October 5, 2025
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When Must a Parent Approach the Court if the Other Parent Refuses Consent for the Relocation of a Child?

Relocating with a minor child—whether within South Africa or abroad—is a decision that carries significant legal and emotional implications. When both parents share parental responsibilities and rights, the law requires mutual consent for such a move. But what happens when one parent refuses to give that consent?

This article explores the legal process a parent must follow when the other parent does not agree to the relocation, and how Advocate Muhammad Abduroaf can assist in navigating this complex area of family law.

Legal Framework: Consent and Guardianship

Under Section 18(3)(c)(iii) of the Children’s Act 38 of 2005, a parent or guardian must obtain the written consent of the other parent (if they share guardianship) before removing a child from South Africa. This applies to both temporary and permanent relocations.

If the other parent refuses to give consent, the relocating parent must approach the Court (usually the High Court) for an order authorising the relocation without that consent.

When Is Court Intervention Required?

You must approach the court if:

  • The other parent holds parental responsibilities and rights and refuses to consent to the relocation.
  • The relocation will materially affect the other parent’s ability to maintain contact with the child.
  • There is no existing court order that grants you sole guardianship or decision-making authority.
  • The child’s passport application or visa process requires both parents’ consent.

The Court Application Process

1. Attempt Mediation First

Before litigation, courts encourage parents to attempt mediation. This process can help resolve disputes amicably and may result in a revised parenting plan.

2. File a High Court Application

If mediation fails, the relocating parent must file an application in the High Court. The application should include:

  • A detailed affidavit explaining the reasons for the move.
  • A proposed parenting plan outlining how the child will maintain contact with the non-relocating parent.
  • Evidence that the move is in the best interests of the child.

3. The Other Parent’s Response

The non-consenting parent has the right to file an answering affidavit opposing the relocation. The court will then consider both sides before making a decision.

Factors the Court Considers

The court’s primary concern is the best interests of the child, as outlined in Section 7 of the Children’s Act. Key considerations include:

  • The child’s emotional, educational, and developmental needs.
  • The reason for the relocation (e.g., employment, family support, safety).
  • The impact on the child’s relationship with the non-relocating parent.
  • The feasibility of maintaining contact through visits, calls, or virtual communication.
  • The child’s own views, if they are of sufficient age and maturity.

Risks of Relocating Without Consent or Court Approval

Attempting to relocate without the required consent or court order can result in:

  • Legal action for child abduction.
  • Denial of departure at immigration checkpoints.
  • Criminal charges or contempt of court.
  • Loss of custody or guardianship rights.

How Advocate Muhammad Abduroaf Can Assist

Navigating a relocation dispute requires legal precision, strategic planning, and a deep understanding of family law. Advocate Muhammad Abduroaf offers expert legal services in:

  • Drafting and filing High Court applications for relocation.
  • Negotiating parenting plans and consent agreements.
  • Representing clients in court during relocation disputes.
  • Advising on international legal compliance, including mirror orders and cross-border parenting plans.

With extensive experience in child relocation matters, Advocate Abduroaf ensures that your case is presented with clarity, compassion, and a focus on your child’s best interests.

Conclusion

When one parent refuses to consent to a child’s relocation, the law provides a clear path: approach the High Court. While the process can be emotionally taxing, it is designed to protect the child’s well-being and ensure that both parents’ rights are respected.

For professional legal guidance, contact Advocate Muhammad Abduroaf to assist you in securing the necessary court order and ensuring a smooth, lawful relocation process.