ATC090219: Report on Fathers 4 Justice,
Report of the Portfolio Committee on Justice and Constitutional Development on Fathers 4 Justice, dated 19 February 2009.
The Portfolio Committee on Justice and Constitutional Development reports as follows:
1.1 The Portfolio Committee on Justice and Constitutional Development formed a Sub-Committee: Fathers 4 Justice in October 2008. The Chairperson of the Sub-Committee was Carol Johnson, MP (ANC), member of the Justice Portfolio Committee, and the process has been facilitated by Sybil Seaton, MP (IFP), who is also a member of the Sub-Committee.
1.2 Fathers 4 Justice actively campaigns for justice, equality and transparency in family law. It is involved in; arguing for the right of a child to see both parents after separation; contending that a strong gender bias exists within the family law system which has led to serious injustice and discrimination; maintaining that better and less adversarial ways are needed to manage the divorce-access-custody system within a framework of shared parenting and responsibilities; campaigning for reform and to raise awareness of these issues; highlighting the consequences of parental alienation syndrome; and providing support and advice on legal procedures for those involved in custody and access cases.
1.3 An initial meeting was held on 8 October 2008 with the sub-committee and the Regional-Co-ordinator of F4J for the Western Cape, who briefed the Sub-Committee on the history and origins of Fathers 4 Justice. A second meeting was held in Durban on 7 November 2008 with the Regional Co-ordinator forGauteng and the Co-ordinator for KwaZulu- Natal.
1.4 At the meeting in Durban, Fathers 4 Justice elaborated on the systemic problems experienced by fathers negotiating the various layers of the justice system in divorce/access/custody proceedings. They highlighted their concerns around the adversarial nature of family law; the prohibitive costs of litigation; the failure to make mediation mandatory; the prevalence in the Office of the Family Advocate of subjective assessments and a lack of consistency and standardisation; problems around lack of statistics on how many fathers get joint or sole custody; no educational information on the rights of fathers in the form of leaflets or pamphlets; the existence in the legal profession/justice department/courts of a general almost institutionalised mindset which predominantly favours the mother when it comes to awarding custody/access and feeds into negative stereotypes of the father; and the need to promote shared parenting in the best interests of the child which would be greatly assisted if sections 33 and 34 of the Children’s Act 38 of 2005 were put into operation.
2. Issues considered
2.1 The Sub-Committee acknowledged the seriousness of the issues and points to prevalent capacity problems in the Family Advocate’s Office. It also noted that the changing of mindset, in terms of a pre-existing maternal bias was essential, but was also something that would only happen over time and through persistence and education. Additionally, reforms in family law to ensure custody/access cases are dealt with on an individual basis in a non-adversarial atmosphere should also be linked to other areas in need of reform, such as problems around maintenance.
2.2 The Sub-Committee committed itself to:
o Raise the issues with the Department of Justice and Constitutional Development (DoJ&CD), and specifically with the Director: Child Justice and Family Law – Promotion of the Rights of Vulnerable Groups.
o Investigate the possibility of liaising with the Portfolio Committee on Social Development in respect of the Children’s Act.
o Determine the progress of the South African Law Reform Commission discussion document in terms of the development of family/divorce mediation in South Africa and the investigation into the review of aspects related to the custody of and access to minor children.
o Determine the status of the Judicial Education Institute.
o Invite Fathers 4 Justice to a full Portfolio Committee meeting in February 2009 with Department officials (including representatives from the Family Advocate’s Office) in attendance.
3. Actions by the Sub-Committee
3.1 The Chairperson of the Sub-Committee contacted the Chief Director: Promotion of Rights of Vulnerable Groups at the Department of Justice and Constitutional Development, Advocate Shireen Said, to arrange a meeting in Cape Town on 11 December 2008. The Department responded to the issues raised and:
(i) Requested that Fathers 4 Justice be encouraged to approach the DoJ&CD in a more structured way. In past meetings representatives from Fathers 4 Justice have not been consistent in identifying and prioritising the problems they want addressed by the Department.
(ii) Indicated that a policy framework has been developed for the implementation of the remaining sections of the Children’s Act, however, a multi-sectoral approach is required with the Department of Social Development. Sections 33 and 34 of the Act, which deal with parenting plans, are new to South African law and have budgetary implications - this has meant the re-prioritisation of funds. There are also training components; Family Advocates require training; and family counsellors must be appointed and trained in mediation skills. Analysis of case flow will take place to ensure there are enough personnel.
