Listening to the Unheard: How a South African Court Prioritised Children’s Voices in a Landmark Care and Contact Decision.

C D v M D (093505/2023) [2023] ZAGPPHC 1231 (7 November 2023)

A. Introduction

Unnecessary Litigation in Family Disputes

In this case, the court highlighted the issue of unnecessary litigation in family disputes, particularly those involving children. The judge noted that such disputes could often be resolved through polite and collaborative negotiations between legal representatives or child-centred mediation. Both parents, referred to as the ‘mother’ and ‘father’ for clarity, independently filed urgent applications based on similar facts, leading to this court hearing.

The Parents’ Applications and Court’s Approach

The father sought interim care and residency for the children at the heart of their dispute, while the mother filed a Rule 43 application for the children’s return to her care. The judge decided to hear both applications simultaneously due to their identical case number and overlapping issues. The court’s primary task was to determine interim care and residency for the children and regulate their contact with the non-resident parent.

Preliminary Court Order and Hearing Date

On 10 October 2023, Justice Holland-Mutter J ordered that these applications be heard urgently on 17 October 2023. However, he did not comment on the urgency of the applications. He ordered that the children be placed under their mother’s care in the interim.

Potential for Amicable Resolution

When the matter was presented on 17 October 2023, it appeared capable of amicable resolution, despite unresolved issues regarding certain evidence and oral testimonies. The mother’s counsel was not prepared for some of the father’s oral evidence, leading to a postponement.

Postponement for Resolution and Oral Testimonies

The judge postponed the matter to 20 October 2023 to address issues related to the intended oral testimonies. The parties were encouraged to find common ground or at least narrow down the issues requiring oral testimony. Witnesses who had been subpoenaed were instructed to return on the new date.

B. Urgency in the Context of Family Law

Criteria for Urgent Applications

The judgment began by outlining the criteria for urgent applications under Rule 6(12) of the Uniform Rules of Court. An applicant must clearly demonstrate the urgency of the matter and prove that there would be a lack of substantial redress if the matter were handled in the usual course. The case of East Rock Trading 7 (Pty) Ltd v Eagle Valley Granite (Pty) Ltd was cited to emphasize that the determination of substantial redress is based on the specific facts of each case.

Father’s Claim of Urgency

The father’s claim of urgency was based on allegations of the mother’s alcohol abuse and its emotional impact on the children, including their academic performance. An incident on 17 September 2023 was highlighted, where the children reportedly expressed concerns about their mother and grandmother’s drinking habits. The father supported his claim with a report from Dr. Oliviers, indicating a problem with alcohol at the mother’s residence. The mother admitted to consuming alcohol but denied abuse, offering to undergo further tests. The judge agreed with the father on the urgency of investigating these allegations, particularly the potential emotional abuse and the children’s well-being in an environment of alcohol consumption.

Mother’s Claim of Urgency

The mother’s claim for urgency stemmed from the father’s unilateral decision to remove the children from her care. However, there was no evidence of the children being poorly cared for or abused in the father’s care. The judge was not convinced that the mother’s application met the urgency criteria, suggesting that a standard Rule 43 application would be more appropriate. This would allow for a comprehensive review of all relevant information, including financial circumstances, which were not currently available to the court.

Conclusion on Urgency

The judge concluded that a thorough investigation into the children’s circumstances was essential. This would clarify issues around the mother’s alleged alcohol abuse, emotional abuse of the children, and the impact on the child’s schooling. The father’s application was deemed urgent, necessitating immediate court intervention.

C. Background and Contentions of the Parties in the Family Dispute

Background of the Family

The mother and father, although married, had not lived together as a couple for six years. They have two eleven-year-old children, LDN and DDN. Since July 2022, the children had been living with their mother, with the father having alternate weekend contact. Both children have specific health and developmental challenges: LDN has attention deficit disorder and eyesight issues, while DDN struggles with anxiety and Legg-Calvé-Perthes disease. They had been held back a year academically and were attending primary school with their mother living with her own mother, the children’s grandmother.

Father’s Case

The father’s application was filed before the mother’s Rule 43 application. He criticized the mother’s application for lacking proper financial disclosure and for being redundant as the subject matter was already before the court. He suggested that the mother should have filed a counterclaim to his application. The father’s primary concern was the children’s exposure to their mother and grandmother’s alleged alcohol abuse. He cited an incident on 17 September 2023, where the children fled their mother’s house due to her and the grandmother’s drunkenness. The father also raised concerns about the children’s academic performance and well-being, questioning the mother’s alcohol consumption and its impact on the children. He had taken steps to improve DDN’s school performance and had requested an investigation into the mother’s alcohol abuse.

