The office and function of the Family Advocate in South Africa
The office of the Family Advocate was established in 1990 to look after the wellbeing or needs of under aged or dependent children in divorce matters.
The role of the Family Advocate is to assist the courts in establishing the best interests of minor children in civil legal disputes. The reports and recommendations made by the Family Advocate enable the court to evaluate the settlement reached by the parties and to establish whether it is in the best interest of the children. In certain instances the Family Advocate assists the courts in matters relating to domestic violence and maintenance.
With the implementation of the new Children’s Act in South Africa, the Family Advocate’s responsibilities, duties and scope expanded significantly. Furthermore litigants are now obliged to mediate their disputes before resorting to litigation.
Both the Constitution of the Republic of South Africa and the Mediation in Certain Divorce Matters Act make provision for the Family Advocate’s authority. The Family Advocate’s office make provision for a plaintiff (or applicant) to request the Family Advocate to investigate any particular matter concerning the welfare of any minor child involved in divorce proceedings, this is done in terms of section 4(1) of the Mediation in Certain Divorce Matters Act.
In the van Vuuren v van Vuuren case, the court held that it is frequently in the best interest of a minor child that matters concerning their welfare should be investigated as speedily as possible by the Family Advocate. Where the parties to a divorce do not themselves request the Family Advocate to investigate a matter, the Family Advocate can ask the court in terms of section 4(2) of the Act for authority to make such an investigation.
Provision is made in numerous sections in the Children’s Act to register a parental responsibilities and rights agreement with the Family Advocate or instances where a dispute must be referred to the office of the Family Advocate. With regard to a maintenance enquiry and where circumstances permit, a maintenance court may at any time during an enquiry, cause an investigation to be carried out by the Family Advocate with regard to the welfare of any minor or dependent child affected by such a maintenance proceeding.
The Family Advocate always acts in the best interests of the child in disputed matters such as care (custody), contact (access) or guardianship issues. The Family Advocate assists parties in reaching an agreement regarding this and makes recommendations to the court. There are numerous Family Advocate offices around South Africa including but not limited to Pretoria, Cape Town, Johannesburg, Mthata and Polokwane.
It is just important to note that a Family Advocate cannot become involved in any matter that has already been finalised by a court or be subpoenaed to a court as a witness to give evidence on behalf of any party even if his or her recommendation is in favour of that party.
The Family Advocate acts in the best interests of a child as a neutral institution and cannot act as the legal representative for either litigant in any matter. Family Advocates not only assist with divorce matters in the divorce court, but also in the matters heard in the children’s courts, mediation in domestic violence issues and assist in maintenance courts.