B.A.H and Another v L.D.P (3076/2019) [2019] ZAECGHC 114 (14 November 2019)

B.A.H and Another v L.D.P (3076/2019) [2019] ZAECGHC 114 (14 November 2019)

The court held that the best interests of the minor child are paramount and that a thorough investigation by the Family Advocate is necessary before any final orders regarding parental rights and residence can be made. The status quo, in which the child resides with the first applicant’s mother, should be maintained to avoid unnecessary disruption, as there is no evidence that this arrangement is not in the child’s best interests. The proceedings in the Children’s Court are to be stayed to prevent conflicting processes, and the respondent is to be granted reasonable access to the child. Costs are reserved for determination at the hearing of Part B.

Citation
[2019] ZAECGHC 114
Parties
Applicant: B[...] A[...] H[...]; Applicant: D[...] B[...]; Respondent: L[...] D[...] P[...]
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 November 2019
Case Number
3076/2019
Procedural Posture
Urgent Application / Part A: Interim Relief Pending Investigation and Final Determination
Outcome
Interim relief granted: Family Advocate to investigate and report; status quo maintained; Children’s Court proceedings stayed; respondent granted reasonable access; costs reserved.
Judges
NG Beshe
Legal Topics
Parental Rights and Responsibilities, Best Interests of Child, Temporary Care, Family Advocate Investigation, Stay of Proceedings
Family and Children Civil Procedure Parental Rights and Responsibilities Best Interests of Child Temporary Care Family Advocate Investigation Stay of Proceedings

Case Brief

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Parties

B[...] A[...] H[...]

Applicant

D[...] B[...]

Applicant

L[...] D[...] P[...]

Respondent

Procedural Posture

Urgent Application / Part A: Interim Relief Pending Investigation and Final Determination

Legal Issues

  1. 1 Whether the Family Advocate should be ordered to investigate and report on the best interests of the minor child.
  2. 2 Whether proceedings in the Children’s Court should be stayed pending the outcome of this application.
  3. 3 Where the minor child should reside pending finalisation of the application.

Ratio Decidendi

The court held that the best interests of the minor child are paramount and that a thorough investigation by the Family Advocate is necessary before any final orders regarding parental rights and residence can be made. The status quo, in which the child resides with the first applicant’s mother, should be maintained to avoid unnecessary disruption, as there is no evidence that this arrangement is not in the child’s best interests. The proceedings in the Children’s Court are to be stayed to prevent conflicting processes, and the respondent is to be granted reasonable access to the child. Costs are reserved for determination at the hearing of Part B.

Court Disposition

Interim relief granted: Family Advocate to investigate and report; status quo maintained; Children’s Court proceedings stayed; respondent granted reasonable access; costs reserved.

Orders

  • The Family Advocate is ordered to investigate, prepare and submit a report to this court on the best interest of A[...] G[...] B[...], a male born on 3 November 2008, relating to the relief sought in Part B of this application, as a matter of urgency.
  • The proceedings before the Children’s Court for the district of Alexandria regarding an investigation as contemplated in Section 155 of the Children’s Act 38 of 2005 regarding the child are stayed pending the outcome of Part B of this application.