(iii) Acknowledged that the adversarial system is not suitable for every case and there is a need to promote the shift to shared-parenting and to focus on mediation and restorative justice. There has been a shift in the courts but the Department needs to determine if there has been a measurable change. The implementation plan for the Judicial Education Act 14 of 2008, which provides for a judicial education institute, is being developed.
(iv) Indicated that it has a budget for production of pamphlets and highlighted the need to provide balanced information. The Department queried the appropriateness of a new pamphlet released by Fathers 4 Justice entitled - Rights of the Father - which condemns the DoJ&CD for inaction.
3.2 Due to time constraints and limitations due to the parliamentary programme it was not possible to arrange a meeting with the Portfolio Committee on Social Development before Parliament rises.
3.3 The Sub-Committee established that South African Law Reform Commission (SALRC) investigation envisages the development of new legislation to facilitate mediation in family law. A discussion paper is being finalised and the process around providing comments provides an opportunity for Fathers 4 Justice to contribute to the draft legislation. The incoming Committee may possibly want to monitor the progress of the report.
3.4 The Sub-Committee also established that the implementation plan for the Judicial Education Institute is being finalised by the Department. The curriculum will highlight social context and gender based issues. The incoming Committee will, in all likelihood, as part of its oversight role, monitor progress of the institute and the training programmes to ensure the curriculum provides for a balanced and gender neutral perspectives on family law matters.
4. Committee meeting with stakeholders
4.1 On 18 February 2009 a meeting of the full Portfolio Committee was held. In attendance were representatives from Fathers 4 Justice and the Department.
4.2 Fathers 4 Justice emphasised their focus on parental equality and responsibility and need for equal access to children. They expressed their desire to work with the Family Advocate’s office and the Department in co-operative projects and to raise public awareness.
4.3 The Department queried the unfounded allegations made by Fathers 4 Justice regarding meetings with the Department and submitted a summary document to the Committee of all correspondence and meetings. They also submitted a report which recommended that as the lead Department in implementing the Children’s Act, the Department of Social Development should be invited to report on aspects relating to the implementation of the Act. The remaining sections of the Children’s Act are scheduled to be implemented on 1 April 2009; however, this is dependent on the regulations being approved. The Department pointed to the restorative aspects of the Children’s Act which seek to reduce acrimony through family group conferencing, lay forums, and mediation. Educational leaflets will be produced when all sections of the Act are finally implemented.
4.4 While acknowledging the challenge of changing mindsets, the Department stated that as part of its analysis of jurisprudence analysing the trends of the courts, it would seek the trends in so far as which parents obtained custody. The Family Advocate’s Office also accepted that standardisation in approach was needed and they are transforming in this regard. The focus must always be on the best interests of the child. The Department also provided a summary of the key action steps taken in respect of the establishment of a judicial education institute, which involves the establishment of a council, acquisition of a permanent site and development of a curriculum.
5. Committee’s response
5.1 The Committee appreciates the work done by the Department and hopes that improved communication and co-operation between Fathers 4 Justice and the Department will be facilitated.
5.2 The Committee has serious reservations about the sweeping statements which border on misrepresentation contained in certain of the Fathers 4 Justice pamphlets and Fathers 4 Justice need to rectify this urgently. Moreover, they should not misrepresent their interactions with the Department and should ensure they are precise and consistent in their communications.
5.3 The Committee feels that Fathers 4 Justice need to also engage with the Portfolio Committee on Social Development in the new term of Parliament, given that the Department of Social Development is the primary role-player in the implementation of the outstanding sections of the Children’s Act.
5.4 The Committee believes that it is critical that Fathers 4 Justice prioritise the issues they want the Department to address. If they seek assistance, both from the Department and/or Parliament, on the matters they raise they need to be more focused and to strategically engage with specific issues.
5.5 The Committee expresses the hope that Fathers 4 Justice will become more representative, so as include more members from other communities and disadvantaged groups in our society.
5.6 The Committee requests that Fathers 4 Justice submit, within 14 days, concrete proposals for the Committee to include in its exit report.
6.1. The Committee recognises the considerable efforts of the Sub-Committee Co-Chair, Ms Carol Johnson, and thanks her for it.
6.2. The Committee acknowledges with appreciation the very valuable work done by the Researcher, Ms Gulian Nesbitt in assisting in the processing of this matter and in the shaping of the report.
Report to be considered.
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