Who Has the Final Say? South African vs Foreign Care and Contact Orders

By Simon Dippenaar — Cape Town family lawyer | Cross-border care, contact & relocation

Summary

• SA orders don’t auto-apply abroad. You need a mirror order in the foreign country to enforce care/contact terms.
• Foreign orders can be enforced in SA if jurisdiction, finality, and public policy / best-interests tests are met.
• Habitual residence anchors jurisdiction—think school, routine, community, not only geography.
• Forum non conveniens may keep a matter in SA where foreign litigation would be unjust or impractical.
• Act early. Secure mirror orders, prep evidence on the child’s centre of life, and offer workable contact structures.

Two Courts, One Child

Your child is everything. But what happens when two courts—one here, one abroad—both claim the right to decide where they live and who gets to be present in their life?
Who has the final say?

We unpack what happens when a South African care/contact order collides with a foreign one—and how to secure your rights across borders.

Learn more about International Divorce in South Africa

Truth 1: SA Orders Abroad Require Enforcement (Mirror Orders)

If you have a South African order granting primary care or defined contact, that order does not automatically apply in another country. You’ll need a mirror order in that foreign jurisdiction so local authorities can enforce it. Without it, your legal standing may be ignored—even if SA granted you full parental rights.

“A South African court order for primary care does not automatically bind foreign jurisdictions. Mirror orders are a procedural necessity to ensure enforceability across borders.”

J v J [2014] ZAGPPHC 536

What to do now

• Identify the foreign court with power to mirror.
• File clean, certified copies and translations if required.
• Align the wording so travel/handovers/holidays are enforceable locally.

Truth 2: Foreign Orders Can Be Enforced in South Africa

The reverse also happens: a foreign care/contact order can be enforced here – if conditions are met. SA courts typically test whether the foreign court had jurisdiction, whether the order is final and enforceable, and whether enforcement would conflict with public policy or the child’s best interests.

“A foreign judgment will not be enforced in South Africa unless the foreign court had jurisdiction and the judgment is not contrary to public policy or the best interests of the child.”

– Richter v Richter 1984 (4) SA 267 (W)

Learn more: International Child Relocation South Africa

What to do now

• Prove the foreign court’s competence and the order’s finality.
• Show enforcement is compatible with SA’s best-interests standard.
• Where needed, request limited adaptation to local context (travel logistics, school calendars, etc.).

Truth 3: Habitual Residence Determines Jurisdiction

In cross-border disputes, habitual residence is the anchor—especially in Hague Convention matters. It’s not a pin on a map; it’s the child’s integration in social and family life: school, friends, routine, healthcare, caregivers.

“Habitual residence is a question of fact… determined by the child’s integration in a social and family environment.”

– Central Authority RSA v DM and Others 2014 (2) SA 420 (GNP)

What to do now

• Gather objective evidence of the centre of life: enrolment, attendance, activities, medical records, community ties.
• Avoid actions that suggest a new habitual residence unless intentional and agreed.

Truth 4: Forum Non Conveniens Still Applies

Even when a foreign court could hear the matter, SA courts may retain jurisdiction if litigating abroad would be unjust or impractical—for example, where costs, distance, language, or visa constraints would prejudice the child or the primary caregiver.

“Where parallel jurisdiction exists, a South African court may decline to defer if doing so would prejudice the child’s rights or unreasonably burden the primary caregiver.”

– B v S [2005] 3 All SA 1 (SCA)

What to do now

• Set out concrete prejudice: travel time, cost, disruption, access to experts, and impact on the child’s routine.
• Offer good-faith alternatives: virtual testimony, split hearings, or agreed fact bundles.

The Pivot: Orders Don’t Travel—But Strategy Does

• An SA order doesn’t travel unless you enforce it abroad.
• A foreign order isn’t accepted unless it meets our legal tests.
• Habitual residence and forum fairness shape the battlefield.
• Lead with foresight, not fear.

Practical Checklist

• Map jurisdictions (where orders exist / could be mirrored).
• Mirror SA order abroad (file certified order; align wording).
• Enforce foreign order in SA (prove jurisdiction, finality, best-interests compatibility).
• Habitual residence evidence (school, healthcare, community, routine).
• Forum plan (show concrete prejudice if foreign forum insisted).
• Contact architecture (travel windows, holidays, virtual contact protocols, cost-sharing).

See our Child Relocation resources.

Frequently Asked Questions

Discretion. Strategy. Dignity

If your orders are tangled across borders, book a confidential consultation. We’ll help you secure mirror orders, respond to foreign claims, and preserve your relationship with your child – wherever they are.

SD Law – Simon Dippenaar & Associates Inc.

View more posts from this author