The best interests of the child and the right of interested third parties to parental responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)

1.    the best interests of the child;
2. the relationship between the applicant and the child, and any other relevant person and the child;
3. the degree of commitment that the applicant has shown towards the child;
4. the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
5. any other factor that should, in the opinion of the court, be taken into account.

When assigning contact or care to a person, the court may impose any conditions it deems necessary (s 23(1) of the Children’s Act).

A section 24 application is for the assignment of guardianship. Such an application can be made to the High Court (see s 24(1) of the Children’s Act; Ex Parte Sibisi 2011 1 SA 192 (KZP)). In considering a section 24 application the High Court must take the following aspects into account (s 24(2) of the Children’s Act):

1. the best interests of the child;
2. the relationship between the applicant and the child, and any other relevant person and the child;
3. any other factor that should, in the opinion of the court, be taken into account.

It is no coincidence that the requirement of the best interests of the child is one of the factors that must be considered by a court when exercising its discretion in terms of sections 23 and 24 of the Children’s Act. The principle that the decision of a court concerning a child has to be in the best interests of the child has been for some time part of South African common law and inter alia played an important role in family law disputes (see, e.g., Fletcher v Fletcher 1948 1 SA 130 (A); Kaiser v Chambers 1969 4 SA 224 (C); Lovell v Lovell 1980 4 SA 90 (T); Ex Parte Kedar 1993 1 SA 242 (W)). This principle later received Constitutional recognition in section 28(2) of the Bill of Rights. The concept of “the best interests of the child” has, however, been widely criticised for its vagueness, indeterminacy, and complexity (Clark “A ‘golden thread’? Some aspects of the application of the standard of the best interest of the child in South African family law" 2000 Stell LR 15; Bekink and Bekink “Defining the standard of the best interest of the child: Modern South African perspectives" 2004 De Jure 22; Heaton “Some general remarks on the concept ‘best interest of the child’” 1990 THRHR 95; Boezaart “General Principles” in Davel and Skelton Commentary on the Children’s Act (RS 9 2018) 2-7; see also Couzens “The best interests of the child and the Constitutional Court” 2019 Constitutional Court Review 363-386: the author highlights the complexity of the concept and calls for more judicial clarity). Before the Children’s Act was enacted, South African legislation did not provide a list of factors to be considered by courts when determining the best interest principle, and the courts had to rely on common law. In this regard, the most comprehensive list of factors was proposed in McCall v McCall 1994 3 SA 201 (C) (205B-G), in which thirteen factors were identified in an open-ended list specifically designed for resolving custody disputes.

The inclusion of section 7(1) in the Children’s Act, namely the best interests of the child standard, is of significant value as it partly addresses this criticism by listing fourteen factors that must be taken into consideration whenever the best interests of the child are determined (this section came into operation on 1 July 2007, see GG30030 of 29 June 2007). These include the nature of the personal relationship between the child and the child’s parents; the attitude of the parents towards the child; the capacity of the parents to provide for the (emotional and intellectual) needs of the child; the likely effect of any change in the child’s circumstances; the practical difficulty and expense of a child having contact with the parents; the need for the child to remain in the care of and to maintain a connection with his or her family, extended family, culture or tradition; the child’s age, maturity, developmental stage, gender, background and any other relevant characteristics of the child; the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development; any disability or any chronic illness from which a child may suffer; the need for a child to be brought up within a stable (or nearly stable) family environment; the need to protect the child from any physical or psychological harm; and the taking of actions or decisions that would minimise the exposure of a child to legal or administrative proceedings.

Note that the list provided in the Children’s Act is not an open-ended one, as was the case in McCall v McCall, where a court could consider any other factors which it considered to be relevant. However, both sections 23 and 24 of the Children’s Act state that “any other factor that should, in the opinion of the court, be taken into account” should be considered, making it an open-ended enquiry. In reaching a decision in terms of sections 23 and 24 of the Children’s Act, a court must accordingly consider all of the section 7 factors in totality, as well as any other relevant factor, attaching such weight to each of the factors as it deems fit and ultimately reach a conclusion on a value judgement regarding what is in the best interests in the particular child’s circumstance (P v P 2007 5 SA 94 (SCA) para 14; K v M 2007 4 ALL SA 833 (E); Baloyi v Baloyi (6208/2014) 2015 ZAGPPHC 728 para 17; AB v Minister of Social Development Centre for Child Law as Amicus Curiae 2017 3 SA 570 (CC) para 195; see also Fokala “The impact of the best interests and the respect for the views of the child principle in custody cases” 2019 Nordic Journal of International Law 614-635: the author discusses the fact that the best interests of the child and the views of the child act as key principles that assist courts in deciding custody cases).

