Brief Summary

Children’s Act — Guardianship — Assignment of guardianship where child has existing guardian — Court's jurisdiction limited to cases where existing guardian is shown to be unsuitable — Applicant, a non-biological father, sought contact and guardianship over respondent's child — Respondent opposed application on grounds of applicant's lack of locus standi and unsuitability — Court held that if a child has a suitable guardian, another guardian cannot be appointed unless the existing guardian's unsuitability is established as a jurisdictional fact — Interests of the child paramount in determining applications for guardianship.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an opposed application in the High Court of South Africa, Gauteng Local Division, Johannesburg, concerning the assignment of non-parental rights in respect of a minor child under the Children’s Act 38 of 2005. The applicant sought, in the main application, an order granting him contact and care in terms of section 23, and joint guardianship in terms of section 24, in respect of the respondent’s four-year-old son, B. The applicant was not B’s biological father.

The proceedings were instituted in two parts, described as Part A (interim relief) and Part B (final relief). The judgment addressed Part A only. In Part A the applicant sought, pending the determination of Part B, an order directing that a clinical psychologist’s report be obtained on whether it would be in B’s best interests for the applicant to be granted care, contact, and guardianship, and also sought interim contact pending the determination of Part B.

The respondent opposed the relief in both parts. The opposition was grounded principally on two bases: first, that the applicant lacked locus standi to seek the relief contemplated in sections 23 and 24; and second, that the relief sought was not in the best interests of B (and also negatively affected the respondent’s other minor son, D, who was eleven years old).

The general subject-matter of the dispute concerned whether a non-biological, former cohabiting partner—who had formed a close relationship with a child—could obtain legally enforceable parental-type rights (including guardianship), and whether the court should facilitate that claim at an interim stage through expert assessment and interim contact.

2. Material Facts

The respondent was the biological mother and primary caregiver of two minor boys, D (aged 11) and B (born 5 December 2017). B and D had different fathers. B’s biological father played no role in B’s life; it was unclear whether he had acquired parental rights and responsibilities, and he was not joined in the proceedings and did not receive notice of them.

The applicant and respondent met in 2017. At the time the respondent was pregnant with B. Over the ensuing months, the applicant became increasingly involved in the respondent’s household and developed a strong relationship with B. In December 2018 the respondent and her sons moved in with the applicant. The parties lived together for approximately two and a half years.

It was common cause that the applicant and B formed a close bond. The applicant described a relationship in which B called him “Dada”, sought him out, and was emotionally attached to him. The respondent, however, characterised the applicant’s relationship with B as excessively intense and described it as “obsessive”. The court recorded that, even on the applicant’s version, the relationship consumed him.

A significant feature relied upon by the court was the effect of this family arrangement on D, the older child. The applicant said he attempted to include D but found it difficult to forge a relationship with him. The respondent alleged that the applicant was overtly irritable and unduly hard on D, and that D experienced the household dynamic as diminishing and psychologically harmful. It was not disputed that D suffered as a result of perceived favouritism, and the respondent described the relationship between D and the applicant as “toxic”, alleging that matters deteriorated to the point of D expressing suicidal ideation.

The relationship between the adults deteriorated. In late 2019 the respondent attempted to end the relationship. The court accepted that, during this period, the applicant furnished the respondent with a parenting plan in terms of which he sought parental rights and responsibilities in respect of both children. Although there was an attempt at reconciliation, the respondent indicated that financial constraints contributed to her remaining in the relationship for a period despite significant misgivings.

In October 2020 the parties moved into a new home in Northcliff. Around this period, a further set of facts emerged which the court treated as material to the applicant’s conduct and motives: D’s biological father (referred to in the judgment as C1) re-entered the picture after years without physical contact with D. The respondent alleged that the applicant had secretly approached C1 in late 2020, without the respondent’s knowledge, in connection with the brewing dispute about the applicant’s claimed rights to B. The respondent produced a transcript of a recorded conversation with C1 in which C1 indicated that the applicant had approached him, sought information, and that the applicant had paid some of C1’s legal fees relating to contact with D. The applicant did not deny insinuating himself into the lives of C1, the respondent, and D without the respondent’s knowledge, and justified this by reference to the idea that children should have “father figures”.

