When a dispute about a child reaches the point where court proceedings may be necessary, one of the first practical questions is where the matter should be brought. Should you approach the Children’s Court or High Court in South Africa? Is the Children’s Court able to make the order you need? Can you appear without an attorney? And if guardianship is involved, is the High Court still the only option?
The starting point is not which court is cheaper. It is what order you actually need the court to make.
The Children’s Act 38 of 2005 gives the Children’s Court substantial jurisdiction over matters involving care, contact and, following the Children’s Amendment Act 17 of 2022, guardianship. The High Court nevertheless retains important exclusive statutory jurisdiction in certain matters as well as its inherent jurisdiction as upper guardian of all children.
Choosing the correct forum requires an assessment of the relief sought, the urgency and complexity of the dispute, any existing divorce proceedings, the evidence that may be required and the practical consequences of litigating in each court.
If you are considering court proceedings involving a child, it is sensible to assess jurisdiction before drafting or issuing papers. Vermeulen Attorneys assists with children’s matters involving care, contact, guardianship and parental responsibilities and rights. You can contact our family-law team for a forum and strategy assessment.
Children’s Court or High Court in South Africa: Start With the Order You Need
A common misconception is that the Children’s Court deals only with relatively minor disputes, while a “serious” children’s matter belongs in the High Court.
That is not an accurate description of the law.
Section 45 of the Children’s Act gives the Children’s Court jurisdiction over a wide range of matters involving children. These include:
- the protection and well-being of a child;
- care of a child;
- contact with a child;
- guardianship under section 24;
- paternity;
- support;
- maltreatment, abuse and neglect;
- temporary safe care;
- alternative care;
- adoption; and
- other matters relating to the care, protection or well-being of a child where provided for in the Act.
For example, section 23 permits a person with an interest in the care, well-being or development of a child to apply, where the statutory requirements are met, to the High Court, a divorce court in divorce proceedings or the Children’s Court for care or contact.
The question is therefore not whether the Children’s Court deals with “important” matters. It does. The question is whether the particular court has jurisdiction to make the order required and whether that forum is procedurally appropriate for the dispute.
Can the Children’s Court Grant Guardianship?
Yes. The position changed with the Children’s Amendment Act 17 of 2022.
Section 24(1) of the Children’s Act now provides that a person having an interest in the care, well-being and development of a child may apply to either the High Court or the Children’s Court for an order granting guardianship.
Section 45(1)(bA) expressly includes guardianship under section 24 within the jurisdiction of the Children’s Court.
Section 45(3A) then provides for concurrent jurisdiction between the Children’s Court and High Court in South Africa over guardianship contemplated in section 24. Section 45(3B) provides concurrent jurisdiction to the High Court, Children’s Court and Regional Court over the assignment, exercise, extension, restriction, suspension or termination of guardianship.
The amendments dealing with sections 24 and 45 came into operation on 8 November 2023.
This means that the statement “guardianship applications must always be brought in the High Court” is now outdated.
Our earlier article on the Children’s Amendment Act 17 of 2022 and Children’s Court guardianship jurisdiction provides further background on the legislative change.
What commenced on 28 May 2025?
Some of the confusion around the amendments comes from the fact that not every provision of the Children’s Amendment Act commenced on the same date.
The remaining sections 4, 5, 8(e), 11 and 12 commenced on 28 May 2025.
It is important not to confuse that later commencement with the Children’s Court’s guardianship jurisdiction, which had already commenced on 8 November 2023.
There is also a separate kinship-care development worth distinguishing. Section 156(1)(cA), introduced through section 8(c) of the Amendment Act, permits a child who has been found to be in need of care and protection to be placed in the care of a parent or family member where that person is suitable to provide for the child’s safety and well-being. That amendment commenced on 8 November 2023.
Section 8(e), which commenced on 28 May 2025, concerns foster-care placement with an identified foster parent forming part of a cluster foster care scheme.
Neither provision should be confused with an ordinary section 24 guardianship application. Care and guardianship are distinct legal concepts.
What Still Falls Within the High Court’s Exclusive Jurisdiction?
The High Court’s exclusive statutory jurisdiction under section 45(3) is narrower than it was before the 2022 amendments, but important categories remain.
