NS and Others v Presiding Officer of the Children's Court (2184/18) [2018] ZAGPJHC 59 (6 February 2018)

NS and Others v Presiding Officer of the Children's Court (2184/18) [2018] ZAGPJHC 59 (6 February 2018)

The court held that the Children’s Act does not exclude foreign nationals, whether legally or illegally in the country, from its ambit or from the jurisdiction of the Children’s Court. Section 44 of the Children’s Act confers jurisdiction based on the ordinary residence of the child, which is a factual determination and does not require legal immigration status or citizenship. The third applicant has been ordinarily resident in South Africa for at least ten years, and his immigration status is irrelevant for jurisdictional purposes. The adoption application is a local adoption to be determined under chapter 15 of the Children’s Act, not an inter-country adoption under chapter 16. The...

Citation
[2018] ZAGPJHC 59
Parties
Applicant: N, S; Applicant: N, J; Applicant: M, M; Respondent: Presiding Officer of the Children's Court, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 February 2018
Case Number
2184/18
Procedural Posture
Urgent Application / Review and Setting Aside of Children's Court Jurisdictional Decision
Outcome
Application granted; decision of the Presiding Officer set aside; declarations made regarding jurisdiction and adoption status; costs awarded to applicants.
Judges
Kathree-Setiloane
Legal Topics
Children S Act, Adoption Jurisdiction, Foreign Nationals, Best Interests of Child, Review of Administrative Decision
Family and Children Civil Procedure Administrative Law Children S Act Adoption Jurisdiction Foreign Nationals Best Interests of Child Review of Administrative Decision

Case Brief

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Parties

N, S

Applicant

N, J

Applicant

M, M

Applicant

Presiding Officer of the Children's Court, Johannesburg

Respondent

Procedural Posture

Urgent Application / Review and Setting Aside of Children's Court Jurisdictional Decision

Legal Issues

  1. 1 Whether the Children’s Court has jurisdiction to hear an adoption application involving a foreign minor child who is allegedly illegally in South Africa.
  2. 2 Whether the immigration status of a minor child is relevant to the jurisdiction of the Children’s Court under section 44 of the Children’s Act.
  3. 3 Whether the adoption application should be treated as a local or inter-country adoption.

Ratio Decidendi

The court held that the Children’s Act does not exclude foreign nationals, whether legally or illegally in the country, from its ambit or from the jurisdiction of the Children’s Court. Section 44 of the Children’s Act confers jurisdiction based on the ordinary residence of the child, which is a factual determination and does not require legal immigration status or citizenship. The third applicant has been ordinarily resident in South Africa for at least ten years, and his immigration status is irrelevant for jurisdictional purposes. The adoption application is a local adoption to be determined under chapter 15 of the Children’s Act, not an inter-country adoption under chapter 16. The...

Court Disposition

Application granted; decision of the Presiding Officer set aside; declarations made regarding jurisdiction and adoption status; costs awarded to applicants.

Orders

  • The decision of the respondent to remove the adoption application from the roll is reviewed and set aside.
  • It is declared that the third applicant’s immigration status is irrelevant for purposes of determining whether the Children’s Court, Johannesburg, has jurisdiction in terms of section 44 of the Children’s Act 38 of 2005.