Category: Children

GETTING CHILD CONTACT FOR DIVORCED PARENTS

My Lawyer_Images-03Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

  • The best interests of the child.
  • The nature of the personal relationship between the child and his/her parent/s.
  • The degree of commitment the parent/s has shown towards the child.
  • The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
  • The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
  • Any family violence involving the child or a family member of the child.
  • The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  • The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  • Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

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)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

ADOPTING A CHILD IN SOUTH AFRICA

My Lawyer_Images-02Adoption 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.

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.

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)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption/

https://www.westerncape.gov.za/service/adopting-child

WHAT ARE PARENTAL RIGHTS AND RESPONSIBILITIES?

My Lawyer_Images-03The 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.

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)

Reference:

http://www.divorcelaws.co.za/unmarried-parents-and-the-law.html

https://www.legalwise.co.za/help-yourself/legal-articles/parental-rights-and-responsibilities/

http://sdfa.co.za/articles/parental-rights-and-responsibilities-over-a-child-in-south-africa/

SAFEGUARDING CHILDREN’S RIGHTS DURING DIVORCE

A3Divorce and the resulting challenges regarding child custody and the responsibilities of parents can be an ugly and difficult process. This is especially true of the children whose emotional and physical wellbeing would have to be taken into account during the entire process. However, the office of the Family Advocate offers an efficient and free service with the wellbeing of the child in mind.

The Family Advocate (FA) manages disputes regarding the responsibilities and custody of children during and after a divorce. The point of the FA is to protect the rights of children and ensure that their best interests are taken into account when it comes to their custody and the parent’s responsibilities. The office of the FA is not just one person but consists of lawyers and social workers who all assist in getting the best outcome for the child/children.

What can the Family Advocate do?

Section 28(2) of the Constitution says, “A child’s best interests are of paramount importance in every matter concerning the child”. This forms the basis of the FA’s role in disputes.

The Family Advocate has the ability to:

  1. Institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;
  2. Appear at the trial or hearing of any relevant application;
  3. Adduce any available evidence; and
  4. Cross-examine witnesses giving evidence at such trial or hearing of an application.

*According to Mediation in Certain Divorce Matters Act (Act 24 of 1987)

The Children’s Act 2005 (Act 38 of 2005) has also made mediation by the FA compulsory for all parties involved in parental rights and responsibility disputes over children born out of wedlock.

What’s the point of the Family Advocate?

The FA has many advantages when there is a dispute over children. The FA can change the parental rights and responsibilities agreements of the parents without the need to go to court. A court will also take into consideration a report by the FA before making any decision on the child, they are even required by law to do this. Furthermore, a registered parental rights and responsibilities agreement would be considered the same as a court order. The office of the FA also allows for the children involved to express their point of view and desires. In order to ensure the best for the child/children, the FA will work together with social workers, psychologists and other professionals when dealing with disputes.

Reasons to see the Family Advocate

  1. The parties disagree about how to contact or care for a child.
  2. They want to draft, register or change their parental rights and responsibilities agreement.
  3. Disputes about whether an unmarried father of a child born out of wedlock fulfils the requirements making him eligible for the full parental rights and responsibilities of the child.

A court may also order the FA to provide a report on what is best for the children involved in a dispute. Altogether, the FA’s goal is to ensure the child gets the best out of a divorce process and that their rights are protected. They can not only help in disputes, but also provide a comfortable environment and process for what can be a stressful time for the children involved.

Reference:

“The Office of the Family Advocate”. The Department of Justice and Constitutional Development. Accessed from: http://www.justice.gov.za/FMAdv/ on 13/05/2016.

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

A4There 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:

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)

Differences between public and private schools in South Africa

A1_BIn terms of Section 5 (3) (a) of the South African Schools Act No 84 of 1996 no learner may be refused admission to a public school on the grounds that his or her parents is unable to pay or has not paid the school fees as determined by the Governing Body. However, this Act does not make provision for independent “private” schools with regard to fees.

Section 5 (3) (a) of the South African Schools Act No 84 of 1996 has incorporated Chapter 2 Section 29 (1) (a) of the Constitution of the Republic of South Africa 1996 in terms of which everyone has the right to basic education. Therefore no child can be sent home or refused to participate in certain activities or sports due to arrears school fees[1]. Public schools must provide for equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.[2] This means that should a parent find themselves retrenched during the third term of school, they can apply for subsidiary for the tuition of the last term and their child / children can continue their education.

The South African Schools Act[3] does not make provision for independent “private” schools. Private schools are governed by the Private Schools Act No 104 of 1986, which does not make any mention of arrears school fees and whether or not children are still allowed their right to basic education if their parents find themselves in a financial struggle. The Private Schools Act focuses more on the regulations of a school itself and how to become a private school.

