H M De Groot v C E De Groot
Centre for Constitutional Rights
H M De Groot v C E De Groot unreported (ECHC) Case No. 1408/2009, 10 September 2009.
This case dealt with the s28(2) constitutional imperative that ‘a child’s best interests are of paramount importance in every matter concerning the child’. More specifically, this case focussed on a recognition by the Court, in fulfilment of its duty as the Upper Guardian of all children, that the Children’s Act 38 of 2005 placed a duty on the Court to consider that the best interests of the child should include, where appropriate, the child’s own views on what his or her best interests are.
The factual background to this application was that the applicant, a mother of triplets (aged 11) and an older boy (aged fourteen), sought a variation of her divorce order regarding the custody arrangement, in terms of which, the applicant and respondent had been given shared custody of their four children. The arrangement had stood for three years prior to this application. During this time the applicant and respondent had each acquired separate properties in the same housing estate so as to facilitate the shared custody arrangement whereby the children would spend alternate weeks with each parent. The applicant, however, now sought an order granting her status as the ‘primary carer’ of the minor children. She also sought permission to permanently remove the children from the Republic of South Africa so as to relocate them to Dubai, where the applicant intended to live with Mr Hendricks, pending a proposed marriage.
The applicant solicited the expert opinion of two clinical psychologists (the applicant’s experts) who made recommendations that it was in the interests of the children that the children’s opinions on the matter be excluded. In reviewing the evidence of the applicant’s experts and that of the family advocate’s expert evidence, the Court, per Chetty J, found it ‘astonishing’ that the views of the children had not been taken into account. Chetty J held that this was contrary to the child’s best interests constitutional imperative and the Children’s Act (the Act), which was enacted in order to give effect to that imperative, specifically sections 10 and 31 of the Act. These sections expressly made provision for the views of the child to be given ‘due consideration’ in a manner that takes the child’s ‘age, maturity and stage of development’ into appropriate consideration. Chetty J also noted that:
‘The Act has brought about a fundamental shift in the parent/child relationship from that which prevailed in the pre-constitutional era and now not only vests a child with certain rights but moreover gives a child the opportunity to participate in any decision making affecting him or her’.
Accordingly, the Court found that it was ‘enjoined by the Act to give due consideration to the views of the children since in this case, it appeared that they were ‘of an age and level of maturity to make an informed decision’. In this regard, the Court found that the views of the children appeared to be in ‘direct conflict with their [the applicant’s experts] recommendations.’ The Court noted that given that the applicant’s experts had been ‘commissioned by the applicant [and that therefore]... their loyalty to her cause appear[ed] to have influenced their final recommendations’.
Chetty J also considered that the applicant’s case had placed a great deal of emphasis on the fact that the applicant’s intended marriage to Mr Hendriks would increase the financial well-being of the children. The Court pointed out that s7 of the Act outlined various factors that should be taken into consideration in determining what would be in the child’s best interests. However, Chetty J held that while ‘the capacity of the parents to provide for the needs of the children is an important consideration it is but one of a host of factors’.
Taking the children’s views into account, the Court found that it was not in the best interests of the children that they be removed from their father and the current custody arrangement that they enjoyed. The application was accordingly dismissed.
K Serafino-Dooley
October 2009
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Published in: Centre for Constitutional Rights