The rights of the non-parent

June 1st, 2022

The position of the ‘non-parent’ is increasingly becoming more relevant in our day and age. ‘Non-parents’ are described as those individuals who play a role of caretaker in the lives of minor children or have involvement with the child but do not have the same legal rights as parents regarding decisions about the child and their life. The prevalence of modern-day families breaking away from the traditional family, gives rise to much uncertainty regarding the rights and obligations that non-parents have towards children. The affording of rights to non-parents are, however, subject to the pervasive recognition that to unnecessarily ‘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’, as iterated in the latest judgment on this matter, RC v SHC (GJ) (unreported case no 45327/2021, 18-3-2022) (Fisher J).

The starting point for determining the rights held by a person in terms of a child should always be the Children’s Act 38 of 2005 (the Act). Section 23 of the Act specifically deals with the ‘assignment of contact and care to [an] interested person by [an] order of court’, and s 24 subsequently deals with the ‘assignment of guardianship by [an] order of court’.

The judgment of RC v SHC was delivered on 18 March 2022, wherein the applicant had served in a ‘fatherly role’ to the minor child, B, after being romantically involved with the respondent from the date of B’s birth until the age of four. The parties shared a communal home for two and a half years. The relationship had since broken down. The applicant, not being the legal father of B sought legal relief based on ss 23 and 24 (in two parts) of the Act to maintain his role in the life of the minor child.

The applicant also sought an interim order granting an assessment report of a clinical psychologist to determine whether care, contact and guardianship as sought by the applicant in the main application should be granted.

The respondent has two minor children, B and an 11-year-old son, D. In the interests of both children involved, the considered outcome effects the livelihoods of both children. In the two-part consideration, the court scrutinised the best interest of the children.

Part A: Section 23

In terms of s 23, ‘any person having an interest in the care, well-being or development of a child may apply to the High Court, a divorce court in divorce matters or the children’s court for an order granting to the applicant, on such conditions as the court may deem necessary –

(a)      contact with the child; or

(b)      care of the child’.

Section 23(2) states that the court should consider the following in dealing with Part A of this application –

‘(a)     the best interests of the child;

(b)      the relationship between the applicant and the child, and any other relevant person and the child;

(c)      the degree of commitment that the applicant has shown towards the child;

(d) the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and

(e) any other fact that should, in the opinion of the court, be taken into account’.

The court considered the facts of the relevant case to ascertain whether granting parental rights in terms of s 23 would be to the benefit or detriment of both the minor children being affected. It is considered that the paternal father of B has played no role in his life and there is no clear indication as to whether the paternal father has acquired parental rights in terms of the child.

The applicant had greatly contributed to the lives of both minor children in terms of financial support and had undertaken to continue with his contributions in terms of B, should the application be successful. The issue is also raised by the court, that even though the respondent did not possess the financial means to provide for B in the same way the applicant does, it should not follow that the applicant be seen as better equipped to provide for the child or influence the decision of the court in determining the legal rights pertaining to the child. Children are not a commodity.

The role of the applicant in B’s life is, furthermore, scrutinised as being overtly obsessive and resulted in a loss of connection between B and the respondent, as well as between B and his biological brother, D. The applicant has not established the same connection with D as he had with B, which has resulted in D feeling distressed and left out. He, in turn, has become resentful towards his younger brother, B and the negative effect the applicant has on this relationship would only be extended if care and contact is granted in terms of s 23.

The court further concluded that the applicant had not satisfied the fact that he has the necessary locus standi to bring the matter to the court in the first place. Although, he has inserted himself into the life of the minor children and maintained a fatherly relationship up until this relationship with the respondent broke down, legal rights pertaining to the children should not be awarded unless it is in the utmost best interest of the child. The court concluded that the applicant had not established that he is a person with the necessary interest to seek the relief that he does in respect of s 23. Due to the applicant’s relationships with the respondent and D having a negative impact on their respective relationships with B, it further followed that allowing the applicant to obtain legal rights in terms of Part A of the application is not in the best interest of the child, or both children in this case.

The court, therefore, dismissed Part A of the application for care and contact of B, as well as the acquisition of an assessment report by a clinical psychologist, as to further limit the pain caused by the applicant on the family of the respondent.

Part B: Section 24 – assignment of guardianship by order of court

Section 24(1) provides that: ‘Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant’.

However, s 24(3) states that: ‘In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child’.

The legal position regarding guardianship is more stringently applied than that of contact and care. The reason being that it grants the applicant legal rights in respect of formal consents pertaining to the child, as well as his movement and other important aspects of his life. The applicant seeks to be granted guardianship in Part B of his application. This brings about the interpretation of s 24(3), which clearly states that the applicant must ‘submit reasons as to why the child’s existing guardian is not suitable’.

The applicant had not provided the court with any reasons to consider why the respondent, as the guardian of B, is not a suitable guardian and, therefore, Part B of the application failed. It also follows that due to its more stringent nature, an application in terms of s 24 cannot succeed if the applicant had failed to satisfy the court to grant an application in terms of s 23.

Part A and Part B of this application was, therefore, dismissed.

Although the family dynamic is increasingly changing regarding the relationships between non-parents and children, the law remains conservative in its application, as to continually ensure the best interest of the child. The writer contends that it is imperative to maintain this position, especially where there exists confusion or ambiguity regarding the best interest of the child as not to disrupt and complicate the lives of children unnecessarily.

Maryna Burger LLB (NWU) is a candidate legal practitioner at Van Wyk Van Heerden Inc. 

This article was first published in De Rebus in 2022 (June) DR 10.