Fathers 4 Justice concerns about family law implementation; Sexual Offences Act National Policy Framework: Progress report

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Justice and Correctional Services

17 February 2009
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

Fathers 4 Justice, who actively campaigned for justice, equality and transparency in family law, had requested the opportunity to brief the Committee on its mandate and concerns of its members. Fathers 4 Justice argued for the rights of the child to see both parents after separation, and contended that a strong gender bias existed within the family law system which had led to serious injustices and discrimination against fathers. Fathers 4 Justice maintained that better and far less adversarial ways were needed to manage the divorce-access-custody system within a framework of shared parenting and responsibilities.  It also highlighted the consequences of parental alienation syndrome and the need to support fathers involved in custody access cases. It expressed concerns that the Office of the Family Advocate was not always able to assist and highlighted the costs of bringing applications to seek custody of or access to children. The Department of Justice responded that the Department could not involve itself in each and every case cited by Fathers 4 Justice. There were other avenues available to aggrieved parties who felt they had been wronged. Concerns around the Children’s Act should be raised with the Portfolio Committee on Social Development. It was pointed out that 43 sections of the Children’s Act would come into force by April 2009. Although the Department was willing to hear the concerns of Fathers 4 Justice, it did not always have the mandate to entertain their research, nor did it have concrete proposals. The Department had been criticised for adopting a patriarchal approach in that custody was most often awarded to the mother, and was to study the research on this to ascertain whether this was correct. A major challenge was to change the mindsets of South Africans and this could not happen overnight, as it would involve extensive training across the whole public sector. Directives were needed to manage guidelines. It was stressed that the best interests of the child were paramount in all decisions.

Members commented that gender equality cut across all borders and that Fathers 4 Justice had made out a case, yet in this and in previous engagements no single issue had been identified, but broad complaints were made. It was suggested that Fathers 4 Justice must narrow down the issues be narrowed down and make specific recommendations or proposals for law reform. In addition, it was urged to engage with all legislation and make submissions. Members also queried the costs of applications, the relationship with the Department of Justice, and the gender and racial composition of the Fathers 4 Justice group.

The Department of Justice then gave a brief progress report on the National Policy Framework for the Management of Sexual Offences, under the Sexual Offences Act. The directives of the South African Police Service still had to be reviewed by the Department of Justice, and there were still cluster and civil society consultations needed. A task team had been appointed to assess rights of victims in sexual offences cases. The Department would be looking at the implementation of the Act and providing the necessary guidance. There remained a challenge in reallocation of budgets. The issue of “corrective rape” must be further investigated.

The Committee adopted its report on the National Prosecuting Authority Annual Report for 2006/07.

Meeting report

Fathers 4 Justice (F4J) Advocacy Group briefing and Department of Justice (DoJ) response.
The Chairperson welcomed the delegation by the Department of Justice (DoJ) led by Adv Shireen Said, Chief Director: Vulnerable Groups, Department of Justice, and the Fathers 4 Justice (F4J) advocacy group, led by Dr Mike O’Callaghan, the Regional Liaison Officer: Western Cape, F4J. He noted that the aim of the meeting was to provide a platform to F4J to express their concerns, as Parliament had a constitutional duty to listen to the concerns of South Africans. He said that all the issues raised by F4J and other issues that would no doubt be raised during the meeting would be included in an Exit Report by this Committee for the new Parliament to consider. For this reason the present Committee would not be able to make any decisions on the concerns raised by F4J during previous engagements, but instead full recommendations would be made to the new Parliament to deliberate on the matter further.
 
Adv C Johnson (ANC) said that Ms S Seaton (IFP) and herself had met with F4J on two occasions in Durban and Cape Town. She noted that at these two meetings she had suggested that F4J present a list of their concerns and recommendations to the Committee. She said that F4J had raised some concerns around the Children’s Act, but the oversight in respect of that Act fell not within the mandate of the Justice Portfolio Committee, but the Portfolio Committee on Social Development (PC SocDev). 
 
She added that all of the concerns raised by F4J had been detailed in a report that was submitted to the DoJ for written response. Subsequent to this first meeting, another meeting was held where more concerns were discussed, and F4J was informed that all of their concerns would be included in the Report of this Committee. She reiterated that due to time constraints the matter would not be able to be resolved speedily, but that that the Justice Sub-Committee had advised that more consultations were necessary with the DoJ and PC SocDev.
 
