The Gauteng High Court, Johannesburg has expressed its concerns after a foster child of a divorcing couple was totally overlooked in a settlement agreement handed to the court by the father, in which he offered no maintenance towards the child.
The court made it clear that the interests of all children - whether they are foster children or biological children - are of the utmost importance. It was also made clear that the courts are the upper guardians of children - which included foster children.
The issue arose during a now unopposed divorce before the court. Although the divorce action instituted by the husband and father against the wife and mother was initially opposed, the wife’s attorneys withdrew.
A settlement agreement was concluded between the parties. The husband remained represented in concluding the settlement agreement whereas the defendant wife was not.
Although the settlement agreement provides for the position of a minor child born of the marriage, it does not deal with the position of a foster child.
Notwithstanding that a primary concern raised by the mother in her pleadings while she was still defending the matter was that the position of the foster child had been overlooked by the husband, no mention is made of the foster child in the settlement agreement.
The court noted that the mother’s concern with the position of the foster child appears to have fallen by the wayside once her attorneys withdrew, as manifested by the settlement agreement which makes no reference to the foster child.
Instead of granting the settlement agreement, the court raised its concern with the plaintiff’s counsel that the position of the foster child appeared to be unaddressed in the divorce proceedings.
It also raised questions as to why the husband made no mention of the foster child in his court papers. The only child referred to in the particulars of claim is a child born of the marriage and not the foster child.
The mother complained that the husband had failed to refer to or provide for their foster child, a girl born in October 2018, who is now six years old, and who had been placed in the foster care of both the plaintiff and the defendant in terms of an order of the Children’s Court in Cullinan.
The wife said before their decision to get divorced, they were in the process of adopting the child.
The defendant further pleads that both parties have a duty to support both minor children in accordance with their respective means and that the plaintiff’s particulars of claim do not acknowledge this.
The plaintiff does admit that there is a foster child, but explained the omission to mention this child based on the fact that all adoption proceedings have been stayed due to the divorce proceedings.
The court said it is notable that the husband persisted in not addressing his responsibilities towards the foster child. It was noted by the court that the husband maintained that the position of the foster child did not need to be addressed in the divorce proceedings, even after the court questioned this.
It was further noted that the husband does not commit to making payment of an amount for maintenance generally towards the foster child.
The court also raised with the plaintiff’s counsel that there was no Family Advocate’s endorsement of the proposed arrangement in relation to the foster child or any report or evidence from the social worker charged with supervision of the foster care of the foster child.
The husband’s counsel readily acknowledged that the absence of the views of the family advocate and of the designated social worker was problematic and should be addressed to enable the court to be in a position to grant a divorce order.
The court commented that although the Children’s Act deals with foster care, it does not specifically deal with the position of a divorce court in considering the best interests of a foster child in divorce proceedings.
But there does not appear to be anything in the Act that precludes a divorce court from considering the best interests of a foster child when those interests arise before it in the context of divorce proceedings.
The court refused to grant the divorce order at this stage and the parties were ordered to first address the concerns related to the foster child, before returning to court.