealing with the legal consequences afterwards.
The mother’s earlier relocation had resulted in an urgent order prohibiting the children from relocating to Cape Town or elsewhere and the children were returned. The later judgment confirming their residence in Cape Town followed further proceedings.
Where a court order already regulates the child’s residence or prevents relocation, that order must be addressed through the appropriate legal process rather than ignored.
A different issue arises where a move materially dismantles an established care or contact regime.
DM v CHP (B6773/23) [2024] ZAGPPHC 76 provides a useful example.
The parents had an agreement under which the father exercised approximately 50% contact with their five-year-old child.
The mother proposed moving approximately 550 kilometres away. The proposed change would have reduced the father’s extensive contact to four hours of supervised contact every second week.
The father approached the High Court urgently.
The court found that the relocation significantly affected his exercise of parental responsibilities and rights and that section 31(2) was directly relevant.
Pending investigation and reporting by the Family Advocate, the court restored the status quo relating to the father’s contact.
The case demonstrates that even though domestic relocation is not governed by an automatic consent requirement, a parent cannot necessarily use relocation to unilaterally dismantle an established parenting arrangement.
No. That conclusion would oversimplify the law.
The factual context therefore matters greatly. A move that preserves schooling and meaningful contact may raise very different issues from a move hundreds of kilometres away that substantially reduces an established shared-care arrangement.
An existing court order may materially change the position.
A parent should not assume that relocation permits those terms to be ignored.
Depending on the wording of the order and what has happened, possible remedies may include enforcement of the order, urgent interim relief, restoration of an existing care or contact arrangement, variation of the order, referral to the Family Advocate, or other relief appropriate to the child’s best interests.
Where deliberate non-compliance with a court order is alleged, contempt proceedings may also require consideration, although the legal requirements for contempt must still be established.
A parenting plan may also be central to the dispute.
The precise legal consequences will depend on the terms of the plan and its legal status.
If a relocation dispute arises, the complete parenting plan, any amendments and every relevant court order should be provided to the attorney advising on the matter.
Yes, in appropriate circumstances. But a return order is not automatic merely because one parent objected to the move.
The court will consider what interim or final arrangement serves the child’s best interests.
DM v CHP demonstrates that a court can intervene where relocation substantially disrupts an established parenting arrangement.
There, the court restored the previous contact position pending investigation by the Family Advocate.
By contrast, T.L.K v E.E.E.B demonstrates that lack of consent alone will not necessarily justify an order declaring the relocation unlawful and compelling the child’s return.
The two cases are therefore not inconsistent. They illustrate the importance of the particular facts.
Some relocation disputes genuinely require urgent intervention.
Urgency must nevertheless be properly established. Not every disagreement between parents automatically qualifies for urgent High Court proceedings.
Obtaining advice early is important because a parent who waits may allow a materially different status quo to develop before approaching the court.
If the other parent has moved or is threatening to move, preserve the relevant evidence.
The objective is not to produce a volume of hostile correspondence. The evidence should help establish what the child’s life looked like before the move, what changed, how the move affects the child, and what realistic arrangements are available now.
The child’s views may be relevant.
The Children’s Act recognises the participation of a child who is of an appropriate age, maturity and stage of development.
That does not mean a child chooses the outcome. The child’s views form part of the broader best-interests assessment and must be considered together with the child’s circumstances, relationships, developmental needs and the practical consequences of the proposed arrangements.
Parents should avoid placing a child in the middle of the dispute.
Relocation disputes can become highly emotional.
Where a child’s views need to be established, they should be obtained through an appropriate and child-sensitive process.
The Office of the Family Advocate can play an important role in relocation disputes.
Both T.L.K and DM v CHP illustrate circumstances in which the court considered further Family Advocate investigation important before a final long-term determination of care and contact.
A Family Advocate recommendation can be influential, but it does not replace the court’s ultimate responsibility to determine the child’s best interests.
International removal requires a different legal analysis.
The Children’s Act specifically deals with guardianship and the consent required by law for a child’s departure or removal from South Africa.
A parent should not assume that the rules applying to a move from Johannesburg to Cape Town also apply to removing a child from South Africa.
If international removal is threatened or has already occurred, specialist advice should be obtained urgently.
If you know that the other parent intends relocating, addressing the issue before the move usually provides more options than trying to reverse a completed relocation.
Depending on the circumstances, negotiation, mediation, a revised parenting arrangement or court proceedings may be appropriate.
The response should be proportionate to the actual risk.
The appropriate remedy depends on the facts.
A parent cannot safely assume that a move within South Africa is automatically permissible merely because the Children’s Act does not impose an express consent requirement.
Equally, another parent cannot assume that withholding consent automatically makes an interprovincial relocation unlawful.
South African courts undertake a more careful enquiry.
That enquiry may include the parties’ parental responsibilities and rights, section 31, existing orders and parenting arrangements, the reasons for and manner of the relocation, the effect on care and contact, and the child’s need for stability and meaningful relationships.
Above all, the child’s best interests remain paramount.
Martin Vermaak Attorneys Inc. advises on South African family-law disputes involving child relocation, parental responsibilities and rights, primary residence, care and contact, parenting plans, Family Advocate investigations, urgent High Court applications and international relocation.
If the other parent has moved with your child, or you believe a move is imminent, obtaining advice early can help establish what remedies and practical options may be available before the situation becomes more difficult to reverse.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | 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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