Centre for Child Law v NN and Others (32053/2014) [2017] ZAGPPHC 682 (25 October 2017)

Centre for Child Law v NN and Others (32053/2014) [2017] ZAGPPHC 682 (25 October 2017)

The court found that the best interests of the children, who were switched at birth, require that they remain with their psychological parents, with whom they have formed strong attachment bonds. The Children's Act does not provide a statutory remedy for these circumstances, as none of the criteria for adoption are met. Expert evidence confirmed that disrupting the children's psychological attachments would be detrimental to their emotional well-being. Customary law and cultural traditions were considered and found to be satisfied by the acceptance of the children into their respective extended families. The court, exercising its inherent power under the Constitution, recognised the...

Citation
[2017] ZAGPPHC 682
Parties
Applicant: Centre for Child Law; Respondent: NN; Respondent: NS; Respondent: Presiding Officer, Children's Court, District Boksburg; Respondent: MEC of Health, Gauteng; Respondent: Chief Executive Officer, Tambo Memorial Hospital; Respondent: Tambo Memorial Hospital; Respondent: LZ
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 October 2017
Case Number
32053/2014
Procedural Posture
Civil Application / Final Judgment After Hearing and Curator's Report
Outcome
Application granted. Full parental responsibilities and rights awarded to psychological parents by operation of de facto adoption; contact and therapy arrangements ordered.
Judges
Janse van Nieuwenhuizen
Legal Topics
De Facto Adoption, Best Interests of the Child, Parental Responsibilities and Rights, Customary Law Considerations, Children S Act, Curator Ad Litem
Family and Children Civil Procedure De Facto Adoption Best Interests of the Child Parental Responsibilities and Rights Customary Law Considerations Children S Act Curator Ad Litem

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Parties

Centre for Child Law

Applicant

NN

Respondent

NS

Respondent

Presiding Officer, Children's Court, District Boksburg

Respondent

MEC of Health, Gauteng

Respondent

Chief Executive Officer, Tambo Memorial Hospital

Respondent

Tambo Memorial Hospital

Respondent

LZ

Respondent

Procedural Posture

Civil Application / Final Judgment After Hearing and Curator's Report

Legal Issues

  1. 1 Whether the children switched at birth should remain with their psychological parents or be placed with their biological parents.
  2. 2 Whether South African law permits recognition of de facto adoption in circumstances not covered by the Children's Act.
  3. 3 How customary law and cultural traditions affect the determination of the children's best interests.

Ratio Decidendi

The court found that the best interests of the children, who were switched at birth, require that they remain with their psychological parents, with whom they have formed strong attachment bonds. The Children's Act does not provide a statutory remedy for these circumstances, as none of the criteria for adoption are met. Expert evidence confirmed that disrupting the children's psychological attachments would be detrimental to their emotional well-being. Customary law and cultural traditions were considered and found to be satisfied by the acceptance of the children into their respective extended families. The court, exercising its inherent power under the Constitution, recognised the...

Court Disposition

Application granted. Full parental responsibilities and rights awarded to psychological parents by operation of de facto adoption; contact and therapy arrangements ordered.

Orders

  • Full parental responsibilities and rights in respect of M are acquired by NS and DL with retrospective and prospective effect through de facto adoption.
  • Full parental responsibilities and rights in respect of Z are acquired by NN and LZ with retrospective and prospective effect through de facto adoption.