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A widow had to turn to the Limpopo Division of the high court in Polokwane to obtain permission for her teenage daughter to travel abroad in order to represent her school, after the child’s father died in April in Brazil and was unable to give his go-ahead.
The problem arose as the authorities in Brazil are still investigating the death of the father and have thus not yet issued a death certificate.
The child, 16, has been invited to participate in an Academic Achiever's Tour to the US from September 19 for about 10 days. This tour offers a valuable opportunity for academically gifted students to visit renowned educational institutions and gain international exposure.
The applicant (the mother), however, required either the consent of the child’s father or a court order to apply for the necessary visa for the child to travel. However, the authorities in Brazil are still to verify the cause of her father’s death.
As it is impossible to obtain his consent as the other guardian, the court had to consider whether to dispense with the requirement for the father's consent, weighing the child's best interests and right to parental care against the legal requirement for consent from both guardians for international travel.
The Children’s Act requires considering factors like the child’s age and maturity, her relationship with both parents and the potential impact on her well-being and development.
The court also considered the child’s views on the proposed trip, given that she is 16 and in Grade 10.
The court said it had to balance the child’s right to pursue educational opportunities against the principle of joint decision-making by guardians.
But it was mindful of the unique circumstances surrounding the father’s reported death and the challenges it presents for the applicant in obtaining official documentation.
Acting Judge Nathi Gaisa said while it would ordinarily require definitive proof of death before dispensing with parental consent, this requirement must be balanced against the pressing timeframes and the potential loss of opportunity for the child.
Some of the considerations included the educational value of the proposed tour, which aligns with the child’s academic achievements and aspirations and the limited duration of the trip, which does not constitute a permanent relocation. The judge said he believed that if the father was still alive, he would have given the green light for his child to travel abroad.
“While the court recognises the importance of both parents' involvement in major decisions affecting a child's life, the reported death of CJS (the father) creates an exceptional circumstance. As the upper guardian of all minor children, the court must step into this void to ensure that the child's best interests are served,” the judge said.
A report to the court by her school stated that she was enthusiastic about the proposed trip to the US and demonstrated an ability to express her wishes. “This is highly relevant to the case as it provides insight into the child's perspective and emotional readiness for the proposed travel, a critical consideration in determining the child's best interests,” the judge said.
The judge also took the step of inviting the mother’s legal representative to bring the child and her mother to chambers for a direct meeting. Judge Gaisa said this allowed the court to interact with her and assess her views on the proposed trip to the United States. “During this meeting, this court could observe and experience the enthusiasm…,” the judge said.
He, however, added that while valuable for gaining first-hand insight into her views and wishes, the court’s decision to meet directly with the child, in this case, should not be seen as setting a binding precedent for all future cases involving children.
There are several important reasons why such a meeting may not always be feasible or appropriate, which include resource constraints as courts often face heavy case loads and time pressures, which may make it impractical to arrange personal meetings with children in every case.
Also, not all children may be at a developmental level where they can effectively express their views directly to a judge, he said.
He, however, gave the court’s consent for the child to travel to the US during the September holidays.
Pretoria News
zelda.venter@inl.co.za
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