M.E.K and Another v Provincial Head of the Department of Social Development and Others (19219/22) [2022] ZAGPPHC 266 (3 May 2022)

M.E.K and Another v Provincial Head of the Department of Social Development and Others (19219/22) [2022] ZAGPPHC 266 (3 May 2022)

The court found that the provincial head of social development failed to exercise the discretion required by section 169 of the Children's Act, instead merely rubberstamping the biological parents' refusal without considering the best interests of the child. The refusal was not based on a holistic assessment of the child's welfare, but solely on the parents' objections. The court held that the best interests of the child are paramount and that the applicants, as foster parents, had demonstrated responsible care. The urgency of the matter and the time constraints rendered strict compliance with internal remedies impractical, and exceptional circumstances justified the court's intervention....

Citation
[2022] ZAGPPHC 266
Parties
Applicant: M E K[....]; Applicant: M[....] K[....]; Respondent: Provincial Head of the Department of Social Development; Respondent: L[....] S[....]; Respondent: A[....]2 S[....]2 S[....]3; Respondent: Department of Home Affairs
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
3 May 2022
Case Number
19219/22
Procedural Posture
Review Application / Judgment
Outcome
Application granted; administrative refusal set aside; applicants authorised to remove the child for vacation; costs awarded against first respondent.
Judges
E van der Schyff
Legal Topics
Children's Act, Foster Care, Removal of Child From Republic, Promotion of Administrative Justice Act, Best Interests of Child, Internal Remedies Exhaustion
Family and Children Administrative Law Children's Act Foster Care Removal of Child From Republic Promotion of Administrative Justice Act Best Interests of Child Internal Remedies Exhaustion

Case Brief

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Parties

M E K[....]

Applicant

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

Applicant

Provincial Head of the Department of Social Development

Respondent

L[....] S[....]

Respondent

A[....]2 S[....]2 S[....]3

Respondent

Department of Home Affairs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the refusal by the provincial head of social development to grant consent for the removal of a foster child from the Republic was lawful and reasonable.
  2. 2 Whether the applicants were required to exhaust internal remedies before approaching the court for review.
  3. 3 Whether the best interests of the child were properly considered in the administrative decision.

Ratio Decidendi

The court found that the provincial head of social development failed to exercise the discretion required by section 169 of the Children's Act, instead merely rubberstamping the biological parents' refusal without considering the best interests of the child. The refusal was not based on a holistic assessment of the child's welfare, but solely on the parents' objections. The court held that the best interests of the child are paramount and that the applicants, as foster parents, had demonstrated responsible care. The urgency of the matter and the time constraints rendered strict compliance with internal remedies impractical, and exceptional circumstances justified the court's intervention....

Court Disposition

Application granted; administrative refusal set aside; applicants authorised to remove the child for vacation; costs awarded against first respondent.

Orders

  • Non-compliance with the forms and service provided for in the Uniform Rules of Court is condoned; application heard as urgent.
  • The refusal of the first respondent to approve the applicants' request to remove the minor child from the Republic is reviewed and set aside.