CM v NG

• Jurisdiction: South Africa
• Judge: Gangen AJ
• Judgment Date: 26 April 2012
• Citation: 2012 (4) SA 452 (WCC)
• Docket Number: 8026/2011
• Hearing Date: 26 April 2012
• Counsel: J Anderssen for the applicant. R Maass for the respondent. A Skelton for the amicus curiae.
• Court: Western Cape High Court, Cape Town

Gangen AJ:

Introduction C

[1] This is an application in terms of ss 23 and 24 of the Children's Act 38 of 2005 (the Act). Applicant and respondent were involved in a same sex relationship for several years. The parties did not register a marriage. During the relationship, a child, conceived by artificial insemination, was born. The relationship ended in November 2010. Applicant seeks an D order granting her full parental responsibilities and rights in respect of the minor child, as contemplated in ss 18(2), (3), (4) and (5) of the Act. Ms Anderson appeared on behalf of the applicant, and Ms Maass appeared on behalf of the respondent. Ms Skelton, of the Centre for Child Law, appeared as amicus curiae.

Facts E

[2] Applicant and respondent began living together in May 2005. After the first year, the parties moved to London and lived there until June 2010. During December 2006 the parties applied to the Cape Fertility Clinic for respondent to undergo artificial insemination. In August 2007 F a similar process was followed for the applicant to undergo artificial insemination. As a result of the procedure, the minor child was born on 29 October 2008. Respondent is the biological mother of the child. Applicant has no biological bond with the minor child. The child was born in England. The respondent, as the birth mother, was recorded as the parent. G

[3] In November 2010 the relationship between the parties ended. Applicant continued to have contact with the minor child after the separation of the parties. On 12 April 2011 respondent advised applicant that she wanted to stop her contact with the minor child. The reason for H the decision was that it was not in the minor child's interests. The parties agree that the child's primary residence shall be with respondent.

[4] On 13 April 2011 applicant brought this application. The application was opposed. On 20 April 2011, by agreement between the parties, the matter was postponed sine die. The family advocate was authorised to I investigate the best interests of the child.

[5] In May 2011 applicant approached the court for an order to compel respondent to co-operate with the family advocate and an expert identified by applicant. This application was opposed by respondent. On 24 May 2011 the application was postponed to 1 August 2011. An interim contact order was made. J

Gangen AJ

A [6] On 3 August 2011 the report of the family advocate was not available. An order was granted increasing the contact in place in terms of the interim contact order. The matter was postponed to 29 November 2011.

[7] In September 2011 the applicant approached this court for an order B interdicting respondent from relocating to Johannesburg with the minor child. On 16 September 2011 a new contact arrangement was made an order of court pending the finalisation of the matter.

[8] The applicant alleged that it was the intention of the parties to have children together. She stated that she is the minor child's other parent. C Respondent on the other hand denies that this is so. She averred that it was always her intention to have children. Respondent stated further that she had considered in vitro fertilisation before her relationship with applicant. She alleged that her decision to have a child was not dependent on her relationship with the applicant. Respondent stated D that applicant was involved in the process only because of their relationship.

[9] Applicant submitted documents relating to the Cape Fertility Clinic which indicate that applicant and respondent jointly approached the clinic for the artificial-insemination procedure. The parties jointly signed E documents relating to the in vitro fertilisation of respondent. Applicant's name was inserted wherever there was reference to husband and the fertilisation 'problem' was referred to as 'lesbian couple'. Respondent in March 2009 also signed forms consenting to the artificial insemination of the applicant.

F [10] Applicant further submitted various communications wherein respondent acknowledged that applicant is the other parent of the minor child.

[11] In an email of August 2007, respondent advised her mother that 'we have decided to have a baby together'. This is contrary to respondent's G assertion in her affidavit that applicant was involved in the process only because of their relationship, and that her decision to have a baby was not dependent on her relationship with applicant.

[12] Applicant also submitted other documentation relating to the minor child wherein respondent makes reference to the child being 'their child'. H This is in communications to their doctor and family members, and to applicant, after their separation. In fact respondent on 27 July 2009, in response to an email from applicant, said, 'I have never said that he is not your son, neither have I said you are not his mother.'

[13] The said email also makes reference to applicant getting 'legal I rights' in respect of the minor child. Respondent replied that applicant was welcome to draw up a document saying that applicant was his other mother, and that she would sign same as agreement of that fact. This was at a stage that the relationship between the parties was going through a rocky patch.

[14] On 4 December 2010 (after the relationship ended) respondent also J wrote to applicant advising that —

Gangen AJ

'he is also your son. You are his other mom. I will NEVER do anything A to destroy that. I am not that kind of a person. . . . R is our child.'

[15] Respondent's denial in the papers of the intention to have a child together conflicts with her own contemporaneous statements at various earlier dates. These communications span the period commencing before the birth of the child, to after the parties separated. B

[16] Respondent points out that only she is registered as a parent on the birth certificate. Applicant explains that the reason she was not registered as a parent of the minor child is that he was born in England, and, when they went to register his birth as a couple, they were informed that it was not possible to have both parties registered as the parents. This is also C corroborated in an email dated 5 August 2009, wherein applicant made enquiries as to the procedure for her to obtain the necessary legal rights as the minor child's parent.

[17] Applicant continued to have contact with the minor child after the D separation of the parties. Applicant submits that on separation, they agreed that applicant would have contact with the child one day per week, and every second weekend. Applicant says that she exercised contact in terms of this agreement. In addition, applicant from time to time was allowed to have the child sleep over. On at least two occasions, respondent allowed the child to stay with applicant for periods of four E days, and one week, respectively. This was at the end of March 2011, and up to 5 April 2011 — just a few days before respondent decided to terminate contact.

[18] Respondent denies that there was an agreement. She says that it was their understanding that the arrangement would be adjusted in accordance F with how the child coped. Respondent even goes further to state that applicant was part of the minor child's life for more than two years, and she did not want the minor child to experience a loss of any kind when applicant moved out. Respondent's failure to confirm that the applicant exercised regular contact as specified by applicant is glaring. G She does confirm the two longer stays. It is accordingly clear that on respondent's own version, the relationship was clearly more than that of a 'play date', as respondent would have this court believe. It serves as confirmation that there was a strong bond between applicant and the minor child. The minor child referred to applicant as 'Mom', and to respondent as 'Mommy'. H

[19] Furthermore, although the extent and scope of the contribution by applicant is in dispute, it is evident that applicant paid for some of the expenditure in relation to the fertilisation process. In 2011 applicant began making contributions of at least R3000 per month to the I maintenance of the minor child. Applicant was however unable to afford this after relocation of the respondent to Johannesburg, due to the increased expenditure incurred to exercise her contact in Johannesburg.

[20] The family advocate pointed out that the minor child was brought up in a household that resembled a family unit to the minor child, and that there is a strong possibility that both parties presented themselves as J

Gangen AJ

A parents during the child's formative years, and portrayed themselves as a family unit. No justification has been established to erode that foundation.

[21] I am of the view that if these were parties in a heterosexual B relationship, then a male person in the applicant's position would have been recognised as the father figure, and that the bond with the child would have been recognised as being that of a parent. There is no reason why applicant should not be treated in the same way.

[22] It is evident...