Category Archives: Children’s court

My ex’s new partner is abusive to my children

It is important for a child to have access to both parents, and in a situation where both parents were actively involved in the child’s life, the access to both parents should be as equal as possible. As much as you don’t want to pry on your ex’s time with your children, what should you do if your ex’s new partner is abusive towards your child? Section 28(1)(d) of the Constitution of the Republic of South Africa states that every child has the right to be protected from maltreatment, neglect, abuse or degradation.

What defines abuse?

  • Physical Abuse: This type of abuse is one where the abuser conducts an act which leads to physical bodily harm such as bruises, cuts, burns and fractures.
  • Emotional Abuse: Emotional abuse constitutes domestic violence, and is identified as a pattern of degrading or humiliating conduct towards the child.
  • Verbal Abuse: This kind of abuse may be harder to differentiate from emotional abuse; verbal abuse is the act towards the child, and emotional abuse is the result.

What to do?

A parent cannot stop the other parent from having access to a child. Visitation must be in accordance with the parenting plan. The Children’s Act stipulates that the rights of the children are the most important, and their rights should be protected, promoted and respected. The child’s emotional and intellectual needs are considered when making decisions about what is best for the child.

  • Firstly, try to speak to the person whom you have joint custody with, to try to come up with a solution before approaching legal representatives.
  • If this fails, report the suspected abuse. This report will serve in your child’s favour when in court.
  • Apply for the amendment of the parenting plan. This can include limited visitation which should be administered through the Office of the Family Advocate.
  • Only three people may request amendment or termination of the agreement:
  1. Parents of the child,
  2. The child, or
  3. A person who is acting in the interest of the child.
  • Rights can be minimised or terminated by the court

References:

The Children’s Act Explained. (2017). [ebook] p.3. Available at: http://www.justice.gov.za/vg/children/dsd-Children_Act_ExplainedBooklet1_June2009.pdf [Accessed 12 Jun. 2017].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Adopting a child in South Africa

a4bAdoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.

A legal adoption order ends the parental rights of the birth mother and father and hands over the parental rights and responsibilities to the adoptive parents.
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There are 4 phases in the adoption process:

  1. Application

– In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.

– When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.

– Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.

  1. Screening process

– All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:

– orientation meetings,

– interviews with a social worker,

– full medical examinations,

– marriage and psychological assessments,

– home visits, and

– police clearance and the checking of references.

– The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.

  1. Waiting list

– Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.

– They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.

  1. Placement

– The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.

– Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.

– The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

An adopted child is regarded as the biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court states otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

What are parental rights and responsibilities?

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.

Both parents of a child have equal rights and responsibilities, but when they are not living together, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents.

Biological mothers

The biological mother, whether she is married or not, has full parental responsibilities and rights in respect of her child. She attains those rights solely on the fact that she has given birth to the child.

 Married biological fathers

 The biological father has full parental responsibilities and rights in respect of the child if:

    1. he was married to the child’s mother at the time of the child’s conception and birth;
    2. he is married to the child’s mother; or
    3. they are or were married at any time after the birth.

 Unmarried biological fathers

Despite the increased recognition of the beneficial role that fathers can play in the lives of their children, the Children’s Act still does not confer automatic, inherent parental rights on biological fathers in the same way it does for mothers. According to the Act, an unmarried biological father will have automatic parental rights and responsibilities only if:

    1. at the time of the child’s birth, he was living in a life partnership with the mother, i.e. they were living in a de facto husband and wife relationship and chose not to get married;
    2. regardless of whether he was living with the mother or not, he consents to be identified as the father of the child or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act, or pays damages in terms of customary law; and
    3. he contributes or has attempted to contribute in good faith to the upbringing of the child within a reasonable period, and has paid or attempted to pay maintenance.

If there is a dispute between the biological parents over any of the above criteria, then the question of whether the father has parental responsibilities and rights must be referred for mediation to a family advocate, social worker or other suitably qualified person. Mediation is the process whereby the participants, together with the assistance of a neutral party, systematically isolate disputed issues in order to develop options, consider alternatives and reach a consensual settlement that will accommodate their needs.

Reference:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When an abused child needs help

There are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help. Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).

The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.

What is The Children’s Act?

The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.

The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:

1. the protection and well-being of a child
2. the care of, or contact with a child
3. support of a child
4. prevention or early intervention services
5. maltreatment, abuse, neglect, degradation or exploitation

Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.

The Act and parental rights and responsibilities

The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities. Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.

Going to the Children’s Court

There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.

The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.

Reference list:

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
  • Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

When an abused child needs help

A4_bThere are instances when a child may need help or protection. An abused or neglected child, for example, might need intervention with the state’s help.  Fortunately, the Children’s Act, 2005 (Act 38 of 2005) gives effect to the rights of children contained in our constitution. These rights are carried out by the Children’s Court, which is expressly concerned with the care and safety of children (under 18).

The Children’s Act differs from previous legislation about children and covers other aspects relating to their rights. For instance, the Act gives effect to The Hague Convention on International Child Abduction and of Inter-Country Adoption. It also makes new provisions for the adoption of children.

What is The Children’s Act?

The Children’s Act deals specifically with matters regarding children’s care and protection and should not be confused with The Child Justice Act, 2008, which deals with children who are accused of committing an offence. The Children’s Court plays an important role in the practise of the Children’s Act.

The Children’s Court deals with all matters relating to the physical and emotional wellbeing of a child. Some of these include:

  • the protection and well-being of a child
  • the care of, or contact with a child
  • support of a child
  • prevention or early intervention services
  • maltreatment, abuse, neglect, degradation or exploitation

Children’s Courts have the responsibility to make decisions about abandoned or neglected children and also take care of children needing protection or care. The Children’s Court won’t make judgements in criminal cases involving children, however, a social worker may remove a child from their guardians or parents if it’s in the child’s best interest. To find a Children’s Court is not very hard as every Magistrate’s Court in South Africa is also a Children’s Court. The magistrate also acts as the presiding officer of the Court.

The Act and parental rights and responsibilities

The Children’s Act not only deals with children but also parents and guardians concerning their rights and responsibilities.  Some of the parental rights and responsibilities includes caring for the child, maintaining contact with the child, acting as the child’s guardian and contributing to the maintenance of the child.

Going to the Children’s Court

There are some people who have a social responsibility and requirement to go to a Children’s Court if they suspect a case of child abuse. These people include teachers, social workers, lawyers, ministers of religion and nurses. On the other hand, any person may go to the Children’s Court clerk if they are concerned about a child’s safety and protection. You do not have to be the parent or guardian of the child to raise an issue with the clerk. A child also has the right to go to the Court with a matter as long as it’s within the jurisdiction of that particular Court.

The Court has a friendly and relaxed atmosphere, which is designed to make it as comfortable as possible for children. When the court makes a decision on what to do with a child it uses the guidance of a report from a social worker. The report highlights the best interests of the child. The Court will take into consideration the social worker’s suggestions. The Court order is not permanent and will usually lapse after a two-year period.

Reference:

Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.

Justice.gov.za. The Department of Justice and Constitutional Development, Family Law, The Children’s Act, 2005 (Act 38 of 2005). [online] Available at: http://www.justice.gov.za/vg/children/ [Accessed 19/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)