IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case No: 52/05

In the matter between:

HELEN MARGARET FORD
Appellant

and

MICHAEL GEORGE WILLIAM FORD

Respondent

CORAM:     ZULMAN, CAMERON, VAN HEERDEN, PONNAN JJA
et MAYA AJA

Date Heard:            7 November 2005

Date Delivered:   1 December 2005

Summary: Application by custodian parent of young child for leave to remove child
permanently from South Africa – child strongly bonded to both parents – interests
of child first and paramount consideration.

JUDGMENT

MAYA AJA

MAYA AJA:

[1] This matter raises difficult emotional issues for the parties and their
young daughter, the subject of the dispute. The parties are both British
citizens who settled in the Republic of South Africa as newlyweds in 1986.
They were divorced during 2001. The appellant, who has custody of the
child, wishes to return to the country of her birth permanently and take the
child with her. The respondent refused to consent to the child’s removal
from the country. The appellant’s application to the Johannesburg High
Court for leave to remove the child from South Africa was refused by
Weiner AJ, after hearing oral evidence. So was an appeal to the full court of
that division (Cachalia J and Fevrier AJ concurring, Satchwell J dissenting).
The appellant appeals further with the special leave of this court.

[2] In addition to the two parties and Sarah’s day mother since birth, Mrs
Saskia Sinclair, three experts testified in this matter: Dr Engelbrecht (a
counselling psychologist) on behalf of the appellant, and Dr Strous (an
educational psychologist) and Ms Henig (a social worker) on behalf of the
respondent. The evidence of the parties, Mrs Sinclair and their experts is

fully set out in the judgment of the court of first instance and I proceed to
give a summary only of the salient portions.

[3] The appellant and the respondent, aged 47 and 53 years respectively,
were both born and grew up in the United Kingdom. Following their
marriage there in April 1986, they came to South Africa to pursue careers in
the field of information technology. The appellant worked in that field rising
through the ranks to management level until her resignation in March 2003,
partly due to dissatisfaction with her working conditions and partly in
anticipation of her return to the UK. The respondent on the other hand
branched off into other ventures over the years and has successfully
established himself in the business world.

[4] When the parties were divorced on 26 April 2001, they concluded an
agreement of settlement which was made an order of court. In terms of the
order, custody of the child, Sarah Rose, born on 7 November 1995, was
awarded to the appellant. The award was made subject to the respondent’s
reasonable rights of access which include sleep-over access to Sarah every
Tuesday and Thursday night, every alternate weekend, alternate short school
holidays and half of the long school holidays in July and December. The
practical effect of this arrangement is that, although the appellant is the

custodian parent and Sarah’s primary caregiver, the parties spend almost
equal amounts of time with Sarah and share responsibility for her various
needs. The respondent’s relationship with Sarah was initially strained after
the divorce but, through the appellant’s intervention, the problems were
ironed out with the professional help of a social worker. The parties live
within easy access of each other and, until the appellant’s decision to
relocate to the United Kingdom in late 2002, exercised their shared
parenting arrangement without problems.

[5] The appellant wishes to return to the country which she regards as her
‘home’, where all her family (and, indeed, all of the respondent’s family)
reside. Save for two close friends, she feels that she has no support system in
South Africa, where she is unhappy and depressed. She is concerned about
the high level of violent crime and her perceived lack of financial and
employment security here. By contrast, she believes that both she and Sarah
will have an improved quality of life and more safety and security in the
United Kingdom. In her view, she will be able to provide Sarah with better
educational and other life-enhancing opportunities in that country, where she
(the appellant) will have better employment prospects and a far superior
social security structure, in addition to very affordable health care for both
herself and Sarah. She tendered to the respondent liberal visitation blocks

and regular telephonic, visual electronic and internet contact with Sarah
should her application be successful. The respondent’s main contentions
were that the child would be removed from her present stable and secure
environment, that she would suffer a decline in her standard of living and
that, most importantly, she would lose the benefit of her close and
meaningful relationship with him.

[6] There were material points of variance in the respective approaches,
findings and recommendations of the experts called by the parties. They
however agreed, as the parties had, that Sarah is well-adjusted and
developmentally on track, excels at school, enjoys excellent relationships
with, is deeply attached to both her parents and is settled, happy and stable
in her present environment. Separation from either of her parents would be
detrimental to her well-being.

