The best interests of the child and the right of interested third parties to parental responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)

• Jurisdiction: South Africa
• DOI: 10.17159/2225-7160/2024/v57a1
• Author: Mildred Bekink
• Pages: 1-16
• Date: 01 June 2024
• Published date: 01 June 2024
• Published By: University of Pretoria

Best interests of the child and the right of interested third parties 1

The best interests of the child and the right

of interested third parties to parental

responsibilities and rights: RC v HSC 2023 4

SA 231 (GJ)

Mildred Bekink*

BA BA (HONS) LLB LLM (cum laude) LLD

Associate Professor, College of Law, Department of Mercantile Law, University of

South Africa

SUMMARY

The South African post-constitutional era gave rise to the reframing of

what was previously referred to as parental authority to parental

responsibilities and rights. Throughout these developments, the best

interests of the child remained a constant consideration, resulting in a

move away from a parent-centred approach to a child-centred approach.

In line with this child-centred approach, modern South African law

recognises that children have the right to family or parental care.

Recognition is also given to the subsequent fundamental principle that

parents and the family perform a central role in a child’s care and

protection. However, analogous to global trends South African family

structures have transformed and are no longer typically nuclear, but are

characterised by a diversity of parental, family and community-based

forms of caregiving. Children accordingly find themselves being cared for

by persons who are not their biological parents. In this regard the position

of the “interested third party” or so-called “co-holder of parental

responsibilities and rights” is gaining increasing relevance. Although the

role of interested third parties is recognised in domestic law, in the

Children’s Act, some uncertainty about the right of these parties to obtain

parental responsibilities and rights over a child prevails. One such aspect is

the right of a former life-partner to obtain parental responsibilities and

rights over a non-biological child upon the dissolution of a life-partner

relationship. A recent High Court case, RC v SC 2022 4 SA 308 (GJ) and its

appeal namely, RC v HSC 2023 4 SA 231 (GJ) to a full bench of the High

Court provides valuable insight into this regard and specifically on the

approach taken by the courts about an application for parental rights and

responsibilities to a non-biological child by an interested third party in

terms of the Children’s Act.

How to cite: Bekink ‘The best interests of the child and the right of interested third parties to parental

responsibilities and rights: RC v HSC 2023 4 SA 231 (GJ)’ 2024 De Jure Law Journal 1-16

http://dx.doi.org/10.17159/2225-7160/2024/v57a1

* Acknowledgement: The author wishes to thank the anonymous reviewers

and the editors of the journal for their constructive comments on earlier

drafts. The author takes responsibility for any remaining errors. This

contribution was supported in part by the National Research Foundation of

South Africa (NRF), Grant Number 145481. Consequently, the author

wishes to thank the NRF for its support.

2 2024 De Jure Law Journal

1 Introduction

Historically parental authority in South Africa centred around married

fathers. The 20th century saw a development in law with the recognition

of the rights of mothers, though married fathers retained the sole

guardianship of their children. The South African post-constitutional era

gave rise to the recognition of the rights of unmarried fathers coupled

with the reframing of what was previously referred to as parental

authority to parental responsibilities and rights (Heaton “Parental

Responsibilities and Rights” in Boezaart (ed) Child Law in South Africa

(2017) 77). Throughout these developments the best interests of the child

remained a constant consideration or “golden thread”, gaining more

significance with time and eventually resulting in a move away from a

parent-centred approach to a child-centred approach (Skelton “Parental

Responsibilities and Rights” in Boezaart (ed) Child Law in South Africa

(2009) 63). In line with this child-centred approach, modern South

African law recognises that children have the right to family or parental

care (Art 18 of the United Nations Convention on the Rights of the Child

(CRC), s 28(1)(b) of the Constitution of the Republic of South Africa, 1996

and chapter 3 of the Children’s Act 38 of 2005). Recognition is also given

to the subsequent fundamental principle that parents and the family

perform a central role in a child’s care and protection, with both parents

bearing an equal responsibility towards a child’s well-being (Skelton

(2009) 63; see also Centre for Child Law v Minister of Home Affairs 2005 6

SA 50 (T) para 10: “The primary responsibility for the protection and

promotion of the interests of the child vests in the parents”).

Conversely, although parents play an invaluable role in their children’s

lives, analogous to global trends South African family structures have

transformed and are no longer typically nuclear, but have instead taken

on complex forms (Satchell v President of the Republic of South Africa

2002 2 SA 1 (CC) para 13; Wilsenach v M 2021 1 ALL SA 600 (GP) and RC

v SC 2022 4 SA 308 (GJ) para 58). Parenting and caregiving arrangements

are characterised by a diversity of parental, family and community-based

forms of caregiving (Louw “Children and Grandparents: An overrated

attachment?” 2013 Stell LR 618). This may be attributed to historical,

political, socio-economic, and other contemporary pressures, such as

migration and HIV/AIDS. Urbanisation and modernisation have

intensified this phenomenon even further (National Child Care and

Protection Policy, GN472 in GG44636 of 28 May 2021 para 4.2). As a

result, many South African children live in a multitude of caregiving

arrangements where marriage or biological parentage is no longer

dominant. These children find themselves being cared for by persons

who are not their biological parents. This may either be by agreement

with the parent or in terms of a court order (ss 22(1), 23 and 24 of the

Children’s Act). In this regard, the position of the “interested third party”

or so-called “co-holder of parental responsibilities and rights” is gaining

increasing relevance.