The problem relating to this is the fact that the children suffer. At the time of entering their children into a private school, the parents are financially stable. However, what happens if a parent suddenly find him/herself retrenched? Furthermore, the above problem is aggravated by the fact that private schools are struggling to obtain funds from the Government for subsidies. Race-based inequalities in subsidies to independent schools have been eliminated since 1994. Since then, subsidy levels have differed somewhat per province. But extreme pressure on the non-salary components of provincial education budgets, especially in 1997/98 and 1998/99, has resulted in a sharp decline in the per learner value of independent school subsidies, and considerable uncertainty as to the future trend of independent school funding by provincial education authorities.[4]

[1] South African Schools Act No 84, Section 41 (7)

[2] South African Schools Act No 84 of 1996, Section 39(2) (b)

[3] South African Schools Act No 84 of 1996

[4] South African Schools Act No 84 of 1996: Rules and Regulations

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)

The ABC of the adoption of children

A1_bSection 229 of the Children’s Act states that the purpose of the adoption procedure is to protect and nurture children in a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to other safe and nurturing family relationships intended to last a lifetime.

When can a child be adopted?

In terms of Section 229 of the Children’s Act, any child can be adopted if:

  1. it is in the best interest of the child;
  2. the child is adoptable; and
  3. the requirements of Chapter 15 of the Act, which deals with adoption of children, are complied with.

A social worker determines whether a child is adoptable by establishing whether the child meets the requirements set out in Section 230(3) of the Children`s Act.

A child is adoptable when:

  1. the child is an orphan who has no guardian who is willing to adopt the child;
  2. the location or whereabouts of the natural parent or guardian of the child cannot be determined;
  3. the child is left behind (abandoned);
  4. the child’s natural parent or guardian abused or deliberately neglected the child, or allowed the child to be abused or willfully neglected;
  5. the child needs an alternative permanent displacement.

Who may adopt a child?

Section 231 of the Children’s Act states that a child may be adopted by:

  1. a husband and wife jointly;
  2. partners in a permanent domestic life partnership (cohabitation relationship), jointly;
  3. persons who share a common residence and form a permanent family unit, together;
  4. a widow, widower, divorced or unmarried person;
  5. a married person whose spouse is the parent of the child or a person whose permanent cohabiting partner is the parent of the child;
  6. the biological father of an illegitimate child;
  7. a foster parent of the child.

These individuals must meet the following requirements as set out in Section 231(2) in terms of which the adoptive parent must be:

  1. fit and proper to be entrusted with full parental responsibilities and rights in respect of the child;
  2. willing and able to undertake, exercise and maintain the parental responsibilities and rights of the child;
  3. over the age of 18 years;
  4. properly assessed by an adoption social worker for compliance with paragraphs 1 and 2.

It is important to note that a person shall not be disqualified to adopt a child because of his/her financial ability.

What is the effect of an adoption order?

ON PERSONS FORMERLY INVOLVED IN THE CHILD’S LIFE:

Unless there is a pre-adoption agreement that is accepted and confirmed by the Court, an adoption will terminate or make the following void:

  1. Parental responsibilities and rights of any person, including a parent, step-parent or cohabitation partner, that he/she had before the adoption.
  2. All claims of contact with the child by any family member or person mentioned above;
  3. All rights and responsibilities that the child had with respect to the abovementioned persons and any previous placement order regarding the child [Section 242(1) of the Children’s Act].

ON ADOPTIVE PARENTS:

The adoption order transfers full parental responsibilities and rights on behalf of the child to the adoptive parents.

  1. The child assumes the surname of the adoptive parents unless otherwise stated in the Court order.
  2. The adoptive parents are not permitted to allow any marriage or sexual intercourse between the child and any other person who would also have been prohibited from doing so before the adoption.
  3. Finally, the adoption order determines that any property rights the child may have shall not be affected by the adoption [Section 242 (1) of the Children’s Act].

An adopted child must be regarded as the “child” of the adoptive parents and the adoptive parents as the “parents” of the adopted child.

NOTE TO ATTORNEYS:
See Children’s Act No 38 of 2005

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

Contracting with minors in a digital context

A1BIn this article, we examine whether contracts entered online by minors, using their parents’ credit cards, are legally binding in the specific context of social media such as Facebook.

