S v J

C S was born on 23 January 2006 to unmarried parents, Mr S (appellant/father) and Ms R. The parents were living together in a permanent life partnership in Paarl and intended to marry. C's mother, Ms R, died two months after C's birth from a congenital heart defect. Mrs J (first respondent), C's maternal grandmother, took C to Keimoes to live with her and her husband Mr J (second respondent) shortly after Ms R's death. For nearly five years, the parties engaged in continuous litigation in both the Northern Cape and Western Cape High Courts concerning custody, guardianship, and parental rights over C. By the time of the appeal, C was living with her father S and his wife A in Paarl, following a successful reunification process. The Js continued to seek custody despite multiple court orders and expert recommendations that C remain with her father.

• Whether an unmarried father living in a permanent life partnership with the mother at the time of birth automatically acquired full parental responsibilities and rights under s 21 of the Children's Act 38 of 2005
• What rights grandparents have in respect of their grandchildren under the Children's Act
• Whether the Western Cape High Court had concurrent jurisdiction to make orders concerning C when she was resident in that jurisdiction
• Whether a high court can suspend the execution of an order made by another high court in matters concerning children
• What constitutes the best interests of the child in determining parental responsibilities and rights
• Whether the Northern Cape High Court orders were vitiated by factual errors, legal errors, and apparent bias

All three appeals against the orders of Kgomo JP succeeded with costs. The first order (2 October 2009) awarding custody and guardianship to the Js was set aside and replaced with an order: (a) dismissing the Js' application; (b) declaring S the holder of full parental responsibilities and rights under s 18 of the Children's Act; (c) ordering C to reside permanently with S; (d) granting the Js contact with C on a regular basis arranged through A's mother at specified locations with S's prior knowledge; (e) requiring the parties to attempt mediation before court proceedings if difficulties arise. The second order (30 October 2009) requiring S to deliver C to the Js was set aside and the application dismissed. The third order (21 May 2010) finding S in contempt of court was set aside and the application dismissed with costs.

An unmarried biological father who was living with the child's mother in a permanent life partnership at the time of the child's birth automatically acquires full parental responsibilities and rights under s 21(1)(a) of the Children's Act 38 of 2005 from the date that section came into operation (1 July 2007), regardless of whether the child was born before the Act commenced. A high court, as upper guardian of children within its jurisdiction, has both the power and the duty to make orders necessary for the protection of children resident in its area of jurisdiction, including staying execution of orders made by another high court, though it cannot set aside or vary such orders. In all matters concerning children, the child's best interests are paramount (s 28(2) of the Constitution; s 9 of the Children's Act), and courts must not allow the child's best interests to be sacrificed on the altar of jurisdictional formalism or legal technicalities. Courts must consider all relevant facts up to the time of the hearing, including changes in circumstances after earlier orders were made.

The court cautioned against forum shopping in parenting disputes and stated that as a general rule, where a child's interests change over time, the court that made the initial order should be approached for a variation. However, formalism and inflexible rules should be discouraged where children's interests are at stake. The court endorsed the value of mediation in family matters as recommended in MB v NB, noting that litigation should not necessarily be a first resort and that s 6(4) of the Children's Act encourages conciliation over confrontation. Lewis JA observed that had the parties attempted to discuss C's genuine best interests rather than immediately resorting to litigation, they could have avoided five years of emotionally and financially draining legal battles. The court also noted the important role grandparents may play in children's lives (referring to Townsend-Turner v Morrow) but emphasized this must be balanced against the child's best interests and primary bonds with parents and step-parents.

This case is significant for establishing important principles regarding unmarried fathers' rights under the Children's Act 38 of 2005. It clarified that s 21 of the Act operates retrospectively to grant full parental responsibilities and rights to unmarried fathers who were living with the mother in a permanent life partnership at the time of birth. The judgment emphasized that children's best interests must not be sacrificed to legal formalism or jurisdictional technicalities, endorsing the Constitutional Court's approach in AD and DD v DW. It provided guidance on concurrent jurisdiction in child matters where the child is resident in a different jurisdiction than where initial orders were made. The case also highlighted the limited rights of grandparents prior to ss 23-24 of the Children's Act coming into force in 2010, and encouraged mediation over litigation in family disputes. The judgment serves as a cautionary tale against allowing personal bias to influence judicial decision-making in children's matters and against forum shopping, while recognizing that rigid formalism must yield to children's best interests.