These include matters relating to:
- artificial fertilisation;
- the departure, removal or abduction of a child from South Africa;
- applications requiring the return of a child to South Africa from abroad;
- the age of majority or contractual or legal capacity of a child;
- safeguarding a child’s interest in property; and
- surrogate motherhood agreements.
Section 45(4) also expressly preserves the inherent jurisdiction of the High Court as upper guardian of all children.
That jurisdiction is significant, but it should not be interpreted to mean that every dispute involving a child should automatically be instituted in the High Court. Where Parliament has given another court jurisdiction, the existence of the High Court’s upper-guardian jurisdiction does not make forum selection irrelevant.
The appropriate forum remains dependent on the relief required and the circumstances of the case.
How the Children’s Court Process Works
The Children’s Court is intended to be more accessible and less adversarial than ordinary High Court litigation.
Every Children’s Court is a court of record with a status similar to that of a district magistrate’s court. Territorial jurisdiction will generally lie with the Children’s Court for the area in which the child is ordinarily resident.
Under section 53 of the Children’s Act, a matter falling within the court’s jurisdiction may be brought to the clerk of the Children’s Court for referral to the court.
The court also has investigative powers. Depending on the matter, it can require an investigation, a professional report or recommendations from an appropriately qualified person. This does not mean that every care or contact dispute automatically results in a full social-worker investigation.
The court determines what investigation or evidence is required in the particular matter.
In statutory care-and-protection proceedings under section 155, separate investigation requirements apply and a designated social worker must investigate and report. The statutory 90-day investigation period applicable in that context should not be mistaken for a promise that every Children’s Court care, contact or guardianship matter will be completed within 90 days.
The current procedural framework is supplemented by the Children’s Courts Rules of South Africa, published in Government Gazette 54219 on 27 February 2026. Those corrected rules replaced the version published one week earlier and came into operation in March 2026.
How a High Court Children’s Matter Differs
High Court litigation is materially more formal.
A dispute suitable for motion proceedings will generally be instituted by application supported by affidavits and documentary evidence, followed by formal service and an opportunity for the respondent to oppose the relief.
Depending on the issues, the evidentiary process may involve:
- the Office of the Family Advocate;
- social-worker reports;
- psychological or other expert assessments;
- further affidavits;
- oral evidence; or
- referral of disputed issues to trial.
The role of the Family Advocate is frequently relevant in disputes involving children, especially in divorce proceedings. The Family Advocate investigates and makes recommendations where appropriate. The Family Advocate does not decide where a child will live. The court makes the order.
Similarly, the existence of a social-worker or psychologist’s report does not determine the outcome. Reports and recommendations form part of the evidence that the court must evaluate.
Do You Need an Attorney in the Children’s Court?
A party to Children’s Court proceedings is entitled under section 54 of the Children’s Act to appoint a legal practitioner of their choice and at their own expense.
A person may therefore appear in the Children’s Court without an attorney.
That does not mean that appearing without legal representation is appropriate in every matter.
Legal representation can become important where:
- the application is opposed;
- guardianship is disputed;
- serious allegations have been made;
- a child may be removed from an existing caregiver;
- there are competing applications for care;
- expert or professional evidence must be tested;
- the relief sought affects existing parental responsibilities and rights; or
- there are related High Court, divorce or international proceedings.
Section 55 separately provides for legal representation of a child in appropriate circumstances, including referral to Legal Aid South Africa where the statutory requirements are met.
Before deciding to conduct an opposed matter without representation, consider the legal consequences of the order being sought. To discuss the appropriate procedure for your case, contact Vermeulen Attorneys.
Children’s Court or High Court in South Africa: Cost, Representation and Time
Cost is a legitimate consideration, but it is not the jurisdictional test.
| Issue | Children’s Court | High Court |
|---|---|---|
| Procedure | Generally more accessible and less formal, with matters brought through the clerk where applicable. | Formal application or action procedure governed by High Court rules and practice. |
| Legal representation | A party may appear without a legal practitioner, although representation may be advisable in contested or complex cases. | Litigation is substantially more technical. Attorney representation and, where appropriate, counsel are commonly used. |
| Evidence | The presiding officer may direct investigations and obtain professional reports where appropriate. | Affidavits, Family Advocate involvement and expert reports may form part of the case depending on the issues. |
| Typical cost exposure | Generally more accessible and potentially less expensive. | Potentially substantial because of drafting, service, attorney and counsel fees, expert evidence and interlocutory litigation. |
| Time | Can be comparatively efficient in suitable matters, but contested proceedings may still take months. | Urgent applications can move quickly, while opposed or expert-heavy matters may take substantially longer. |
There is no responsible fixed figure for the cost of a High Court care, contact or guardianship dispute. Cost depends on factors such as whether the matter is opposed, whether urgency is involved, the number of affidavits and interlocutory applications, whether counsel is briefed, whether expert evidence is required, the complexity of the facts and whether the dispute settles.
