RPK assignment 1

RPK assignment1

Group Members:Frederick Lopes VC student Number12023410UFS Student Number: 2013182973

Ashley Hamilton VC student Number: 13008494UFS Student: 2012183154

OFFICE MEMORANDIUMTO: Mrs abrahamsFROM: Ashley Hamilton, Frederick LopesRE: Raphael MasesaDATE: 21 August 2014

I STATEMENT OF FACTS

The applicant is Sanjay Patel an adult male acting in his own personal capacity as the father of the minor child Devi and second respondent his wife having left the marital home and giving primary guardianship to the father as noted before in the facts of the case.The applicant is currently working in a fast food restaurant while he is away at work care of D. Is given by the paternal grandmother, during the rest of the day mr Sanjay takes full care of the child.Mr Sanjay was requested to attend the school office in the beginning of 2013 with regards to D. Care and health condition, as arriving in the office Mr. Sanjay was informed by Sister Jenny that D. Was suffering from obesity and that due to this there were high risks she would suffer various diseases further on in life if she continued with her current eating habits.After that sister jenny deduced that D. Diet was the following: breakfast consisted of four slices of bread with butter (margarine) and sweet tea for lunch Mr Sanjay would pack sandwiches sweet snacks such as donuts and fizzy drinks, after that she would then eat the schools lunch program, which usually consisted of 1 protein, 1 starch, 3 vegetables and a fruit. When she returned home, D. Was normally given an instant meal such as noodles or instant mash potatoes with margarine. D.s snacks consisted of crisps and fizzy drinks.Dinner was provided by D.s parental grandmother normally consisting of a traditional Indian meal and dessert. Due to current financial circumstances healthy meals consisting of fruit and vegetables were not feasible, however affordable healthy options such as canned corn or peas were made available when possible, as well as a monthly generic vitamin.The applicant and defendant have not maintained a relationship for over 10 years, the respondent have not played a role in the upbringing of D.

II QUESTIONS PRESENTED (QUESTION OF LAW)1. Do Sanjays actions amount to abuse and/or neglect?

2. Should the court sever Sanjays parental rights and responsibilities based on Devis weight?

3. Should the court intervene to prevent the Kumars from submitting Devi to a gastric bypass if they are granted parental rights and responsibilities over Devis care?

4. Should the court intervene to prevent the Kumars from giving Devi weight loss medication?

III SHORT ANSWERIt would be in Ds best interest to remain in the primary care of the first respondent but to maintain contact with the applicantsIV APPLICATION OF LAW Childrens act 38 of 2005The constitution of South AfricaCM V NG 2012 (4) SA 452 (WCC)LH and another V LA 2012 (6) SA 41 (ECG)B V S 1995 3 SA 571 (A) 5841 Townsend-Turner and Another v Bruce Andrew Morrow(Unreported, judgement delivered in the Cape High Court October 8th2003.) S v J and another(Unreported, judgement delivered in the SCA on 19 November 2010).

V APPLICATION OF LAW TO THE FACTS In the childrens act 38 of 2005 it states that 'care' , in relation to a child, includes, where appropriate- (a) within available means, providing the child with- (ii) living conditions that are conducive to the child's health, well-being and development; and (iii) the necessary financial support;(b) safeguarding and promoting the well-being ofthe child; (c) protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards; (i) accommodating any special needs that the child may have;(j) generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child;

Mr Sanjay does provide appropriate living conditions to D. he goes out of his way to try and provide to the best of his income can provide to his child , he has a loving relationship and tries to accommodate her needs by attending special parenting classes, providing meal atnernatives that of witch he can afford, returning after a period of 3 months for a follow-up consultation and his enrollment of D in sporting activities are all evidence of this. This is proof that he did not neglect D.The Childrens Act 38 of 2005 (hereafter referred to as the Act) defines abuse as follows:'abuse', in relation to a child, means any form of harm or ill-treatment deliberately inflicted on a child, and includes(a)assaulting a child or inflicting any other form of deliberate injury to a child;(b)sexually abusing a child or allowing a child to be sexually abused;(c)bullying by another child;(d)a labour practice that exploits a child; or(e)exposing or subjecting a child to behaviour that may harm the child psychologically or emotionally[endnoteRef:1][footnoteRef:1] [1: ] [1: Childrens Act 38 of 2005]

