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What the Supreme Court of Appeal says about parenting agreements, Family Advocate recommendations, primary residence, care and contact
In South African family law, parents may agree on a child’s primary residence, care and contact in a divorce settlement or parenting arrangement, but the court is not bound by those terms. ZDE v CE (1011/2022) [2024] ZASCA 159 confirms that a court must independently decide the child’s best interests and may reject both a parenting agreement and a Family Advocate recommendation where the evidence supports a different outcome.
The agreement in ZDE v CE was a divorce settlement agreement dealing with primary residence, care and contact. It was not a statutory parenting plan under sections 33 and 34 of the Children’s Act 38 of 2005. That distinction matters.
This article provides general information about South African law. It does not constitute legal advice or predict the outcome of an individual matter.
| Question | General position |
Can parents agree where their child will live? | Yes |
Must the court accept that agreement? | No. The court must be satisfied that the arrangement serves the child’s best interests. |
Is a Family Advocate recommendation binding? | No. It is important evidence, but the court decides. |
Can a court reject both the agreement and the Family Advocate recommendation? | Yes, if its independent evaluation of the evidence supports a different child-focused outcome. |
Does the existing living arrangement automatically decide primary residence? | No. Stability matters, but the status quo is not automatically decisive. |
Was ZDE v CE an ordinary appeal on the merits? | No. The SCA refused the father’s application for leave to appeal. |
| Was the disputed document a statutory parenting plan? | No. It was a divorce settlement agreement containing child-care and contact provisions. |
| What is the central lesson? | Parents may agree and professionals may recommend, but the court independently determines the child’s best interests. |
The parties’ daughter was born in July 2019. They married in January 2020 and lived in Lephalale.
The SCA recorded that the parents had agreed that the mother would remain at home and care for the child while the father worked at Medupi Power Station.
The relationship later broke down. On 1 October 2021, the father removed the child from the common home and took her to his parents’ home in Vanderbijlpark without the mother’s consent.
He permanently relocated to Vanderbijlpark the following month.
The father instituted divorce proceedings and sought primary residence and care of the child.
On 4 November 2021, the parents signed a settlement agreement providing that primary residence and care would vest with the father, subject to defined contact rights for the mother.
The fact that the agreement had been signed did not end the court’s enquiry into the child’s interests.
Not in the strict statutory sense. The SCA described the document as a settlement agreement in the divorce proceedings dealing with primary residence, care and contact.
A parenting plan under section 33 of the Children’s Act is a specific statutory mechanism through which co-holders of parental responsibilities and rights may regulate how those responsibilities and rights will be exercised.
It may determine where and with whom the child lives, contact, maintenance, schooling and religious upbringing. Section 33(4) requires a parenting plan to comply with the section 7 best-interests standard.
The broader principle in ZDE v CE is nevertheless important: a private agreement between parents cannot remove the court’s responsibility to protect the child’s best interests.
When the divorce came before the High Court, the mother objected to the settlement agreement.
She testified that she had been unrepresented when she signed it and alleged that the father had coerced her by threatening that she would not have contact with the child if she refused to sign.
Those were allegations made by the mother. They should not be reported as though the SCA made an independent factual finding that coercion had occurred.
The SCA found it unnecessary to determine the duress issue because the child’s best interests were sufficient to resolve the matter.
The High Court instead exercised its protective jurisdiction concerning the child.
It heard evidence and considered whether the agreed arrangements were satisfactory for the child rather than treating the settlement as an ordinary private bargain between adults.
The Family Advocate evidence requires careful distinction. At an earlier stage, the Family Advocate did not endorse the settlement agreement and expressed reservations about whether the contact arrangements were age-appropriate.
After the later investigation, however, the interim and final Family Advocate reports recommended that the status quo be maintained. The recommendation was that the child remain primarily in the father’s care, with the mother continuing to exercise contact.
