The Bill cannot operate in its present form in practice unless proper structures, proper procedures and proper facilities have been put in place as a first priority.

The Bill cannot be implemented should the current structures, staff at the courts and the office of the Family Advocate remain the same.

As a matter of urgency a dedicated Family Court from High Court level to Magistrate's Court level is required with proper structures, quality control, uniformity, rules and regulations, properly trained and equipped staff, Magistrates and Judges and newly re-structured Family Advocate's office with a wider properly trained staff complement.

The staff at the Magistrate's Courts are often not properly trained and there is no consistency.

It is suggested that, as a matter of urgency, before the Bill is promulgated, urgent attention be given to the above.

In the majority of cases the cross references to other sections with the Bill are incorrect, which hampered the committee's ability to comment exhaustively on the Bill.

The definition of this term does not follow the definition contained in the Prevention of Family Violence Act. "Neglect" should be included in the definition as a new sub-section (f).

Sub-section 1(i)(e) – This is too widely worded and its application could lead to exploitation.

Sub-section (a)(i) – the Committee has difficulty with the use of the word "speciality", more particularly how speciality will be determined, whether experience and/or academic qualifications will be considered. The Committee suggests that speciality be more clearly defined.

The Committee is concerned that the definition prima facie excludes the input of attorneys and that it is not clear what professional standards will be set for the monitoring of adoption agencies. The Committee is further concerned that attorneys are, in terms of Chapter 17, excluded from the adoption process.

Sub-section (a)(iii) – the word "reasonable" should be inserted before the word "necessary".

Sub-section (e) – the words "emotional, psychological and intellectual well-being" should be included as, in its present form, the definition is too narrow.

"central authority" (previous draft

There is a conflict between the function of the "office of the Family Advocate" and the function of the Family Advocate as the "Central Authority". The Family Advocate has a dual role to play, i.e. that of the Central Authority which acts in terms of the Hague Convention and that of the Family Advocate's office which provides reports in respect of the best interests of the child. In theory and in practice this leads to a conflict of roles.

Sub-section (b)(i) – the words, "or about the child to the care-giver" are to be inserted after the word "person".

Sub-section (b)(ii) – the words, "or about the child to the care-giver" are to be inserted after the word "child".

The Committee is concerned that the definition is couched too widely, especially sub-section (e) and that this may led to exploitation in certain instances, such as in the instance of an au pair appointed to take care of the children.

"mediator" (previous draft)

The following definition of a mediator should be included in this section: "means an impartial person who facilitates settlement negotiations between parties and whose name appears on a list of accredited mediators maintained by the Law Society for the area in which the Court is situated".

The definition should include, as sub-section (d), "a surrogate mother who has elected not to terminate the surrogate agreement within the prescribed period".

The words "means a biological, adoptive or commissioning parent where the agreement referred to in (d) below has not been terminated" should be inserted after the heading "parent".

Sub-section (a) – is seemingly an automatic joint custody arrangement, which may not serve the best interests of the child in specific instances. The definition is too wide and should be revisited.

Whilst accepting that the age of majority will be amended to 18 years, the Committee confirms that maintenance payments continue until the child becomes self-supporting. The Committee is of the view that until the child attains the age of 21 years, maintenance for the child should be negotiated on the child's behalf by the care-giver.

In practice, negotiations directly between the child and the maintaining parent have often led to exploitation of the child and the payment of insufficient maintenance.

1. Ad Paragraph 5 (3)

In order to bring this clause in line with the constitution, the words "or sexual orientation" should be added at the end of the sentence.

2. Ad Paragraph 6.1(i)

1. Ad Paragraph 8

In the event of a conflict with any existing matrimonial or family law legislation, it will be necessary to amend such legislation to achieve uniformity between the various acts.

Extensive amendments are required and again it is pointed out that without an appropriate infrastructure these provisions will not be practical.

2. Ad Paragraph 10

Referring to the words "appropriate way", who will determine this? This should be clearly defined. Furthermore, the words "due consideration" should be defined as the meaning of these words is not clear to the Committee. Finally, how does the child participate in proceedings, it is by way of, for example, cross-examination, or does he merely hand in a statement before the court.