The respondents ,D.s fathers actions are not in line with the definition of abuse, as found above.The definition requires the actions to have been deliberate. The respondent has not deliberately made the child, D, obese, he has only tried to aid her to the best of his means in helping her and reducing her weight. With regards to wether or not the respondent has neglected the child, D, I make referance to the definition of neglect as defined by the Act stated below:neglect , in relation to a child, means a failure in the exercise of parental responsibilities to provide for the childs basic physical, intellectual, emotional or social needs;

The child, D in queswtion is well cared for within the best means available and viably possible by the respondent, a social worker by the name of Ms Flora Care found this to be true. The first respondent, when on relizing the seriousness of Ds condition and the danger it places on her life displayed a clear intention to provide and help D in her weight loss as much as possible. These efforts were only limited by the means available (i.e. he was forced to minimize the number of days that D could go to the exercise program due to financial constraints and could not always afford to buy healthy foods,but did attempt tp provide alternatives). He only failed to attend the child nutrition classes as they overlapped with his work hours, and if he did not attend work he would clealy not be able to assist D. by any means.The factors the court must take into consideration when granting parental rights and responsibilities to another person are set out in S23 of the Act:When considering an application contemplated on subsection (1), the court must take into account (a) the best interests of the child;(b) the relationship between the applicant and the child, and any other relevant person and the child;(c) the degree of commitment that the applicant has shown towards the child;(d) the extent to which the applicant has contributed towards the expenses in connection with the birth and maintenance of the child; and(e) any other factor that should, in the opinion of the court, be taken into account.(4) The granting of care or contact to a person in terms of this section does not affect the parental responsibilities and rights that any other person may have in respect of the same child.

The granting of guardianship to an interested party by way of court order is set out in S24 of the Act: (1) Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.(2) When considering an application contemplated in subsection (1), the court must take into account (a) the best interests of the child;(b) the relationship between the applicant and the child, and any other relevant person and the child; and(c) any other fact that should, in the opinion of the court, be taken into account.(3) In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the childs existing guardian is not suitable to have guardianship in respect of the child.

Other than a remark regarding Ds weight at an early stage of her development and a recent attempt at contact without the first respondents knowledge or consent, the applicants have not shown much commitment to D. They have also not contributed towards her maintenance, maintenance is soley provided by D. biological father.As D.s father , one can not condeme a person for there financial status nor can one overlook ones attempts at taking care to the best of ones abilites, with this in mind Mr Sanjay has fulfiled his fathering duties.The best interests of the child standard as set out in s7 of the Act also require that the court take the childs age, maturity and stage of development into account. I now make referance to the obiter in McCall v McCall[footnoteRef:2] - With reference to the child's preference, if the Court is satisfied that the child has the necessary intellectual and emotionalmaturity to give in his/her expression of a preference a genuine and accurate reflection of his feelings towards and relationship with each of his parents, in other words to make an informed and intelligent judgment, weight should be given to his/her expressed preference.[footnoteRef:3] [2: 1994 (3) SA 201 (C)] [3: At 207H-I]

The child, D, is 14 years of age and is at a level of intellectual and emotional maturity where her preference should be taken into account, as she is capable to make an educated decision and to understand the consiquences of such actions. further more she has expressed that she wishes to return to the primary care of the first respondent.I refer to the obiter in CM v NG[footnoteRef:4]: It is clear that s 24(3) would only be applicable where a party wasapplying for exclusive rights as to guardianship (sole guardianship). The high court's inherent jurisdiction, as upper guardian of all children, to grant an application for guardianship to any person without affecting the rights of an existing guardian are not limited by s 24(3). [4: 2012 (4) SA 452 (WCC)]

