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Litigation: Foster parents win dispute with biological parents

Thanks to the Gauteng High Court (Pretoria), a boy (5) in foster care will be able to go on holiday next month with his new family to a seaside resort in Mozambique. The foster parents turned to the court after the child’s biological parents refused to let their child travel to Mozambique. The Star reports their objections included that the child was too young to be exposed to a malaria-ridden country and could be exposed to Covid-19 there. The head of Social Services also refused permission, based on a note from the biological parents. Social Services argued that under the Children’s Act, it was the provincial Head of Department and not the court who decided to permit a child in foster care’s departure to another country. The biological parents also needed to give their consent.


Judge Elmarie van der Schyff said the department failed to consider that section 169 of the Children’s Act conferred the provincial head with a discretion that existed separate from the child’s guardian’s decision. Even when the guardians of a child in foster care granted their consent, the provincial head was required to consider the request and provide written approval. In considering the request, the biological parents’ wishes were but one of the factors the provincial head must take into consideration.


Ultimately, the decision must be informed by the child’s best interests, she said. ‘I am of the view that it is in the child’s best interests for this court to consider the relevant information and make the decision,’ she said. She also frowned upon the suggestion of the biological parents that alternative arrangements be made for the child while the foster parents were away. She was ‘quite taken aback by this suggestion’. ‘The minor, having been in the care of the applicants since the age of two years and some months, the suggestion of being left in the care of strangers, is unfounded,’ she said. Van der Schyff added that while there was a responsibility on Social Services to be vigilant when confronted with the removal of a child from SA. Each case must be considered on its own merits.

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