FAMILY LAW CONFERENCE. Implementation of the South Africa Children s Act 38 of Presentation by Adv Julia Anderssen. (member of the Cape Bar)

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1 14 TH ANNUAL MILLER DU TOIT / UWC FACULTY OF LAW FAMILY LAW CONFERENCE Implementation of the South Africa Children s Act 38 of 2005 Presentation by Adv Julia Anderssen (member of the Cape Bar) When Zenobia asked me to speak at this conference on the difficulties in implementing the Children s Act I did not know where to begin. How does one summarise the difficulties of the birth of a long-awaited new era in children s law? When one is in the trenches the battles are often bloody and children are the unfortunate victims with there being no winners. From what I have seen and from what has been reported to me our children s courts are hampered by the following: a) Jurisdictional limitations b) A shortage of magistrates with the appropriate training often magistrates have a criminal court background c) The abuse of the child in need of care provisions starting with the old Form 4 removals d) A lack of knowledge and experience e) A heavy reliance on the office of the family advocate which is struck by budget constraints f) Too few social workers and the few that are there have often not had sufficient training in the act or its regulations g) A lack of a sense of urgency when dealing with matters in which the best interests of children is paramount, time is always of the essence I decided to share with you the facts in several different matters in which the difficulties of this birth is well illustrated. I have not used the parties real names in order to protect the children: 1

2 The first case study 1. Chris and Abigail were married in February They had two children, Cathy (aged 5) and Sarah (aged 9 months). On 22 October 2010 the parties were still living together under one roof. On that day there was a domestic incident and Chris lay criminal charges of assault against Abigail. Abigail was arrested and brought before a magistrate the following day. She was released on bail. Her family came from Graaff-Reinet to assist her. Chris reluctantly agreed to allow Abigail to take the children away with her to her family s home in Graaff-Reinet. She was due back in Worcester on 12 November 2010 as she was due to appear again in criminal court. Abigail failed to appear and on 14 November 2010 informed Chris that she would not return to Worcester with the children. She wanted a divorce and had already enrolled Cathy in a local pre-primary. 2. Cathy was not acting in accordance with the provisions of ss 30 and 31 of the Children s Act as she had made decisions without considering the views and wishes of Chris. 3. Chris went to the local magistrate s court but was told by the magistrate that the court had no jurisdiction as the children were in Graaff-Reinet, outside its area of jurisdiction. Chris was a policeman with a very small income. He spent his bonus and borrowed on his credit facilities in order to launch a high court application in Cape Town. The high court ordered Abigail to return the children to Worcester and not to leave again unless she had Chris consent or the leave of the local children s court. The high court held that it had jurisdiction to entertain the application as the children had until very recently been ordinarily resident within its area of jurisdiction. 4. Chris could of course have gone to the children s court in Graaff-Reinet but decided against this course of action as (a) he would have to litigate away from home (which might be even more costly if he had to travel to Graaff- Reinet) and (b) there were likely to be delays in the hearing as the children s 2

3 court was likely to refer the matter to the family advocate s office for investigation. The second case study 5. Diane and Eddie are the parents of Jodie (born in January 2006). They were not married but living together at the time of Jodie s birth. They separated in July In November 2008 Diane started a relationship with another woman and they moved in together. Jodie went to visit her father in Cape Town in December 2008 and the parents arranged that her maternal grandmother would return her to Diane s care in Bloemfontein. 6. Instead of returning Jodie to Diane s care the grandmother took her to Lydenberg and refused to return her. She instituted children s court proceedings alleging that Jodie was in need of care. The commissioner initially placed Jodie in the care of her grandmother and then in the care of her mother between 7 May 2009 and 16 October Despite a social worker s report finding that Jodie was not a child in need of care the commissioner decided that Jodie was in need of care and placed her with her grandmother in December Since then Diane has struggled to have contact with Jodie. In April 2010 the grandmother moved to Brackenfell, Cape Town with Jodie without notifying Diane. 7. Despite the implementation of the Children s Act: 7.1. Diane has not been able to have any contact (save telephonic contact) with Jodie since April The children s court and social services have not monitored Jodie s circumstances. Jodie has spent extended periods of time with other family members without any variation of the care order Diane s parental responsibilities and rights have been ignored. 3

4 The third case study 8. The appellant was the biological father of a child Beth born in January Beth s mother died about three months after her birth. Beth s parents were not married at the time but were engaged and had been living together for more than a year. Beth s maternal grandmother took Beth (at that stage only 2½ months old) to Keimoes without her father s consent. The appellant wished to return to Paarl with Beth after her mother s funeral but was prevented from doing so as a social worker authorised a Form 4 removal for Beth in Keimoes. Since then there had been on-going litigation between the appellant and the maternal grandparents regarding Beth s primary residency The litigation commenced in the Children s Court in Keimoes, Northern Cape and culminated in an order dated 26 February 2008 by the Commissioner of Child Welfare placing Beth in the care of the appellant by 31 August 2008 and ordering that a reunification process take place until then The grandparents instituted proceedings in the Northern Cape High Court on 30 August 2008 claiming the reunification process was not complete The family advocate recommended a specific format for the reunification process and his recommendations were incorporated in an interim order. Beth started spending more and more time with her father and his new wife in Paarl By August 2009 Beth was living permanently in Paarl in accordance with the recommendations. Despite this the grandparents sought an order awarding them primary residency of Beth In an order made on 2 October 2009 the Northern Cape High Court awarded full parental responsibilities and rights in respect of Beth to the 4

5 grandparents and granted the appellant the right of reasonable access At the date of the hearing of the application in August 2009 the Children s Act had come into operation and the appellant had acquired full parental responsibilities in respect of Beth automatically. The high court ignored this and stripped Beth s father of his rights Despite an application for leave to appeal against the judgment the Northern Cape High Court granted a further order authorising the immediate implementation of its earlier order. The appellant sought leave to appeal against this second order also The appellant then launched an application in the Western Cape High Court. The Western Cape High Court held that it, in its capacity as the upper guardian of all minors resident, or for the time being, within its area of jurisdiction had the jurisdiction to stay the execution of the orders of the Northern Cape High Court pending the determination of the appeal As the appellant s applications for leave to appeal were refused by the Northern Cape High Court he petitioned the Supreme Court of Appeal and was granted leave to appeal. The matter came before the SCA in November In an important decision the SCA: 9.1. Confirmed that unmarried fathers will acquire full parental responsibilities and rights automatically if at the time of a child s birth the parents were living together in a permanent life partnership Confirmed that the Western Cape High Court had had the jurisdiction to suspend the operation of the order of the Northern Cape High Court pending the appeal. 5

6 9.3. Remarked on the inherent rights of a biological parent, the rights of grandparents, the effects of ss 23 and 24 and of s 29 of the Children s Act. Thus the SCA has for the first time christened the birth of the Children s Act. I look forward to many more occasions as we celebrate the birthday of the Children s Act each year. From the trenches I bid you good buy. Note on Julia Anderssen: 1. She applied to have her name removed from the role of attorneys and to be admitted as an advocate on 2 August She became a member of the Cape Bar and has kept chambers in Cape Town since 1 December She specialises in family law and matrimonial disputes and has a special interest in the development of children s law. 6