L.K.M and Another v N.F.M and Others (16859/22) [2022] ZAGPPHC 269 (29 April 2022)

L.K.M and Another v N.F.M and Others (16859/22) [2022] ZAGPPHC 269 (29 April 2022)

The High Court confirmed its jurisdiction as upper guardian of all minor children but found it inappropriate to interfere with ongoing Children’s Court proceedings without notice to the Presiding Officer. The applicants should first seek variation or suspension of the Children’s Court order in that forum, which is specifically equipped to deal with children’s matters and allows for urgent applications and deviation from prescribed time periods. Only if the Children’s Court refuses appropriate relief may the applicants approach the High Court for review. The court found that the best interests of the child require gradual resumption of contact with her biological mother, not immediate...

Citation
[2022] ZAGPPHC 269
Parties
Applicant: L[....] K[....] M[....]; Applicant: B[....] J[....] M[....]; Respondent: N[....] F[....] M[....]; Respondent: S[....] M[....] M[....]; Respondent: THE FAMILY ADVOCATE
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 April 2022
Case Number
16859/22
Procedural Posture
Urgent Application / Interim Urgent Application to Suspend Execution of a Children’s Court Order and for Directions Regarding Contact and Guardianship.
Outcome
Application partially granted. The Children’s Court order is suspended only as it relates to immediate contact dates; structured contact is ordered. Applicants directed to approach the Children’s Court for further relief.
Judges
Van der Schyff
Legal Topics
Guardianship, Best Interests of Child, Urgent Interim Relief, Children S Act, Variation of Court Order
Family and Children Civil Procedure Guardianship Best Interests of Child Urgent Interim Relief Children S Act Variation of Court Order

Case Brief

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Parties

L[....] K[....] M[....]

Applicant

B[....] J[....] M[....]

Applicant

N[....] F[....] M[....]

Respondent

S[....] M[....] M[....]

Respondent

THE FAMILY ADVOCATE

Respondent

Procedural Posture

Urgent Application / Interim Urgent Application to Suspend Execution of a Children’s Court Order and for Directions Regarding Contact and Guardianship.

Legal Issues

  1. 1 Whether the High Court should suspend the operation and execution of an interim order granted by the Children’s Court regarding contact with a minor child.
  2. 2 Whether the Family Advocate should be ordered to report on the best interests of the minor child regarding guardianship, primary care, residence, and contact.
  3. 3 Whether the applicants should be assigned guardianship of the minor child with full parental rights and responsibilities.

Ratio Decidendi

The High Court confirmed its jurisdiction as upper guardian of all minor children but found it inappropriate to interfere with ongoing Children’s Court proceedings without notice to the Presiding Officer. The applicants should first seek variation or suspension of the Children’s Court order in that forum, which is specifically equipped to deal with children’s matters and allows for urgent applications and deviation from prescribed time periods. Only if the Children’s Court refuses appropriate relief may the applicants approach the High Court for review. The court found that the best interests of the child require gradual resumption of contact with her biological mother, not immediate...

Court Disposition

Application partially granted. The Children’s Court order is suspended only as it relates to immediate contact dates; structured contact is ordered. Applicants directed to approach the Children’s Court for further relief.

Orders

  • The application is heard as one of urgency and non-compliance with form, service, and time periods is condoned.
  • The Children’s Court order dated 25 April 2022 under case number 40/2022 is suspended only in respect of the first respondent’s contact with the minor child for the period 28 April 2022 to 30 April 2022.