The instance of the claim is brought about by the health issue raised by the applicants, and both medical practitioners. Based on the findings of a social worker, Ms Flora Care, and Dr Weightily, the applicants wish to be granted parental rights and responsibilities and guardianship in respect of D. They would contunue to administer the weight loss pill Reductogen, a

schedule 6 serotonin reuptake inhibitor. The applicants are also advocating for gastric bypass surgery for D to help her loose weigh and reduce fcurrent or new health issues related to her obesity. The obesity, as the applicants have claimed in their statements, is believed to be the result of neglect and abuse by the first respondent. The applicants have no grounds of justification, and to preform a surgery of such magnitude on a child as well as administer weight loss pills to combate weight loss do not teach an inidvidual self controll,or install a healthy mind set towards food and exercise or a consouse understanding of food and its affects on the body.The phsycological affects of beliving that an operation or a pill can solve your problem can be fare more unhealthy and damaging to an individual in the long run than personally overcoming the problem and gaining the empowerment and menatl belief that you are in control of your body.The type of weight loss medication prescribed by the first applicant, a serotonin reuptake inhibitor, has been withdrawn by the US FDA[footnoteRef:5] in 2010 due to its prevalence in causing myocardial infarctions and strokes, with the European market also suspending sales of this type of weight loss pill.[footnoteRef:6] With this type of medication having these adverse effects on individuals, I urge the court to dismiss the application for the guardianship of D. The gastric bypass surgery again advocated for by the first applicant, has equally adverse effects. Studies at the Johns Hopkins Hospital show that gastric bypass surgery in children decreased their bone mass development by 7.4%[footnoteRef:7] and as with any other surgery; it carries the risk of hernia and infection. Drs at University College San Francisco and Johns Hopkins recommend nonsurgical options for children having weight issues. The testing prescribed for the recommendation for gastric bypass surgery, namely the BMI test, is invalid. The current course of medication and the proposed surgery are not in the best interest of the child as expressed in the Act. [5: United States Food and Drug Administration] [6: http://emedicine.medscape.com/article/985333-medication [accessed 9 July 2014] ] [7: http://www.hopkinsmedicine.org/healthlibrary/test_procedures/gastroenterology/gastric_banding_surgery_for_teens_161,3/ - [accessed 9 July 2014]]

S 129 (10) of the Act provides for the refusal of consent to a medical procedure, and having presented evidence to the dangers of the proposed surgery, I submit the obiter in Terblanche v Terblanche[footnoteRef:8] as a means of imploring the learned court to dismiss the application: that when a court sits as upper guardian in a custody matter it has extremely wide powers in establishing what is in the best interests of minors or dependent children. It is not bound by procedural structures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.[footnoteRef:9] [8: 1992 (1) SA 501 (W)] [9: at 504C.]

The termination of parental rights and responsibilities are governed by s 28 of the Act. Contained in this section are the considerations the court needs to take into account when making such an order s 28 (4). the best interest of the child and her ongoing development,are of paramount importance in reagrds to all matters concerning the child..The second respondent has stated that she is willing to contribute to the maintenance of the child, D, which will enable the first respondent to provide D with healthier food and more regular access to sporting activities, which will improve her health and assist in her weight loss by more natural means than the methods suggested by the applicants, this being of fare more mental and physical benefit in the long run.The provision the common law to contribute towards the maintenance of D. cawn with referance to the obiter in Petersen v Maintenance Officer, Simons Town Maintenance Court, and others[footnoteRef:10]: In terms of South African common law thematernaland paternalgrandparentsof a child born in wedlock are obligedtosupport him/her, if the child's parents are unabletodo so. [10: 2004 (2) SA 56 (C)VI SUMMARY AND RECOMINDATIONSFrom the facts gathered in the matter it can be concluded that it would be in the child's best interest D. if she remained in the primary care of her father (the first applicant) but I would like to point out that contact with the respondents (the grandparents) should not be excluded in fact I would encourage the Grandparents to play a rule in the future upbringing of the child. Taking into account the case LH and another V LA 2012 (6) SA 41 (ECG). "Grandparents, more than others relatives, usually take keen interest in the upbringing of their grandchildren and this relationship, provided that is kept within reasonable bounds and does not interfere with parental duties and responsibilities, often assists and complements parental care."With that in mind I believe that Mr. Sanjay must remain the guardian of the child but seek help and aid from the grandparents that are both doctors and have a better financial status for the best interest of the child so that she can improve her health and emotional issues and be able to life a healthy and joyful life in the future.]

This clearly insunuates that more than one party can jointly contribute to D.