Judgment was passed on an Appeal case in March 2023, in the Gauteng High Court in favour of a non-biological parent.

Some details have been removed from this story to protect the identity of all involved

The story

Jim and Sarah (not their real names) story is not unheard of in today’s times.

They met on social media at a time when Sarah was pregnant with another man’s child which she did not disclose until they were in a relationship.

This did not deter Jim, as he had no biological children of his own. They stayed in a relationship and when the child was about 1 year old they moved in together. The biological father did not attempt to claim custody, make contact or pay maintenance toward the child’s upbringing.

Jim and Sarah lived together as a family unit and during this time Jim developed, not surprisingly, an even stronger fatherly bond with the child.

Unfortunately, the two separated after about 2 years. There was a substantial period after they separated where Sarah allowed Jim to have contact with the child but then abruptly revoked this just 2 weeks before they were to appear in court with the reasons being that Jim was overriding her parental rights regarding the safety of her child, was overwhelming the child with gifts, and was driving a wedge between them.

The court case:

In the original judgment, the court found that Jim had no prima facie right to contact the child but more importantly, the Court found that it was not in the child’s best interest, then or ever, to have any form of contact with Jim

The appeal:

The judgment of the appeal case was granted for numerous reasons but here are some of the main points

Sarah had submitted supplementary affidavits to the court but the court did not afford Jim an opportunity to respond to the facts of these.

Sarah had also stated numerous times under oath that she was not opposed to limited contact between Jim and the child and did not deny that there was a close bond between them. As far as this is concerned there is no dispute at all and the Court ought to have found that in that narrow bond between Jim and the child, prima facie, it is in the child’s best interests to have contact with its psychological father

Sarah’s dispute was actually about the effect Jim’s contact with the child was having on her relationship with the child. There should never be competition between the parents for the child’s affections and certainly, there should be no abuse of material advantage to advance such an unhealthy competition. The court can sympathize with Sarah but cutting off all contact with Jim is not a solution and is not in the best interest of the child.

The adversarial weighing up of the pros and cons by the Court focused on the rights of the adults whereas the enquiry ought to have been a child-centred one

A psychologist was brought in and part of the report stated:

‘…It is further important to remember that a 3-4-year-old little boy does not have a concept of time. All he will experience is that the father he played with; sought soothing from; received love, nurturing, stimulation and care from; the father he used as an anchor and observed as a model in terms of learning, emotional functioning and behaviour; is no longer there. Egocentric thought makes him believe that it is his fault and that “other parent” could also leave.”


“…disruption of attachment could have far-reaching and catastrophic consequences for a child this age. Trauma of this nature could potentially negatively impact him throughout life…”

The Judgement

After much evidence and investigation, it was found that it would not be in the best interests of the child to have his perceived father removed from his life.

There was also an added order that both Jim and Sarah pay for their own costs of the Appeal