[7] The essence of their findings is captured in their joint report, the
relevant part of which reads as follows:
‘3. Sarah is attached to both her parents. We generally agree that separation from either
parent would be deleterious to her well-being. We agree that separation from her mother
is likely to be severely detrimental to her. Henig and Strous believe that separation from
her father has the potential to be severely detrimental to Sarah. Engelbrecht believes that
she will be negatively affected by separation from her father but that the effect of this

impact would be moderated by the nature, regularity and predictability of contact that she
will have with her father.
4. The experts noted that they applied different primary evaluation criteria in preparing
their reports and recommendations in this matter. Henig and Strous based their
recommendations primarily on the best interest criterion whereas Engelbrecht utilised the
criterion of whether there are compelling reasons for Sarah not to go to the United
Kingdom.
5. All the experts believe that according to the best interest criterion it is in a child’s best
interest to have both her parents in close proximity.’

[8] As was accepted by both the court of first instance and the majority of
the court a quo, the point of departure of Dr Strous and Ms Henig was
clearly the correct one. The criterion consistently applied by the courts in
deciding matters of this nature is now entrenched in s 28(2) of the
Constitution which provides that ‘[a] child’s best interests are of paramount
importance in every matter concerning the child’.1 The ‘best interests of the
child’ standard is, however, of necessity an indeterminate and relative one as

1 So too, in terms of article 3(1) of the United Nations Convention on the Rights of the Child (1989),
ratified by South Africa on 16 January 1995, ‘in all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies,
the best interests of the child shall be a primary consideration’. This best interests of the child standard is
also enshrined in article 16(1) of the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (1979), ratified by South Africa in December 1995 and brought into force
here on 16 January 1996.

the circumstances of each child within each family unit will vary across a
wide spectrum of factors.2

[9] The legal principles applicable in relocation cases were recently set
out by this court in the majority judgment of Scott JA in Jackson v Jackson3
as follows:
‘It is trite that in matters of this kind the interests of the children are the first and
paramount consideration. It is no doubt true that, generally speaking, where, following a
divorce, the custodian parent wishes to emigrate, a Court will not lightly refuse leave for
the children to be taken out of the country if the decision of the custodian parent is shown
to be bona fide and reasonable. But this is not because of the so-called rights of the
custodian parent; it is because, in most cases, even if the access by the non-custodian
parent would be materially affected, it would not be in the best interests of the children
that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of
a decision reasonably and genuinely taken. Indeed, one can well imagine that in many
situations such a refusal would inevitably result in bitterness and frustration which would
adversely affect the children. But what must be stressed is that each case must be decided
on its own particular facts. No two cases are precisely the same and, while past decisions
based on other facts may provide useful guidelines, they do no more than that. By the
same token, care should be taken not to elevate to rules of law the dicta of Judges made
in the context of the peculiar facts and circumstances with which they were concerned.’

2 See eg Boberg’s Law of Persons and the Family 2ed (1999) p 502-504 and the other authorities there
cited.
3 2002 (2) SA 303 (SCA) para 2 at 318E-I.

[10] In deciding whether or not relocation will be in the child’s best
interests the court must carefully evaluate, weigh and balance a myriad of
competing factors,4 including the child’s wishes in appropriate cases.5 It is
an unfortunate reality of marital breakdown that the former spouses must go
their separate ways and reconstitute their lives in a manner that each chooses
alone. Maintaining cordial relations, remaining in the same geographical
area and raising their children together whilst rebuilding their lives will, in
many cases, not be possible. Our courts have always recognised and will not
lightly interfere with the right of a parent who has properly been awarded
custody to choose in a reasonable manner how to order his or her life. Thus,
for example, in Bailey v Bailey,6 the court, in dealing with an application by
a custodian parent for leave to take her children with her to England on a
permanent basis, quoted – with approval – the following extract from the
judgment of Miller J in Du Preez v Du Preez:7
‘[T]his is not to say that the opinion and desires of the custodian parent are to be ignored or
brushed aside; indeed, the Court takes upon itself a grave responsibility if it decides to