The Family Advocate considered that the child had strong relationships with both parents but regarded the mother’s circumstances at that stage as too uncertain to justify transferring primary care to her.
This makes ZDE v CE especially important: the High Court did not simply follow the Family Advocate. It reached a different conclusion after hearing the evidence.
The High Court heard evidence during a special trial. It concluded that the father had not historically been the child’s primary caregiver and that the evidence supported the mother’s case that she had performed that role from the child’s birth until the child was removed from her care.
The High Court also made important credibility findings. The SCA recorded that the ultimate decision rested largely on favourable credibility findings concerning the mother and adverse credibility findings concerning the father.
The High Court therefore declined to follow both the child-related provisions in the settlement agreement and the Family Advocate recommendation. It awarded primary care to the mother and specified the father’s contact rights.
No. The SCA described Family Advocate reports and recommendations as being of great assistance to a court when determining arrangements that serve a child’s best interests. But the court is not bound by the recommendation and retains its own discretion.
A Family Advocate report should nevertheless be taken seriously. A party challenging it should engage with its factual foundation, methodology, reasoning and the evidence on which it rests rather than merely asserting that the recommendation is wrong.
The practical principle is simple: the Family Advocate recommends; the court decides.
Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in every matter concerning the child. Section 9 of the Children’s Act applies that principle in matters concerning a child’s care, protection and wellbeing.
Section 7 identifies factors that may be relevant when the best-interests standard is applied. Depending on the facts, these can include:
There is no mechanical formula. The relevance and weight of each factor depend on the particular child and the evidence before the court.
No. By the time the High Court decided the matter, the child had been living with the father for approximately nine months. That existing position was relevant, but it was not decisive.
The SCA specifically noted that the High Court had been careful not to give the existing status quo pre-eminence over the other relevant factors.
Stability ordinarily matters in primary-residence disputes. But a recently created factual position does not automatically become legally determinative merely because time has passed.
A court must still consider how that position arose, the child’s care history, the quality of care, the competing proposals and the broader best-interests evidence.
No such rule emerges from the judgment. The fact that the parents had agreed that the mother would remain at home and care for the child was relevant evidence about the child’s historical caregiving arrangements.
But the judgment does not establish that mothers, stay-at-home parents or historical primary caregivers automatically receive primary residence.
The SCA focused on the High Court’s assessment of the evidence as a whole, including credibility findings and the child’s particular circumstances.
The case should therefore not be used to revive gender-based assumptions about parenting. The enquiry remains child-specific and evidence-based.
The procedural outcome should be stated precisely. The High Court refused the father leave to appeal. He then petitioned the Supreme Court of Appeal.
The application for leave to appeal was referred for oral argument under section 17(2)(d) of the Superior Courts Act 10 of 2013, with the parties directed to address the merits if necessary.
The SCA considered whether there were reasonable prospects of success warranting an appeal. It concluded that the High Court had exercised its discretion judicially and that no misdirection justified interference.
The SCA’s final order was: the application for leave to appeal was refused.
It is therefore inaccurate to describe the matter as an ordinary appeal on the merits that the SCA dismissed.
Contractual freedom remains important, but child-related agreements operate within a different legal environment from purely private commercial bargains.
The SCA confirmed that a court dealing with a minor child has a duty to interrogate the facts and the arrangements made in a settlement agreement insofar as they concern the child’s best interests.
A parent’s signature does not relieve the court of that responsibility.
This does not mean that signed settlement agreements are meaningless or that a parent can escape an agreement merely by changing their mind.
The narrower principle is that a court is not compelled to endorse child-related provisions merely because the parents have signed them.
Yes. The SCA confirmed that a court acting as upper guardian may obtain evidence where necessary to investigate the child’s best interests properly.
That was important in ZDE v CE because the High Court had evidence before it that went beyond the wording of the settlement agreement and the Family Advocate reports.
It could assess the parents’ evidence, historical caregiving, credibility, the child’s circumstances and the competing proposals before making its own order.