3. Ad Paragraph 11(h)

It is envisaged that funding will pose a huge problem. There is no legal aid available.

How does one apply for staff assistance? Legal practitioners assigned by the State must have special training, experience and knowledge of this specific field of family law.

4. Ad Paragraph 13(b)

Problems may be caused and conflict may arise between parents and children in this situation. The maturity of the child should be a factor to be taken into account in establishing the best interests of the child.

5. Ad Paragraph 14

• who is entitled to assist the child and who will assign the practitioner;
• who determines jurisdiction;
• what facilities will be in place, such as the infrastructure, to give effect to this section.

1. Ad Paragraph 15

1. Ad Paragraph 18

The inclusion of the word "person" in this paragraph is very wide and may lead to exploitation.

2. Ad Paragraph 20(b)(ii)

The word "or" should be replaced with the word "and".

3. Ad Paragraph 21(1)(a)

This sub-section should be revisited and reconsidered with reference to the Natural Fathers of Children Born out of Wedlock Act. The father should be required to make application to either the Family court or the High Court for access to the child, should access not be agreed upon. He should not have automatic access.

The Family Court legislation should be amended to be able to deal with applications of this nature.

The prescribed twelve month period will give rise to unnecessary litigation. There may be an abusive relationship between the parents and the twelve month period may not be long enough to entitle the biological father to acquire parental responsibilities and rights. It is necessary to recognise that relationships are often brought about by economic necessity and accordingly a twelve month period should not be used as a yardstick to measure one's commitment to a relationship and the child.

The factors that should be considered are those as set out in the existing Natural Fathers of Children Born out of Wedlock Act.

4. Ad Paragraph 21(1)(b)

How will "informed consent" be determined and to what does it relate?

5. Ad Paragraph 22(4)(a)(i)

There is a need for due scrutiny by the relevant authority prior to registration to establish whether it is in the child's best interests. The Family Advocate's offices do not have the requisite staff, resources or training to satisfy the requirements of this sub-section.

6. Ad Paragraph 23(1)

The children's courts are not adequately equipped and do not have the necessary staff resources to deal with applications of this nature.

7. Ad Paragraph 23(2)(a)

The words "and the best interests of the child" should be inserted herein.

8. Ad Paragraph 23(3)(a)

The social worker or psychologist must be qualified in the field of dealing with children and related issues.

9. Ad Paragraph 23(3)(b)

This section is too widely cast and could lead to severe prejudice. All courts dealing with the matter should be involved. If an adoption is pending, this should immediately be brought to the attention of the court and determined in the first instance.

10. Ad Paragraph 26(1)

This sub-section should be read with sub-section 30(5).

11. Ad Paragraph 26(6)

It should be made clear in the legislation that the assignment should take place by agreement between the parties and should be premised or agreement having been reached between the parties.

12. Ad Paragraph 31(1)(a)

What happens if both parties cannot agree?

13. Ad Paragraph 33(2)

The basis for decision making in this sub-section is unworkable. The manner in which people with parental rights take decisions regarding children needs to be reconsidered. The role of the family Advocate's office in registering the parenting plan needs to be clarified. The office of the Family Advocate should not merely have a "rubber stamping" function in regard to parenting plans.

14. Ad Paragraph 33(2)

The words "cultural upbringing" and "generally anything affecting the best interests of the child" should be included in this sub-section.

15. Ad Paragraph 33(4)(b)

All mediation should take place via an accredited mediator.

16. Ad Paragraph 36

It is onerous to create the presumption contained in this section.

17. General

1. Ad Paragraph 42(7)(c)

Ideally the Children's Court should be situated in a building separate from the Criminal Courts. If this is not possible, everything possible should be done to ensure that the Children's Court is located separately from the Criminal Courts, with a separate entrance and walkway.

2. Ad Paragraph 45(1)(d)

The Committee has expressed a concern with the apparent jurisdiction of the Children's Court to adjudicate any matter involving "support of a child". It is not clear whether this sub-section operates in parallel with or in competition with the Maintenance Court. Should the sub-section operate in competition with the Maintenance Court, a lucana will exist insofar as the court to be approached by a woman without children seeking support for herself is concerned.

