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Non-biological dad's guardianship bid falls short

In the recent case of CR v CHS (45327- 2021) [2022], a Johannesburg man lost his court bid to maintain contact with, and care for, a child (4) of an ex-girlfriend. A chartered accountant (55) – who has no biological children – ultimately sought joint guardianship with the mother of the child he did not biologically father. The man brought an application which was heard by Gauteng High Court (Johannesburg) Judge Denise Fisher, who dismissed his application as ‘misguided’. The man’s grounds were that he had grown too close to the boy, identified as B, and had thus far been involved in his upbringing. ‘As B grew older, we became inseparable. A close and loving bond had formed between us,’ he stated in court papers. The mother, who broke up with the man last year, opposed the application. She revealed a range of issues that made her uncomfortable to allow the ex-boyfriend access to her child.


Besides the mother’s misgivings, the man’s application had to convince Fisher that the mother was not suitable to be her child’s guardian. The Children’s Act requires his application to satisfy this test. ‘Section 24(3) requires that the applicant must submit reasons as to why the child’s existing guardian is not suitable. If this is not done, as is the case here, this is fatal to the application,’ said Fisher. ‘The non-suitability of the existing guardian is a jurisdictional fact needed for the court to entertain the application.’ The piece of legislation meant that ‘if the child has an available and capable guardian there is no reason to appoint another’, Fisher added. ‘It seems to me that, because of his deep love for B and the intimate part he has played in his upbringing thus far, the applicant has acquired an inflated sense of his entitlement to legal rights under the Act. This is presumptuous,’ said Fisher. ‘To my mind, the applicant has not established that he is a person with the necessary interest to seek the relief that he does in respect of contact and care. The misguided application for guardianship rights reinforces this sense of a deep misunderstanding by the applicant of his entitlement to legal rights under the Act.’


The court held that in terms of s 24(3) of the Children’s Act, if a child already has at least one guardian a court is not empowered to appoint another unless the existing guardian is shown to be unsuitable; the unsuitability of the existing guardian is a jurisdictional fact which must be established before the application can be entertained. Parental rights are, by their very nature, not randomly acquired. They are seriously obtained and exercised under the letter the of the law. If a child is adequately cared for by a primary care-giver - such as a natural mother - there would need to be compelling motivation as to why another person should be accorded legal rights the child. Further, the court stated that there is, within the architecture in the Children’s Act, relating to the affording of rights to non-parents, a pervasive recognition 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 interests of the child. Therefore, the application was dismissed with costs.

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