The Mpumalanga High Court in Mbombela has ordered an investigation into the best interests of a six-year-old boy after his paternal grandparents sought to remove him from his mother’s care, amid serious allegations of substance abuse, physical, sexual, emotional and psychological abuse.
Acting Judge H Fourie ruled that the matter was urgent but found that the grandparents had not made out a case for the “very harsh” interim relief they sought.
The grandparents wanted the boy removed from his mother and placed in their care pending an investigation by the office of the family advocate. They also sought restrictions on the parents’ contact with the child, with such contact to take place only under supervision.
The judge noted that the allegations were serious and required investigation, but that the evidence before the court did not justify immediately removing the child from his mother.
Grandparents previously removed child to Mozambique
The court heard that the paternal grandparents and an aunt had previously removed the child from the care of his parents in early 2023, when he was about two years old.
According to the judgment, the paternal family acted without court intervention after receiving information that the Department of Social Development intended removing the child from his parents and placing him with a foster family.
The child was subsequently cared for by his aunt and extended paternal family in Mozambique for approximately two years.
Professional assessments were conducted during this period. The judgment said a 2024 assessment by Dr Stoop indicated that the parents could not meet the child’s needs and recommended that their parental rights and responsibilities be suspended.
However, towards the end of 2025, the grandparents returned the child to his parents, who were then living together.
The judge described this as perplexing, given the information available to the family at the time that the parents were allegedly not suitable to care for the child.
Parents separated after child’s return
The parents separated around November 2025, shortly after the child had been returned to their care.
The grandparents said this was significant because, according to their papers, the circumstances on which they had agreed to return the child to his parents had changed.
However, the judge noted that the grandparents did not immediately approach the court.
The allegations forming the basis of the urgent application included a motor vehicle accident involving the mother in May 2026, during which the child’s finger was allegedly caught in a closing door and developed a blue nail.
The grandparents also raised concerns about the mother’s stated intention to relocate with the child to the Northern Cape.
They said the child frequently complained when he was with them that he was afraid of “monsters and bad people”.
The court also considered allegations relating to the child’s health and the condition of the mother’s residence.
The judge noted that the grandparents had known about the various incidents for months before bringing the application.
Court questions delay in seeking intervention
The court found that the delay was significant when considering the extraordinary relief being sought.
“If the safety and well-being of a child is at stake, a Court will have no difficulty in immediately addressing the situation to ensure that not even the possibility of harm will befall such a child,” Fourie said.
The judge said the grandparents had allowed the existing situation to continue for at least a year before asking the court to intervene in the most drastic terms.
The grandparents were effectively asking the court to prevent the mother from having unsupervised contact with her son.
The court said their actions and the relief sought were disproportionate.
The judgment also noted that the family had previously taken matters into their own hands instead of approaching the court and the family advocate when decisions about the child’s care were required.
Mother secured employment and school place
The court considered the mother’s current circumstances, including the fact that she was living in a two-bedroom property with the child’s maternal grandparents.
The maternal grandparents were also contributing financially towards the household.
The mother had recently obtained employment and had secured a place for the child at a primary school where he was due to start Grade 1 in 2027.
She also undertook not to relocate with the child pending the family advocate’s report.
Fourie said these circumstances indicated that there was now some stability and structure in the mother’s life.
However, the judge stressed that this did not amount to a finding that the mother was necessarily the person best suited to care for the child.
Serious allegations require investigation
The court said it was confronted with allegations of substance abuse, physical abuse, sexual abuse, emotional abuse and psychological abuse.
These allegations were made by both the grandparents and the mother against various parties and required a thorough investigation.
The judge said the court could ultimately be required to make an extremely difficult decision about who should have primary care of the child.
“If necessary and the court ultimately believes that none of the parties is suitable to care for this young child, an alternative arrangement for his safety and wellbeing will need to be made,” the judgment states.
The parties agreed that the office of the family advocate should investigate the circumstances and determine what would be in the child’s best interests.
Judge declares child-safety cases inherently urgent
Although the grandparents’ application was opposed, the mother conceded during argument that the matter could be regarded as urgent.
Fourie said courts should be slow to refuse to hear matters involving the safety and wellbeing of children on an urgent basis.
The judge went further, holding that cases concerning the safety and wellbeing of children should be regarded as inherently urgent.
The judgment distinguished these matters from ordinary urgent applications because children may not be able to make their voices heard during the initial proceedings.
“The child’s voice is usually still silent during the urgent proceedings,” the judge said, adding that the court must step in as the child’s guardian until further investigations and assessments can be conducted.
Court opts for less disruptive arrangement
Despite finding that urgent intervention was necessary, the court declined to remove the child from his mother.
Fourie said removing a child from the care of a parent was an “extraordinary proposition” and that the court had to consider whether less intrusive measures could protect the child.
The judge said the Constitution required the court to use the least intrusive measure capable of safeguarding the child.
“The court cannot simply grant the most extreme relief available as an easy way out,” the judgment states.
The court found that certain safeguards could be put in place while allowing the child to remain with his mother during the week.
Child to stay with mother during school week
Pending the family advocate’s investigation, the child will remain with his mother from Monday morning until Friday afternoon.
The paternal grandparents will have care and contact with him from Friday afternoon after school until Monday morning.
The child’s father will be permitted to have contact with him every alternate Saturday for six hours, but this contact must take place under the supervision of the grandparents and at a suitable location.
The mother has also been prohibited from relocating to another town or removing the child from the school where he is enrolled.
All parties must undergo drug and liver-enzyme testing within five days of the court order to establish possible recent use of drugs or other prohibited substances.
The court also ordered that medical, dental, psychological and school records relating to the child be made available to all parties and the family advocate.
Family advocate given six months to investigate
The office of the family advocate is expected to investigate the child’s circumstances and prepare a report.
The investigation will consider the child’s primary residence, the suitability of the parties to exercise contact or care rights, whether a curator ad litem should be appointed for the child and any other issue relevant to his best interests.
The judge said the investigation and report could reasonably be expected within six months.
Once the report has been received, the parties may supplement their court papers and return to court for a final determination of the child’s best interests.
The court stressed that the interim arrangement could be reconsidered if objective evidence emerged showing that the child was being exposed to physical injury or neglect requiring his immediate removal.
The judge ultimately ordered each party to pay their own legal costs.
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Sinenhlanhla Masilela
iol.co.za