4 See eg Van Rooyen v Van Rooyen 1999 (4) SA 435 (C).
5 In terms of one of the key tenets of the United Nations Convention on the Rights of the Child, the courts
must ‘assure to the child who is capable of forming his or her own views the right to express those views
freely in all matters affecting the child, the views of the child being given due weight in accordance with
the age and maturity of the child’ (article 12). Thus, if the court is satisfied that the child in question has the
requisite intellectual and emotional maturity to make an informed and intelligent judgment, then the court
should give serious consideration to the child’s expressed preference (see McCall v McCall 1994 (3) SA
210 (C) at 207H-J).
6 1979 (3) SA 128 (A).
7 1969 (3) SA 529 (A) at 532E-F.

override the custodian parent’s decision and the emotions or impulses which have
contributed to it.’8
The reason for this deference is explained in the minority judgment of
Cloete AJA in the Jackson9 case as follows:
‘The fact that a decision has been made by the custodian parent does not give rise to
some sort of rebuttable presumption that such decision is correct. The reason why a Court
is reluctant to interfere with the decisions of a custodian parent is not only because the
custodian parent may, as a matter of fact, be in a better position than the non-custodian
parent in some cases to evaluate what is in the best interests of a child but, more
importantly, because the parent who bears the primary responsibility of bringing up the
child should as far as possible be left to do just that. It is, however, a constitutional
imperative that the interests of children remain paramount. That is the “central and
constant consideration”.’

[11] From a constitutional perspective, the rights of the custodian parent to
pursue his or her own life or career involve fundamental rights to dignity,
privacy and freedom of movement.10 Thwarting a custodian parent in the
exercise of these rights may well have a severe impact on the welfare of the
child or children involved. A refusal of permission to emigrate with a child
effectively forces the custodian parent to relinquish what he or she views as
an important life-enhancing opportunity. The negative feelings that such an

8 At 136B-C.
9 Para 34 at 317E-F.
10 Sections 10, 14 and 21 of the Consitution.

order must inevitably evoke are directly linked to the custodian parent’s
emotional and psychological well-being. The welfare of a child is,
undoubtedly, best served by being raised in a happy and secure atmosphere.
A frustrated and bitter parent cannot, as a matter of logic and human
experience, provide a child with that environment. This being so, I cannot
agree with the views expressed by the full court that ‘the impact on Sarah of
the appellant’s feelings of resentment and disappointment at being tied to
South Africa, or the extent to which her own desires and wishes are
intertwined with those of Sarah’ did not deserve ‘any attention’ and that ‘[i]n
arriving at a just decision [a court] cannot be held hostage to the feelings of
aggrieved litigants’.

[12] It is also important that courts be acutely sensitive to the possibility
that the differential treatment of custodian parents and their non-custodian
counterparts - who have no reciprocal legal obligation to maintain contact
with the child and may relocate at will11 - may, and often does, indirectly
constitute unfair gender discrimination. Despite the constitutional
commitment to equality, the division of parenting roles in South Africa

11 Elsje Bonthuys ‘Clean Breaks: Custody, Access and Parents’ Rights to Relocate’ (2000) 16 SAJHR 487
refers in this regard to ‘a systematic lack of reciprocity when dealing with the parents of the child. While
the custodian may be prevented from relocating by the interests of the children, the non-custodian may
relocate at will. While the custodian can be compelled to facilitate access to the child, the non-custodian
parent can not be compelled to contact the child, whether or not such contact would be beneficial to the
child’ (at 496).

remains largely gender-based.12 It is still predominantly women who care for
children and that reality appears to be reflected in many custody
arrangements upon divorce. The refusal of relocation applications therefore
has a potentially disproportionate impact on women, restricting their
mobility and subverting their interests and the personal choices that they
make to those of their children and former spouses.13 As was pointed out by
Gaudron J in a minority judgment in U v U,14 the leading Australian case on
relocation:
‘…it must be accepted that, regrettably, stereotypical views as to the proper role of a
mother are still pervasive and render the question whether a mother would prefer to move
to another state or country or to maintain a close bond with her child one that will, almost
inevitably, disadvantage her forensically. A mother who opts for relocation in preference
to maintaining a close bond with her child runs the risk that she will be seen as selfishly
preferring her own interests to those of her child; a mother who opts to stay with her child
runs the risk of having her reasons for relocating not treated with the seriousness they
deserve.’