3. Ad Paragraph 45(3)(e)

This is factually incorrect as the Divorce Courts do not have jurisdiction over the guardianship of a child, as is contemplated in sub-section (a). Again the court infrastructure of these courts do not support their extended jurisdiction. Practically the infrastructure should be put in place first.

4. Ad Paragraph 47(2)(a)

The wording is too wide. It is suggested that a provision be inserted that a Court only suspend proceedings pending the outcome of an enquiry for a period of no longer than fourteen days.

5. Ad Paragraph 53(2)

The wording "anyone acting in the public interest" is too wide and should be restricted to those persons who have a "bona fide interest" and the requisite "status" to approach the Court. Failure to do so could give rise to an absurd situation.

6. Ad Paragraphs 59(4) and (5)

A contradiction exists between these two sub-sections when regard is had to sub-section 1(b) and should be clarified.

7. Ad Paragraph 60

The following sub-section is to be added as sub-section (4) –

"The presiding officer has the discretion to refer any matter at any stage before or after commencement of proceedings for mediation by an impartial mediator or mediators. Such mediator(s) shall not have the power to make findings or recommendations, but shall be required to assist the parties to settle their dispute. The mediator(s) shall certify whether or not the dispute has been settled and if the dispute has been settled the mediator(s) shall summarise the terms of the settlement'.

With the addition of sub-section (4), it is necessary to include a definition of the term "mediator", which is included under the heading "chapter 1" above.

8. Ad Paragraph 69(1)(a)

The wording mediate between the parties" should be substituted with "assess whether the parties should be referred for mediation".

9. Ad Paragraph 72(1)

It is recommended that any settlement accepted by the parties be considered by the Court in chambers on affidavit and that the decision of the Court relating to the acceptance or rejection of the settlement be delivered in chambers and not in open court.

10. Ad Paragraph 73

1. Ad Paragraph 228

The words "by a Court of Competent Jurisdiction" should be inserted after the word "placed".

2. Ad Paragraph 229

A sub-section (d) should be added to this section, which reads "confer rights and responsibilities on the adoptive parent and child".

3. Ad Paragraph 230(b)

The words "and the provisions of Chapter 17, where applicable" should be inserted after the word "with".

4. Ad Paragraph 231(1)(a)(ii) & 231(1)(c)

A reference to the relevant legislation regarding cohabitants and same sex life partners should be included in these sub-sections and the words "whether it be same or opposite sex" should be inserted, in the case of sub-section (1)(a)(ii), after the word "life-partnership" and in the case of sub-section (1)(c), after the word "life-partner".

5. Ad Paragraph 231(1)(d)

This sub-section seems to be unnecessary unless it specifically stipulates that the child may be adopted by the biological father of the child born out of wedlock "who has not acquired parental rights or responsibilities.

6. Ad Paragraph 231(5)

It is necessary to define the circumstances in which a person will be considered "unsuitable to work with children".

7. Ad Paragraph 231(6)(b)

This sub-section affords special notice to foster parents while sub-section (7) does not provide for similar notice to a family member of a child other than a kinship's care-giver. There is no apparent reason for this disparity and the two should be brought in line.

8. Ad Paragraph 232(1)(b)

Sub-section 1(b) should be amended to provide that not only a person who holds guardianship, but also a person who holds de facto parental responsibility and in fact all caregivers should be notified and their consent to the adoption sought. It may be appropriate to refer, in this section, to those who are the primary caregivers of the child and to include a definition of primary caregivers in the definitions section in chapter 1.

 

9. Ad Paragraph 232(5)(a)(i)

This sub-section should be amended. Provision for consent to be signed by the person in the presence of the clerk of the Children's Court is impractical, especially where such persons live in rural areas. Alternatives should be provided, such as consent signed in the presence of a Commissioner of Oaths, for example, at the local police station.

10. Ad Paragraph 232(6)

This sub-section should provide for a shorter period within which to withdraw consent, for example, thirty days, as a lengthy delay in unnecessary and it is not in the child's best interests that the matter be protracted.

