- A five-year-old girl who was born in prison has been living with a family for almost three years after being passed between relatives.
- Judge Wilson has decided not to immediately end the rights of the girl’s mother, who is currently in prison.
- To ensure the best outcome for the child, the High Court has appointed two independent advocates to investigate what would be in her best interests before any final decision is made.
A five-year-old girl whose life began behind bars is now at the centre of a custody dispute in the Johannesburg High Court.
The man who has cared for her for several years has applied to terminate her mother’s parental rights and responsibilities while the mother remains in prison. Judge SDJ Wilson refused to immediately grant this application.
The judge explained that the court did not have enough information to make such a far-reaching decision about the child’s future. He emphasised that the court could not make a permanent ruling affecting the child without first obtaining a clearer understanding of her circumstances and the mother’s position.
The girl was born in prison in November 2020 while her mother was incarcerated. The judgment does not state whether the mother was serving a sentence or awaiting trial, and it does not disclose the offence involved. The court also noted that there was little information about the mother’s present circumstances or her long-term ability to care for the child.
Child moved between relatives after birth
Shortly after the child was born, she was placed in the care of her maternal aunt. The aunt was in a relationship with a man who also helped look after the child. When the relationship ended, financial difficulties followed, and this put strain on the arrangements for the child’s care.
The aunt’s former partner eventually took the child into his care and later moved to Jeffreys Bay for work. The child was then left in the care of the applicant and his family. According to the judgment, the maternal aunt briefly resumed caring for the child in Pretoria but returned her to the applicant’s family because she believed her living conditions at a motel were not suitable for a young child.
Family caring for the child for nearly three years
The applicant, his wife and their children have raised the child as part of their household for almost three years. She is now enrolled at school and considers the couple to be her parents. The court heard that the girl’s mother had only had limited and brief contact with her daughter during this period.
The applicant approached the court seeking full parental rights and responsibilities under the Children’s Act. He relied partly on an affidavit signed by the mother in 2024, in which she appeared to agree to hand over primary guardianship to him and his wife. However, the court questioned whether this amounted to a fully informed decision to permanently give up parental rights.
Judge Wilson says the court lacks enough information
Judge Wilson said the court could not make a final decision without proper information about the child’s circumstances and the mother’s position. The judge explained that there was no independent assessment before the court dealing with the child’s welfare, the applicant’s suitability or the mother’s current situation.
Judge Wilson wrote that he does not have the information necessary to make an informed decision on whether the applicant should assume full parental rights and responsibilities for the child.
The judge also raised concerns about the mother’s ability to properly participate in the proceedings while she is incarcerated. Judge Wilson stated that imprisonment creates obvious barriers to accessing legal representation, especially in civil proceedings that involve parental rights.
Judge Wilson stated that the only material from the mother on record is her wish to give guardianship to the applicant and his wife. He said this is not the same as an informed decision to relinquish her parental rights.
Although the court praised the applicant’s care for the child, the judge said the court could not rely only on his account before deciding with lifelong consequences for the child. The judge emphasised that decisions affecting children must be made using independent and reliable information.
Further, the judge wrote that he would be failing in his duty if, in a case like this, he were to make an order with such far-reaching consequences for the child merely on the applicant’s word.
Independent investigation ordered
The judge then appointed advocates Irene de Vos and Khanya Dambuza as curatrices ad litem to investigate the child’s circumstances and report to the court on what would be in her best interests. The advocates must interview the parties involved and provide a report to the court by 28 August 2026.
Until then, the child will remain in the care of the applicant and his family. The court also ordered that the child may not be removed from their care without the permission of Judge Wilson. The judge further ruled that the applicant may approach the court if parental consent is needed for any issue involving the child before the matter is finalised.
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