[13] While attaching appropriate weight to the custodian parent’s interests,
courts must, however, guard against ‘too ready an assumption that the
[custodian’s] proposals are necessarily compatible with the child’s

12 See eg the remarks of several judges in the Constitutional Court case of President of the Republic of
South Africa v Hugo 1997 (4) SA 1 (CC) paras 37-38 (per Goldstone J), paras 80 and 83 (per Kriegler J),
para 93 (per Mokgoro J) and paras 109-110 and 113 (per O’Regan J).
13 See Bonthuys op cit 501-506.
14 [2002] HCA 36 at para 36.

welfare’.15 The reasonableness of the custodian’s decision to relocate, the
practical and other considerations on which such decision is based, the
extent to which the custodian has engaged with and properly thought
through the real advantages and disadvantages to the child of the proposed
move are all aspects that must be carefully scrutinised by the court in
determining whether or not the proposed move is indeed in the best interests
of the child.

[14] Counsel for the appellant contended that both the trial court and the
full court, in refusing the appellant leave to relocate, over-emphasised the
disruptive effect that the relocation would have on the respondent’s
relationship with Sarah.  According to counsel, both courts in effect found
that the maintenance of the current relationship between Sarah and her father

15 Payne v Payne [2001] 1 FLR 1052 (CA) para 40 (per Thorpe LJ). In this case, the father appealed against
an order giving the mother leave to remove their four-year-old daughter permanently to New Zealand. He
argued that the principles applied by the English courts in relocation applications created an unwarranted
legal presumption in favour of leave to relocate which was in breach of his right to respect for family life in
terms of article 8 of the European Convention for the Protection of Human Rights and Fundamental
Freedoms (1950) and in conflict with his right to contact with the child in terms of the Children Act 1989.
The Court of Appeal rejected this argument, reiterating that the matter was governed by the ‘welfare
principle’ (the best interests of the child criterion) and that, although the reasonable proposals of the
custodian parent was a factor of ‘great weight’, it did not have the status of a presumption in favour of
granting leave. (See further the discussion of this case by Andrew Bainham in ‘Taking Children Abroad:
Human Rights, Welfare and the Courts’ (2001) CLJ 489 and generally Children: The Modern Law 3ed
(2005) 746-749.)  In D v S [2002] NZFLR 116, however, the Court of Appeal of New Zealand criticised the
approach in Payne, holding that it was ‘inconsistent with the wider all-factor child-centred approach
required under New Zealand law…[which] requires the reasonableness of a parent’s desire to relocate with
the children to be assessed in relation to the disadvantages to the children of reduced contact with the other
parent, along with all other factors’ (para 47).

was determinative and conclusive of the issue of what was in the best
interest of the minor child.

[15] In coming to her conclusion that it was not in Sarah’s best interests
that the appellant be permitted to remove her permanently to the United
Kingdom, the trial judge relied heavily on the following passage from the
majority judgment of Scott JA in the Jackson16 case:
‘To afford less weight to something as important as the relationship between mother and
young daughters simply because the former is the non-custodian parent is to prefer the
rights of the custodian parent over the interests of the children. That is a wrong approach.
It is particularly so on the facts of the present case, where both parents continued to
exercise a more or less equal parenting role and where there had been no real separation
between children and the “non-custodian” parent. It cannot be over-emphasised that each
case must be decided on the basis of its own particular facts. The question in issue was
whether it was in the interests of the children that they be separated from the mother and
taken to Australia. That she was the “non-custodian” parent was of no relevance to this
enquiry.’