11. Ad Paragraph 233(1)

It seems unnecessary to free a person from parental responsibilities where there is no substitute person who is legally responsible for the child. Freeing Orders should only be permitted if the parent is replaced by a third party as the person responsible for the child in law. The granting of a Freeing Order may be permissible where the obligations are placed on the adoptive parent-to-be, prior to the adoption being finalised. There could be an assignment of parental responsibilities or foster care rather than placing the burden on the State while the child has not yet formally been adopted.

12. Ad Paragraph 233(4)

Will a Freeing Order lapse with retrospective effect, for example, will there be provision for arrear maintenance to be claimed in the event that the Freeing Order lapses retrospectively. This query should be considered having regard to sub-section 233(5).

13. Ad Paragraph 234(2)(a)

This sub-section should be amended to provide that consent to adoption is not necessary if the biological father of the child has not exercised parental responsibilities in terms of sub-section (1)(b).

14. Ad Paragraph 234(4)

This sub-section should be broadened to provide the court with a general discretion, acting in the best interests of the child, to make a finding.

15. Ad Paragraph 237(3)

This sub-section must provide for the audi alteram partem rule. It is often not in the child's best interests that information be kept secret. Access to information in these matters is essential for all parties concerned.

16. Ad Paragraph 239(1)(a)

The sub-section should define the circumstances in which the court may find that "consent has unreasonably been withheld".

17. Ad Paragraph 239(2)(b)

The words "and the exercise of parental responsibilities: should be inserted after the words "relationship".

18. Ad Paragraph 239(2)(a)

The words "and the exercise of parental responsibilities" should be inserted after "future".

19. Ad Paragraph 240(1)(c)

This sub-section should include domestic same and opposite sex cohabiting life partners.

20. Ad Paragraph 240(2)(a)

This sub-section should be extended to incorporate Freeing Orders as conferring full parental responsibilities and rights in respect of the child in whose care the prospective adoptive parent is placed for the duration of that care-giving.

21. Ad Paragraph 241(2)

This sub-section should be extended to empower the High Court with a broad discretion to rescind an adoption order in the event that it can be proved that knowledge of the adoption took place after two years from the date thereof, where such rescission would be in the child's best interests.

22. Ad Paragraph 245(1)

Provision should be made for the imposition of a sanction for non-registration of the adoption.

23. Ad Paragraph 245(2)(b)

This sub-section should provide an alternative in the event that there is no register of birth.

24. Ad Paragraph 246(1)

Provision should be made for the imposition of a sanction for non-registration of the birth and adoption.

25. Ad Paragraph 4248(1)

26. Ad Paragraph 252(2)

1. Ad Paragraph 253

1. Ad Paragraph 255(1)

This sub-section should deal with retrospective or prospective amendments to the convention.

2. Ad Paragraph 257(1)

The "official in the Department" must be defined to be an officer of particular rank, level or skill.

3. Ad Paragraph 257(2)

The powers, which can be delegated, are too broadly dealt with. Definition must be given to "the extent determined by the Central Authority" so as to place limits on the ability to delegate.

4. Ad Paragraph 259(2)(b)

The limitation placed on the operation of an adoption working agreement is too restrictive as there may be substantial delays in obtaining the approval of the Central Authority due to short staffing and a lack of resources in the Department of Social Development. This is an issue that would need to be addressed.

5. Ad Paragraph 260(2), (4), (5)(a) & (5)(e)

These sub-sections should define which Central Authority of the Republic should receive the report and should be limited to the Central Authority in the Republic for the area of jurisdiction where the child ordinarily resides.

6. Ad Paragraph 260(6)

This sub-section should be deleted and re-drafted. A child habitually resident in the Republic placed for adoption outside the Republic should be subject to the same rules applicable to a child placed with a family member of the child or the person who will become an adoptive parent jointly with the child's biological parent because it is in the child's best interests to have the additional checks and balances in place despite that the child may be biologically related to or of a close relationship with the prospective adoptive parent.

7. Ad Paragraph 261(3)

A "suitable child" for purposes of adoption should be defined and again the Central Authority must be limited to the Central Authority in the area of jurisdiction where the child ordinarily resides.

