Pretoria - A South African-born child aged 13 will next week start school in Croatia after her father won a legal battle against his estranged wife to take his daughter with him while he assists Ukrainian refugees in that country.
The child’s mother was shortly before Christmas ordered by the South Gauteng High Court in Johannesburg to allow the child to live with her father abroad.
Judge Shanaaz Mia ordered the mother to sign all the necessary documents relating to her daughter’s relocation. If the mother refused to sign the documents, the sheriff of the court was entitled to do so on her behalf, the order read.
Not only did the mother lose her battle for her child to remain here, but she was also instructed by the court to foot her husband’s legal bill.
Judge Mia made it clear that the interest of a child will always prevail. In this case the child made it clear she wanted to go to Croatia with her father, with whom she had a better relationship.
The judge said the court heard “the voice of the child” in this matter, as the daughter was old enough to express her wishes.
The couple met while the father worked on humanitarian and relief projects in the southern African region. The parties got married and the child was born during the marriage.
The mother stated in her opposing affidavit that her relationship with the child was strained. She noted, however, that there were efforts to improve this relationship.
According to her, the father simply wanted to take the child away in a bid to hurt her (the mother).
The father said he was due to start his new job assisting Ukrainian refugees in Croatia and he wished to return to that country, where his family resides and where his support system is based in the form of family and friends.
Having secured employment and accommodation, he was ready to depart, but the mother refused to give her consent.
Judge Mia said the Constitution was clear that decisions relating to children were paramount and must be taken having regard to their best interests.
“Where the child’s interests and an adult’s interests are not congruent, the adult’s interests must yield to what will promote the child’s best interests,” she said.
The voice of the child report and the family advocate who consulted with the child indicated that the child wished to accompany the father to Croatia. The mother is of the view that the child, being female, required a parent of the same gender to guide her as she grows older.
The family advocate indicated that the mother would have contact regularly via WhatsApp and Zoom calls. She would thus be able to maintain her relationship with the child and to advise her and counsel her on any issues required by the child.
The mother was also concerned about the child’s safety, being in an area close to the war in Ukraine. But the court said the reality of the father’s work, in the humanitarian field, is that it will always take him to where the need arises.
“The first respondent’s (mother) concern about a war being waged in parts of Europe can be assuaged by her regular contact to check in with the child. The parties have the option of returning the child to South Africa should they feel she is in danger at any point,” the judge said.
While the father may take the child with him, he has to ensure that the mother has daily contact with the child.