D v C (A5061/2014) [2016] ZAGPJHC 392 (18 August 2016)

D v C (A5061/2014) [2016] ZAGPJHC 392 (18 August 2016)

The court held that the best interests of the child must be assessed at the time of hearing, not according to outdated legal principles. The appellant’s persistent alienation of the child from the respondent was found to be a grave injustice and contrary to constitutional and statutory norms. Although the child, now 17, expressed strong resistance to contact, the expert evidence and legal principles supported the father’s right to seek contact. The order of the court a quo was upheld, but its implementation was deferred to allow for sensitive intervention by Ms Du Toit, who is to explain the outcome and reasoning to the child. The appellant was ordered to pay costs due to her conduct in...

Citation
[2016] ZAGPJHC 392
Parties
Appellant: D, A; Respondent: C, A
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 August 2016
Case Number
A5061/2014
Procedural Posture
Civil Appeal / Appeal From Order of Court a Quo Regarding Contact Rights
Outcome
Appeal dismissed with costs; implementation of the contact order deferred sine die; Ms Du Toit to engage with the child as directed.
Judges
M Victor, M A Makume, S Weiner
Legal Topics
Parental Alienation, Child Contact Rights, Children S Act, Best Interests of Child, Costs Order, Court Order Implementation
Family and Children Parental Alienation Child Contact Rights Children S Act Best Interests of Child Costs Order Court Order Implementation

Case Brief

Summary, issues, holding and outcome

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Parties

D, A

Appellant

C, A

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Court a Quo Regarding Contact Rights

Legal Issues

  1. 1 Whether the father, as respondent, can enforce rights of contact with his 17-year-old daughter who refuses to see him.
  2. 2 Whether the court should apply child care principles and jurisprudence current at the time of hearing or those applicable in 2002.
  3. 3 Whether the court a quo failed to consider the best interests of the child and relevant provisions of the Children’s Act.

Ratio Decidendi

The court held that the best interests of the child must be assessed at the time of hearing, not according to outdated legal principles. The appellant’s persistent alienation of the child from the respondent was found to be a grave injustice and contrary to constitutional and statutory norms. Although the child, now 17, expressed strong resistance to contact, the expert evidence and legal principles supported the father’s right to seek contact. The order of the court a quo was upheld, but its implementation was deferred to allow for sensitive intervention by Ms Du Toit, who is to explain the outcome and reasoning to the child. The appellant was ordered to pay costs due to her conduct in...

Court Disposition

Appeal dismissed with costs; implementation of the contact order deferred sine die; Ms Du Toit to engage with the child as directed.

Orders

  • The appeal is dismissed with costs.
  • The implementation of the order of the court a quo is deferred sine die.