8. Ad Paragraph 261(6)

Again, sub-section (6) should be deleted and the same rule should apply to provide additional checks and balances in the child's best interests despite that the adoptive parent may be a family member of the child or may be a person who will become an adoptive parent jointly with the biological parent of the child.

9. Ad Paragraph 263(3)

A "suitable child" for purposes of adoption should be defined.

10. Ad Paragraph 263(4)

This sub-section should provide for situations where the consent of a parent cannot be obtained, specifically whether the law of the country concerned regarding adoption will apply or whether the South African rules will apply with regard to dispensing with consent of a parent to adopt.

11. Ad Paragraph 265(1) and (2)

The words "is in force for the adoption" should be defined.

12. Ad Paragraph 267(b)

13, Ad Paragraph 269(1)

The words "contrary to public policy should be defined.

14. Ad Paragraph 270

15. Ad Paragraph 270

This sub-section should deal with the situation where the arrangements for the adoption are in accordance with the non-convention country, but not with the local requirements or vice versa, in other words, the situation where there is a conflict between the requirements of the two countries. The best interests of the child should then prevail in determining whether the adoption will proceed.

A sub-section (f) should be added to provide for the requirement that the best interests of the child required for the adoption to take place.

16. Ad Paragraph 271

The status of the non-convention countries should be discussed.

17. Ad Paragraph 272

1. Ad Paragraph 275

The Family Advocate should not be the Central Authority as, in practice, there is often a conflict of interest between the two roles.

The Chief Family Advocate for the area of jurisdiction within which the child resides should be defined.

2. Ad Paragraph 277(1)

This sub-section should stipulate that a High Court may request the Central Authority to provide a report on an urgent basis.

3. Ad Paragraph 277(3)

A limit should be placed on the age from which a child can raise a valid objection.

4. Ad Paragraph 279(2)

1. Ad Paragraph 286(1)

The phrase "involved in a permanent relationship" should be defined.

 

2. Ad Paragraph 288(1)(b)(ii)

The determination of the commissioning parent or parents as "suitable persons" should be endorsed in the report of a commissioned social worker or in the report of an appropriately qualified mental health professional, requested by the court.

3. Ad Paragraph 290(2)

The Committee suggests that after the word "invalid" the words "unless otherwise ordered by the court" be inserted.

This legislation should deal with the situation where one of the commissioning parties wishes to terminate the pregnancy and, if not terminated, the consequences specifically with regard to the payment of maintenance for the child.

4. Ad Paragraph 292(a) and (b)

The effect of termination of a surrogate motherhood agreement cannot be as set out in these two sub-sections. The situation would then arise that the surrogate mother terminating the agreement, should she not have a partner, would be vested with parental rights together with the commissioning father. Therefore, a married couple who commission a child through a surrogate mother may not have joint parental rights. The mother would not have parental rights but the commissioning father would enjoy parental rights, together with the natural mother. This cannot be correct, as it would lead to absurd results and the breakdown of relationships.

5. Ad Paragraph 294(2)(b)

The words "and/or living expenses" should be inserted after the words "loss of earnings".

The legislation should deal with the rights of the commissioning father should the agreement be found to be invalid. Similarly, the legislation should deal with the rights of the child should the agreement be declared invalid, rights such as would the child have a right to ascertain the identity of the commissioning parents and to initiate contact with them at a suitable age.

The legislation does not indicate the effect payment of compensation to a surrogate mother outside of the exceptions provided for in the legislation would have on the surrogate motherhood agreement, i.e. would the contract be vitiated.

6. Ad Paragraph 295

1. The comments of Debbie Wybrow on international Adoptions are enclosed herewith as Annexure "A", and are endorsed by the Committee.
2. Proposals on the new court structures are annexed hereto as Annexure "B".

The Children's Bill is an ambitious and far reaching bill which will drastically affect the lives of families and the rights of children.

Unfortunately the Children's Bill cannot be read in isolation without considering the structures within which it will operate once it becomes law.