Neither court guarantees a quick result.
What If There Is Already a Divorce in the Regional Court or High Court?
The forum analysis changes where care, contact or guardianship issues form part of existing divorce proceedings.
A Regional Court has jurisdiction to hear divorce matters. Where a divorce is already pending, the divorce court may determine children’s issues falling within its jurisdiction as part of those proceedings.
Section 23 of the Children’s Act expressly recognises a “divorce court in divorce matters” as a forum in which care or contact relief may be sought.
Section 45(3B) also gives the Regional Court concurrent jurisdiction with the High Court and Children’s Court over specified guardianship-related matters.
Accordingly, where parents are already litigating a divorce in the Regional Court or High Court, it may make little procedural sense to start parallel Children’s Court proceedings dealing with substantially the same dispute.
The relevant question is therefore:
Is this a standalone children’s matter, or is there already a competent divorce court dealing with the parties and the child?
When the Children’s Court May Be the Wrong Forum
The Children’s Court can be a highly appropriate forum, but cheaper does not automatically mean better.
Urgent and serious risk
Where immediate intervention is required and the relief falls appropriately within the High Court’s jurisdiction, an urgent High Court application may be necessary. The correct urgent procedure depends on the nature of the risk, the existing proceedings and the exact order required.
International disputes
International removal, abduction and applications for the return of children from abroad are expressly dealt with in the High Court jurisdictional framework. Service, enforcement and jurisdiction can also become materially more complicated where a respondent is outside South Africa.
Relief outside the Children’s Court’s powers
If the Children’s Court cannot grant the particular order sought, its lower cost cannot cure the jurisdictional problem.
Complex, interlocking litigation
Some disputes combine guardianship, care and contact, international travel, relocation, protection proceedings, divorce and other relief. Even where certain individual components could fall within Children’s Court jurisdiction, a coordinated High Court or divorce-court strategy may be more appropriate.
What Happens If You Choose the Wrong Court?
There is no general rule allowing a litigant to move a Children’s Court application to the High Court simply because the dispute has become difficult or because the litigant later prefers another forum.
If proceedings are brought in a court without jurisdiction, the consequences may include:
- a jurisdictional objection;
- dismissal or other procedural failure;
- additional legal costs;
- delay; and
- having to commence fresh proceedings in the appropriate court.
This is why forum selection should generally be considered before papers are issued, rather than after litigation has already begun.
Appeals from the Children’s Court
Section 51 of the Children’s Act provides a statutory appeal from an order, refusal to make an order, or certain variations of an order of the Children’s Court to the High Court having jurisdiction.
An appeal is different from a review. An appeal generally challenges the correctness of the decision. A review is concerned with the legality or procedural regularity of the decision-making process or the exercise of judicial power.
A party considering either route should obtain advice on the correct procedure rather than treating the terms interchangeably.
Documents to Gather Before Deciding on a Forum
Forum advice is far easier when the attorney can see both the existing legal position and the history of the dispute.
Useful documents may include:
- the child’s birth certificate;
- relevant identity documents;
- any marriage certificate, divorce summons or divorce order;
- existing parenting plans;
- Children’s Court, Regional Court or High Court orders;
- protection orders;
- existing guardianship documentation or relevant wills;
- death certificates where a parent has died;
- Family Advocate, social-worker or psychologist reports;
- school and medical records where relevant;
- WhatsApp messages, emails and legal correspondence relevant to the dispute; and
- documents showing the history of care and contact.
A concise chronology is often equally important. Record what happened, when the dispute arose, what attempts were made to resolve it and the precise order you want the court to make.
For grandparents and other non-parent applicants, our guide to a grandparent’s right to seek care or contact provides useful background on section 23 applications.
Common Mistakes When Choosing Between the Children’s Court and High Court in South Africa
- Calling every dispute “custody”. The Children’s Act uses the concepts of care, contact, guardianship and parental responsibilities and rights.
