Relocation disputes sit at the intersection of family law and constitutional rights, particularly when a custodial parent seeks to improve their socio-economic circumstances while ensuring stability for the child. In BMS v JNW, the Gauteng Local Division of the High Court confronted these issues head on by deciding whether the applicant’s relocation with her minor children from Johannesburg to Cape Town was reasonable and in the best interests of the children. This case is instructive because it not only reviews the immediate circumstances of the dispute but also engages with fundamental legal principles underpinning parental responsibilities and children’s welfare.
The dispute arose when the applicant, the primary caregiver of two minor children, relocated from Johannesburg to Cape Town. This move was motivated by her need for better employment opportunities and a more stable living environment. Meanwhile, the respondent, employed on a 28-day rotational cycle in Abu Dhabi, objected to the relocation, largely to maintain control over the existing contact arrangements.
The judgment reveals that the parties had been involved in extensive litigation concerning parental responsibilities. In para 5 of the decision, the court noted that the parties are ‘co-holders of full parental responsibilities and rights in respect of the children as provided for in sections 18(2)(a)–(d) of the Children’s Act 38 of 2005.’ Furthermore, para 25 clarifies that for inter-provincial relocations; the Children’s Act does not require the consent of the non-relocating parent, thus shifting the focus squarely onto the best interests of the child.
At the heart of the judgment is the constitutional mandate that the welfare of the child must be paramount. The court’s reasoning draws on both the factual record and established case law. As noted in para 81, the court was mindful that ‘the interests of the children are the first and paramount consideration.’ The decision reinforces earlier precedents such as Jackson v Jackson 2002 (2) SA 303 (SCA), which emphasises that each case must be evaluated on its own merits, with careful consideration of the emotional, psychological, and physical needs of the child.
The applicant’s right to relocate is underpinned by constitutional guarantees of dignity, privacy, and freedom of movement. In para 88, the judgment references the importance of enabling a parent to pursue economic and personal opportunities without being unduly hampered by the other party’s interests. This is supported by legislative provisions and relevant case law which recognises that restrictions on parental movement must be balanced against the child’s right to a nurturing and stable environment.
Specifically, the court pointed to the applicant’s improved circumstances in Cape Town, such as secured employment and stable housing, which directly relate to her ability to provide a secure environment for her children.
In resolving the dispute, the court adopted a balancing approach. As illustrated in paras 72–76, the court weighed the respondent’s concerns regarding contact against the broader imperative of ensuring the children’s overall well-being. While the respondent argued that the relocation would hinder his parental role, the court found that structured contact arrangements, as detailed in the interim order, would safeguard the children’s right to maintain a relationship with both parents. This approach echoes the balancing act discussed in Cunningham v Pretorius 2008 JDR 1022 (T) and Godbeer v Godbeer 2000 (3) SA 976 (W), where the practical implications of relocation were rigorously analysed in light of both parties’ rights.
The decision in BMS v JNW highlights the practical application of statutory provisions and judicial discretion. Notably:
The judgment thereby sets an important policy precedent, suggesting that statutory interpretation must evolve in step with societal changes – such as increased geographical mobility – while remaining firmly anchored in the principles of the child’s welfare.
The BMS v JNW judgment represents a landmark decision in the realm of family law. By granting the applicant’s relocation request, the court affirmed that the child’s best interests, including the need for a stable and nurturing environment, must override rigid adherence to the status quo. The case illustrates that when balanced with structured contact arrangements, a parent’s right to improved socio-economic opportunities can be reconciled with the need to maintain meaningful relationships with the non-custodial parent. This decision not only advances the jurisprudence on relocation disputes but also provides clear guidance for future cases in a dynamic and evolving legal landscape.
Themba Mbelengwa LLB (Unisa) is an LLM candidate at the University of South Africa.
This article was first published in De Rebus in 2025 (May) DR 52.
