Faced with the question on whether a father had a legal duty to maintain his foster care child, the Western Cape High Court in a recent case again affirmed that the best interest of a child is of paramount importance. Lekhuleni J held that “Children are the cornerstone of society; when we neglect them, we neglect our society’s future. Every child deserves proper parental care and support for the well-being of society.“
The case of R.S v J.P.S and 2 Others 2024 ZAWCHC 154 is an appeal against the whole judgment delivered by the Magistrate of the district of Cape Town, held in Kuilsriver wherein the Magistrate found that the foster care father (“father”) had no legal duty to maintain the minor child.
Facts of the case
During a couple’s marriage, they took in an abandoned child who was 18 months old, LX. The couple cared for the minor child and even went as far as starting with the adoption process in the Bloemfontein Children’s Court. The children’s court issued an initial foster care order on 7 November 2014, and informed the couple that they will first monitor whether they are suitable parents for LX before the adoption could be finalised. In the meanwhile, the couple signed and completed the necessary form 60 in terms of Regulation 99 read with section 231 of the Children’s Act 38 of 2005 (“the Children’s Act”), which is the application for and consent to the adoption of children form.
At the time when the adoption process was pending, the couple made LX apart of their family. The couple cared for the minor child and raised her as their own. The couple clearly undertook parental rights and responsibilities in respect of the minor child.
Incomplete adoption
Before the adoption could be completed, the couple experienced marital problems and subsequently got a divorce in the Belville Regional Court. In instituting divorce proceedings, the father acknowledged in the summons that there is a minor child involved and he sought an order obliging him to contribute R5 000.00 towards maintenance for LX until she reaches the age of 18. The father also signed a commitment letter wherein he acknowledged that he would contribute R5 000.00 maintenance in respect of LX.
Settlement agreement reached
The parties subsequently entered into a settlement agreement wherein it made specific provision that the father will pay R5 000.00 maintenance for the minor child until she becomes a major or self-supporting, whichever occurs first. In terms of the settlement agreement, the father was also liable for all medical expenses and for half of the educational expenses of LX.
Unfortunately, the part of the maintenance was never inserted into the written instrument and therefore never granted by the regional court. As a result, the decree of divorce did not oblige the father to contribute towards maintenance. The mother then attempted to have the court rectify the mistake which proved to be ineffectual.
Despite the failure of providing for the maintenance amount in the decree of divorce, the father opted to contribute R4 000.00 a month towards maintenance for the child. The father, however, stopped paying maintenance in January 2024 which led the mother to the maintenance court. The Magistrate held that the father merely showed human kindness, and this does not place a legal obligation on the father to contribute towards maintenance of the minor child.
Foster Care vs Adoption
Section 156(1)(e)(i) of the Children’s Act makes provision for the placement of a child in foster care with a suitable foster parent, who is not the parent or guardian, in the event that a child is in need of care and protection.
Any person who is 18 years or older, fit, and proper, willing and able to look after the child and able to provide a favourable environment for the child’s growth and development can become a foster parent by applying to the Department of Social Development or an accredited child protection organisation for permission to foster the child. A court will assess whether the applicant is suitable to be a foster parent. Once the court approves the placement of the child with the foster parent, the parent may apply for a foster child grant at the nearest South African Security Agency office. It is completely free for someone to sign up to become a foster parent.
Being a foster parent is temporary and the intention of the Children’s Act is clear that the foster parents do not obtain a duty to support the foster child. Section 161 of the Children’s Act makes provision for a contribution order against the biological parents, which will have the effect of a maintenance order, in terms of which they can be compelled to make a contribution towards the maintenance of the foster child.
On the other hand, Chapter 15 of the Children’s Act regulates adoption in South Africa. Section 242(1) of the Children’s Act terminates all parental rights and responsibilities that any person had in respect of the child immediately before the adoption, as well as all claims to contact. The adoption order confers full parental rights and responsibilities in respect of the adopted child upon the adoptive parents. Section 242(3) of the Children’s Act holds that “An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.” Adoptive parents have a legal duty to support their adopted children.
The parties intended to adopt
It is apparent from the facts of the case that it is no longer just a matter of foster parents not having a duty to support the foster child – the parties clearly intended for LX to become their adoptive child. The facts of the case distinguishes the matter from a normal adoption as the adoption process has not been finalised, hence the high court’s focus on informal, putative and/or ostensible adoptions. Ordinarily there is no legal duty of support between a putative parent and an informally adopted child.
In recent years our courts have become increasingly inclined and willing to recognise a duty of support notwithstanding the fact that the adoption has not yet been formalised and all legislative requirements have not been met. The courts justify the recognition of informal adoption by relying on section 28(2) of the Constitution of the Republic of South Africa, 1996 which provides that a “child’s best interests are of paramount importance in every matter concerning the child.” The best interest of a child is the guiding criterion that underpins all decisions in respect of any dispute where children are involved.
High Court evaluation
In this case, it is common cause that the father committed himself to support the minor child and that the couple intended to adopt the minor child. This express commitment made by the father, and the fact that he refers to LX by his own surname, attests to a relationship between father and daughter. LX was 18 months old when she joined their household and at the time of the appeal to the high court, she was 12 years old. She has been a part of the parties’ life for a long time. Despite the decree of divorce not making provision for the payment of maintenance, the father nevertheless contributed to maintenance of the minor child. The father also discharged the duties and functions of a father in his interaction with the child, even after the couple separated and got divorced.
Lekhuleni J, in para 33, held:
“The fact that the adoption proceedings were not concluded, in my view, does not absolve the first respondent of his obligation towards the minor child. Significantly, the child was in the foster care of the appellant and the respondent. The child formed a strong bond with the appellant and the first respondent.“
The high court held that the father had in fact de facto adopted the minor child and considered her to be his own. The court extended the duty of support to an informal adoption and ordered the father to pay R5 000.00 maintenance per month for LX, pending the outcome of the maintenance enquiry to be held by the maintenance court.
Way forward
The high court specifically provided that “This judgment does not hold that, merely by commencing the adoption process, parents automatically assume all rights and responsibilities of the child’s parents.” This particular case is on a different footing, because the intention to adopt the minor child was very clear. The couple factually adopted the child and the court also saw it this way.
If a minor child is merely in the care of foster parents, there is no legal duty to maintain the child. If a minor child is adopted, the adoptive parents have a legal duty to maintain the child. In the circumstances where the intention is adoption, but it has not been formalised, parents would have to clearly allege the familial relationship between the parties in order to be successful with a claim for maintenance for your minor child. The courts take the best interests of the child as the guiding criterion and therefore it would be essential to prove to the court that the relationship established between the child and the foster care mother and/or father is of such a nature that the parties assumed parental rights and responsibilities in respect of the child.
It appears that the courts have become increasingly motivated to recognise the duty of support towards minor children, despite a formal title of “father” or “mother” assigned to the parties. This is a step in the right direction, in order to ensure that children’s best interests are protected.