Mother’s Allegations and Father’s Response

The mother accused the father of drug abuse, leading him to undergo a drug test, the results of which he shared with her. However, she refused to take an alcohol test. The father expressed concerns about DDN’s school attendance and performance while under the mother’s care, including questionable doctor’s notes and lack of participation in school activities. He believed that the children’s well-being was at risk due to the mother’s drinking habits and that urgent court intervention was necessary under the Children’s Act.

Father’s Contributions and Proposals

The father contributed to the children’s maintenance, paying for their school and aftercare fees, and provided them with individual bedrooms at his house. He argued for the court to grant him interim care and residency of the children pending investigations. He also suggested that the court should consider additional evidence beyond the affidavits and appoint a legal representative for the children. Furthermore, he requested investigations by the Family Advocate in both Pretoria and Rustenburg.

Mother’s Case in the Family Law Dispute

Preliminary Objections

The mother raised several preliminary objections (points in limine) regarding the father’s application, which were not pursued vigorously during the oral hearing. These included the presence of two applications before the court, the father’s alleged incorrect procedure in his urgent application, non-disclosure of relevant facts by the father, particularly the children’s medical conditions, and questioning the urgency of the father’s application.

Mother’s Rule 43 Application

The mother’s Rule 43 application, intended for urgent hearing, aimed to restore her primary care of the children, who had been under her care since July 2022. She highlighted her role in attending to the children’s medical needs and claimed that the father was ignorant of these. She also accused the father of administering corporal punishment to the children when they lived together.

Incident on 17 September 2023

The mother recounted the events of 17 September 2023, when she collected the children from their father. She observed their cold and rude behaviour, which she attributed to their time with their father. She denied being intoxicated on that day and suggested that the father influenced the children to act negatively towards her and her family.

Allegations of Father’s Influence and Alcohol Abuse

The mother accused the father of orchestrating situations to make her appear as an alcoholic, negatively influencing the children against her. She denied alcohol abuse, citing two alcohol-related blood tests with normal results. She also contested the father’s use of DDN’s school absences as a weapon in their custody battle.

Concerns About Father’s Care

The mother raised concerns about the father’s parenting, alleging exposure of the children to violence, especially against animals, and his inability to care for the children without assistance due to his severe illness. She expressed concerns about his health management in the presence of the children.

Mother’s Support Structure and Maintenance Request

The mother emphasized her strong support structure, including financial and accommodation assistance from her family. She requested that, if awarded interim care and residency of the children, the father should contribute R 6,500.00 towards their maintenance, in addition to school fees, after-care fees, and domestic worker’s wages.

Parenting Styles and Favouritism

The mother accused the father of being the ‘fun parent’, allowing the children too much freedom, which she believed was detrimental during their academic term. She also suggested that the father favored DDN over LDN and called the school principal as a witness to testify on these matters.

Father’s Alleged Unlawful Actions and Mother’s Legal Costs

The mother argued that the father took the law into his own hands by refusing to return the children based on false allegations of alcohol abuse. She sought the costs of the application to be paid by the father.

Judge’s Remarks on Father’s Medical Condition

The judge found it regrettable that the father’s medical condition was used as a factor in the urgency of the matter. The judge emphasized the importance of not discriminating against individuals based on their medical conditions and cautioned legal representatives against disclosing such information in public records.

D. The Law, Procedure, and Analysis in the Family Law Dispute

Best Interest of the Children

  1. Constitutional and Legal Framework: Section 28(2) of the South African Constitution and the Children’s Act emphasize the paramount importance of a child’s best interests in every matter concerning the child. This includes considering the nature of the child’s relationship with each parent, the parents’ attitudes towards the child, and the parents’ capacity to meet the child’s emotional and intellectual needs.
  2. Children’s Relationship with Parents: The court noted that the children’s relationship with their mother appears strained, as evidenced by the mother’s affidavits and arguments. The court recognized the need to investigate the cause of this strain and how to improve the relationship. The court also observed the apparent lack of effective communication between the parents and the negative impact of their strained relationship on the children.
  3. Favoritism and Parental Attitudes: Concerns were raised about potential favoritism by each parent towards one child over the other, which could negatively affect the sibling relationship and the children’s emotional well-being.

