The Best Interest of the Child Remains Paramount: A Landmark Ruling on Foster Parents and Maintenance

R.S v J.S – Western Cape High Court

On 3 June 2024, the Western Cape High Court delivered a powerful and thought-provoking judgment, opening with the words:
“Children are the cornerstone of society; when we neglect them, we neglect our society’s future. Every child deserves proper parental care and support for the well-being of society.”

This ruling in R.S v J.S has brought much-needed clarity on the legal duties of foster parents—particularly when a foster relationship is formed with the intention to adopt.

Background to the Case:

The parties were married in 1991 and, in 2014, while living in Bloemfontein, the Appellant began volunteering at a child and youth care centre. It was there that she met LX, an 18-month-old orphaned girl. Moved by compassion and a shared desire to build a family, the couple decided to adopt LX.

As part of the adoption process, the couple was first required to foster the child. A foster care order was issued on 7 November 2014, and LX came to live with them. Both parties committed fully to the child’s care and initiated the formal adoption process, signing the necessary documentation in February 2016.

However, the marriage broke down before the adoption was finalized. Divorce proceedings were instituted by the Respondent, and notably, he referred to LX as a minor child of the marriage. A settlement agreement was reached in which the Respondent agreed to contribute toward LX’s maintenance, medical care, and education.

Although the Bellville Regional Court granted the divorce decree on 17 May 2019, it did not incorporate the settlement agreement into the court order. Nevertheless, the Respondent continued to pay maintenance—albeit in amounts less than agreed—until ceasing payments entirely in January 2023.

With no formal order in place, the Appellant approached the Kuilsriver Maintenance Court. The court, however, ruled that the Respondent bore no legal obligation to support LX, as he was neither her biological nor her adoptive father.

The Appeal:

Disheartened by the outcome, the Appellant took the matter to the High Court.

The High Court considered key facts: although the adoption had not been finalized, the Respondent had consistently referred to LX by his surname, performed all parental responsibilities, and maintained a father-child relationship—both during and after the marriage.

The court found that the Respondent had de facto adopted LX. He had accepted and acted in the role of her father, fulfilling emotional and financial duties accordingly. While this judgment does not create a general precedent that prospective adoptive parents automatically acquire parental responsibilities simply by initiating adoption proceedings, it emphasizes the importance of conduct and intent—particularly where the child’s best interest is at stake.

Legal Significance:

This case underscores the principle that the best interest of the child must be the prevailing consideration in all matters concerning their care and support. The court’s approach reflects a shift toward recognizing the reality of familial relationships formed through love, commitment, and intention—even when not yet formalized through legal adoption.

Final Thoughts:

At Horn Attorneys, we support legal interpretations that centre on the well-being of the child. This case serves as a reminder that fostering and adoption are not merely legal processes but deeply human commitments. When adults voluntarily step into the role of a parent, the law may, in appropriate circumstances, expect them to act accordingly—even after the breakdown of a marriage.

If you have questions about foster care, adoption, or maintenance responsibilities, our experienced family law team is here to guide you every step of the way.