Introduction
In a recent judgment, the Western Cape High Court dismissed an application for leave to appeal brought by the first respondent against an order directing the Office of the Family Advocate to conduct a care and contact assessment of two minor children.
Background of the Case
The case involves an application brought by the applicant, DR, seeking primary care of two minor children currently in the care of the first respondent, NM. The first respondent is the biological father of the children and is married to the applicant under the Civil Union Act. The second respondent, RL, was previously married to the first respondent and is the other biological parent of one of the children.
In the main application, the court ordered two experts to conduct an assessment and make recommendations regarding future contact arrangements in the best interests of the children. The court also directed the Office of the Family Advocate to conduct a care and contact assessment. The applicant in the main application (who is the respondent in the application for leave to appeal) sought primary care of the two minor children, WML and LM, in terms of section 23(1)(b) of the Children’s Act 38 of 2005. The applicant is married to the first respondent, NM, who is the biological father of the two children and their primary caregiver.
In the main application, the applicant made several allegations questioning the first respondent’s mental health and parenting abilities. The applicant initially sought an order granting him primary care of the children and limiting the first respondent’s contact with the children to supervised visits. The applicant also requested the appointment of an educational psychologist to conduct a care and contact assessment and provide recommendations regarding future care and contact arrangements in the best interests of the children.
However, at the hearing of the main application, the applicant abandoned the request for primary care and instead sought an order for reasonable contact with the children, as envisaged in section 23(1)(a) of the Children’s Act.
Despite the applicant’s change in position, the court, acting as the upper guardian of the children, ordered the Office of the Family Advocate to conduct a care and contact assessment to determine the best interests of the children. This order was based on the allegations made in the applicant’s affidavit, which called into question the first respondent’s ability to care for the children.
In essence, while the applicant’s case evolved during the proceedings, the core issue remained the welfare and best interests of the minor children, which the court sought to protect by ordering the Family Advocate’s assessment.
The Application for Leave to Appeal
The first respondent (NM) brought the application for leave to appeal on the following bases:
The court erred in ordering a care assessment by the Office of the Family Advocate when the applicant had not sought such an assessment and had withdrawn the application for a care assessment in respect of the minor children prior to the hearing of the main application.
The court had not made a finding on the facts that a care assessment was required. Alternatively, the applicant had failed to establish that such a care assessment was necessary.
The court erred in not confining the Family Advocate’s assessment to a contact assessment, in line with the scope of the assessment the psychologist experts were asked to conduct. The first respondent argued that the court should not have broadened the scope of the Family Advocate’s inquiry to include a care assessment.
The first respondent contended that there was no valid or rational basis for including the aspect of care in the assessment order, as the applicant had abandoned the relief sought for primary care of the minor children at the beginning of the hearing of the main application.
The first respondent argued that an order directing the Family Advocate to conduct a care assessment was not competent in terms of section 29(5)(a) as read with section 29(1) and 23(1)(a) of the Children’s Act.
The second respondent (RL) did not formally file an application for leave to appeal but supported the first respondent’s application, arguing that the investigations by the experts and the Family Advocate were anticipated to make findings and recommendations only as to whether the applicant should have contact with the child (WML) and not whether the applicant should care for the child.
The Court’s Decision and Rationale
However, in dismissing the application for leave to appeal, the court found that:
As the upper guardian of the children, the court has wide powers to determine what is in their best interests and is not bound by the parties’ wishes or limitations of the evidence.
The applicant’s affidavit contained many allegations questioning the first respondent’s parenting and mental capacity to care for the children, so there was a basis for ordering an investigation into care.
The Family Advocate’s investigation is only intended to make recommendations in the children’s best interests. It will not grant or take away rights from the parties. A final determination will only be made later.
The paramountcy of the children’s best interests must take precedence over the respondents’ assertion that the investigation would be intrusive.
The order for the Family Advocate assessment is an interim, interlocutory order that is not appealable at this stage.
The court therefore dismissed the application for leave to appeal, with costs. The judgment affirms that the best interests of the child are the overriding consideration in matters of this nature, and courts have wide powers to direct investigations and assessments to safeguard those interests.
Legal Analysis and Conclusion
From a legal perspective it would seem that the judge was correct in dismissing the application for leave to appeal, and the reasoning provided in the judgment is sound and well-supported by legal principles and case law.
Firstly, the judge correctly identified the court’s role as the upper guardian of minor children, which grants the court wide powers to determine what is in the best interests of the children. This principle, established in Kotze v Kotze 2003 (3) SA 628 (T) at 630F, ensures that the court is not bound by the parties’ wishes or limitations of the evidence presented when safeguarding the children’s welfare.
Secondly, the judge emphasised that the paramount consideration in cases involving minor children is their best interests. This principle should take precedence over any potential inconvenience or intrusiveness the respondents may face due to the Family Advocate’s investigation.
Thirdly, the judge correctly found that the applicant’s affidavit contained allegations questioning the first respondent’s parenting and mental capacity, providing a valid basis for ordering an investigation into the care of the children. The fact that the applicant withdrew the claim for primary care does not negate the court’s duty to ensure the children’s best interests are protected.
Fourthly, the judge clarified that the Family Advocate’s investigation is intended to make recommendations and will not grant or take away rights from any of the parties. This investigation is a necessary step to ensure that the court has all the relevant information to make a final determination in the best interests of the children.