[16] The Jackson case involved an appeal against the refusal of an
application by the custodian father of two young girls for leave to emigrate
with them to Australia. The non-custodian mother had previously approved
the move and was to emigrate as well, but changed her mind after the

16 Para 14 at 323C-D.

divorce. As in this case, the children had, after the divorce, continued to
spend more or less equal amounts of time with both parents and enjoyed
very secure attachments to them both. As Scott JA17 stated:
‘Of particular importance in the present case is the fact that there has as yet been no real
separation between mother and children. To this extent therefore this present case differs
materially from all those where the access of the non-custodian parent is limited to
something in the region of alternate weekends. Were the children to be taken to Australia
the consequence would be the replacement of the mother’s almost equal parenting role
with what in effect would be bi-annual visits of a few weeks each….
What emerges from the evidence, viewed in its totality, is that if removed from their
mother and taken to Australia both young girls …will suffer “a great deal of pain and
trauma”. Although opinions may differ, as far as the younger child Tasya concerned there
must, at the least, be a real risk of psychological harm. The father made it clear that his
primary reason for wishing to emigrate to Australia was for the sake of the children. The
question is therefore whether the advantages of a move to Australia at this stage in the
lives of these young children justify the pain and trauma they will undoubtedly both
experience and the real possibility of Tasya suffering psychological harm.’

[17] I cannot accept, as Weiner AJ suggested, that Scott JA’s approach ‘is
a deviation from previous decisions of this nature in which the custodian
parent’s decision (if reasonable and rational) was usually held to be
sufficient to justify relocation’, nor that ‘the interests of the non-custodian

17 Paras 10 and 12 at 321B-C and 332D.

parent and the obvious disruption to the relationship with the child have
largely been ignored until the decision in the Jackson matter’. Insofar as
Weiner AJ was referring to the judgment of Nugent J in Godbeer v
Godbeer,18 as referred to extensively by Goldblatt J in the unreported case of
Cocking v Van der Walt,19 a careful perusal of both these judgments reveals
that due weight was indeed given to the importance of the non-custodian
parent’s relationship with his minor children in the particular circumstances
of those cases. What is evident from both Jackson and the cases which
preceded it is that children’s interests are more often than not intertwined
with those of their caregivers and that courts must thus properly consider the
impact on the custodian parent of a refusal to remove a child in so far as
such refusal may have an adverse effect on the custodian parent and in turn
the child.

[18] Notwithstanding these reservations about the interpretation of the
majority judgment in the Jackson case, I cannot endorse the submission by
counsel for the appellant that the learned Judge placed undue weight on the
consideration of not ‘interrupting [the] close psychological and emotional
bond which a child has with the non-custodian parent’. In the present case,

18 2000 (3) SA 976 (W).
19 Case No 7070/03 – 3 July 2003, WLD.

all three experts testified that Sarah had a close psychological and emotional
bond with both her parents. The joint minute complied by the experts is very
telling, in that all three agree that it is in her best interests to have both her
parents in close proximity and that separation from either parent would be
deleterious to her well-being. Even Dr Engelbrecht, who held the view that
any long-term detrimental consequences of separation from the respondent
would be moderated by the envisaged extent and regularity of contact
between them, conceded in her testimony that the relocation had real risks.
These included the ‘thinning’ of Sarah’s relationship with her father, which
could result in feelings of abandonment, deprivation, loss, shame and anger.
Furthermore, from the evidence, it is apparent that Sarah herself is adamant
that she does not want to live in any country if both her parents do not live
there. Despite her young age and comparative immaturity, her views cannot
be totally ignored.

[19] It is, moreover, in my view clear from the judgment of the trial court
that it did indeed pay regard to factors other than the potential negative
effect of the proposed relocation on the relationship between the respondent
and his daughter. There is no question that the appellant’s decision to
relocate was undertaken honestly and in good faith. The desire to return to
the country one regards as home, where one grew up and lived until

adulthood, and a longing for family support, are deep emotional needs
which, to my mind, are no less important than relocating to a new country
with a new partner and family unit or to pursue an important career
opportunity. This is particularly so in the appellant’s situation where the
very reason that brought her to this country, her marriage to the respondent,
has disintegrated, leaving her isolated. The appellant has flirted with the idea
of returning to her ‘home’ since 1997 but bided her time even after the
divorce and took the final decision only in 2002. She clearly realises the
importance of the respondent’s role in her daughter’s life -- this is proved,
inter alia, by her concerted and sustained endeavours to foster his
relationship with Sarah the child after the divorce. Her willingness to allow
him generous access to Sarah if her application succeeds and her offer to
involve the International Social Services to monitor the child’s adjustment in
the United Kingdom is further proof of her bona fides. It certainly cannot be
suggested in the circumstances that she is motivated by some malicious
desire to exclude the respondent from Sarah’s life.