Dr O’Callaghan said that he had prepared a general discussion document for those Members who might not fully understand the issues at hand. He said that F4J was set up by a British male divorcee who had encountered several obstacles in obtaining access to his children after divorce. It was noted that F4J tackled principled issues of a human rights nature, as it was a violation of a father’s human rights to be denied the opportunity to see his children. He said that within five years the message of F4J spread to various concerns of the globe. He said that F4J actively campaigned for justice, equality and transparency in family law.
 
He added that F4J felt very strongly about the rights of divorced and single fathers, and concentrated mostly on rigorous activism around this issue. He said this was an international human rights issue that needed urgent attention, as it concerned the very vulnerable societal sector of children. He said that F4J had concerns with the new Children’s Act, as it was too ‘young’ and ‘immature’.
 
Dr O’Callaghan said that the Children’s Act placed great emphasis on the promotion, preservation and strengthening of families. Millions of children were affected by the high divorce rate in South Africa, but many difficulties could be remedied if fathers could have more access to their children, instead of being prevented from seeing their children. It was of paramount importance to realise the full impact of the Children’s Act.
 
He further stated that F4J gave advice to between 20 and 30 single fathers a month and that 20 % of queries that F4J received came from mothers. He noted that F4J had no budget, and was solely based on the sacrifices made by fathers in fighting for their rights. He said that there was considerable empirical research data that supported equal parenting, proving that children flourished where the equal parenting principle was applied. He noted that each parent and child should have the right to the maximum opportunity to develop the strongest possible family relations. He said that equal parenting could only be achieved in South Africa through non-interference and equal responsibility, as it would be to the benefit of the child. He noted that F4J was guided by the equality principle and had the right to voice its various concerns. He said that F4J had the expertise and willingness to cooperate to assist the DoJ in dealing with the issue of equal parenting with stakeholders.
 
He added that the Office of the Family Advocate (OFA) was in most instances confronted by capacity and other constraints. He noted that the OFA had no clear quality indicators, as the output that emanated from this office tended to result in legal battles. He said the F4J had always expressed the need and desire to work with the OFA. He said that the OFA largely made decisions on whether it would be in the interest of the child to award custody to either one or both parents, family relations and parental guidance. He noted that the OFA had a problem with assessments conducted by it, as these were not based on operational performance indicators.
 
He stated that it was important to conduct a review of the decisions that judges or magistrates made in custody disputes to determine what informed the decision by a judge. He noted that in many cases judges did not know the full history of the people involved, but had to make a ruling based on the views of others. He also informed the Committee that F4J also had a problem with the OFA’s publicity and lack of public education, as there were no OFA pamphlets available.
 
Dr O’Callaghan related a tale of Mr Dlamini, a single father, whose former common-law wife had prevented him from seeing his son. She had moved to another province with their five-year-old son, so Mr Dlamini was forced to spend a considerable amount on travelling costs to see his son, but when he arrived, the former wife would refuse access to the son, and on one occasion he had to sleep on the streets while attempting to see the child. The woman wanted nothing to do with Mr Dlamini and would in all probability cut off all ties with him, which would deny him access to his son. Mr Dlamini was unable to afford a protracted custody battle with his former common law wife, and over time it was inevitable that he would have less and less access to his son. He noted that there was a real danger that children who grew up without a father in their lives could indulge in very serious activities.
 
Discussion
Adv Shireen Said, Chief Director: Vulnerable Groups, DoJ, replied that the DoJ had made it clear that it could not involve itself in each and every case, based on the merits provided by F4J. She noted that there were other avenues available to aggrieved parties, if they felt they had been wronged. She said that the retrospective implementation of the Children’s Act should not be seen as a problem as it would come into law by April 2009. She noted that the DoJ could also not entertain the research by F4J, as it did not have the mandate to do so.
 
She said that the biggest challenge at the moment was to change the mindsets of South Africans and this would not happen overnight. She said that the public service was a huge sector and that training across the entire sector would have to be conducted. She noted it was important that directives were put in place to manage these guidelines, as well as adhering to the National Treasury guidelines.
 
Adv Said noted that there had been allegations that the DoJ was ‘patriarchal’, in that it was more common for mothers to be granted custody of children, due to traditional and historical values and norms. She noted that the DoJ wanted to study available research to assess whether these allegations had any merit. She said that when the OFA made its recommendations on which parent should be granted custody, the interest of the child was the guiding principle. She informed the Committee that the mandate of the OFA would be extended to all Courts, and not just the High Court.
 
She noted that a Rule 43 application for interim custody, during the divorce proceedings, was for the most part filed in the High Court. However, Rule 43 applications only applied to married couples and that either party could file for the application. 
 
Adv Johnson said that F4J had maintained that there was a need to train Judges on how they should conduct a hearing that involved a custody dispute.
 