Valuable insight with regard to the courts’ approach and interpretation of sections 23 and 24 when assigning parental responsibilities and rights in this way was recently provided in the case of RC v SC and its subsequent appeal to the full court in RC v HSC.

3.1 The court a quo’s approach

In considering the case before it the court a quo submitted on behalf of the applicant that the court’s task was limited to determine whether an assessment should be done (to decide care, contact, and guardianship) and whether interim contact should be allowed pending the receipt of the assessment and subsequent application for final relief (para10). Fisher J pointed out that the real question before the court was not just one of whether the assessment requested was one that would be in the best interests of the child, but that the correct judicial task before the court was an overarching one on whether allowing the applicant to embark with the litigation in the first place would serve the best interests of the child (para12). To embark on this judicial task the issue of locus standi and the interests of the child (B) in the context of the application, as a whole, would be considered (para 14). In fulfilling this task, the court first considered the issue of the applicant’s locus standi (para 14).

This consideration was undertaken by the court in line with the factors laid down in sections 23 and 24 of the Children’s Act, such as the relationship between the applicant and the child and the degree of commitment that the applicant had shown towards the child (see, e.g., paras 22, 24 and 28). Regarding the application for care and contact, the court held that the applicant had not established the necessary interests to seek the relief, but according to the court had a deep misunderstanding of his entitlement under the Children’s Act (paras 63-64). The court, in contrast with the applicant’s stance, emphasised the quintessence of the parent-child relationship as embodied in the Children’s Act, indicating that just because an interested third party has a loving relationship with a child which has “parental hallmarks”, it does not follow that such a person automatically has the necessary interests contemplated in sections 23 and 24 of the Children’s Act. The rights obtained in sections 23 and 24 are not universally enjoyed, easily obtained, or randomly acquired. They are to the contrary seriously obtained and exercised under the law (para 62). The court held that the child already had a competent, loving, and able mother and implicit in the sections of the Children’s Act is the fact that a child would not necessarily benefit from more than one person having parental rights (paras 61-62). In the view of the court, no compelling motivation was given as to why the applicant had to be accorded legal rights to the child (para 70).

The court took an even stronger stance with regard to the application for guardianship. This the court held is in line with the fact that even more stringent requirements are set for guardianship as the rights relate to important aspects of a child’s life, such as a change in status or the child’s movement beyond the court’s jurisdiction (para 65). Consistent with the stringent approach section 24(3) prescribes that if a child already has a guardian, a person who applies for guardianship must submit reasons as to why the child’s existing guardian is not suitable to have guardianship. The court, with reference to section 24(2)(b) states that the “relationship between the applicant and the child and any other relevant person” should be considered, proceeded from the acceptance that there may be competing guardianship rights (paras 66-67). The question as to whether the child already had a suitable guardian, the court stated accordingly, goes directly to the question of locus standi (para 67). In following a purposive interpretation of section 24(3) the court held that the non-suitability of the existing guardian is a jurisdictional prerequisite for a court to entertain an application. If a child has a capable guardian no need exists to appoint another (para 68). The court found that in the present case, the child already had a guardian who could not be shown by the applicant to be unsatisfactory (para 70). The application accordingly could not succeed (para 70).

After concluding that the applicant did not have locus standi, the court nevertheless proceeded to evaluate the merits of the case. In this regard, the court reviewed aspects that ensure a finding that the applicant should be accorded rights versus aspects militating against such a finding (paras 74-75). In line with the factors laid down in sections 23 and 24, the court evaluated the relationship between the applicant and the child, as well as that of any other relevant person and the child. In this regard, the court, also, evaluated the relationship between the child and his mother and sibling. The court additionally looked at the degree of commitment expressed towards the child as well as the extent to which the applicant contributed towards the child’s expenses. This was all done to determine what was in the best interests of the child (paras 74-75).

In evaluating the merits of the case, the court held that although the applicant wanted to fulfil a fatherly role towards B and had contributed towards B’s expenses, his involvement in B’s life was not in his best interests. The applicant’s interactions with B, were according to the court, inappropriate for B’s age and overly emotional. The applicant, moreover, inter alia had put his own needs above those of the respondent and the child, disregarded the respondent’s autonomy and sought to impose his own will on the respondent and her children. This led to conflict between the parties, which in turn negatively affected the whole family. The mere presence of the applicant in their lives affected them negatively. The applicant’s belief that his wealth would give him an advantage over the respondent was further misplaced (paras 74-75). According to the court, the granting of the application would, on a balancing of all the facts, unquestioningly not be in the interests of B and the “last thing B ... needs is a father in the guise of the applicant with power over his life and family” (paras 76 and 77). The application was therefore dismissed (para 81). The court concluded that no further contact between the applicant and the child should prevail (para 80).

