I v S

• Jurisdiction: South Africa
• Judgment Date: 12 November 1999
• Citation: 2000 (2) SA 993 (C)

I v S
2000 (2) SA 993 (C)

2000 (2) SA p993

Citation	2000 (2) SA 993 (C)
Case No	6263/99
Court	Cape Provincial Division
Judge	Erasmus AJ
Heard	November 10, 1999
Judgment	November 12, 1999
Counsel	P Volmink for the applicant.; D Jacobs for the respondent.

Flynote : Sleutelwoorde D

Minor — Access — By non-custodian parent — Parents married and divorced according to Islamic law — Parents concluding agreement relating to maintenance of and access to minor children — Access to minor children having terminated — Non-custodian parent seeking to have portion of agreement relating to access made order of Court by E application in terms of s 2 of the Natural Fathers of Children Born Out of Wedlock Act 86 of 1997 — Court requesting enquiry by Family Advocate — Enquiry revealing that minor children displaying blatant antagonism towards non-custodian parent and expressing preference that access not be enforced — Act recognising access to children if in their F best interests — Interests of children to be focus of enquiry — Generally to advantage of child to have communication with both parents unless particular factors present which of a nature that welfare of child demanding that it be deprived of contact with one of the parents — Attitude of child in relation to granting of access to be taken into account — Relevant children appearing sufficiently mature and G old enough to give independent opinion as to refusal to have contact with non-custodian parent — Best interests of children served by giving due weight to their expressed preference — Application dismissed.

Headnote : Kopnota

The applicant and respondent had been married in accordance with Islamic law. When the marriage was dissolved, the parties had H concluded an agreement in terms whereof issues relating to property, maintenance for and access to the minor children born of the marriage were settled. The applicant exercised irregular access to the children and such access finally terminated about four years after the dissolution of the marriage between the parties. The applicant subsequently applied in terms of s 2 of the Natural Fathers of I Children Born Out of Wedlock Act 86 of 1997 to have the portion of the agreement relating to his access to the children made an order of Court. At the request of the Court, the Family Advocate conducted an enquiry into the applicant's request for access to the children which included a psychological evaluation by a psychiatrist specialising in child psychiatry. The Family Advocate's report stated that the children presented blatant antagonism J

2000 (2) SA p994

towards the applicant and found him to be an emotionally absent parent. The psychiatrist found that the A children were not displaying any adverse symptoms such as depression and were functioning reasonably well at school. He was of the opinion that enforcing access would only serve to increase the anger and hostility of the children towards the applicant. The Court was accordingly given the choice to make no order, thereby preserving the status quo in accordance with the wishes of the respondent and the minor children, or to order reasonable access B with the consent of the children, thereby allowing the applicant to undergo counselling about parenting skills and providing the children with the time and liberty to decide on the access issue without compulsion.

Held, that the Act recognised that the applicant had a right of access to the children if it was in their best interests. The interests of the children therefore had to be the focus of any enquiry C in that regard. (At 996C/D - D.)

Held, further, that it had to be accepted that it was generally to the advantage of a child to have communication with both its parents unless there were particular factors present which were of such a nature that the welfare of the child demanded that it be deprived of the opportunity of maintaining contact with one of the parents. (At 995J - 996A.) D

Held, further, that due weight had to be attached to the wishes of the child/children concerned as s 2(5)(d) of the Act listed the 'attitude of the child in relation to the granting of the application' as one of the factors which the Court had to take into account in considering an application for access under the section. (At 997D - E.)

Held, further, that the relevant children appeared to be sufficiently mature and old enough to give an independent E opinion as to their refusal to have contact with their father and their wishes and decisions in this regard had to be respected. In the circumstances, the best interests of the children would be served by giving due weight to their expressed preference. (At 997F/G - G and H.) Application dismissed.

Cases Considered

Annotations:

Reported cases

Chodree v Vally 1996 (2) SA 28 (W): dictum at 32F - G applied

Churchyard 1984 FLR 635 (CA): considered

Fraser v Children's Court, Pretoria...