DR v NM and Another (3358-2024) [2024] ZAWCHC 69 (5 March 2024)

Judgment from the Cape Town High Court in which the applicant approaches the Court in terms of section 23 of the Children’s Act.

The applicant and first respondent were a same-sex couple, married in April 2023. The applicant has two biological children born via surrogate in 2012 and 2016. The first respondent and the second respondent are divorced, and also have a child together born via surrogate in 2018 (‘WLM’).

Six months into the applicant and first respondent’s relationship, the first respondent decided to have another child via surrogacy. During the surrogacy process and when the child (‘LM’) was born in August 2022, the first respondent and the applicant were in a romantic relationship. The applicant was not involved in the legal process of the surrogacy and does not appear on the birth certificate, but jointly selected the surrogate with the first respondent. The applicant and his two children and the first respondent and his two children lived together until 2024.

After the birth of LM, the second respondent’s psychiatric state deteriorated and he was admitted to a psychiatric hospital in February 2024. The relationship between the applicant and first respondent had broken down and the first respondent moved out of the joint home, taking LM and WLM with him. The applicant now seeks to be granted sleepover contact with LM and WLM. The first respondent had tendered contact between LM and the applicant but opposes the application, arguing that LM is too young for sleepover contact. The first and second respondents do not agree that WLM should have a formal contact arrangement with the applicant, nor that the applicant is entitled to any parental rights and responsibilities in respect of WLM.

It was ordered that as LM and the applicant have a close bond, LM should have sleepover contact with the applicant. In respect of WLM, the Court stated that just because she already has two parents with parental rights and responsibilities, this should not prevent an interested person from having contact with her if the interests of justice demand it, and ordered that expert investigations into future contact arrangements be conducted.

DR v NM and Another (3358-2024) [2024] ZAWCHC 69 (5 March 2024)

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