- Assuming guardianship is still High Court-only. That has been incorrect since 8 November 2023.
- Treating the Children’s Court as informal in the ordinary sense. It remains a court and its orders have legal consequences.
- Choosing the Children’s Court solely because it appears cheaper. Jurisdiction and strategy come first.
- Starting parallel proceedings while a divorce court is already dealing with the same issues.
- Seeking vague relief. An order that simply provides for “reasonable contact” can create a second dispute about what “reasonable” means.
- Assuming a Family Advocate, social-worker or psychologist recommendation determines the case. The court evaluates the evidence and makes the order.
- Assuming the High Court must intervene merely because it is upper guardian. Its inherent jurisdiction does not remove the need for proper forum selection.
When to Get Attorneys Involved
Choosing between the Children’s Court or High Court in South Africa is often a strategic decision rather than a simple jurisdictional checklist.
Legal advice becomes especially useful where:
- guardianship is disputed;
- the matter is urgent;
- there are allegations concerning a child’s safety;
- another court order already exists;
- a divorce is pending;
- one of the parties is outside South Africa;
- international travel or removal is involved;
- professional or expert reports are likely to be required; or
- multiple forms of relief need to be coordinated.
Obtaining advice before issuing proceedings can reduce the risk of spending money litigating in a forum that cannot provide the relief actually required.
Vermeulen Attorneys can assess the relief you require, the appropriate court and the procedural route before proceedings are launched. Contact us to arrange a children’s matters consultation.
Frequently Asked Questions
Can I go to the Children’s Court without an attorney?
Yes. A party may appear in Children’s Court proceedings without appointing a legal practitioner. Section 54 nevertheless expressly recognises the right to appoint a legal practitioner at your own expense. Self-representation may become difficult where a case is opposed, serious allegations are involved, guardianship is disputed or professional evidence must be challenged.
Can the Children’s Court grant guardianship in South Africa?
Yes. Since 8 November 2023, section 24 expressly allows an interested person to apply to either the High Court or Children’s Court for guardianship. Section 45(3A) confirms their concurrent jurisdiction over section 24 guardianship applications.
Is the Children’s Court always cheaper than the High Court?
The Children’s Court is generally more accessible and may involve substantially lower legal costs, especially where a matter is uncomplicated or a party appears without representation. Cost nevertheless depends on how contested the matter becomes, whether professional reports are required and whether legal representation is used.
How much does a High Court care or contact case cost?
There is no reliable standard figure. Costs depend on whether the application is opposed, urgency, the volume of affidavits, counsel, expert reports, interlocutory litigation, the duration of proceedings and whether the case settles. A proper estimate requires an assessment of the actual dispute.
Is the Children’s Court faster than the High Court?
Not necessarily. The Children’s Court is generally more accessible and less formal, but contested proceedings may still take many months. High Court urgent applications can be heard very quickly where genuine urgency exists, while ordinary opposed proceedings may take considerably longer.
What if I already have a care or contact order and the other parent is ignoring it?
Forum selection for obtaining an order and enforcement of an existing order are different questions. If an existing order is being breached, see our guide to enforcing contact orders in South Africa for the enforcement options that may be available.
Should I use the Children’s Court or High Court in South Africa if my child is in immediate danger?
There is no single answer based only on urgency. The correct forum depends on the nature of the danger, the relief required, whether care-and-protection mechanisms apply, whether other proceedings already exist and whether the High Court has exclusive or appropriate jurisdiction. Urgent legal advice should be obtained before choosing the procedure where circumstances permit.
Get Advice Before Choosing the Forum
The Children’s Court has far wider jurisdiction than many litigants realise, including guardianship jurisdiction that has been operative since 8 November 2023. The High Court nevertheless remains essential where the Act reserves jurisdiction to it, where its inherent upper-guardian jurisdiction is properly engaged, or where the urgency and complexity of the dispute justify High Court proceedings.
The correct question is therefore not simply, “Which court is cheaper?”
It is: What order do I need, which court has jurisdiction to grant it, and which procedure is appropriate on the facts?
If you are considering proceedings concerning care, contact, guardianship or parental responsibilities and rights, contact Vermeulen Attorneys for a focused assessment of the appropriate forum and next step.
This article provides general information on South African law and is not a substitute for legal advice. The appropriate court and procedure depend on the facts, relief sought and any existing proceedings.
