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Children’s rights and parental authority

The extent to which the courts go to protect the best interests of the minor child came up recently again in our case law in the decision of J v J, discussed below. This case is particularly interesting too as it deals with an area of our law which very often leads to conflict between two divorced parents, namely what school a child should attend and who has the final say. The child in this case had been removed from St George’s Grammar School and enrolled at Jan Van Riebeeck, a cheaper school, by the child’s mother, and the father was not happy with that.

In J v J 2008 (6) SA 30 (C) the appellant and respondent were previously married to each other. The minor child was born from the marriage relationship on 10 October 1995. The marriage was dissolved on 6 October 2000. An agreement of settlement was incorporated in the final order of divorce: “Custody and control of the minor child, FJJ, shall be awarded to the defendant, subject to the plaintiff’s right of reasonable access. It is further recorded that the plaintiff will have the right deciding which school the minor child shall attend as well as at what age the child shall start commence his schooling. If the plaintiff in any way should fail to pay the school fees in full, this right shall fall away and the defendant will be entitled to nominate the school which the child shall attend”.

In this case the Appellant appealed against a decision dismissing appellant’s application for an order directing the respondent (the appellant’s former wife) to enrol their son at a certain school (the respondent enrolled him at another school).

In paragraph 2.1 of the notice of motion the applicant seeks in effect a final order for the enrolment of the child at the St George’s Grammar School. In the founding affidavit the purpose of the application and the relief sought are set out in significantly different terms. In paragraph 6 of the founding affidavit, deposed to by the applicant, it is stated:

“The purpose of this application is to apply to this honourable court for an order:

6.1 That J be enrolled at St George’s Grammar School, Cape Town, in grade 6 with immediate effect and that he remains there until the respondent has complied with the provisions of the Children’s Act 38 of 2005 (Children’s Act) and/or until this honourable court orders otherwise with specific reference to the provisions of the Children’s Act.”

The appellant’s appeal counsel submitted that an order should be made similar to the one made in Simleit v Cunliffe: an order that the child be sent back to St George’s Grammar School at a specific, convenient date, and a mandatory order on the respondent directing her not to remove the child from the school as long as the appellant pays the school fees.

The court held that it could take cognisance of the report of an educational psychologist concerning the child but obtained at the instance of the appellant after judgment in the court a quo had been handed down, even though the appellant did not wish the court to take cognisance thereof.

The court further found that the custodian parent generally has the right to have the child with him or her, to regulate its life and to decide all questions of education, training and religious upbringing. Where the parties have agreed to vary the normal incidence of the rights of the custodian parents by giving the non-custodian parent, subject to compliance with a condition, the right to decide which school the child shall attend, but the non-custodian parent has failed to comply with the condition, the non-custodian parent will forfeit that right conferred on him. The right the non-custodian parent forfeits will then revert onto the custodian parent.

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