"It goes without saying that when it comes to considerations as to what is in the best interests of a minor child, a court cannot have a "wait and see" attitude, ... As was stated in B v B, 'The Court has inherent common law powers as upper guardian of all minors to make any order which it deems fit in the best interests of the minor child.'"
In M.C.B v N.G, the applicant, who is the father of a six year old son born from his previous marriage, approached the High Court seeking the appointment of a forensic psychologist to conduct an assessment on his son, who is currently under the care of his mother, following concerns about his son's well-being.
Background
After a complaint was filed with the designated parenting co-ordinator, alleging that the child had been sexually assaulted by the father's 19-year-old brother-in-law, the child was referred for a psycho-legal assessment.
An educational psychologist and expert in sexual abuse cases investigated this complaint and concluded that special consideration should be given to whether it is in the best interests of the child to remain in the mother's care. Consequently, an urgent mediation was arranged between the parents and the parenting co-ordinator, who confirmed that both parents agreed to undertake an urgent new forensic assessment regarding the child's residence, care, and contact.
Subsequently, the mother disputed the educational psychologists' report stating that she had laid criminal charges against the perpetrator and that due to the ongoing criminal investigation, no additional psycho-legal assessments should be undertaken.
The court's findings
Having reviewed the educational psychologist's report and considering the alleged sexual assault, the court raised further concerns that warranted attention. These concerns were that the mother's actions included:
- Exposing the child to explicit and sexual conduct while he sleeps in the bed next to her (this may constitute a criminal offense in itself in terms of the Sexual Offences and Related Matters Amendment Act, 2007);
- Exposing the child to belly dancers seductively dancing for money whilst attending a third- party's house;
- Delegating her parental responsibilities and rights to the child's former nanny;
- Showing disinterest in the child's educational progress;
- Failing to provide nutritious food to the chid;
- Putting the child in her own bed at night to sleep, and keeping the child awake late at night watching television and horror movies;
- Allowing the child to watch and play games which are age inappropriate with sexual content leading to violent thoughts and tendencies; and
- Relying on technology to parent the child, where the child has admitted that she gives into whatever the child wants as it is the easiest course of action.
The court's decision
The court held that even though the father in his urgent application, did not seek interim relief for the primary care of the child pending the outcome of the forensic clinical assessment to be conducted, it did not relieve nor prohibit a court from upholding its duty as the upper guardian of the child as enshrined in sections 6, 7 and 9 read with section 28 of the Constitution to ensure that the child's best interests are to be protected at all times.
Based on initial observations, pending the outcome of a report by the Family Advocate and a forensic assessment to be completed within three months, the court ordered that the child was to be placed in the primary care of the father in the interim but the mother could be in contact with the child. The father was however ordered to ensure that his brother-in-law did not have contact with the child.
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