Karabo Ntanzi
Legal Aid SA intervened and secured the best interests of a child in settling a dispute between a grandparent and the biological father of two minor children in Cape Town.
The children were living with their mother, who was a substance abuser. The maternal grandmother was concerned for the children’s well-being and pleaded with her daughter to leave the children in her care, but her daughter disappeared with them. Six months later, the Department of Social Development requested the grandmother to foster the children.
The grandmother provided a haven for the children but relocated to Vereeniging, in the Gauteng Province, with them. The children’s father demanded custody and complained to the Children’s Court in Bellville.
The court was in a predicament as to whether to allow the grandmother to relocate with the children or to place the minors in their mother’s care, as requested by the father.
The court ordered Legal Aid SA to appoint a Lawyer in terms of section 55 of the Children’s Act. The Lawyer researched the matter and compiled a report focused on the children’s best interests. Ultimately, despite the concern from the parents about being alienated from their children, the court extended the foster care order and the children remained with the grandmother.
In an unrelated matter in Taung, North West, a Grade 6 learner with learning difficulties, affecting memory, attention, concentration and literacy skills, was enrolled in a mainstream school.
The school reported this to the Department of Basic Education and a Social Worker from the Department of Social Development was deployed to investigate the matter.
The Social Worker’s report detailed the child’s struggles, confirming that he is disruptive in school, often stealing and fighting other children. The report was shared with the mother, who confirmed the behavioural pattern was the same at home. However, she did not want the child to be placed at a Special School.
The matter was referred to the Children’s Court for an order to enroll the child in a Special School and an amendment to the parenting plan.
Legal Aid SA was brought in to represent the minor child.
Legal Aid SA Lawyers recommended that the child be observed by a Doctor who gave an opinion after the findings. The Doctor confirmed that the child requires a mild-to-moderate Special School. The mother opposed the application, but the father agreed that the child needs to be enrolled in a Special School, stating: “I have experienced that he can’t cope in mainstream school. He looks and sometimes acts like a normal child, but he is not like other children in respect of the school environment”.
The matter proceeded in court. After determining the child’s best interests, the court heard presentations from all parties, including the child. It ruled that the child be placed in a Special School, as a modified environment would better allow him to cope.
As the leader in the provision of quality civil representation, especially protecting and defending the rights of women, children, the elderly, the disabled, the landless and communities, Legal Aid SA takes time during Child Protection Week to consider the impact of the law on the lives of children, ensuring that the access to justice mandate always extends to reflecting the best interest of a child.
In South Africa, the Children’s Act prescribes that any child who is deemed to be of sound age, maturity and stage of development may freely participate in any matter, in court or otherwise, that concerns them as a child and should be given the right to express their views and participate appropriately. This rule is very important because the voice and well-being of children may sometimes be overlooked as disputing parties or parents and guardians tussle over custody, school placements, primary living arrangements, and even overseas relocations.
Experts in child protection agree that the “best interests model” is critical to allow the view, expressions and interests of the child to be heard in a dispute, even when they do not align with those of other parties. The model also allows the child to give instructions and express their point of view of what should happen to them. Legal Aid SA enforces this model in many scenarios where there may be an impasse between the State and the parents or guardians, or even between the parents and guardians themselves.
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