How does guardianship work for siblings in South Africa? Photo: Unsplash / Ebony Eye
A 21-year-old US-based woman known as Hunter Nelson has gone viral after sharing her story on a TikTok video that she was the mother of a 15-year-old child, but she says no one doesn’t take her seriously, because of her age.
Nelson’s supporters started asking her if she had a child when she was six, so she shared in another video that she asked for guardianship of her younger sister after both parents died.
She shared on TikTok, “I thought the best way to keep my sister safe, happy, and all her needs and wants met was to move to a few states and live with me.”
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This is not an uncommon occurrence here in South Africa. Springbok captain Siya Kolisi is a famous example, as he legally adopted his sister and brother after their mother died in 2009.
News24 asked Simon Dippenaar, a local lawyer specializing in divorce and family law, how sibling guardianship works in South Africa, the processes involved and how long the process takes.
Dippenaar said there are two ways for a person to become a guardian of a child if they are not the child’s parents.
One way is “in a will written by a single deceased parent or caregiver. The person named in the will must be a fit and proper person,” he explained.
Another route would be “through a High Court decision acting as the ‘supreme guardian’ of all minors”, Dippenaar added.
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guardianship of a brother
The Children’s Act provides that anyone interested in the welfare, care and development of a child may apply to the High Court, a Divorce Court or the Children’s Court for leave to part of a child’s life, according to Dippenaar, because the court will ensure that certain strict conditions are met before giving permission to anyone.
“This is done to ensure that the children are not left with someone who is not looking after them properly,” Dippenaar added.
He explained that the High Court is the only court that can authorize someone to become a guardian, the Divorce Court and the Children’s Court can authorize a person to care for or visit a child, Dippenaar explains.
The procedure for applying for fraternal guardianship
When considering an application for guardianship, Dippenaar says the court must consider the following:
1. The best interests of the child.
2. The relationship between the applicant, the child and any other person involved.
3. Any other fact which, in the opinion of the court, should be considered.
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“The sibling who wants guardianship can therefore apply to the High Court of South Africa and can only do so if they can prove that they are fit and proper, responsible and that they are a trusted friend or family member,” says Dippenaar.
He says that once an application is filed, the procedure will depend on many factors, not the least of which is whether the application is opposed.
At best, without any unforeseen delays, it can take three to six months before a guardian has full power to act, he says.
He says the steps to get full guardianship in South Africa can include appointing a legal professional to help with this process who will properly advise claimants, draft the necessary paperwork and represent them in court.
In addition, an application under section 24(1) can be made to the High Court, in whose jurisdiction the child concerned is habitually resident, says Dippenaar.
He added that after that, the application must contain the reasons why the applicant is not applying for the adoption of the child.
The court hearing a claim under subsection (1) may grant the claim unconditionally, or on such terms as it may determine, or deny the claim, it says.
However, Dippenaar says a request can only be granted if it is in the best interests of the child.
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