Child in foster care may visit Mozambique

THANKS to the Gauteng High Court, Pretoria, a 5-year-old boy in foster care will be able to go on holiday next month with his new family to a seaside resort in Mozambique.

The foster parents turned to court after the child’s biological parents point blank refused to let their child travel to Mozambique. Their objections included that the child was too young to be exposed to a malaria-ridden country, and that the child could be exposed to Covid-19 there, given the number of infections in that country.

As the biological parents refused permission, the head of social services also refused permission for the child to travel. The foster parents told the court that they were invited to accompany their biological children and grandchildren to Mozambique on a holiday in June, and they dearly wanted to take their foster child along.

Social services told the court that it had based its refusal for the child to travel on a written note from the biological parents, wherein they set out the reasons for not granting their permission to the applicants’ request.

Apart from the fear that their child may get malaria and their fear that medical care in Mozambique was not adequate to treat him, they also voiced their concerns that their child may be kidnapped in that country.

Social services argued that in terms of the Children’s Act, it was the provincial head of this department and not the court who decided to permit the departure of a child in foster care to another country.

The authority to allow a child to be removed from the Republic lies with the state, represented by the provincial head of social development, as it was ultimately responsible for the wellbeing of children in alternative care, it was argued.

Apart from this, the court was told the biological parents also needed to give their consent for the child to be removed from South Africa.

Judge Elmarie van der Schyff said the department failed to consider that Section 169 of the Children’s Act conferred the provincial head of social development with a discretion that existed separate from the child’s guardian’s decision as to whether a child in foster care may be removed from the Republic.

Even where the guardians of a child in foster care, be it the biological parents or court-appointed guardians, grant their consent for the child’s removal from the Republic, the provincial head of social development is still required to consider the request and provide written approval.

In considering such a request, the biological parents’ wishes are just one of the factors that the provincial head must take into consideration.

Ultimately the decision to grant or refuse consent to remove the child from the Republic must be informed by the child’s best interests, she said.

“I am of the view that it is in the child’s best interests for this court to consider the relevant information and make the decision,” she said.

The judge added that while the biological parents fear their child may contract malaria and perhaps face other dangers, the child had been adequately cared for by the foster parents since 2019. She said malaria was also prevalent in other areas in South Africa, including the Kruger National Park. Visitors to these areas were aware that they must take special precautions to ward off mosquitoes.

While the judge said it would be beneficial for the child to partake in a family holiday, she frowned upon the suggestion of the biological parents that alternative arrangements must be made for the child while the foster parents were away.

“The minor, having been in the care of the applicants since the age of 2 years and some months, the suggestion of being left in the care of strangers, is unfounded,” she said.

“The sense of adventure associated with a vacation at Ponta de Ouro will provide an invaluable experience.”

Judge Van der Schyff added that while there was a responsibility on social services to be vigilant when confronted with the removal of a child from South Africa, each case must be considered on its own facts.