M and Another v M and Another (36838/2021) [2021] ZAGPJHC 738 (25 November 2021)

M and Another v M and Another (36838/2021) [2021] ZAGPJHC 738 (25 November 2021)

The court found that the minor child had been exposed to serious trauma and risk of harm, allegedly at the hands of the second respondent, with the first respondent failing to provide adequate protection. Expert reports and the Curatrix ad Litem’s recommendations indicated ongoing risks associated with the first respondent’s alcohol abuse and inability to care for the child. The paramount consideration was the best interests of the child, which required her to remain in the care of the applicants until the first respondent demonstrated sustained rehabilitation and compliance with therapeutic conditions. The second respondent’s parental rights were terminated except for maintenance. The...

Citation
[2021] ZAGPJHC 738
Parties
Applicant: M[....], S[....] J[....]; Applicant: K[....]2, D[....] B[....]; Respondent: M[....], K[....] M[....]2; Respondent: S[....]2, D[....]2 L[....]
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
25 November 2021
Case Number
36838/2021
Procedural Posture
Urgent Application / Opposed Motion; Return Day of Extended Rule Nisi
Outcome
The rule nisi is confirmed with variations. The minor child remains in the care of the applicants. The first respondent’s contact is subject to conditions. The second respondent’s parental rights are terminated except for maintenance. Costs awarded against the first respondent. Case management ordered.
Judges
L R Adams
Legal Topics
Children S Act, Parental Responsibilities and Rights, Termination of Rights, Care and Contact, Curator Ad Litem, Rehabilitation Conditions
Family and Children Civil Procedure Children S Act Parental Responsibilities and Rights Termination of Rights Care and Contact Curator Ad Litem Rehabilitation Conditions

Case Brief

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Parties

M[....], S[....] J[....]

Applicant

K[....]2, D[....] B[....]

Applicant

M[....], K[....] M[....]2

Respondent

S[....]2, D[....]2 L[....]

Respondent

Procedural Posture

Urgent Application / Opposed Motion; Return Day of Extended Rule Nisi

Legal Issues

  1. 1 Whether the minor child should remain in the care of the applicants or be returned to the first respondent.
  2. 2 Whether the first respondent's parental responsibilities and rights should be restored, suspended, or subject to conditions.
  3. 3 Whether the second respondent's parental responsibilities and rights should be terminated except for maintenance.

Ratio Decidendi

The court found that the minor child had been exposed to serious trauma and risk of harm, allegedly at the hands of the second respondent, with the first respondent failing to provide adequate protection. Expert reports and the Curatrix ad Litem’s recommendations indicated ongoing risks associated with the first respondent’s alcohol abuse and inability to care for the child. The paramount consideration was the best interests of the child, which required her to remain in the care of the applicants until the first respondent demonstrated sustained rehabilitation and compliance with therapeutic conditions. The second respondent’s parental rights were terminated except for maintenance. The...

Court Disposition

The rule nisi is confirmed with variations. The minor child remains in the care of the applicants. The first respondent’s contact is subject to conditions. The second respondent’s parental rights are terminated except for maintenance. Costs awarded against the first respondent. Case management ordered.

Orders

  • The rule nisi issued on 6 August 2021 (as varied) is confirmed, subject to amendments in this order.
  • The minor child shall remain in the care of the first and second applicants under section 23(1)(b) of the Children’s Act.