The well-being of the primary caregiver of a child, as a child’s right

June 1st, 2024
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MH v OT 2023 (3) SA 159 (WCC)

In the case of MH v OT, the High Court made it clear that the child’s right to live in a happy and safe environment includes considering the well-being of the primary caregiver of the child and living free from conflict between the parents, concluding that the well-being of the primary caregiver of the child is without doubt a child’s right.

In this case, the well-being of the primary caregiver was proven on the balance of probabilities that it does qualify as a good enough reason to grant permanent relocation to another country. The applicant wanted to go to the Netherlands permanently with her five-year-old son, whom she had with the respondent, to whom she had never been married. The respondent, who was supported by the Family Advocate, felt that this was not a good enough reason to approve a move and that granting it would also destroy his relationship with K. An expert witness assessed the parties’ relationship as very toxic and predicted that it would have a major detrimental impact on K. Contact with K, according to all accounts, was fundamental to the parties’ quarrel, which had grown intractable by 2017. The main reason for not relocating was the potential harm it would do to K and the respondent’s still-developing (but already close) relationship. The parties reached a comprehensive settlement agreement in December 2015, which was made an order of court. The applicant was given complete parental obligations and rights, while the respondent was given the right of contact. Furthermore, his permission was necessary for the applicant to permanently relocate from South Africa with K.

A clinical psychologist observed the parties’ conflict and their critical attitudes towards each other’s parenting in 2016. He went on to describe their relationship as extremely toxic and warned that, unless it subsided and they discovered a more constructive way to co-parent, K would likely suffer greatly and may experience severe anxiety that could lead to clinical symptoms (paras 26 and 28). The mother’s internalisation of the father’s abuse led to her becoming rigid, and the court emphasised a clinical view that she would eventually reach a breaking point that may result in violence and suffering (para 50).

In order to decide if the parent’s request to relocate was reasonable, the court had to consider all relevant circumstances. Previous rulings have shown that the s 28 Constitution’s paramountcy principle does not imply that the child’s best interests should always take precedence over other rights or that every relocation must be viewed only from the child’s point of view (para 47). Although it was clear that K would want to stay in touch with the respondent on a regular basis, this had to be balanced against his right to grow up in a home free from constant parental conflict and to have his primary caregiver, the applicant, to be free from the anxiety that had plagued her life since at least K’s birth, and it was unreasonable to expect the applicant to put up with the respondent’s animosity for the next 13 years.

The court further emphasised that K has the right to have his primary caregiver, to be free from the anxiety that had surrounded her since at least the time of his birth. It is unacceptable to expect K’s mother to deal with his father’s aggression, hostility, and lack of understanding of his role in all of this for the next 13 years. Despite her symptoms, she had coped more than satisfactorily in all aspects of her life, and three years of more entrenched conflict had long passed (para 50). In F v F 2006 (3) SA 42 (SCA), Maya AJA provided a constitutional perspective, stating that the rights of a custodial parent to pursue his or her own life or career involve fundamental rights to dignity, privacy, and freedom of movement, and that the welfare of a child is, without a doubt, best served by being raised in a happy and secure environment, and that a bitter and frustrated parent cannot, as a matter of logic and human experience, provide that environment.

The applicant had legitimate and reasonable grounds for seeking the relocation, and the court ordered the implementation of measures to guarantee that the applicant continued to facilitate communication following the relocation. The mother had good reasons for seeking relocation, and the court came to that understanding.

Conclusion

The relocation without doubt, grants K the opportunity to grow up in an environment free from his parents’ continuous conflicts, have his primary caregiver be free from anxiety for the next 13 years until K’s majority age, and that the rights of a custodial parent does involve their fundamental rights, which in this case will ensure that she can raise her son in a happy and safe environment.

Molebogeng Seerane LLB (Unisa) is a lecturer at Unisa.

This article was first published in De Rebus in 2024 (June) DR 36.

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