Where a custodian parent proposes to remove his child to a foreign jurisdiction, the consent of the non-custodian parent with access is required.
If consent is refused, a court may consider the reasonableness of the refusal.
Moreover, the non-custodian may restrain the custodian from leaving the country until his or her access rights, if any, have been defined by a court order.
The over-riding consideration is whether the child's interests will be best served by permitting his or her removal from the country.
Although parents who seek to emigrate generally emphasise the material advantages offered by the foreign country, and stress the perceived disadvantages of remaining in South Africa, these factors are rarely given much independent weight, although they are obviously taken into account by the court in ascertaining what is in a child's best interests.
What is generally of far greater significance is the need for the child to have a stable home, and for the custodian parent to have the discretion to perform his parental role without undue judicial interference.
Courts are, therefore, reluctant to displace a custodian's decision to emigrate if 'reasonably and genuinely taken'.
Moreover, whilst a parent's underlying motive is a factor of importance, it is inevitable and acceptable that there might be some overlap between his personal interest in emigration and what he regards as best for his child.
Although removal to a foreign jurisdiction does not, in itself, extinguish the non-custodian parent's access rights, it severely curtails his or her ability to see the child.
This factor, to which recent case-law has attached enhanced weight, will often be considered detrimental to the child, particularly where he or she is presently enjoying a generous degree of access to the non-custodian.
However, a distinction must be drawn between the temporary trauma caused by separation from the non-custodian parent, and the serious harm, which might result where the child is thoughts to be psychologically vulnerable.
The custodian parent's willingness to facilitate (and contribute to the cost of) access visits to the non-custodian parent is therefore, an important but not decisive factor.