Notes Chapter 22

CHAPTER 22 – CHILDREN’S RIGHTS

 

• shift from powers of parents towards rights of children
• constitution and international human rights instruments have awarded specific rights iro children

 

Constitution:

• sec 28 – most important instrument in recognizing and protecting children rights
• all provisions applicable iro human beings, children extra clause –sec 28 (children’s rights clause)
• Purpose: to protect children –not their parents, therefore protects child not the parent.
• Sec 28 –page 272

 

 

Rights:

• (a) right to a name : Births & Death Reg act
• (b) & (c) right to family, parental care, nutrition, shelter, health care and social services: duty of parents – only passes to state only if family fails.
• State obliged to create environment – provide an infrastructure subject to available resources.
• Grootboom case: rights ito sec 28 must be taken in context of sec 25(5),26 and 27.
• (d) : protected from maltreatment : statutory and common laws, also DV act, enforcement of maintenance and child removal.   
• (h): legal representation: Soller v G variation of care order – one of the children ( a boy 15) asked for the order. Representative gives child a legal voice. Also Legal Aid Board v R –a 12 year old child sends a sms to child line to intervene because parents litigation about her care.

 

Sec28 (2) : Paramountcy of child’s interest:

• Before mostly family law – now in all law children’s interest must be considered. Eg sentencing an offender.
• Paramount consideration – paramount importance. No constitutional hierarchy of rights –therefore limitations of constitutional rights involves the weighing up of competing interests and an assessment of proportionality.
• Uncertainty sec 28(2) must be applied with sec 28(1) or whether separate constitutional right. MvS:

An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".

• Terminology in this case – refers to sec 28(2) as a separate right, then links ec 28(1) and (2), and sometimes just refers to sec 28.

 

United Nations convention on the rights of the child:

 

• SA ratified the UNC on the Rights of the Child.
• Therefore comply with the obligations of the convention it imposes on state parties.
• Eg. Children should view – echoed in Children’s Act

 

African Charter on the Rights and Welfare of the Child:

 

• SA also ratified the ACRW – rights to freedom etc.

 

Children’s Act:

 

• Rights ito Children act supplement rights ito Constitution.
• Sec 6 – gives general principles that should guide implementation of legislation to a specific child.
• Sec 7 – best interest standard
• Sec 9 – requires standard must be of paramount importance
• Sec 10 – express view
• Sec12- right not to be subjected to social, cultural etc practices which are detrimental to his well-being. Prohibit female circumcision, virginity testing under 16.
• Sec 13- access to info on health promotion, treatment of illnesses etc.
• Sec14- assist child to bring matter to court.

Notes Chapter 15

Chapter 15 – Miscellaneous matters regarding divorce:

 

Effect of divorce on a will:

 

·                 Spouse nominates the other as beneficiary – Question what if they divorce and they do not change their will?

·                 Sec 2B of the Wills Act 7 of 1953 – provides if testator dies within 3 months of his divorce – then the ex-spouse will not inherit.

·                 Therefore if you don’t want your ex to inherit  – must change/revoke the will otherwise will inherit if dies more than 3 months after divorce.

 

Divorce Proceedings:

 

·                 Meaning of divorce action: sec 1 divorce act = includes action for decree of divorce, application pendent elite for interdict/interim care or contact, payment of maintenance, application for cost contribution, application for substituted service or edictal citation or application to make application like a pauper.

·                 Jurisdiction: Sec 2(1): if either of the parties is domiciled on date when action is instituted; or is ordinary resident on date that date for at least 1 year immediately before divorce issued.

·                 Courts= high court, divorce courts or regional divisions reflected ito sec 9 and 10 of Jurisdiction of regional courts amendment act.

·                 Institution f a divorce: must personally institute divorce action. Curator bonis cannot.

·                 No method stipulated – but by way of an action. (Combined summons –Rule 17 of Uniform Rules of Court).

·                 If undefended and no children – court does not require either party to be present as all info can be submitted by affidavit. 

·                 If undefended with kids – require plaintiff to give viva voce evidence

·                 If defended – both present.

·                 Procedure: presently adversarial procedure – suggested must rather use inquisitorial approach or alternative dispute resolution.

·                 Children’s act promotes mediation eg sec 21 imposes compulsory mediation on unmarried persons cannot agree whether father meets requirements for parental rights.