3.3 Court of Appeal’s approach and some evaluative comments

Notable the Court of Appeal indicated that a variety of aspects were either erroneously addressed or not addressed at all. The first of these is that the court a quo did not refer to any authorities nor applied any test to reach its conclusion. In this regard, the full court indicated that as the relief sought was interim, a test such as the Wester v Mitchell (1948 1 SA 1186 (WLD) 1189) test should have been applied (RC v HSC paras 14 and 16). This test requires the court to consider the facts averred by the appellant together with such facts set out by the respondent that were not or could not be disputed. In this regard, the appellant’s version should have been considered and should have been sufficient to succeed unless the respondent was able to cast serious doubt upon it (RC v HSC para 16). The court a quo was moreover, criticised by the full court for determining the facts by way of the usual opposed motion approach which is adversarial in nature, i.e., the Plascon-Evans test (Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 3 SA 623 (A); RC V HSC paras 37-39). The full court held that where the welfare of children and their best interest are at stake, the court should follow an inquisitorial approach in which the court may even call evidence mero motu to form its own impression (RC V HSC para 38). Such an enquiry must furthermore be a child-centred one where the focus is on the interest of the child, B and not on the weighing up of the pros and cons of the rights of the adults (RC V HSC para 40).

The second issue revolved around the incorrect allowance of the submission of certain evidence and considering evidence incorrectly. In this regard, the court a quo should not have considered the supplementary affidavits of the respondent without allowing the appellant an opportunity to respond thereto (RC v HSC para 17). The respondent repeatedly and under oath indicated that she was not opposed to the appellant having limited contact with B and even accepted the existence of a close bond between them (RC v HSC paras 24 and 25). Nothing to this effect is reported in RC v SC. The court of appeal also highlighted the consideration of incorrect biographical information on the appellant and the unclaimed substance of a “toxic” relationship between the appellant and D by the court a quo (RC v HSC paras 45 and 46).

The third issue concerns the court a quo’s finding on locus standi. The court a quo found that the appellant had no locus standi in respect of his application for co-guardianship in that he had failed to show the non-suitability of the existing guardian (RC v HSC para 26). In so far as the interpretation of section 24(3) was concerned, the court a quo followed a narrow or purposive approach holding that the non-suitability of the existing guardian is a jurisdictional prerequisite for a court to entertain an application (para 68). In terms of this approach, it is believed that the provision suggests that if a court assigns guardianship to an applicant the existing guardian loses his or her guardianship. This impression is strengthened by the fact that section 24, unlike that of section 23(4), does not contain a proviso that the assignment of the relevant rights does not affect the parental rights and responsibilities that any other person has in respect of the child. Further support is lent to the argument through section 29(2) of the Children’s Act which provides that an application for an order in terms of section 24 must contain reasons as to why the applicant is not applying for the child’s adoption (Heaton (2018) 3-25). Substantial difference exists between the effects of adoption and guardianship. Adoption ends all legal relationships that existed before the adoption, for example, a child cannot inherit from her, or his birth parents once adopted. Guardianship, however, may be acquired by a grandparent who acts as a caregiver of a child, whose parents are still alive and who continues to exercise guardianship while not wishing to make their children available for adoption. The rationale for the provision is questionable (Skelton (2009) 84). Schӓfer (Child Law in South Africa: Domestic and International Perspective (2011) 250) submits that it appears that the underlying policy of section 24(3) is to discourage the possibility of multiple guardians for the child in favour of adoption.

