CMK v BJK

The applicant (CMK) and respondent (BJK) were divorced in 2018. They have two minor sons, TJK (15) and TWK (13). The parties could not agree on which schools the children should attend from January 2025. The children had previously been moved multiple times between Cape Town and Plettenberg Bay. The applicant sought to appoint an educational psychologist to assess and recommend optimal schools, which the respondent opposed. Reports from the children's school principal and teachers indicated that both children were unsettled, distressed, and disturbed. The eldest son (TJK) was underperforming academically and had been prescribed anti-anxiety medication. The youngest son (TWK) exhibited behavioural issues including oppositional, insolent, and aggressive behaviour towards teachers. The respondent initially consented to the assessment by Ms Leigh Pettigrew, but withdrew consent after she declined the appointment. The respondent contended that the children needed stability and should not be subjected to another school change.

• Whether the applicant established a case for urgency as envisaged in Rule 6(12) of the Uniform Rules of Court
• Whether an educational psychologist should be appointed to assess the minor children and recommend the most suitable school for the 2025 academic year
• Whether a referral to the Office of the Family Advocate for a care and contact investigation was warranted

The application succeeded. The court granted the following order: (1) The respondent's consent to an educational psychologist assessment was dispensed with, authorising the applicant to appoint either Ms Grobler or Ms Berger to conduct the assessment and recommend optimal schools for the 2025 academic year; (2) The Office of the Family Advocate was directed to conduct a care and contact investigation; (3) The Family Advocate was directed to gather the views of the minor children; (4) Both parties were directed to cooperate with the investigation; (5) The applicant was ordered to pay wasted costs occasioned by the postponement on 16 September 2024; (6) The respondent was ordered to pay the costs of the application on Scale A, save for the costs in paragraph 5.

In matters involving minor children, a child-centred approach must be the primary focus, with formalities and strict procedures secondary to the children's wellbeing. The best interests of the child, as enshrined in section 28(2) of the Constitution and section 6(1) of the Children's Act 38 of 2005, are of paramount importance. Where there is evidence that children are emotionally distressed and their current schooling is not promoting their wellbeing, it is in the children's best interests for an educational psychologist to be appointed to assess them and make recommendations, even over the objection of one parent. Furthermore, where an underlying care and contact dispute is evident, a simultaneous referral to the Office of the Family Advocate is appropriate to ensure the children's best interests are fully served.

The court observed that it would be irresponsible to ignore the letters and communications from the school principal and teachers regarding the physical and emotional wellbeing of the children. The court noted that the problems of the children 'go beyond the question of which school they should attend next year' and that 'their distress and anguish cry loudly for a professional intervention.' The court also emphasised that children of 13 and 15 years of age are of such maturity and stage of development that they can participate in proceedings and give informed views on whether they wish to stay in Plettenberg Bay or relocate to Cape Town.

This case reaffirms the paramountcy of the best interests of the child in family law disputes concerning educational decisions. It illustrates that courts will take a child-centred approach and prioritise children's emotional and psychological wellbeing over parental disputes. The judgment highlights the interplay between educational assessments and care and contact investigations, recognising that children's scholastic and emotional difficulties may stem from underlying parental conflict and care arrangements. It also reinforces the principle that children of sufficient maturity have the right to participate in decisions affecting them under section 10 of the Children's Act.