Non-parents are described as those persons who play an active role as caretaker in the lives of minor children or have involvement with the children but do not have the same legal rights as parents regarding decision making about the child and their lives.
As many modern-day families are stepping away from the traditional ways of raising families, this has given rise to enormous uncertainty regarding the rights and obligations that non-parents have towards children.
Section 23 of the Children’s Act states that any person having an interest in the care, well-being or development of a child may apply to the High Court, Divorce Court in divorce proceedings or Children’s Court for an order granting such person care and contact with the minor child on condition that such order will be in the best interests of the child.
Section 24 of the Children’s Act allows 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 such person guardianship over a minor child. Should the minor child already have a guardian then the Applicant will have to furnish the court with compelling reasons as to why the existing guardian is unfit to have guardianship in respect of the minor child. An application to the High Court for guardianship is more stringently applied than that of care and contact, due to the fact that it grants the Applicant legal rights in respect of formal consents pertaining to the child, as well as his/her movement and other important aspects of his/her life.
A recent judgment in RC v SHC, was handed down on 18 March 2022 where the Applicant brought an application in terms of Section 23 for care and contact of a minor child as well as Guardianship in terms of Section 24.
The Applicant had begun a romantic relationship with the Respondent and filled a fatherly role for her minor child since his birth until the age of 4. The Applicant and Respondent together with her two minor sons “B” and “D” shared a home for numerous years. The Respondent ended the relationship due to the intensity of the Applicant as well as the favouritism he showed towards “B”. This favouritism caused immense pressure on “D” as well as the Respondent herself. The relationship between the Applicant and “B” had been described as obsessive by the Respondent which resulted in a loss of connection between the Respondent and “B” as well as “B” and his biological father. A divide had been created between the Applicant and “D”, in so far as to cause “D” to resent his younger brother.
The court found that, although the Respondent did not have the financial means to provide for “B” and “D” as the Applicant had, this did not influence the decision on determining legal rights pertaining to a child. The court dismissed the Applicants application for care and contact over “B” due to the fact that his presence in their lives did not serve the best interests of both children.
In terms of the application for guardianship, the court found that the Applicant had failed to furnish the court with compelling reasons as to why the Respondent, as guardian of “B”, is not a suitable guardian and, therefore the Applicants guardianship application was unsuccessful.
It is always important to remember that when children are involved in applying to Courts for relief, it is imperative to ensure the best interests of the child is upheld and to maintain a position not to disrupt and complicate their lives unnecessarily.