[20] Genuine as the appellant’s motivation is, however, I am constrained to
agree with the conclusion of the trial court that the practicalities of her
decision were certainly not as well-researched and investigated as they
should have been. With the knowledge that the respondent was opposed to

the move, she resigned her job, sold her house and motor vehicle, shipped
her furniture and the family pet to the United Kingdom and informed the
child’s school that she would be leaving. She had not, at that stage, made
any settled plans for the relocation regarding employment and had not even
considered what their living expenses in the United Kingdom would be. She
did that only during the course of the proceedings, upon being granted leave
by the court to supplement her papers on aspects relating to the schooling
and after-care arrangements for Sarah and her employment prospects in the
United Kingdom.

[21] By the time the matter went to oral evidence, she had secured a
temporary, low-paying job in the United Kingdom, but still had no letter of
appointment which provided the precise details of her working conditions,
income and tax obligations. She had no idea what the child benefit with
which she hoped to augment her income would be or what after-care for
Sarah, on the days when she would not be able to fetch her after school,
would cost. She was uncertain if she would keep her current temporary job
and what her future employment prospects were. The only real and readily
accessible source of emotional and physical support that the appellant would
have in her homeland would be her near-octogenarian mother with whom
she planned to live. Confronted with her obvious lack of any structured plan

for the relocation, she admitted that her plans were ‘constantly changing’.
There are just too many imponderables in the appellant’s plans to enable the
court to assess the likely effect of the move on Sarah’s physical, emotional
and psychological well-being. When these imponderables are ‘weighed up’
against the agreed opinion of all three experts that Sarah’s interest would
best be served by remaining in proximity to both parents and that a
separation from either parent would be prejudicial to her well-being, the
decision of both the trial court and the majority in the full court not to permit
the appellant to relocate to the United Kingdom with her daughter cannot be
faulted.

[22] This finding will obviously disappoint the appellant. However, almost
two years have elapsed since the judgment of the trial court was delivered
and there is no suggestion that she has not coped with the reality of her
situation in the interim. Her evidence was that, since her daughter’s birth,
her mother visits them in South Africa for two to three months every year.
The appellant likewise visits the United Kingdom on a regular basis. These
visits should assist in alleviating any feelings of isolation, homesickness and
disenchantment that she may suffer from time to time.

[23] Furthermore, the court’s refusal to grant the appellant leave to relocate
with Sarah now is not immutable and does not mean that she may not obtain
leave to return home with her daughter in the not too distant future if
circumstances so justify. As the respondent’s counsel pointed out, Sarah will
be going to high school in three years’ time. Changes to her social and
scholastic life will then be inevitable. She will also be older and thus in a
better position to form responsible judgments and state her own preferences.
These changed circumstances may well make the feasibility and desirability
of a move to the United Kingdom much easier to evaluate. There is nothing
to prevent the appellant in the interim from re-establishing herself in her
chosen profession and earning a decent income in this country. Should she
require additional financial support for Sarah until such time as she is able to
do so, it would seem that the respondent’s financial position is such that he
would be easily able to provide such support.

[24] There is another issue that must be addressed. The respondent made
an application in terms of section 22(a) of the Supreme Court Act 59 of 1959
to have this court canvass with the child at the hearing of the appeal her
views on her proposed relocation to the United Kingdom. He based the
application on the fact that almost three years have elapsed since the launch
of the original application and expressed the view that ascertaining her

wishes at this stage may assist the court. He relied on article 12 of the
Convention on the Rights of the Child which, as indicated above, enjoins
States Parties ‘to assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the
age and maturity of the child [and] for this purpose, [provide the child] the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of
national law.’

[25] A court must of course take a child’s wishes into account where the
child is old enough to articulate his or her preferences. It is true that Sarah is
considerably older than at the commencement of the proceedings, but I am
not convinced that the course proposed by the respondent was proper. The
respondent himself mentioned in one of his affidavits in the earlier
proceedings that the litigation was causing Sarah stress, that she had
occasionally queried having to attend the interviews with the experts and
was not ‘particularly comfortable’ with the exercise. This is understandable.
If Sarah found interaction with professionals (who are trained in child
psychology and possess the requisite skill and sensitivity to conduct the

relevant enquiry) daunting, it is then only logical to expect an encounter with
five strange judges, ill-equipped to deal with the situation, to be thoroughly
intimidating. Such an exercise clearly would not bear much, if any, fruit. It
seems to me that, if either of the parties considered that there was a need to
submit additional evidence in this regard, the proper route to follow would
have been to have had Sarah interviewed by appropriate professionals, as
was done previously, and to seek to place that evidence before the court.

