Court allows father to travel to the USA with son despite mother’s objections

What began as a family dispute over a festive holiday has ended with a Western Cape High Court ruling that allows a father to take his son to the United States, despite fierce resistance from the child’s mother.

The mother argued that she feared her minor son might not return to South Africa, especially without a confirmed return flight. She further contended that the father had encouraged the 16-year-old to take up residence in the USA, raising concerns that he would not return to his primary residence and care with her.

However, Judge Gayaat Da Silva-Salie said the court was satisfied that the proposed travel would be in the best interests of the minor. The mother opposed the father’s application on the basis that the travel would be unlawful due to alleged non-compliance with South African citizenship and passport legislation.

The court disagreed with the mother’s argument that the court would be in conflict with section 26B of the South African Citizenship Act 88 of 1995. 

“The respondent contends that the minor child could be arrested, treated as a visitor, or barred from returning to South Africa should travel occur without full compliance with passport formalities, and that this Court would act unlawfully were it to grant the relief sought. These contentions are legally incorrect. 

“Section 26B applies expressly and exclusively to a major citizen. It does not apply to minor children, does not criminalise a child’s travel, and does not divest a child of South African citizenship by reason of passport non-compliance…Section 26B does not render unlawful a court order authorising international travel involving a minor child, nor does it place this court in conflict with statute where such travel is regulated by appropriate conditions aimed at ensuring compliance with administrative requirements,” the judgment read.

The mother’s assertions that she could be held criminally liable for her child travelling with an expired passport were addressed by the court. 

“The (mother’s) further suggestion that she could incur criminal liability as a guardian is speculative and unsupported. Criminal liability under section 26B presupposes conduct by a major citizen, prosecutorial discretion, and a factual matrix not established in these proceedings. 

“The mother’s opposition is framed predominantly in legal and administrative terms. It does not establish that the proposed travel would be detrimental to the minor’s welfare, safety, or emotional well-being. To the extent that the mother has expressed concerns regarding the father not returning the minor, it had been confirmed during argument that a return flight is scheduled for the minor departing the USA on January 6, 2026 and landing on January 7, 2026.  The father had also already paid the minor’s tuition fees for his private school in Cape Town, commencing in January 2026,” said Judge Da Silva-Salie.

The court permitted the travel plans if he had the following documents, which would be acceptable for his departure: (a) receipt issued by DHA for the renewal of his passport; (b) expired passport; (c) birth certificate; (d) USA passport and (e) this Order of Court.

The court noted that the trip might potentially create tension between the 16-year-old and his younger sibling and recommended that the Office of the Family Advocate investigate this aspect in further legal proceedings.

“It is imperative that a relationship with one sibling, in this case the older son, must not be at the expense of the younger son. I have raised concerns with the father during the hearing of this matter that a fostered relationship and travel with his older son would also potentially cause tension between the two siblings, and that I am concerned regarding the lack of relationship between (the youngest son) and his father," Judge Da Silva-Salie said:

“I am of the view that an investigation by the Office of the Family Advocate as to the interests and contact in respect of both minors, and in particular so, as to nurture a continued relationship between father and both sons would assist this court in making further orders to review the needs of the children insofar as the father could access both his sons, including regular electronic and other means of communication and build a healthy relationship with them.” 

 chevon.booysen@inl.co.za