Court orders custody inquiry after child is removed from uncles’ care

The Johannesburg high court has ordered a clinical psychologist and a family advocate to investigate a custody arrangement for a 13-year-old boy whose father died suddenly while picking him up from school in February. 

The boy, who now lives with his mother and her partner, was removed from the care of his uncles who — along with his father — had been his primary caregivers for most of his life. The abrupt uprooting of the boy from his established school, culture and routines are what sparked the custody battle. 

Johannesburg high court judge Portia Nkutha-Nkontwana was told that the boy is the only child of T and M, a couple who divorced in 2015. The boy — identified as S — lived primarily with his father T and T’s two brothers in their family home in Hyde Park. This was until T died unexpectedly on February 28. 

T and M had an “affable co-parenting relationship” at the time. 

Under their arrangement, S lived with his father from Sunday morning until Thursday, then with his mother from Thursday until Sunday morning. Over nine years he developed a close bond with his two uncles, who would regularly travel with him and his father to Cyprus on family holidays. 

S attended primary school from grade 0 to the end of the first term of his final year of primary school. 

The brothers told the court that without warning, M removed S from his school and placed him in a college in Fourways. They contended that S was removed in the prime of his schooling where he was thriving, had a circle of close friends and was excelling in a stable, supportive environment. 

They told the court they had enjoyed a very close relationship with the child, who had become the centre of their lives. They regarded S as their son and meaningfully contributed to his upbringing, paying for his school fees and extramural activities and participating in every facet of the boy’s life. 

They told the court they believed M’s decision to remove S from his school was aimed at diluting their relationship with the child, as over the years they have become very involved in his school life, had developed a good relationship with the parents of S’s friends. She had not participated at all and was “an unknown figure to the parents and teachers due to her lack of involvement in S’s school life”. 

It is common cause that the applicants and S enjoyed a constant contact and bond for almost nine years before T’s demise and some sporadic contact thereafter. The respondent is clearly not keen to assist S to maintain the bond he shares with the applicants given the obvious tension between the parties.

—  Judge Portia Nkutha-Nkontwana

They said that after T died M had removed S from his school and placed him in a college he had not chosen for himself. And at the same time S stopped attending the Greek Orthodox Church, Greek language lessons, Greek dancing and cultural classes — all things he had previously participated in weekly without any objection from M. 

S also gave up sport and music when he went to live with his mother and had infrequent contact with his uncles. 

In their application, the brothers asked for a clinical psychologist to investigate the best interests of the boy and recommend the best arrangement. 

They asked for an inquiry convened by the office of the family advocate to provide the court with recommendations for their rights of contact and care in terms of the Children’s Act; and that both parties be allowed to supplement their own affidavits on receipt of the psychologist’s recommendations. 

M opposed the application, arguing that her decision to remove S from his school was not for her own interests, but because the child was experiencing difficulties after the death of his father. T had died on the school premises while collecting S from school. This had been devastating for everyone and had led to S living primarily with her and Mr B since the incident. 

She said an assessment by the school psychologist had found that school had become a sad place for S, and she had placed him in a new school where he was given an academic scholarship until grade 12. 

She had contracted a social worker to “conduct a voice of the child assessment on S in terms of Section 10 of the Children’s Act”. The social worker had found that S expressed the wish to live with his mother only, as his strongest attachment figure, and not share residence with his uncles, who he did not see as father figures. 

The court noted that M’s suggestion that a single social worker report was enough, that S’s voice must be respected and he alone be the one to decide and initiate contact with his uncles, was incorrect. 

Nkutha-Nkontwana held that this contention was flawed, as it was the court’s duty to establish the best interests of a minor child and that an inquiry could lead to a different decision to the child’s wishes. 

“It is common cause that the applicants and S enjoyed a constant contact and bond for almost nine years before T’s demise and some sporadic contact thereafter. The respondent is clearly not keen to assist S to maintain the bond he shares with the applicants given the obvious tension between the parties,” Nkutha-Nkontwana said, noting that S himself viewed his relationship with his uncles as positive.

She found that the uncles had made a case for an investigation into the best interests of their nephew. She ordered that a psychologist and the family advocate carry out the inquiry and that all parties co-operate with the process. 

Pending the outcome of the report, the uncles were entitled to “reasonable contact” with S, which included telephonic and electronic contact three evenings a week and day visits every second Saturday.