Does a non-parent have Locus Standi to apply for joint guardianship over a child?

Published on August 18, 2022

In RC vs. HC 2022 (4) SA 308 (GLD) the Court dealt with this issue:

The applicant had met the respondent at a time when the respondent was already pregnant. They started a relationship and when the child was 1 year old, they moved in together. The applicant played a role in raising the child for the next 10 years. Although the applicant formed a close bond with the child, the applicant's and respondent's relationship terminated.

The respondent and the child left the applicant's home. The respondent initially allowed applicant contact with the child but subsequently arrived at the view that it would be in the child's best interests of a child to stop all contact. The applicant consequently brought an application for joint guardianship.

The Court held that in this instance that the depth of the “parental” connection which had been established between applicant and the child was not, without more. enough to afford an applicant the necessary locus standi. Parental rights were, by their very nature, not randomly acquired. They were seriously obtained and exercised under the letter of the law. Section 24 (3) of the Children's Act required that the applicant had to submit reasons as to why the child's existing guarding was not suitable. The provisions of Section 24 (3) meant that if the child had an available and capable guardian, there was no reason to appoint another. The possibility of inviting dissent by increasing the number of people who have legally enforceable rights in relation to a child should be avoided. If the child was properly cared for by a primary caregiver there would need to be compelling motivation as to why another person should be accorded legal rights to the child.

COMMENT

In instances where a non-parent requires rights of contact and access to children it is suggested that such non-parent in terms of the provisions of Section 23 (1) of the Act, does have locus standi to negotiate a parenting plan with the primary caregiver. The non-parent and/or his/her lawyer's ability to negotiate rather than to demand will be an important tool in reaching such agreement.

MW Attorneys pride themselves in having the ability to negotiate suitable agreements on behalf of its clients.

C.M. Weiss
Practicing Consultant