By the end of 2020 the respondent decided she and the children had to move out due to intolerable circumstances, especially for her and D. Correspondence ensued, including attorneys’ letters in which the applicant demanded contact arrangements and threatened litigation. The applicant moved out of the Northcliff home on 2 June 2021. By November 2021 the respondent was permitting contact every alternate Saturday and telephonic contact, but she later terminated contact entirely. She explained that the home atmosphere improved without the applicant and that the relationship between the brothers had an opportunity to mend. She also described video calls as emotionally intense and difficult for a young child, and as distressing for D.

Although the respondent initially agreed to the proposed psychological assessment, she later opposed Part A and Part B. She asserted that the assessment would negatively affect overall family relationships and thus B’s interests.

3. Legal Issues

The court was required to determine, in relation to Part A, whether it should order an interim process aimed at facilitating Part B—namely, an expert psychological assessment on the child’s best interests and interim contact pending final determination. The question was not treated as a purely procedural matter; rather, the court framed it as requiring an assessment of whether the child’s interests were served by allowing the applicant to embark upon the broader opposed litigation process at all.

A central legal question concerned locus standi: whether the applicant was a “person having an interest in the care, wellbeing or development of a child” as contemplated in section 23(1) (contact and care) and section 24(1) (guardianship). This required application of statutory criteria to the facts, informed by a value judgment rooted in the best interests of the child.

A further central interpretive issue concerned the meaning and effect of section 24(3) of the Children’s Act, which requires that where a child already has a guardian, an applicant for guardianship must provide reasons why the existing guardian is not suitable. The court treated this as an issue of statutory interpretation with jurisdictional consequences: whether, in the absence of an established unsuitability of an existing guardian, the court was empowered to appoint another guardian.

Finally, even assuming standing, the court addressed the substantive best-interests enquiry: whether granting the applicant any legally enforceable rights of care/contact (and, separately, guardianship) would serve B’s best interests, particularly in light of the family conflict and effects on both children.

4. Court’s Reasoning

The court began by setting out the statutory framework. It noted that section 23 permits “any person having an interest” in a child’s care, wellbeing or development to apply for contact or care, and that section 23(2) prescribes factors the court must consider, including the best interests of the child, the relationship between the applicant and the child, the applicant’s commitment, contributions to expenses, and any other relevant facts.

In relation to guardianship, the court emphasised that section 24 contemplates a more serious form of relief, reflected in the fact that applications for guardianship must be brought in the High Court. The court highlighted that guardianship concerns significant “milestone” decisions affecting a child’s legal status and movement beyond the court’s jurisdiction, and that section 24(2) obliges consideration of the best interests of the child and relevant relationships.

A key aspect of the court’s reasoning was its interpretation of section 24(3). The court held that where a child already has a guardian, the applicant must provide reasons why the existing guardian is not suitable, and that failure to do so is fatal. On a purposive interpretation, the court reasoned that if a child already has an available and capable guardian, there is no reason to appoint another. The court characterised the unsuitability of an existing guardian as a jurisdictional fact that must be established before the court is empowered to entertain the guardianship application.

The court then addressed the attempt to confine Part A to the narrow question whether an assessment “would do no harm”. It rejected this approach as misconceiving the judicial task. The court held that the enquiry was not merely whether the assessment process would be upsetting in isolation, but whether the child’s interests were served by allowing the applicant to pursue an opposed litigation process aimed at obtaining parental rights in the first place. Part A was thus treated as a means to an end, and the viability and appropriateness of that end informed the assessment of interim relief.

On locus standi, the court accepted that modern family structures often involve non-biological adults forming bonds with children. It nevertheless held that the depth of a “parental” connection is not, without more, sufficient to establish the necessary interest for standing under sections 23 and 24. The court stressed that the child had a competent, loving, and able mother (and a biological father who, though absent, existed and might have parental rights). It expressed the view that the applicant’s deep love and involvement had contributed to an inflated sense of entitlement to legal rights, and concluded that he had not established that he possessed the requisite interest to seek contact and care under section 23.