Adv Shireen Ebrahim, Principal Family Advocate, Western Cape OFA, said that the OFA had distributed leaflets and pamphlets and that F4J had in fact included some of the information contained in the OFA pamphlet in their own literature.
 
She added that the OFA recognised the rights of both parents, but that the best interests of the child would always be central to any decision. She said that South African society largely practised a traditional form of parenting, where the mother assumed the care-giving role in relation to the children. This, however, did not preclude fathers from exercising their parental rights.  She said that the OFA dealt with each case on the available merits, and where the OFA failed to make a determination, the Court would have to make the final decision on who should be given custody. She said that F4J had raised some important issues, which had been taken very seriously by the OFA. She noted that each province had its own OFA Units where complaints could be lodged. She stated that F4J included several professionally independent people who wanted the OFA to conform to their standards. 
 
Mr J Jeffery (ANC) asked what course of action a father could take if his former girlfriend or former wife had denied him access to his children. He also asked what was the cost of obtaining such a court order, if the father did decide to take legal action. He noted that the OFA had told the Committee that services offered by family advocacy entities within government was free, yet F4J maintained that it was a very expensive route to take.
 
Adv Ebrahim replied that meetings between the OFA and F4J had been held where all issues were outlined. She said that F4J was incorrect to assert that the OFA did not respond to their requests, as it had always done so. She confirmed that the services of family advocacy entities within government were free. She said that the Parental Agreements would be promulgated in April 2009, which would address some of the problems. She added that normally the cost of launching a court application was the price of one revenue stamp, excluding the costs of lawyers who might be asked to assist.
 
Adv Said added that at one of the meetings between the OFA and F4J much anecdotal information had been given on past matters. She said that many of the fathers who were not happy with the outcomes of the court order still had the right to challenge the orders. She said that the OFA represented the child and not the parents, and a full and comprehensive report was always written on the situation by the OFA.
 
Mr Jeffery replied that the response from the OFA alluded to the promulgation of the Parental Agreements in April 2009. He asked what the situation was until then.
 
Adv Ebrahim said that she believed that all issues should be raised, as well as a review of all the relevant information. She said that the OFA had to establish whether Mr Dlamini conformed to the Children’s Act and whether he was entitled to any rights and responsibilities over the child. She said that if mediation failed, then the matter had to go to the Courts.
 
Mr Jeffery said that this was in stark contrast with what the OFA had said earlier, pointing out that if mediation failed then fathers would have to find the money for a court application.
 
Ms Ebrahim replied that people could access the OFA, as their advice was available for no cost. She said in some instances the OFA would mediate between rival parties, but if there was a dispute in terms of Section 21, then the father could file an application to the Courts.
 
Mr J Sibanyoni (ANC) said that he thought that common-law marriages were adequately defined in South African law. He asked whether the OFA mainly employed females.
 
Adv Ebrahim replied that the OFA was predominantly female, but that the gender composition was slowly changing, as more males were being hired. She agreed that common-law and customary marriages were adequately defined in South African law, but that the best interest of the child would always be the determining factor in a decision on custody. She said that all decisions were taken within the ambit of the Constitution and with respect for all points of view.
 
Dr O’Callaghan asked which sections of the Children’s Act would be promulgated and how this would deal with enforcement of mediation. He said that F4J was very pleased that the promulgation was imminent. He said that F4J wanted to work in partnership with the DoJ in achieving shared goals. He conceded that many fathers made the mistake of not actively being part of the care giving of children whilst they were married, as they fulfilled the traditional role of wage-provider for the family. He said that F4J wanted all fathers to have access to their children and play an active part in their development, outside the nuclear family set-up.
 
Adv Said replied that 43 sections of the Children’s Act would be promulgated in April 2009 and that mediation was a voluntary process. She said it was very important for the OFA to consider issues of domestic abuse and restorative justice approaches, before parties petitioned the Courts. She said that it was a question of transformation, and that this was an ongoing process.
 
She added that the DoJ was working on the strategy to include links to other groups, but that it would take some time, as it was a question of reforming the various processes. She said that all guidelines at the moment were all “futuristic: as there was not yet a legislative framework.
 
Mr Jeffery said that he had great difficulty in understanding what F4J really wanted, as they did not submit a formal document to the Committee. He noted that F4J were complaining about the existing legislation, and asked whether F4J wanted law reform; if so, then they needed to come with proposals. He asked whether F4J had been satisfied with the response of the DoJ.
 