Children’s Voices

  1. Children’s Participation Rights: Section 10 of the Children’s Act asserts the right of children to participate in matters concerning them, provided they are of suitable age and maturity. The court considered Dr. Olivier’s reports as objective evidence of the children’s views.
  2. Observations by Dr. Olivier:
    • DDN: Expressed discomfort at his grandmother’s place due to alcohol consumption by his mother and grandmother. He feels safer with his father and is concerned about his mother when not with her. DDN prefers his father’s company and has trust issues with his brother.
    • LDN: Uncertain about living with his mother but would choose her if forced. He has a strong emotional bond with his mother but is distrustful of his brother. LDN enjoys time with both parents but dislikes strictness regarding schoolwork from his father.
  3. Judicial Interviews: The judge considered conducting judicial interviews with the children to understand their views better. While not common in South Africa, such interviews can provide insights into the children’s feelings and desires without making them decision-makers in the dispute.
  4. Caution Against Overburdening Children: The court acknowledged the risks of overburdening children with decision-making authority in custody disputes, citing Warshak’s work. The aim is to understand the children’s perspectives without placing undue pressure on them.
  5. Reliability of Children’s Views: The court recognized that children’s views might be influenced by parents or close individuals but emphasized the importance of hearing these views to understand the children’s relationships with their parents and other family members.
  6. Judicial Interview Precedent: The case of McCall v. McCall was cited, where a judicial interview influenced the custody decision. The child’s genuine and firm preference for residing with the father was honoured by the court.

Analysis of Judicial Interviews and Children’s Participation

Reluctance of the Supreme Court of Appeal Towards Judicial Interviews

  1. Case Reference – F v F: The Supreme Court of Appeal, in the case of F v F, showed hesitation towards judges conducting interviews with children in their chambers. Maya AJA declined to interview a child about her views on relocation, citing the child’s discomfort with being interviewed by experts and the potential intimidation of being interviewed by judges.
  2. Judges’ Limitations: The court acknowledges that judges may not be ideally equipped to conduct interviews with children due to their lack of specific training in child psychology and sensitivity required in such situations.

Approach in the Present Case

  1. Judge’s Role in Child Interviews: The judge in this case recognized the need for professional assistance in interviewing children. The judge played a passive role while a social worker, Mrs. Schutte, actively interacted with the children in a sensitive and appropriate manner.
  2. Interview Observations:
    • LDN: Expressed emotional distress due to his parents’ pending divorce. He raised concerns about his mother and grandmother’s alcohol consumption and indicated a preference to reside with his father.
    • DDN: More intellectually engaged, also raised concerns about alcohol abuse in the maternal family and preferred residing with his father due to a more engaging and supportive environment.
  3. Social Worker’s Insights: Mrs. Schutte suggested the need for further assessment of the children for potential trauma and the possibility of inappropriate influence by the father against the mother.
  4. Contradictions in Children’s Views: There was a noted contradiction in LDN’s expressed preference between Dr. Olivier’s report and the judicial interview. However, the court considered this change in preference as potentially due to evolving circumstances.

Legal Considerations and Implications

  1. Children’s Act and Parental Decisions: Section 31(1)(a) of the Children’s Act mandates that a person holding parental responsibilities must consider the child’s views, taking into account their age, maturity, and stage of development.
  2. Court’s Responsibility: The court emphasized the importance of considering the children’s views, especially concerning their concerns about their mother’s alcohol consumption and its impact on their lives.
  3. Opportunity for Mother’s Self-Reflection: The court suggested that the mother should use this as an opportunity for self-reflection regarding her alcohol consumption and its effects on her children.
  4. Investigations into Alcohol Impact: The court anticipated further investigations to determine the extent of the impact of the mother’s alcohol consumption on the children.

Holistic Assessment of Evidence

  1. Court’s Wide Powers (Terblanche v Terblanche): The court, as the upper guardian of minor children, possesses extensive powers to determine what is in the best interests of children. It is not restricted by procedural norms, or the limitations of evidence presented by the parties. The court can seek any information that may assist in resolving custody and related disputes.
  2. Duty to Evaluate All Relevant Facts (F.J v E.J): The court is obligated to consider and evaluate all pertinent facts to decide the paramount issue: the child’s best interests.
  3. Exercise of Inherent Power for Additional Evidence: The court was requested to allow further evidence beyond the parties’ affidavits. However, the testimony of the school principal, while showing both parents’ concern for their children’s education, did not significantly contribute to deciding who should be awarded interim primary care.


