J.S v W.F (63698/13) [2020] ZAGPPHC 350 (10 July 2020)

J.S v W.F (63698/13) [2020] ZAGPPHC 350 (10 July 2020)

The Court held that, in matters concerning minor children, jurisdiction is determined by statutory provisions and international law. Section 29 of the Children's Act excludes the Court's jurisdiction to grant relief that would terminate, extend, suspend, or restrict parental rights and responsibilities where the children are not ordinarily resident in its area. The children have resided in France for over eight years, making France their habitual residence and the competent jurisdiction for substantive orders affecting parental rights. However, the Court retains jurisdiction to vary or enforce its own orders made under the Divorce Act, including declaratory relief delineating parental...

Citation
[2020] ZAGPPHC 350
Parties
Applicant: J.S; Respondent: W.F
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 July 2020
Case Number
63698/13
Procedural Posture
Urgent Application / Jurisdictional Determination on Stated Case Under Rule 33(1)
Outcome
The Court found it lacks jurisdiction to grant substantive relief under section 28 of the Children's Act for children not ordinarily resident in its area, but retains jurisdiction for declaratory relief and contempt proceedings regarding its own orders.
Judges
Van der Schyff
Legal Topics
Parental Responsibilities and Rights, Jurisdiction of High Court, Variation of Divorce Order, Contempt of Court, Habitual Residence, International Child Protection
Family and Children Civil Procedure Parental Responsibilities and Rights Jurisdiction of High Court Variation of Divorce Order Contempt of Court Habitual Residence International Child Protection

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Parties

J.S

Applicant

W.F

Respondent

Procedural Posture

Urgent Application / Jurisdictional Determination on Stated Case Under Rule 33(1)

Legal Issues

  1. 1 Does the North Gauteng High Court have jurisdiction to adjudicate the main application, the variation application, and the contempt application concerning minor children residing in France?
  2. 2 Can the Court grant declaratory or substantive relief regarding parental rights and responsibilities when the children are not ordinarily resident in its jurisdiction?
  3. 3 Does the Court retain jurisdiction over its own orders for contempt proceedings when parties reside abroad?

Ratio Decidendi

The Court held that, in matters concerning minor children, jurisdiction is determined by statutory provisions and international law. Section 29 of the Children's Act excludes the Court's jurisdiction to grant relief that would terminate, extend, suspend, or restrict parental rights and responsibilities where the children are not ordinarily resident in its area. The children have resided in France for over eight years, making France their habitual residence and the competent jurisdiction for substantive orders affecting parental rights. However, the Court retains jurisdiction to vary or enforce its own orders made under the Divorce Act, including declaratory relief delineating parental...

Court Disposition

The Court found it lacks jurisdiction to grant substantive relief under section 28 of the Children's Act for children not ordinarily resident in its area, but retains jurisdiction for declaratory relief and contempt proceedings regarding its own orders.

Orders

  • This Court does not have jurisdiction to grant relief amounting to termination, extension, suspension, or restriction of parental rights and responsibilities under section 28 of the Children's Act where the minor children are not ordinarily resident in its area of jurisdiction.
  • This Court has jurisdiction to make declaratory orders delineating the applicant's rights as co-holder of parental responsibilities and rights and co-guardian of the minor children as informed by the settlement agreement incorporated in the decree of divorce and relevant provisions of the Children's Act, in terms of...