Adv Johnson said that she had expressed the same sentiments to the F4J, as it was normal practice for advocacy groups to focus one issue at a time, instead of tackling several issues at once. She said that a more specific focus would simplify matters, as this would allow for a focused agenda around which to conduct deliberations. She said that F4J need to be systematic in their approach, as shot-gun approaches would not work. She further noted that F4J also had to engage with the Portfolio Committee on Social Development.
 
The Chairperson said that F4J had to be strategic and tactful, pointing out that it was one of several hundred advocacy groups. For this reason, it could not expect the DoJ or of the Committee to accept all their proposals. This Committee would not pander to non governmental organisations or groups, although it would have regard to their concerns. He believed that some of the allegations made by F4J against the Department were unwarranted, as the DoJ had done a substantial amount. Adv Johnson and the sub-Committee had also exercised much patience and had delivered on what the Committee expected. South Africa, despite many challenges, had a wonderful Constitution and an excellent Parliament. This Committee would do what it could to assist F4J, as gender equality cut both ways.
 
Adv Johnson added that Ms Seaton, who had worked with her on the F4J issues, had asked why F4J was not called Parents for Justice as the current name implied exclusivity.
 
Dr O’Callaghan replied that two years ago F4J and the DoJ had very frosty relations, but he was happy that their relationship was now much improved. Much of the criticism expressed by F4J related to past events, but the DoJ had made strides in normalising relations with F4J. He admitted that at times F4J members tended to get very emotional, but F4J was trying to change its image from being an activist group to becoming an NGO. He said that F4J believed in parental equality and that it did not want to take anything away from mothers. He said that F4J was trying to fight the system and not mothers, and that it did have mothers serving on its various committees. He said F4J also gave advice to mothers. It was basically calling for equal access to and custody of children.
 
The Chairperson thought that F4J was an appropriate name as any other name might lead to confusion. He said that it was very important for F4J to be representative of all of South Africa and the Committee had actively encouraged them to do so. He said that F4J could bring women along who identified with the cause of F4J. 
 
He also asked who the “African Fathers for Justice” were.
 
Dr O’Callaghan replied that F4J had an open door policy and that this name had been chosen as it was “catchy”. F4J did give advice to all, but sometimes had problems in attracting members across all groups. In the Gauteng region there were a few black-based father groups.
 
Mr Stuart McDonald, Coordinator, F4J, added that F4J had received several phone calls from disgruntled black fathers, but due to lack of communication the existence of F4J was not that well known.
 
Dr O’Callaghan said that F4J recognised the various law reforms that had been passed by Parliament. However, these were not normally known to the ordinary man on the streets. He said F4J understood that the DoJ had capacity and administrative constraints.
 
The Chairperson asked F4J to submit a concrete list of proposals for inclusion in the exit report of this Committee. He said that F4J had to engage with reports, and make their agenda known.
 
Adv Said commented that the DoJ had to adhere to certain principles and mandates, but that it would be happy to take on the issues by F4J. She noted that both the Ministers of Justice and Social Development had been involved in discussions on the various implementation plans.
 
Sexual Offences Act: Progress Report on National Policy Framework
Adv Said reported that the Progress Report on the National Policy Framework for the Management of Sexual Offences had to be presented in March, but that the DoJ had underestimated the amount of time this really needed. She said that South African Policy Services (SAPS) had their own directives, which still had to be reviewed by the DoJ. She said that the process still had to undergo cluster consultations, and another round of consultations with civil society. She said that the cluster of Directors General had met and that all the major processes and structures had been recognised.
 
She added that the DoJ had victim empowerment programmes that dealt with the rights of victims, but these were silent on the management of sexual offences matters. She said that the DoJ had appointed its own task team to assess this and that an agreement had been reached on the way forward.
 
She said that the DoJ would also look at the implementation of the Act and provide guidance where necessary. The various chapters had legal frameworks on compliance and conceptualising these within the South African context, standing orders and health issues. She said that the DoJ had a challenge in the reallocation of budgets for government programmes and the management and treatment of victims.
 
She added that the DoJ also had to recognise the needs of the Lesbian, Bisexual, Gay and Transgender (LGBT) community on the issue of corrective rape, which was brought to the fore in the attacks against black lesbians. She said that these types of processes were pertinent to the objectives of the Act.
 
Adoption of Committee Report on the National Prosecuting Authority (NPA) Annual Report for 2006/2007
Mr J van der Merwe, IFP, said he would not endorse the report if it contained any references to Adv Pikoli.
 
Mr Carrim noted that it did not contain any references to Adv Pikoli.

The report was adopted.
 
The meeting was adjourned.

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