WRITTEN SUBMISSIONS ON THE CHILDREN’S BILL

As the director of an NGO providing legal services in the area of family law, my submissions regarding the Children’s Bill relate predominantly to the area of parental responsibilities and rights as we deal with a large number of cases involving this. Although I welcome a number of aspects of the bill and applaud those who have spent many years bringing it to fruition, I still have a few concerns with the current draft which are as follows:

Section 21: Parental responsibilities and rights of unmarried fathers

I have grave concerns about subsections 21 (1) (a) and (b) of the Bill. They create a situation where an unmarried father "automatically" acquires parental rights and responsibilities, without the need of confirmation by a court, if :

  1. any time after the birth of the child he has lived with the child’s mother for a period of no less than 12 months (or periods which together amount to no less than 12 months) or
  2. he has cared for the child for a period of no less than 12 months (or periods which together amount to no less than 12 months)

Presumably the father may commence exercising his parental rights as soon as he deems that they have come into existence. He could for example assist the child to institute litigation, assist the child to enter into contracts, enrol the child at a new school etc. If the mother of the child disputes that he has acquired parental rights (and let’s face it, the factors set out in a) and b) above are a potential minefield of factual disputes), does she now have to approach the court for a declaratory order that he has not acquired parental rights?

What if the mother is deceased and it only comes to the knowledge of other family members after her death that the father is exercising parental rights and responsibilities on the basis of "automatic" acquisition eg receiving death benefits from the pension fund on the child’s behalf. The child is currently 15 years old. The father says he lived with the mother of the child on and off for a period of a year when the child was a baby. The late mother’s family were unaware of this but as the mother is deceased they have no way of disproving it.

Furthermore, it is rather absurd that in terms of sub-section 22(3) where a parental rights and responsibilities agreement relates to guardianship it has to be confirmed by the High Court, yet when a father unilaterally decides that he has acquired guardianship rights by virtue of section 21, no involvement of any court is required.

In my view, children’s rights and interests are much better protected by requiring the certainty of a court order for the acquisition of parental rights and responsibilities for unmarried fathers. This provision seems to be focussed on rights of fathers rather than best interests of children. I am aware that there are many children who suffer because their mothers unfairly deny their unmarried fathers access and other parental rights and responsibilities – we have assisted a large number of such fathers to bring applications to the High Court for such rights. I am also very much aware that the High Court currently being the only court with jurisdiction to hear such matters causes problems of access to justice. I do not, however, believe that the "automatic" acquisition of parental rights without any involvement of any court is the solution to these problems – I believe it will create more problems than it will solve.

Section 22: Parental responsibilities and rights agreements

Sub-section 22(3) – I have concerns about problems of access to justice with requiring an agreement relating to guardianship to be confirmed by the High Court.

Sub-section 22(5) – if a parental rights and responsibilities agreement can be made effective by registering it with the family advocate, I can see no reason why it should not be capable of amendment or termination in the same way if the amendment is by agreement between the parties.

 

 

 

Section 35: Amendment or termination of registered parenting plans

My comments on this have been set out under section 22 above.

Chapter 18 – Child Abduction

My main concern here is what the chapter omits rather than what it contains.

Although section 273 gives as one of the two purposes of the chapter "to combat parental child abduction", the chapter gives absolutely no teeth or guidelines to the courts, SAPS or anyone else as to how to deal with parental child abductions within the country – and these are a lot more common than the inter-country abductions that the chapter seems to cater exclusively for.

We are faced regularly with enquiries by distraught parents when their children have been unlawfully removed or retained by the other parent. Unlike inter-country abductions there is no clearly set out procedure to secure the return of the child. Which court should be approached? What is the role, if any, of the Family Advocates office? When should a court order the prompt return of a child to its habitual place of residence?

We are also in need of provisions in the Bill as to what constitutes an abduction, or in the terminology of the Hague Convention on International Child Abduction, an unlawful removal or retention of a child.

The Hague Convention provides that:

"The removal or retention of a child is to be considered wrongful where:

a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the Sate in which the child was habitually resident immediately before the removal or retention; and

b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention."

Appropriate provisions for what constitutes unlawful removal or retention within the boundaries of South Africa would have to be considered in the light of the Bill’s move away from the terminology of "custody" and the new parental rights and responsibilities regime that it introduces.

It is also necessary to include provisions for situations not covered by Article 3 of the Hague Convention, which may not be a problem on the front of international abductions but do occur frequently within the country.

What about children who have been left in the care of someone other than the legal custodian (or in the new terminology, a holder of parental rights and responsibilities)? We have dealt with a number of cases where the mother has left her children for a lengthy and indefinite period of time with the (unmarried) father of the children or with their grandparents. She has then decided she wants them back again simply gone and uprooted them and taken them back. A provision along the following lines is needed to deal with this situation:

‘Where the holder of parental rights and responsibilities leaves a child in the care of another, of his or her own free will, for an indefinite period of time, he/she may not remove the child from that person’s care without a court order."

Another group of vulnerable children are those whose parents are separated but not divorced. Sometimes they end up getting repeatedly snatched from one parent to another in the absence of a court order stating with whom they should be living. The concept of primary carer would perhaps be useful in any provisions aimed at countering this.

If section 21 goes through as currently drafted we may have a new group of children vulnerable to abduction – those whose unmarried fathers decide to exercise their "automatically" acquired parental rights to change to child’s place of residence.

DIANE SMART

DIRECTOR, PEOLPES FAMILY LAW CENTRE