·                 Court also empowered to discretion: van der Berg v le Roux – court used power as upper guardian to compel mediation before approaching court again. ( in this case see a specific psyc and split the costs)

·                 Cannot use arbitration as sec 2 of arbitration act 42 of 1965 prohibit arbitration iro matrimonial matters.  Is a recommendation to amend the act? ( cut lawyers out – fees)

 

 

 

 

Relief pendente elite:

 

·                 R43 uniform rules of court – cost contribution, maintenance (spousal & child), contact rights and care

·                 Costs: sec 10 court has discretion that is just.

·                 Ltd publication of info: sec 12 divorce act – only names, order of court can be published.  Protect privacy and dignity – but argued that id may be published therefore not protecting identities and at same time ltd right to freedom of expression – declared sec 12 unconstitutional. Now cannot publish names or any info that may lead to identity.

 

Abolition of orders for judicial separation:

 

·                 Before court could grant order for judicial separation, meaning marriage continued but parties no longer bound to live together.

·                 Sec 14 Divorce act abolished (closed down) court’s right to make such orders.

 

 

 

 

 

Notes Chapter 14

Chapter 14: Interest of the child of divorcing parents

 

Best interest of the child:

·                 Sec 28(2) Constitution = child’s best interest is of paramount importance in every matter concerning the child.

·                 Sec 6 of Children’s Act = general principles guiding implementation of legislation etc relating to a specific child.

·                 Sec 9 of Children’s Act = paramount importance must apply in all matters concerning a child’s care, protection and well-being.

·                 Therefore the best interest of a child is the yardstick in all matters relating to a minor child.

 

What is the best interest?

Sec 7 (1) Children’s Act list certain factors that needs to be considered:

*    relationship between child /parents

*    attitude of parent and exercise of parental responsibilities

*    capacity of the parents to provide emotional and intellectual needs

*    likely effect of change

*    practical difficulty and expense of having contact

*    child’s need to remain in the care of parent

*    age, gender etc

*    physical and emotional security

*    any disability

*    any chronic illness

*    child’s need to be brought up in a stable environment

*    any family violence incidents

*    any action/decision that would avoid further legal proceedings regarding the child

 

The said factors results in a closed list – however very unlikely that court will not take other factors into account.

 

Court must attach such weight to each relevant factor as it considers fit = reach a judgment based on child’s best interests in the particular case.

 

CHILD CENTRED APPROACH (close and individualized examination of precise real-life situation of the particular child is therefore involved.), whilst also  consider the rights of parents.

 

 

Mediation in certain Divorce Matters Act 24 of 1987

·                 After the institution of a divorce action /application for variation = family advocate may be asked to institute enquiry ito the aforesaid act.

·                 The court/ interested party may request same

·                 Can ask for enquiry if care of a young child not awarded to mother, or where the siblings will be separated, or where care is awarded to another (not parent), or if the arrangement is not prima facie in child’s interest. Van Vuuren v van Vuuren.

·                 Purpose of enquiry= to furnish a report and recommendations on any matter concerning the welfare of the minor child.

·                 A family counselor will assist the family advocate during such enquiry.

·                 Court is not obliged to accept the report – but at least needs to regard the independent version put before court to make a ruling.

·                 May reject in part/completely the recommendations made in the report.

·                 Family advocate may also appear at trail of divorce action /application – she may cross examine witnesses etc.

 

 

Divorce Act – 70 of 1979

 

·                 Section 6 of the act request the position of minor/dependant children born of the marriage

·                 Sec6(1)(a) –court must be satisfied that arrangements are the best that can be achieved in the circumstances

·                 Sec 6(1) (b) – if family advocate has instituted an enquiry, court must consider the recommendations before granting divorce.

·                 Sec 10 – afford child of age etc ability to participate and give due consideration given to her views.

·                 Sec 6(2) – empowers the court to cause any investigation it deems necessary to be carried out, therefore expert can be appointed (psychologist) and parents can be ordered to pay.

·                 Child’s views – self, family advocate, expert or legal representative.

·                 Sec 6(4) – also sec 28 (1) (h) Constitution = entitles a minor to be appointed a legal representative.

·                 Sec 6(3) dictates that after the court considered all circumstances it may make an order it deems fit.

·                 Act makes provision that child must be informed of the decision – mute as to whom must inform.

 

 

Court may regulate:

 

·                 Sec 6(3) = order deemed fit iro “maintenance of child”, “custody/guardianship”, access.

·                 Only iro minors. Maintenance is not limited to majority = as duty to support continues until self-dependant.

 

Guardianship:

 

·                 Meaning: wide sense - includes care, narrow sense = capacity to admin estate.

·                  Children’s act limits guardianship to narrow interpretation as sec 18(3) of the act refers to admin and safeguarding of a child’s property etc.

·                 Court orders: may make any order it deems fit.

·                 Both parents are guardians – can exercise aspects of guardianship independently but both must consent leave RSA or apply for passport.

·                 Equal guardianship. If excluded then alone except when marry or adopted.

·                 Single guardianship not the same as sole guardianship. Sole guardianship = becomes only guardian. Can also appoint sole guardian in his will but must consider any view of the child’s development etc.

 

Care:

·                 Means = Sec 1(1) Children’s Act: p 172

·                 Elements also part of the custody concept.

·                 Custody in common law refers to a person’s capacity to have child with him/her to control and supervise child’s daily life. Items 1-8 relate to maintenance and contact which are separate under common law custody.

·                 Orders: van der Linde v van der Linde = court declared that mothers are not necessarily better able to be good parents on a day to day basis, than fathers.

·                 “Mothering” = refers to care for emotional and physical well-being needs – not only mother but also father.

·                 Gender equality

·                 Joint care = limited to joint decision making of certain issues –the child still usually stay with one parent.

·                 Krugel v Krugel = rejected hostility as a bar to joint care.

·                 Split care – eg where one child stasy with one parent, other with other parent.

·                 Sole care – eg when abused by parent

 

Contact:

 

·                 Meaning: statutory equivalent to right of access.

·                 Refers to maintaining a personal relationship with child and communicating with child on a regular basis.

·                 Communication – in person, any other way eg telephonic, sms, letter, conference call.

·                 Orders:

·                 Usually reasonable contact rights – structured or defined contact

·                 Reasonable means – contact at reasonable tomes, places and intervals.

·                 Final say with care-giving person as long as not unreasonable restriction.

·                 If cannot agree can approach court for structured contact rights.

·                 Court can grant any order deems fit and in best interest of the child. Even phase-in contact / postpone contact (drugs)/supervised (only if clear risk to the child).

·                 May be refused physical contact but allowed communication by telephone etc.

·                 If divorce order is silent on contact = still entitled to contact.

·                 Even if child is opposed does not mean should not grant contact- must be considered with regard to his age etc.

·                 Careful how structure: Van Rooyen v van Rooyen = mother wanted to define her contact rights iro 2 children. Mother lesbian-judge found children not is exposed to her lifestyle. Granted access but with severe restrictions – partner excluded from bedroom when children slept over. Before Bill of Rights. Later daughter and father had problem as she had an intimate relationship with boyfriend and used ecstasy. Court granted mother interim care.

·                 After bill of rights in V v V found wrong to describe homosexuality orientation as abnormal.  In V exercised joint care. Father asked for sole care and supervised contact. Court found good mother and joint care should continue.

 

Maintenance:

 

·                 Meaning: food, accommodation, med, education.

·                 Orders: both obliged to maintain.

·                 If child major then he claim maintenance –locus standi. Can be joined to divorce action Sec 6(3) Divorce act.

·                 Must have means to support : Zimelka v Zimelka : care to father he asked for maintenance form mother – court found cannot pay and that she is contributing as the kids are spending half time with her.

·                 Baart v Malan : had settlement agreement – mother agreed to pay gross salary and bonus – for 20 years. After 17 months she asked for variation order. Court found she is deprived of material income found agreement was contrary to public policy.

 

 

Enforcement:

 

·                 parental rights = enforced civil or criminal remedies

·                 maintenance –done

 

Enforcement Care/contact/guardianship:

 

·                 Interdict – domestic violence/high court

·                 Order directing compliance- if removed from RSA, our courts do not have jurisdiction. Court where child now resides must be approach to compel return to RSA.

If party to Hague Convention – and child below 16 = then returned ito

Provisions of convention.

·                 Reasonable force – even if unwilling child = look at age etc. Is questionable.

·                 Criminal: refusing is a crime, change in address. Otherwise fone/1year imprisonment.

·                 Contempt of court – if in mala fide manner.

·                 Must however be in child’s interest before enforcing contempt order.

 

Rescission/variation/suspension:

 

·                 Sec 8(1) divorce act – may if sufficient reason.

·                 If enquiry by family advocate then court can only grant a order after considering FA report and recommendations.

·                 Child may participate –

·                 Sec 5(1) of Matrimonial Affairs Act 37 of 1953 can be used to obtain a post divorce order regarding care etc.

·                 Court as upper guardian can also change any order.

·                  Maintenance – in magistrate’s court