  1. Children’s Act Provisions:
    • Section 29(5)(a): The court can order a report and recommendations from a family advocate, social worker, or other qualified person for the hearing.
    • Section 55: If a child in a children’s court matter is unrepresented, and it’s in the child’s best interests to have legal representation, the court must refer the matter to Legal Aid South Africa.
    • Section 29(6)(a): The court may appoint a legal practitioner to represent the child in court proceedings.
  2. Agreement on Investigation: Both parties agreed on the necessity of an investigation to determine the best interests of the child, pending the final determination of care and contact. They concurred on involving the Family Advocate, Pretoria, for this purpose.
  3. Additional Involvement of Social Worker: The mother proposed involving a social worker for a forensic investigation into the child’s best interests, suggesting Ms. Irma Schutte for this role. The father proposed appointing a legal representative for the children, possibly a curator ad litem.

Points in Limine

  1. Rejection of Mother’s Points in Limine: The court rejected all points in limine raised by the mother. The father’s application was deemed urgent and warranted immediate hearing.
  2. Nature of Father’s Application: The father sought interim relief pending the investigations, which the mother also agreed should be conducted. The urgency of the application justified the father’s decision not to follow the Rule 43 route.


  1. Father’s Application Recognized as Urgent: The court recognized and heard the father’s application as urgent.
  2. Mother’s Application Dismissed: The court deemed the mother’s application as non-urgent and struck it off the roll.
  3. Father Granted Interim Care and Residency: The father was awarded interim care and residency of the children.
  4. Mother’s Contact Rights Established: The mother was granted contact rights on alternate weekends, under specific conditions including supervision and a prohibition on alcohol consumption in front of the children.
  5. Provision for Mother’s Electronic and Telephonic Contact: The mother was entitled to electronic and telephonic contact with the children during weekdays.
  6. Family Advocate, Pretoria’s Investigation: The court ordered the Family Advocate in Pretoria to investigate the children’s living conditions at both parents’ residences and to make recommendations about their primary care and residency.
  7. Additional Investigations and Appointments: The court also ordered further investigations and appointed professionals, including a social worker and a curator ad litem, to assess the children’s best interests and report back to the court.
  8. Costs to be Borne by Each Party: Each party was ordered to pay their own costs related to the proceedings.

E. Conclusion

In this case, the focus on the children’s views was paramount due to the guiding principle in family law that the best interests of the child are of utmost importance. This principle is deeply rooted in South African law, particularly under Section 28(2) of the Constitution of the Republic of South Africa, 1996, and the Children’s Act 38 of 2005. These legal frameworks emphasize that in any matter concerning a child, the child’s best interests are a primary consideration.

Why the Focus on Children’s Views:

  1. Constitutional and Legal Mandate: The South African Constitution and the Children’s Act mandate that a child’s best interests are of paramount importance. This includes considering the child’s views in accordance with their age, maturity, and stage of development.
  2. Understanding Children’s Needs and Preferences: Children are directly affected by custody decisions. Understanding their views helps the court to make a decision that reflects not only the legal and moral obligations towards the child but also respects the child as an individual with their own thoughts and feelings.
  3. Psychological Well-being: Acknowledging children’s views is crucial for their psychological well-being. It helps in ensuring that the decisions made do not overlook their emotional and developmental needs.

How the Court Obtained Children’s Views Without Direct Examination:

  1. Use of Professional Reports: The court relied on reports from professionals like Dr. Olivier, who had interacted with the children. These reports provided insights into the children’s views and preferences, ensuring an objective assessment.
  2. Judicial Interviews with Safeguards: The judge conducted interviews with the children in chambers, but not directly. Instead, a social worker, Mrs. Schutte, was involved to facilitate these interviews. This approach ensured that the children were comfortable and could express themselves freely without the intimidation of a formal court setting.
  3. Passive Role of the Judge: During the interviews in chambers, the judge played a passive role, allowing the social worker to lead the interaction. This method reduced the potential stress or pressure a child might feel in the presence of a judge.
  4. Professional Assistance: The court recognized its limitations in dealing with child-related matters and sought assistance from professionals who are skilled in child psychology and communication.
  5. Avoiding Direct Courtroom Examination: The court avoided direct examination of the children in a formal courtroom setting, which could be intimidating and traumatic for them. This approach aligns with the caution advised by legal precedents and experts about the potential emotional risks to children in custody disputes.

In summary, the court’s approach in focusing on the children’s views and obtaining these views through indirect, child-sensitive methods reflects a commitment to uphold the children’s best interests while respecting their autonomy and psychological well-being. This method also aligns with the legal and ethical standards set forth in South African family law.

Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.