This does not mean every divorce settlement involving children requires a contested trial. It means that where a court is not satisfied that the agreed arrangements adequately protect the child, the existence of a signed agreement does not prevent further enquiry.
The case does not discourage settlement. Well-considered agreements can reduce conflict, delay and cost.
But child-related provisions should be based on the actual circumstances of the child rather than being treated as standard clauses required simply to finalise the adults’ divorce.
Before agreeing to primary residence, care or contact arrangements, parents and their advisers should be able to explain why the proposed arrangement is workable and why it serves the particular child.
Relevant considerations may include:
A settlement that appears neat on paper may still be unsuitable if it does not work for the child in practice.
ZDE v CE is a warning against treating child provisions in settlement agreements as boilerplate. A professionally prepared agreement should reflect the family’s actual circumstances and provide workable arrangements for the child.
Where a proposed settlement significantly changes primary residence or an established care arrangement, the factual and child-focused basis for that change should be clear.
The question is not only “What have the parents agreed?” It is also “Why is this arrangement in the child’s best interests?”
The judgment reinforces the importance of the Family Advocate while placing that role within its proper legal limits.
A Family Advocate report can materially assist the court. But professional expertise does not transfer judicial power from the court to the Family Advocate.
In ZDE v CE, the Family Advocate recommended maintaining primary care with the father.
The High Court reached the opposite conclusion after hearing the evidence, and the SCA held that the High Court was entitled to do so.
The quality of a recommendation therefore depends on the evidence available, the investigation undertaken, the accuracy of its factual foundation and the reasoning connecting that evidence to the recommendation.
ZDE v CE is not primarily a relocation judgment, but its facts are relevant to relocation disputes.
The father removed the child from the common home in Lephalale without the mother’s consent and subsequently relocated with her to Vanderbijlpark.
That changed the child’s residence, affected the existing care arrangement and created a new factual position before the eventual trial.
The case therefore illustrates why a parent should be cautious about assuming that creating a new status quo will automatically determine the final legal outcome.
Domestic relocation may also engage section 31 of the Children’s Act. Where section 31(1) applies, due consideration must be given to the child’s views and wishes, having regard to the child’s age, maturity and stage of development.
Separately, section 31(2) requires due consideration to be given to another co-holder’s views and wishes where the decision is likely to change significantly, or to have a significant adverse effect on, that person’s exercise of parental responsibilities and rights.
Section 31 does not create an automatic consent requirement for every domestic move.
A later disagreement does not automatically invalidate a settlement agreement, parenting plan or court order.
The appropriate process depends on what document or order currently governs the arrangements, what has changed, the relief being sought and whether the proposed variation serves the child’s best interests.
Parents should not simply disregard an existing court order because they believe another arrangement would be preferable.
Where variation is required, it should be addressed through the appropriate agreement or court process.
The central principle in ZDE v CE is not that courts routinely interfere with agreements between parents. It is that agreements concerning children remain subject to judicial scrutiny.
Parents may negotiate and settle. The Family Advocate may investigate and recommend.
Experts may advise. But where the matter comes before a court, the court must still satisfy itself that the arrangements serve the child.
In ZDE v CE, the High Court rejected both the settlement agreement and the Family Advocate recommendation after evaluating the evidence. The SCA found no basis to interfere with that exercise of judicial discretion and refused leave to appeal.
The reason is fundamental: the interests being protected do not belong only to the adults who signed the agreement. They also belong to the child.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving divorce settlement agreements, parenting plans, primary residence, care and contact, Family Advocate investigations, parental responsibilities and rights, relocation and disputes concerning existing child-related arrangements.
Where parents are negotiating arrangements affecting a child, careful advice and drafting can help ensure that the proposed terms are legally appropriate, practical and focused on the child’s circumstances.
Where an existing agreement or court order is disputed, early legal advice can help identify whether the issue concerns enforcement, interpretation, variation or the need for a different child-focused arrangement.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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