[26] In any event, there is already evidence on record that Sarah has, as
most children would in the circumstances, expressed a wish to remain with
both her parents. I hardly think that the respondent would suggest having her
being interviewed by the court if her views had changed. The application
was ill-advised and poorly conceived in addition to being unprecedented.
How was this court to ascertain, what in truth was the view of the child and
how were the five members of this court to record their impressions? Were
those impressions, assuming them to be unanimous, to constitute admissible
evidence and how, if at all, was it to be introduced into the record? What
evidential weight, if any, was to attach to those impressions and were the
parties to be allowed an opportunity to adduce further evidence in
consequence of its receipt?  Those were just some of the difficulties that
confronted counsel for the respondent when she sought to argue the

application. There evidently was no answer to those difficulties and the
application must thus be dismissed. I cannot imagine that the appellant
should be burdened with having to pay her own costs in respect of an
application as unmeritorious as this. It must follow that in respect of this
application the respondent must pay the costs.

[27] The costs of the appeal do not pose a problem. It seems to be common
cause that, in pursuing these proceedings, both parties acted bona fide in
what each perceived to be their child’s best interests. This being so, I am of
the view that each party should bear his or her own costs of appeal. The
costs order made by the full court must, however, in my view be
reconsidered. In awarding the respondent the costs of the appeal, the court
held, inter alia, that it would be unfair for the respondent to continue to have
to pay for his legal costs and that there must be some disincentive to the
continuation of litigation. In that, for the reasons that follow, the full court,
in my view, misdirected itself. While mindful of the fact that one is here
dealing with the exercise of a judicial discretion, I nevertheless cannot agree
with the consideration mentioned. Such an approach may be justified in the
case of frivolous or vexatious litigation by parents in respect of minor
children. This case hardly fits that mould and its facts do not warrant the
infliction of adverse costs orders to penalise or discourage the parties, acting

in good faith and out of concern for their minor child, from accessing the
courts to protect and advance her interests.

[28] No doubt the approach of the full court was informed by its reasoning
preceding as well as its conclusion that courts ‘cannot be held hostage to the
feelings of aggrieved litigants’. That approach ignores the societal burdens
that are visited on custodial parents. Custodial parents, unlike non-custodial
parents, who are free to flit in and out of their children’s lives at their
convenience, must of necessity often subvert their own interests to those of
their children. Life choices that they may wish to make are sometimes, as
here, subject to the agreement of their former spouse.  The appellant’s
motivation for initially moving to this country, namely to establish a family
with the respondent, has now all but disappeared through no fault of her
own. Little wonder then that she now feels the need to return to her ‘home’.
The solace that she feels can be derived from that move is not to be
underestimated. In endeavouring to foster a relationship between her
daughter and the appellant when that was in danger of faltering, her conduct
has been nothing short of laudable. She can hardly be credited with any
improper motive in approaching the courts. She has throughout done what
she thought was best for Sarah. Her decision to relocate, although perhaps
ill-advised and precipitate, was born in part out of a genuine belief that the

move would also be best for the child. It must follow that the decision by the
majority in the court a quo to mulct her with costs of that appeal is far from
fair and cannot be sustained.

[29] In the circumstances, the following order is made:
(a)
Save to the extent set out in (b) and (c) herein below, the appeal is
dismissed and each party is ordered to pay his or her own costs.
(b)
The costs order of the court a quo is set aside and replaced with
‘Each party is ordered to pay his or her own costs.’
(c)
The respondent’s application in terms of s 22(a) of the Supreme Court
Act 59 of 1959 for this court to canvass with the minor child at the hearing
of the appeal her views on her proposed relocation to the United Kingdom is
dismissed with costs.

______________________
M.M.L. MAYA
ACTING JUDGE OF APPEAL

Concur:
Zulman JA

Cameron JA

Van Heerden JA

Ponnan JA