A different interpretation of section 24(3) is that it assigns equal, concurrent guardianship to the applicant. An applicant therefore only has to show that the existing guardian is unsuitable to such a degree that the court should assign an additional guardian to the child. Heaton prefers this interpretation as it is more logical, given that the Children’s Act permits more than one person to have guardianship in respect of the child (Heaton (2018) 3-25). An unmarried father who does not qualify for automatic responsibilities and rights in terms of section 21 of the Children’s Act, for example, may apply for the guardianship of his or her child under section 24. Such an application, if successful would not affect the mother’s guardianship status, but would merely result in them exercising their rights independently of one another henceforth, except for those issues in section 18(3)(c) requiring both guardians’ consent. Skelton highlights that section 24(3) only makes sense if the applicant is seeking sole guardianship. However, in such an event the application in terms of section 24 would have to be combined with an application for the termination of the existing guardian’s rights. Skelton submits that the only plausible explanation for the anomaly is to attribute the requirements of the section to a drafting error (Skelton (2009) 84). This latter interpretation was favoured by the court in CM v NG 2012 4 SA 452 (WCC), which held that an interpretation of section 24(3) that would terminate an existing guardian’s guardianship would be absurd (para 53). This would not be in keeping with the objects of the Children’s Act, namely, to promote the preservation and strengthening of families and to give effect to children’s constitutional rights (para 53). The court accordingly held that the section only applies if sole guardianship is sought (para 58). The court in RC v SC did not follow the court’s stance in CM v NG but instead chose an exclusionary interpretational approach (paras 67 and 68). The court of appeal held that the court a quo’s view was at worst incorrect in law and at best uncertain in law. With reference to CM v NG and Ex Parte Kedar 1993 1 SA 242 (W), the court favoured the view that it is wrong in law, holding that the High Court as upper guardian of all children, can when finding it is in the best interest of a child, grant joint guardianship without finding that the existing guardian is unsuitable (RC v HSC para 26). The position of the full court is supported. It is, nonetheless, submitted that to ensure judicial consistency and to avoid a position such as that transpired in RC v SC the legislature should amend the provision to provide for one interpretational approach.

Corresponding to section 24(3) is the question as to under which circumstances would an existing guardian be deemed to not be a suitable guardian. The section itself provides no guidance. Neither the court a quo nor the full court addressed this matter. It is submitted that a court would accordingly have to apply the general principles set out in Chapter 2 of the Children’s Act, including the factors set out in section 7(1) of the Act to make a determination (Heaton (2018) 3-26).

The fourth matter for consideration relates to the court’s evaluation of the best interest of the child. It is submitted that the court a quo approached its evaluation from a parent-child relationship’s viewpoint by placing much emphasis on the importance of the parent-child relationship. The court held that legal rights should not willy-nilly be afforded to non-parents (para 59) but, to the contrary, stressed that “to needlessly invite dissent by increasing the number of people who have legally enforceable rights in relation to a child should be avoided in the interest of the child” (para 69). Compelling reasons need to exist as to why another person, such as a previous life partner, should be accorded legal rights (para 70). The court of appeal on the other hand held with reference to QG v CS (Professor DW Thalder Amicus Curiae) 2021 JDR 1212 (GP) that to limit the category of persons who have an interest in the care, wellbeing and development of a child and who could constitute a de facto parent may well be too restrictive and may not accord with the best interest of the child (RC v HSC para 33). Some “tangible and clearly demonstrable interest and connection to the child” should however be evident (RC v HSC para 33). It is submitted that it must unmistakably, be in the best interests of the child for a court to award such other person legal rights. In McCall v McCall (203F) the court highlighted that it is tasked with determining what is in the best interests of the child, and not with adjudicating a dispute between antagonists with conflicting interests to resolve their discord. Its concern is for, and focus should be on the child. The granting of relief to enlist the help of an expert on the issue of the child/children’s best interest may ensure a much more child-centred approach.

As a matter of interest, it should be noted that section 23(3) of the Children’s Act deals with situations where different applicants apply for the assignment of contact and care and an adoption order specifically prescribes that a report and recommendations on what is in the child’s best interest must be obtained by the court. In such an instance a court is compelled to request a report from a family advocate, social worker or psychologist with recommendations as to what is in the child’s best interests. The reason for this requirement may be found in the fact that such an application entails more than just a request for an order for care and contact, but also includes an adoption order. Such an application has a greater degree of seriousness as it bears an enhanced impact on the life of the child in question. Section 23(2) of the Children’s Act, the section under consideration in the application of RC v SC, does not contain a similar provision. A court is therefore currently not under a statutory obligation to request a report. A High Court as the upper guardian of children may, however, request such a report should it deem it in the best interests of the child. In the case under discussion, the court a quo did not feel itself compelled to obtain such a report but stated that “it is the court’s province and function to determine the interests of the child and not that of the expert” (para 79). It is submitted that even though the use of an expert is not prescribed in the Children’s Act, courts should seriously consider making use of such experts; not to usurp its functions but to assist in its evaluation of what is in the child’s best interests.

The court of appeals finding, namely the upholding of the appeal, setting aside of the order of the court a quo and the appointment of a suitable expert to provide the court with a recommendation as to what is in the child/ children/s best interest is according applauded (para 2).