In relation to guardianship, the court’s standing analysis was reinforced by section 24(3). The court held that because the applicant had not submitted reasons establishing the respondent’s unsuitability as an existing guardian, the guardianship application could not be entertained. This was linked to a broader evaluative view that the Children’s Act reflects a recognition that it may not be in a child’s interests to multiply enforceable parental rights unnecessarily, because doing so can invite dissent and conflict.

Even if locus standi were assumed, the court reasoned that the applicant had not established that B’s best interests would be served by granting the applicant enforceable rights against the respondent and others. The court weighed the applicant’s claimed positive considerations—his love for B, his financial capacity, the child’s enjoyment of contact, and the applicant’s desire to fulfil a father role—against a range of factors militating against the relief.

Among the negative considerations the court treated as material were the absence of any showing that the respondent was an unsatisfactory caregiver or guardian; the court’s view that the applicant’s pursuit of fatherhood eclipsed perspective on his place in the child’s life; the breakdown of the adult relationship and the likelihood of dissonance in co-parenting; the prospect of protracted and unaffordable litigation; the negative effect of conflict on the child; the applicant’s attempts to impose his will on the respondent’s parenting; the alleged negative impact on the mother-child relationship and on the sibling relationship; and the applicant’s boundary-crossing conduct in approaching D’s father without the respondent’s knowledge. The court also considered it material that the applicant had not given regard to the rights of B’s biological father by ensuring notice of the proceedings.

The court concluded that the child’s interests would be negatively impacted by the continuation of the application and the relief sought. It expressed the view that the respondent’s termination of contact was a sensible decision taken in B’s best interests.

Finally, the court rejected the necessity of an expert opinion in the circumstances. It reasoned that obtaining an expert report had no real prospect of affecting the outcome it reached on the papers, and emphasised that determining the best interests of the child lay within the court’s province rather than that of an expert.

5. Outcome and Relief

The court dismissed Part A of the application. It therefore refused to order the obtaining of a clinical psychologist’s report for purposes of the interim stage, and refused interim contact pending Part B.

The applicant was ordered to pay the respondent’s costs in relation to Part A.

Cases Cited

No case law was cited in the judgment.

Legislation Cited

Children’s Act 38 of 2005.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that section 24(3) of the Children’s Act requires an applicant for guardianship, where a child already has a guardian, to provide reasons demonstrating why the existing guardian is not suitable, and that this unsuitability is a jurisdictional fact which must be established before a court is empowered to appoint another guardian.

The court further held that a close, parental-type bond between a non-parent and a child does not, without more, establish the interest required for locus standi under sections 23 and 24, particularly where the child is adequately cared for by a natural parent.

The court held that, on the facts before it, it was not in the child’s best interests to permit the applicant to proceed through interim measures (expert assessment and interim contact) toward the acquisition of enforceable parental rights. Part A was dismissed with costs.

LEGAL PRINCIPLES

The judgment applied the principle that parental rights and responsibilities are not casually or randomly acquired; they are obtained and exercised in accordance with the statutory framework of the Children’s Act, and courts should be cautious in extending such rights to non-parents absent compelling justification.

It applied a purposive interpretation of section 24(3) of the Children’s Act 38 of 2005, holding that where a child already has at least one guardian, a court is not empowered to appoint another guardian unless the existing guardian is shown to be unsuitable. The unsuitability of the existing guardian is a jurisdictional prerequisite to entertaining the guardianship application.

The judgment applied the overarching principle that the best interests of the child govern applications under sections 23 and 24, while recognising that the Act’s structure reflects a concern that multiplying legally enforceable rights in relation to a child may needlessly generate conflict and dissent, which can be contrary to the child’s welfare.

It further applied the principle that, while expert evidence may assist, the determination of a child’s best interests remains a judicial function, and interim processes (such as ordering expert reports) should not be directed where, on the papers, such steps have no realistic prospect of altering the outcome and where the broader litigation itself is not shown to serve the child’s interests.

RC v SC (45327/2021) [2022] ZAGPJHC 155; 2022 (4) SA 308 (GJ) (18 March 2022)