An analysis of child relocation in light of the case of K. v. K.

June 23, 2021

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This article is written by Varchaswa Dubey, from the School of law, JECRC University, Jaipur. This article is written to provide a glimpse of the case of K. v. K. and certain parameters on the issue of child relocation.

Table of Contents

Introduction

The concept of child relocation refers to the transfer of a child from the guardianship of another parent due to the lawful divorce or separation undertaken by the parents of the child for any purpose. The separation results in one parent (usually the mother) gaining custody of the minor child and the father getting authority to visit the child occasionally or vice versa.

The reasons for relocating the child are usually to attain better education or job opportunities, health issues, better livelihood, new relationships, keeping the child out of the jurisdiction of the parent who lost custody, etc.

Issues arising due to relocation

The issue of relocation mostly pertains to family law disputes where one parent who has the custody of the child opts for a new domicile and when the chances of the other parent who only has authority to occasionally visit the child reduces and such parent (usually the father) also have to bear expenses of a child abroad, if there is an order from a competent court.

Other issues which revolve around child relocation are:

When the child will grow older, he/she may desire to live with the non-custodial parent,
When the child is not able to adapt to a new school, environment, home, and community,
The child may get abused when the custodial parent gets remarried and her/his spouse abuses the child,
When the parent is incarcerated, there is no one else to look after the child,
When the custodial parent faces health issues or dies.

Another issue revolving around relocation is the unsettled child who faces difficulty adapting to a new domicile because of a change in his/her residence, food, weather, neighbourhood, etc. The child not only faces discrimination once he/she grows up but the child also lacks the tradition, culture, etc.

International convention concerning child relocation

The primary international legal jurisprudence regarding child relocation is the Hague Convention on the Civil Aspects of International Child Abduction 1980, which aims at protecting the children who are exposed to the harmful effects of wrongful removal or retention, without any legal enforceability or order of the court. The Convention reserves precedents for restoration of children who are a victim of wrongful removal in any contracting states; however, to enforce the convention, it is necessary that the state from where the child has been removed and the state where the child has been residing must be a signatory member to the Hague Convention.

Compensation available under the Hague Convention

The Hague Convention can only be used, when states are a signatory member of the convention and acknowledge the jurisdiction of the convention. The convention primarily aims at the restoration of a child who was wrongfully removed from the state where such child ordinarily would be residing.

To initiate the proceedings, a concerned person may file a case in the local court of law, and then such court must determine whether the country where such a court is situated and the country where the child has been taken away have ratified the said convention.

If the competent court is primarily satisfied with the lawful jurisdiction of the convention then such court may pass necessary orders regarding bringing the child back to the country.

An overview of the case of K v. K (1999)

The dispute initially began in the United States of America, (U.S.A) where both the parties, in this case, underwent a mutual divorce, and the custody of their child was given to the mother (respondent in this case) while the father (applicant in this case) was granted liberal visits to the child after permission of the mother of the child. An alleged incident of abuse by the applicant took place during a visit to the child and therefore the respondent suspended the periodic meetings. The applicant moved to York County Family Court against the acts of the respondent however the respondent did not show up in any court proceedings and later left the country with her child. The applicant traced the respondent and the child to Cape Town (South Africa) and initiated the legal proceedings to bring the child back to the U.S.A. and into his care.

Judgment of the court

The court, in this case, found the mother incompetent to have the custody of the child because the mother had deliberately skipped court proceeding in the USA and directed the respondent to return the minor child to the jurisdiction of York County Family Court, South Carolina, U.S.A. and to also hand over the necessary documents to the court.

The court held that in the “best interests” of the child, his circumstances dictated that the court of habitual residence, in this instance the United States of America, would be best suited to make orders in respect of his future custody.

The court in this case further held that Article 35 of the Hague Convention on the Civil Aspects of International Child Abduction will only be relevant when both, the state from where the child has been abducted and the state where the child has been taken accept the retrospective effect of the convention and since the incident took place one year before the date of application of convention in South Africa, the convention is not relevant. Furthermore, the court also ruled that as per common law, the court’s primary purpose in practising its discretion as upper guardian of the child is for the best interest of the minor child. Further, constitutional and international law contains the ‘best interest of the child’ in all matters which are concerned with children in South Africa.

The contention of both the parties in the case

At the legal proceedings, both the parties claimed various facets of the Hague Convention on the Civil Aspects of International Child Abduction (1980). The Hague Convention was implemented in South Africa by the Hague Convention on the Civil Aspects of International Child Abduction Act, 72 of 1996.

The applicant referred the court to the provisions of Section 39 of the Constitution of the Republic of South Africa (Act 108 of 1996), arguing that, when applying the common law and the Constitution, ‘best interests of the child’ principle in the matter, the court should do so against the background of the principles underpinning the Hague Convention. The applicant also argued that the respondent is not a responsible mother because she deliberately skipped court proceedings and was also involved in adultery before the divorce of the parties.

The respondent argued that the applicant had abused her during one of the periodic meetings with the child and the applicant has drug abuse problems and criminal history and therefore for the best interest of the child, custody shall not be given to the applicant.

Visiting the concept of child relocation as observed by the South Gauteng High Court in this case

The South Gauteng High Court heavily relied on the Hague convention and while accepting the jurisdictions of the said convention held that the convention was in the best interest of the child.

The court further held that The Hague Convention is based on the assumption that the abduction of the child is injurious to the welfare of the child and in the best interest of the child, the child must be returned to his/her state of habitual residence.

The court while referring to McCall v. McCall (1994), held that to determine what is in the best interest of the child, the parent who can provide love, affection, emotional ties, better capabilities, communication and understanding, right guidance, physical needs like food, clothing, housing, religious and secular stability, surrounding development, mental and physical fitness of the parent, etc were considered an ideal situation for the parent to have custody of the child and considered them an ideal one.

Looking into other precedent judgments by several courts of law concerning child relocation

In the case of Re C (Internal Relocation) (2015), an England and Wales court ruled :

While removing a child permanently from England, the only principle applied must be in the welfare of the child,
The principles which govern internal relocation and external relocation are no different,
The court will prevent the custodial parent from practising their right to reside anywhere in the country until the court is satisfied that the child’s welfare requires it.

In the case of Re Marriage of LaMusga (2004), the court held that the non-custodial parent carries the initial burden of proving that a relocation of the child will result in damage to the child and the child’s relationship with the non-custodial parent is an essential factor in deciding whether the relocation will result in damage to the child after considering relevant factors and if the court is satisfied that the relocation will cause detriment to the child, then such court may amend the custody considering the best interest of the child.

In the case of K (Children) (2011), England and Wales High court held certain factors which must be taken into consideration when deciding for child relocation case:

The welfare of the child is the principal consideration,
The proposal of a parent who has domicile desires to move abroad carry much significance,
There must be a genuine motive for the proposal and not an intention to contact the child and the other parent,
In dealing with disputes as to which parent must be given residence must be settled by the plans of the parent with the child.

In the case of A v. A : Relocation Approach (2000), an Australian court held certain factors while hearing a dispute of relocation:

The proposed relocation must be in the best interest of the child,
The Court cannot require to demonstrate “compelling reasons” on the party who is relocating,
The court must determine the competing proposals of the party,
The court must also determine the advantages and disadvantages of the relocation proposal and how such a proposal will be in the best interest of the child.

Conclusion

The issue of child relocation is a sensitive one because the whole future of the child depends on the custodial parent and therefore such a task of relocation of a child must be performed with utmost sincerity and dedication and not merely for keeping the child out of the jurisdiction of the other parent.