Protecting children’s best interests
Couples are encouraged to make a will when they marry, and to keep that will up to date. It is particularly important to amend the will on the birth of children, not only to specify the financial arrangements for their care should the worst happen, but also to appoint a legal guardian. The latter is rarely needed, because if one parent dies, the other remains guardian to the children. It is uncommon for both parents to pass away while they still have minor children; but it can happen, and the eventuality must be addressed in the will. Recently, such a tragedy occurred. Two children lost their mother and father within two years of each other. After the death of the mother, the father took steps to ensure provisions were in place for the care and wellbeing of his children should anything happen to him. Unfortunately, the grandfather entrusted with their care abused his position as guardian. What happens when those given this responsibility fall short? Can someone be removed as guardian?
Ironclad financial arrangements
In this case, the children’s father, a thoughtful planner, had made detailed provisions in his will to secure their future. He established a trust to manage their inheritance, arranged for a monthly pension to support their maintenance, and entrusted their maternal grandparents with both guardianship and a right to live in the family home until the younger child came of age.
Initially, these arrangements seemed sound. However, over time, the grandparents, due to age and other challenges, struggled to fulfil their duties. Their adult daughter and later her fiancé moved into the family home, and the children’s funds were used to support multiple adults. Questions arose about the mismanagement of finances, including an unexplained surplus of over R500,000, and the grandparents’ failure to comply with court orders intended to ensure the children’s wellbeing.
Removal of guardianship
The grandmother sadly passed away last year, leaving the grandfather with sole guardianship. The court found that the grandfather had failed to meet his fiduciary duty to protect the children’s assets and act in their best interests. Concerns also emerged about the behaviour of the adult daughter’s fiancé toward the minor female child. The deceased father’s brother and his wife, who live on the same golf estate as the grandparents and are themselves parents to two children, applied to have the grandfather removed as guardian. They were willing to become guardians to the two orphaned children.
A long and winding road
The case dragged on for five years, during which time the children remained in the family home with the grandparents (later just the grandfather) and the other adults, in circumstances that were far from optimal. A curatrix was appointed by the court to represent the interests of the children. The role of the curatrix was to investigate and report on the full circumstances of the case, including the children’s emotional development and psychosocial wellbeing, to allow the court to act as an independent arbiter in determining the best interests of the minor children.
The final outcome
The grandfather was ultimately removed as guardian and the children’s uncle appointed in his place, with his home designated as the primary place of residence. He and his wife took over full responsibility for the minor children’s school, social, and sporting activities and all decisions regarding their day-to-day life. The children will be able to have contact with their grandfather and their aunt, but under certain conditions. All members of the family are mandated to attend family therapy.
One can only imagine the trauma those children have experienced, and we sincerely hope they are now able to settle in their new home and have a happy childhood.
The importance of the family court
The case documents fill nearly 5000 pages, and even the court report is 45 pages long, so this summary omits considerable detail. But it serves to illustrate the court’s vital role in protecting children. While guardians are entrusted with significant responsibilities, they remain accountable to the court, which steps in when those responsibilities are neglected. The outcome reinforces the principle that informs and underpins the Children’s Act: the best interests of the child are paramount, and the court has a duty to ensure children’s emotional, social, and financial stability in all circumstances, even…arguably especially…the most challenging.
Cape Town family lawyer can help
If you have concerns about the guardianship or wellbeing of a child, Cape Town family lawyer can help you find your way through the legal processes and advise you on the best way to secure a healthy, happy outcome for the child.
SD Law & Associates are experts in family law and have dealt with many cases of guardianship and child care and contact (sometimes called custody). Contact attorney Simon Dippenaar on 086 099 5146 for a confidential discussion or email simon@sdlaw.co.za.
Further reading:
SD Law
The information on this website is provided to assist the reader with a general understanding of the law. While we believe the information to be factually accurate, and have taken care in our preparation of these pages, these articles cannot and do not take individual circumstances into account and are not a substitute for personal legal advice. If you have a legal matter that concerns you, please consult a qualified attorney. Simon Dippenaar & Associates takes no responsibility for any action you may take as a result of reading the information contained herein (or the consequences thereof), in the absence of professional legal advice.