Local child relocation in South Africa : a comparative legal analysis

Abstract

The Children’s Act 38 of 2005 lacks a detailed guideline that governs the local relocation of a co-parent and child, post-divorce or separation, within the borders of South Africa. Local relocation could either be relocation outside the province or to a place far within a province. This research assesses whether the current legislation adequately protects the child’s rights in the event that one of his or her parents relocates with him or her. Relocation, whether locally or internationally, is a major decision. Local relocation still affects care and contact arrangements and has legal implications that need to be considered. The role of mandatory mediation can be beneficial in any matter relating to a child. Therefore, this research will look at the African ideology on mediation to see what lessons if any, the South African legal system may draw from customary law. Australian legislation in terms of local relocation within the borders of Australia will be referred to as the comparative part of this study. Australia deals with many local relocation cases because of the vast distances involved. In Australia the legal guidelines for local and international relocation are the same. Australia’s compulsory Family Dispute Resolution will be reviewed to see what lessons, if any, the South African legal system can draw from Australia’s compulsory mediation in any family law situation. Indigenous Australian Customary law in terms of the resolution of family disputes will be compared. Therefore, the aim of this research will be to provide solutions to the highlighted shortcomings in the Children’s Act.