In a recent High Court (the KZN High Court in Durban) case, a South African mother scored a legal victory that will enable her to keep her son with her following an application by her estranged husband that the child be returned to him in the UK.
The husband is a UK citizen and his wife South African. They were married in terms of Islamic rites according to a report in The Mercury. The parties later experienced marital problems and have been embroiled in litigation regarding their son, who turns 5 later this year. The court issued an order that the parties will have shared custody.
The mother brought her son with her to South Africa to obtain a work visa. This was refused, which meant that the woman could not return to the UK with her son. Her husband turned to the High Court in Durban to have his son returned to him in terms of the earlier shared custody order.
In defending the application, the mother told the court that her son was too young to return to the UK without her and any enforcement of the order of dual custody would result in him being separated from his primary caregiver, his mother, after having been in her care and in SA since August 2019. It was also argued on her behalf that the fact that she was not returning to the UK with him was beyond her control.
The mother twice applied for a six-month visit visa to return to the UK. She was told that her visa would not be granted. It was noted by the authorities that she was unemployed and did not have any savings. Her visa was refused on the grounds that she would not be able to support herself while in the UK and once there, she would be unable to return due to a lack of funds.
The father then instituted legal proceedings in SA to get his child back to the UK. The judge said the decisive factor was what would be in the best interests of the child. The court was not persuaded that the child’s return to the UK without his mother having a right to enter the country with him would be in his best interests. The Office of the Family Advocate was directed to ensure the child maintains contact with his father.