Access to Minor Children in South Africa

Selecting an attorney where the rights of a child or children are of a major concern is a very difficult task as the usual aggressive and insensitive attorney may not be ideal in that the child or children involved may end up being unnecessarily traumatised.

A child or children attorney must be able to remain calm and reasonable while still trying to protect the child or children as much as possible. This is especially the case where the parents of the child or children are involved in a tumultuous divorce and may be using the child or children as a pawn against the other party (albeit unintentionally). In these circumstances, it is the duty and the responsibility of the divorce attorney to protect the interests of the child or children and ensure that the best outcome possible is reached in the shortest time possible and with the smallest amount of damage having been done to the child or children.

As Sheena De Figueiredo of SDF Attorneys is a mother herself, she always strives to ensure that the child or children in a divorce or custody battle are protected as much as possible and will never aggravate such a situation simply to increase fees or drag the matter out – she always focuses on the positives in a matter and aims to bring the parties to an amicable resolution.

If you feel that this is the type of legal assistance that you require, contact us today for further information.

If it appears that you do need assistance, feel free to contact our legal specialist who will be able to advise as to the best way forward in your matter.

The law in South Africa used to heavily favour mothers of minor children born out of wedlock in regard to care and contact (now known as primary residency and access) of the child or children. The father was always put at a disadvantage by the law and ultimately by the courts when the primary residency parent of a child was determined. It was almost a given that the father would be granted access to the child every second weekend from Friday to Sunday, regardless of the specific facts of the case.

Although the current situation still favours mothers of a minor child born out of wedlock, the Children’s Act, (referred to as “The Act”), has now been amended and incorporates an updated version of what was previously known as The Natural Fathers of Children Born out of Wedlock Act. More specifically, Chapter 3 of the Act, titled “Parental Responsibilities and Rights” is now the chapter in which the rights of each parent are listed and discussed in detail. According to this chapter, the mother and father of a minor child share equal and joint parental rights and responsibilities in respect of such a child, irrespective of whether the parents of the child were married or not at the time of the child’s birth. The Act therefore provides a father of a child born out of wedlock with the same rights in respect of the child as a father of a child born of a marriage.

The Act states the following, when referring to the rights and responsibilities of unmarried fathers – the biological father of a child born out of wedlock acquires full parental responsibilities and rights in respect of the child if, at the time of the child’s birth, he is living with the mother in a permanent life partnership or if he (regardless of whether he has lived or is living with the mother) consents to being identified or successfully applies to be identified as the child’s father or contributes or has attempted in good faith to contribute to the child’s upbringing or towards expenses in connection with the maintenance of the child for a reasonable period.

This means that, should a father meet the above requirements, both the mother and father of the child are equally and jointly responsible for the protection, maintenance and upbringing of the child but in turn should also spend equal or similar amount of quality time with the child. Therefore, the right to see and spend time with the child is also coupled with the right (and responsibility) to maintain and protect the child. This does not however mean that access and maintenance in our law are now linked. Many fathers are not aware that they are still allowed and entitled to enjoy access to their child, even in circumstances where they are not in the financial position to provide maintenance for the child. These two concepts are kept completely separate in our law and therefore a mother can never argue that a father should not be allowed access to his child because he does not pay maintenance.

In South Africa, the High Court is considered the uppermost legal guardian of all minor children in South Africa and as such the best interests of the minor child will always be the deciding factor and are therefore of paramount importance when the court is involved (if there is an access application underway). If there is a dispute as to whether the father has met the requirements set out in the Act (mentioned above) to enable him to exercise his rights and responsibilities as an unmarried father, the matter will be referred to the Office of the Family Advocate, where a social worker and an advocate will be appointed to investigate the case. This investigation will involve interviews and potentially home visits which will assist them in making a final written recommendation to the High Court. This recommendation will contain what they recommend in terms of a custody and access arrangement that would be in the best interests of the child. The Court will almost always follow the recommendation of the Family Advocate, therefore it is of the utmost importance to make a good impression with them. It is advisable to have a professional (such as a Family Law attorney) involved who is familiar with the process and the people involved as this will ensure that the best outcome possible is reached.

It is still challenging but is now far easier for a father of a child born out of wedlock to secure fair and reasonable access (and in some cases, even primary residency) to their child, especially with the assistance of an experienced Family Law attorney.

The rights and responsibilities of a parent is set out in the Children’s Act 38 of 2008 (the “Children’s Act”) and can be defined as a complex set of rights, duties and responsibilities which have to be performed in the best interest of the child. These rights and responsibilities include the following elements namely: caring of the child, maintaining contact with the child, to act as a guardian over the child and to contribute to the maintenance of the child.

These can also be seen as a set of parental rights; the right to care for a child; to have and to maintain contact with the child; and the right to act as a guardian of the child.

Care of the child can also be termed as the custody of the child and includes providing the child with a suitable place to live, safeguarding its well-being, protecting it from abuse, maltreatment and neglect as provided for in the Constitution. Contact between the parent and the child can also be termed access to the child in South African law. This can be explained as the maintenance of a personal relationship between the child and the parent with whom the child does not live. This entails communicating with the child on a regular basis through visits, letters, telephone calls, Skype, or any other form of communication.

Guardianship on the other hand is the right to administer the child’s property, to assist the child in administration, contractual or other legal matters, and to consent to a child’s marriage, adoption and departure from South Africa, application for a passport, or alienation or encumbrance of any immovable property. The last element of parent rights and responsibilities is maintenance. This can be defined as the duty of a parent to support the child financially, by contributing towards the child’s education, upbringing, accommodation, food, clothing etc.
An overriding principle that is of utmost importance in South African law is that the best interests of the child is of paramount importance in any matter involving the child; whether it be a dispute between the child’s parents regarding the care of the child, the contact or guardianship or even regarding the maintenance of the child. This best interest of the child principle was established in international law and entrenched in the Constitution of the Republic of South Africa as well as in section 9 of the Children’s Act.

In determining what care, contact and guardianship arrangement would best serve the minor child’s best interests, the court does not look for the “perfect parent” but rather focuses on finding the least detrimental option available for safeguarding the minor child’s growth and development.
It is important for a minor child born out of wedlock or a minor child after a divorce, to build and maintain a relationship with the non-primary carer. The aim of contact is to give the non-primary carer the opportunity to preserve to some extent a parent-child relationship. Contact rights to a child born out of wedlock or after divorce should only be removed if it can be proved that this contact is not in the best interests of that child.

It is important to take note that more than one person may hold parental rights and responsibilities in respect of the same child.

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.