Lastly, the judge correctly applied the legal principles established in Tshwane City v Afriforum 2016 (6) SA 279 (CC) to determine that the order for the Family Advocate assessment is an interim, interlocutory order that is not appealable at this stage.
In conclusion, the judge’s decision to dismiss the application for leave to appeal is well-reasoned and grounded in legal principles that prioritise the best interests of the children. The judgment affirms the court’s critical role in safeguarding the welfare of minor children in matters of this nature.
In the judgment, the court referred to the following case law:
Kotze v Kotze 2003 (3) SA 628 (T) at 630F– I Relevance: This case was cited to emphasise that the High Court sits as the upper guardian in matters involving the best interests of children and has extremely wide powers in establishing what such best interests are. The court is not bound by procedural strictures, limitations of the evidence presented, or contentions advanced by the parties.
Girdwood v Girdwood 1995 (4) SA 696 (C) at 708J Relevance: This case was cited to support the principle that no agreement between the parties can encroach on the court’s authority to establish what is in the best interest of the children and make corresponding orders to ensure that such interests are effectively served and safeguarded.
Tshwane City v Afriforum 2016 (6) SA 279 (CC) Relevance: This case was cited to outline the requirements for an order to be appealable. The court stated that an order must be final in effect, definitive of the parties’ rights, and dispose of a substantial portion of the relief claimed. The interests of justice and the potential for irreparable harm are also considered.
S v Notshokovu (157/15) [2016] ZASCA 112 (7 September 2016) at 2 Relevance: Although not directly cited in the main text of the judgment, this case was referenced in a footnote to highlight that the Supreme Court of Appeal has found that the use of the word ‘would’ in subsection 17(1)(i)(a) of the Superior Courts Act imposes a more stringent threshold for granting leave to appeal compared to the provisions of the repealed Supreme Court Act.
These cases were used to support the court’s reasoning in dismissing the application for leave to appeal and to emphasise the paramount importance of the best interests of the children in matters of this nature.
Questions and Answers
Q: What is the main legislation governing the application for leave to appeal in this case? A: The application for leave to appeal is governed by Section 17 of the Superior Courts Act 10 of 2013.
Q: What are the grounds for granting leave to appeal under Section 17(1)(a) of the Superior Courts Act? A: Leave to appeal may be granted if the court is satisfied that (i) the appeal would have reasonable prospects of success, or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration.
Q: How does the wording of Section 17(1)(a) of the Superior Courts Act differ from the repealed Supreme Court Act? A: The use of the word ‘would’ in Section 17(1)(a) imposes a more stringent threshold for granting leave to appeal compared to the provisions of the repealed Supreme Court Act.
Q: What is the court’s role when sitting as the upper guardian of minor children? A: When sitting as the upper guardian of minor children, the court has wide powers to determine what is in the best interests of the children and is not bound by procedural strictures, limitations of the evidence presented, or contentions advanced by the parties (Kotze v Kotze 2003 (3) SA 628 (T)).
Q: Can an agreement between the parties limit the court’s authority in determining the best interests of the children? A: No, as established in Girdwood v Girdwood 1995 (4) SA 696 (C), no agreement between the parties can encroach on the court’s authority to establish what is in the best interest of the children and make corresponding orders to ensure that such interests are effectively served and safeguarded.
Q: What is the paramount consideration in cases involving minor children? A: In every matter involving minor children, the best interest of the children is paramount.
Q: Did the court err in ordering a care assessment by the Family Advocate when the applicant withdrew the claim for primary care? A: No, the court found that the applicant’s affidavit contained allegations questioning the first respondent’s parenting and mental capacity to care for the children, providing a basis for ordering an investigation into care.
Q: What is the purpose of the Family Advocate’s investigation? A: The Family Advocate’s investigation is intended to make recommendations to determine what is in the children’s best interest and will not grant or take away rights from any of the parties involved.
Q: Should the respondents’ assertion that the investigation would be intrusive take precedence over the children’s best interests? A: No, the paramountcy of the children’s best interests must take precedence over the respondents’ assertion that the investigation would be intrusive.
Q: What are the requirements for an order to be appealable, as established in Tshwane City v Afriforum 2016 (6) SA 279 (CC)? A: For an order to be appealable, it must be final in effect, definitive of the parties’ rights, and dispose of a substantial portion of the relief claimed. The interests of justice and the potential for irreparable harm are also considered.
Q: Is the order for the Family Advocate assessment appealable at this stage? A: No, the court found that the order for the Family Advocate assessment is an interim, interlocutory order that is not appealable at this stage.
Q: What is the significance of the parenting plan between the first and second respondents regarding one of the children? A: While there is a parenting plan in place, the court found that this does not prevent an investigation by the Family Advocate when one of the parent’s parenting skills is being challenged, as the overriding consideration is the best interest of the children.
Q: Can the Family Advocate’s investigation lead to a change in the care arrangements for the children? A: Yes, if the Family Advocate finds that it is in the best interest of the children to be placed in the care of a different parent, the court may make an order to that effect.
Q: What was the court’s decision on the application for leave to appeal? A: The court dismissed the application for leave to appeal.
Q: What does this judgment affirm about the court’s role in matters involving the best interests of children? A: The judgment affirms that the best interests of the child are the overriding consideration in matters of this nature, and courts have wide powers to direct investigations and assessments to safeguard those interests.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For a Online Consultation: BookaLawyer.
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