- The High Court has ruled that a parent does not need the other parent’s consent to enrol a minor child in a school under Sections 30 and 31 of the Children’s Act.
- The court found that the minor child’s long daily commute was exhausting, harmful to learning, and not in his best interests.
- The father’s attempt to link school enrolment to maintenance disputes was rejected as improper; the court reaffirmed child-centred principles.
The High Court in Johannesburg has confirmed that a parent does not require the other parent’s consent to enrol a minor child in a school when that consent is unreasonably withheld and the decision is taken in the child’s best interests.
At the centre of the case was a minor child born in 2013 to parents who were never married. Since their separation in 2016, the child has lived primarily with his mother in Edenvale but attended school in Benoni, resulting in hours of daily travel between homes, school, and his father’s residence.
The court noted that the minor child “finds himself in the middle of a storm and is reluctant to make his wishes clear,” fearing that doing so would mean choosing one parent over the other.
Long commutes, exhaustion, and declining school performance
The applicant mother approached the court for declaratory relief, seeking confirmation that she did not require the respondent father’s consent to move the minor child to a school closer to home. She described a daily routine of early departures, long commutes, late returns, and an exhausted minor child struggling to complete homework.
Judge S Mfenyana accepted that the minor child spent “almost two hours on the road daily,” often sleeping in the car and returning home “cranky and hungry,” with little energy left for learning.
The court was particularly troubled by evidence that the minor child sometimes studied while travelling or lying in bed after long days. Referring to expert input, Judge Mfenyana observed: “I also fail to fathom the recommendation that it is acceptable for the minor child to study in transit on his way to school.” The court concluded that the existing arrangements were “not conducive to good performance at school” and undermined the child’s well-being.
What the Children’s Act actually requires
A central legal question was whether Sections 30 and 31 of the Children’s Act require joint parental consent for school enrolment. The father argued that education constitutes a “major decision” requiring agreement from both parents. The court rejected this as legally unsound.
Judge Mfenyana held that Section 31 requires only that a co-holder of parental rights “give due regard” to the views of the other parent, not that consent be obtained. “Section 31(2) does not require consent from a co-holder of parental responsibilities and rights to enrol a minor child at a school,” the judgment stated. Reading such a requirement into the Act, the court warned, “effectively expands the scope of the provision, incorporating elements that are not explicitly stated within the text.”
The court reaffirmed earlier authority that where parents disagree, the High Court, as upper guardian, must resolve the issue based solely on the minor child’s best interests.
Maintenance disputes cannot be leveraged against a child
The judgment was particularly critical of the respondent’s repeated insistence that he would not consent to the minor child’s enrolment until maintenance disputes were resolved. The court quoted the father’s own words, including: “I will not provide my final consent … until the maintenance issue has been resolved.”
Judge Mfenyana found this approach deeply problematic: “This posture by the respondent has nothing to do with whether it is in the best interest of the minor child,” the court held, adding that it was “tantamount to using the minor child as a pawn in a disagreement between the parties.”
While acknowledging that maintenance affordability concerns are legitimate, the court stressed these must be dealt with in the appropriate forum and not at the expense of a child’s daily welfare.
Best interests of the child prevail
In conclusion, the court held that enrolling the minor child at a school closer to home was clearly in his best interests. “It would be in the best interests of the minor child to be enrolled at a school closer to home,” Judge Mfenyana ruled, finding no legal basis for withholding consent and no justification for prolonging the minor child’s hardship while adults litigated other disputes.
The court granted the mother authority to enrol the minor child at St Benedict’s College, or at Crawford Bedfordview or Reddam House Bedfordview, dispensed with any requirement for the father’s consent, and dismissed the counter-application. Costs were awarded against the respondent on a party-and-party scale.
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