Both Common law and legislation deal with the capacity of minors who enter into different types of contracts. According to the Children’s Act, 38 of 2005 a minor is a person between the ages of seven and 18 years. In terms of common law a minor does not have sufficient capacity to incur binding obligations under a contract and must obtain the assistance or consent of their guardian to do so. This consent can be given before the contract is concluded or thereafter, in which case it is seen as ratification of the contract. There are exceptions to this rule, which may be found in various pieces of legislation as well as in common law, such as contracts where the minor obtains only rights and no duties (e.g. a donation).

A minor can escape liability even when they have been bound in terms of the contract (i.e. where the guardian has assisted the minor in the conclusion of the contract, consented to or ratified the contract). This can be done where the contract was prejudicial to him or her at the time that it was concluded. The court may then, on application, set the contract aside and order that each party be placed in the same position as what they were in before the contract had been concluded.

Facebook is currently involved in an ongoing class-action lawsuit. In this lawsuit, a class of parents in America are pressing their claim that Facebook should change how it handles online transactions by minors.

Attorneys for the parents in the above case note that it is important that Facebook has knowledge of a user’s actual age but still treats children the same as adult users when it comes to taking their money.

One of the biggest issues here is that reciprocal performance, being the payment of money via credit or debit card and the child obtaining credits, takes place almost immediately. Therefore, if the parent were to be refunded, the minor would be unjustifiably enriched using the credits.

The system, that Facebook currently employs, is therefore problematic since it takes advantage of children who may not fully understand the contracts that they are entering into when they purchase game credits. Furthermore, should the parents be immediately refunded in the current system, it may lead to situations where the parent consents to the purchases and then after the child obtains the enjoyment from the credits, request that their accounts be credited due to a ‘lack of consent’.

It is therefore clear that this system of payment should be changed. We should obtain clarity on how to deal with this in South Africa once the class-action suit in America has been concluded and a solution has been reached. At present, it seems that there will be no alternative for parents whose children overspend or use their credit or debit cards, without permission. If your child has, a Facebook gaming habit it is a good idea to keep a close eye on your wallet until we have clarity on the recourse available to parents who find themselves in this situation.

Bibliography

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

Rights and responsibilities of unmarried fathers

A2blThe rights and responsibilities of biological fathers who were not married to the child’s mother at the time of conception or birth can be uncertain. In this article we will discuss when a biological father obtains rights and responsibilities towards their child(ren).

Alissa has a 7-year-old son called Jessie. Alissa had been living with her boyfriend, Mike, for 2 years when Jessie was born. Alissa and Mike were never married and Mike left their common home when Jessie was only 1 year old. Mike makes contact with Jessie and contributes some small amounts towards his maintenance every few months. Alissa would like to know what rights and responsibilities Mike has towards Jessie.

Section 20 of the Children’s Act (“the Act”) confers parental responsibilities and rights on married fathers if they are married to the child’s mother or if they were married at either the time of the child’s conception, birth or any time between conception and birth.

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20 of the Act can acquire these responsibilities and rights if one of the following conditions are fulfilled:

  • at the time of the child’s birth he is living with the mother in a permanent life partnership; or
  • if he consents to be identified; or
  • he successfully applies in terms of Section 26 of the Act to be identified as the father; or
  • he pays damages in terms of customary law; or
  • if he contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; or
  • if he has contributed or attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.[1]

It may be difficult to determine whether two persons are in a permanent life partnership or not. This term lacks a precise definition and has been described as “a stable monogamous relationship where a couple who do not wish to (or are not permitted to) marry, live together and share an intimate relationship” that is akin to marriage. The Constitutional Court has given limited recognition to the relationships labelled as “life partnerships” or “permanent life partnerships”, but no specific meaning has been attached to these terms.[2]

It is important to note that this section applies regardless of whether the child was born before or after the commencement of this Act, and that it does not affect the duty of a father to contribute towards the maintenance of the child.[3]

If there is a dispute between the biological father and the biological mother of a child with regard to the fulfillment by that father of the conditions set out above, the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to the mediation may have the outcome of the mediation reviewed by a court.[4]

From this article we can see that the only clear responsibility of Mike is that of paying maintenance to support Jessie. Due to the fact that the definition of a permanent life partnership is so vague, Mike and Alissa should refer this matter to one of the abovementioned mediators to obtain certainty about Mike’s rights and responsibilities towards Jessie.

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.

References:

  • The Children’s Act 38 of 2005
  • Du Bois F, Willie’s Principle of South African Law (2007), 9th

[1] Section 21 of the Children’s Act 38 of 2005.

[2] Du Bois F, Willie’s Principle of South African Law (2007), 9th ed., p363.

[3] Section 21(2) of the Children’s Act 38 of 2005.

[4] Section 21(3) of the Children’s Act 38 of 2005.

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