Before the Children's Bill is promulgated, the Department of Justice and Social Development urgently need to meet to present a model of a restructured system within which this bill will operate.

At present there are numerous intrinsic practical problems in the manner in which justice is administered in family law:

1. Section 21 is problematic. The manner in which the section is worded will give rise to extensive litigation. The current act regulating the rights of fathers of children born out of wedlock sufficiently caters for the situation. The proposal in this section disregards the reality of the South African situation where one has to consider abusive relationships which, for financial reasons, continue for long periods of time or where limited access has been provided to a father for certain reasons and he builds up care for a period of twelve months and acquires automatic rights. This section as it is worded may very well not be in the best interests of the children.
2. The assignment of parental rights and responsibilities are too wide without proper safeguards and checks and balances having been put into place.
3. The co-exercise and the co-holding of parental responsibilities and rights involving decision making will give rise to litigation and conflict. No proper procedures have been put in place to deal with the conflict which may arise between these co-holders.
4. The Children's Bill omits many of the essential children's rights, particularly those proposed in the SALRC version. Children's rights have to be adequately protected through the Children's Bill. The submission of the Children's Institute UCT, on behalf of the Lines for Children's Entitlement to Social Security Act says in the sense that the following rights should be re-inserted in the Bill: Unfair discrimination, name and nationality, property, education, health and social security, water and sanitation, social services, children with disabilities and chronic illnesses, food and nutrition, family or alternative care.
5. We note that the entire chapter relating to children in especially difficult circumstances have been removed. Many provisions were lost completely from this draft.
6. Urgent reform of the social security system needs to be effected and legislative amendments need to made so as to ensure that the rights and the obligations created in this Bill can be fulfilled.

The representation of the child and the presentation of the view of the child to court are also not dealt with satisfactorily.

Inter-country adoptions and the exclusion of attorneys in this regard have created concerns.

 

 

PROPOSAL FOR NEW FAMILY COURT STRUCTURE

 

AD PARAGRAPH 1

One dedicated Family Court stream to be created from High Court level to Magistrate's Court level.

 

A Judge should be appointed to head the Family Court in each division of the High Court. It shall be a permanent appointment and this person shall have managerial duties. The person's duties shall include to orchestrate the Family Court for the whole of its division from High Court level down to Magistrate's Court level, to provide training, to control the quality of appointees and judgments, to create a record of case law, to streamline procedures, to administer the process effectively, to ensure that matters be heard efficiently and speedily, and to promote the development of Family Law and Family Law procedures.

There shall possibly be three levels (High Court, Regional Court and Magistrate's Court) or two levels (High Court and Regional Court).

Possible existing judicial officers and administration staff shall be utilised and moved to the Family Court stream. Rotation may be considered. Special provision shall be made for qualification training, experience and standards. Presiding Officers shall be called judges and may be rotated, for example, on a quarterly basis.

Consideration should be given to separating the issues of domestic violence and maintenance away from the Family Court stream matters as it may overburden the Family Court and may not lend itself to the effective delivery of justice. The whole of the Maintenance Court system should be reviewed and amended. There should be fast tracking of Maintenance Court procedures. Checks should be put into place in regard to the Domestic Violence procedure to avoid an abuse of the process. Provision should be made for cost orders in the Domestic Violence Courts.

The Children's Court should fall under the Family Court and its procedure should be fast tracked.

The procedural rules should be reviewed completely.

In the Magistrate's/Regional Court one specific person will be appointed, again in an administrative/managerial Judge to head the Family Division in a specific Court and will report to the President of the Family Division at High Court level. This should again be a permanent appointment.

Concurrent Jurisdiction:

The High Court and the Regional Court should have concurrent jurisdiction. The President of the division in which the matter is pending by way of, for example, Chamber Book and notice to the other party. In other constituencies overseas, a specific officer has, for example, if there is a dispute in which Court the matter should be heard, the discretion to direct where the matter should be referred to depending on certain criteria.

It is suggested that there shall be a compulsory alternative dispute resolution process to endeavour to mediate their differences first before a trial date is set. It is suggested, e.g:

7. Within 90 days of institution of proceedings the parties will file a joint certificate setting forth: