By: Sanette Viljoen
What is the legal position where the minor children’s relationships with their parents have deteriorated? May these children leave their parental home to live with another party? These cases occur especially when the child is a teenager. What are the parents’ rights in such a case? And how can they be enforced?
Firstly, it is important to mention that our Children’s Act, no. 38 of 2005, is considered to be one of the most progressive in the world. It offers comprehensive protection for the rights of children as well as parents. Furthermore, our children’s courts, which were created through this act, were designed and assembled in such a way that they are truly accessible and user-friendly to the public.
It is important that a parent whose contact with his/her child is compromised in any way, may approach the Children’s Court at any time for a closer investigation and should it be necessary, the court can rectify the situation.
However, it is not necessary to approach the High Court or lawyers and advocates with applications if you feel that your contact with your children has been compromised. You may approach the Children’s Court directly. Interested parties (who may include a child, depending on the child’s age) will then be summoned to attend the proceedings and put their case in the children’s court. Any decision made by this court regarding the child, will always be measured against the best interest standard, for which provision is made in section 7 of the Children’s Act.
In terms of the act, a whole list of factors should also be considered, which include the child’s relationship with the relevant parents and any other relevant persons, as well as the parents’ capacity to see to the child’s needs, their competency, the child’s age, the level of development of the parents and the child etc.
It is important to take into consideration that the magistrate cannot with reference to such an initial court appearance immediate make such a decision, if he is not yet prepared or in a position to decide what would be in the child’s best interest. The magistrate may request new or further testimony. It should also be remembered that magistrates are jurists, not psychologists or social workers. For this reason, the Children’s Court is assisted by the family advocate.
The family advocate is considered to an independent expert witness who renders services to the court and is paid by the state. If the relevant parties’ funds however allow it, it can be agreed to call in the services of private welfare workers, which often saves the parties a considerable amount of time.
The expert, whether the family advocate or a private welfare worker, is then appointed by the court to do a thorough investigation to determine the best interests of the child. This includes comprehensive assessments and consultations with all the parties. Thereafter the expert will submit a report to the court, containing recommendations to the court regarding the primary care and implementation of contact rights with the child.
It is also important to look at the stipulations of section 10 of the act. This section endeavours to promote participation by the children involved. It makes it very clear that the children have the right to participate and deliver inputs to the court when required, regarding a case that affects them, in accordance with their age, maturity and level of development.
A parent who is deprived of his/her rights as regards his/her rights toward the child, may approach the Children’s Court and request that it be determined where it would be in the child’s best interest to live.