Minister for Welfare and Population Development v Fitzpatrick and Others [2000] ZACC 6 (31 May 2000)

Criminal Procedure Act — section 154(3) — identity of child victims — ongoing identity protection — competing constitutional rights — equality — best interests of the child — privacy and dignity — restorative justice — stigmatisation and agency —freedom of expression — open justice Order of declaration of invalidity granted and suspended for 24 months — interim reading-in granted

Application in terms of section 18(5) of the Children’s Act 38 of 2005. The applicant, as the mother of the minor child, sought consent from the father of the minor child for the departure of the minor child from the Republic for a specific period. The father is authorised by the law, to refuse to give consent as required by the law. The applicant and her husband have arranged to leave with the minor child for the USA. The departure is to take place on 18 March 2024. Owing to the refusal to consent and the need to travel in a matter of days or weeks, the applicant approached this Court on an urgent basis for an appropriate relief. The father opposed the application on, amongst others, the basis that the urgent relief sought is not urgent. In the exercise of its discretion, this Court agreed to hear the application as an urgent one. The default legal position is that the consent of all persons that have guardianship of a child is necessary in respect of matters legislated in subsection 18(3)(c) of the Children’s Act. Only a competent Court can order otherwise in relation to the default legal position.

There is no statutory provision requiring the competent Court, when considering an application in terms of section 18(5) of the Children’s Act, to do so by taking into account the best interests of the minor child. The duty of the Court is to alter the default position of requiring consent of all persons. Taking into account all the circumstances, a Court may alter the default position or refuse to alter the default position. In the event the default position is not altered, then the consent of all is necessary. The applicant mother has demonstrated that in the circumstances, the consent of all is not necessary for the departure of the child from the Republic given the unreasonable withholding of the consent by the father. Held: (1) The application is granted in terms of section 18(5) of the Children’s Act and the draft order uploaded by the applicant marked X is made an order of Court. Held: (2) The respondent to pay the costs of this application.