Child law in South Africa has advanced hugely in the last few years. In fact, attorneys who qualified more than 10 years ago, are often reluctant to have anything to do with it, unless they specialise (as we do) in the field of Family Law.
South African child law is dominated by: The Constitution, which contains in Section 28, extensive rights for children and provides, amongst other matters, that, in all matters concerning a child, the best interests of the child are of paramount importance.
The Children’s Act, 38 of 2005 (effective since July 2007) which both consolidated and hugely altered, the laws pertaining to children, their parents, wider families and society itself. It is a complex piece of legislation and to make it even more complex, it has two sets of regulations, each created by different departments of government. The Domestic Violence Act and other statutes pertaining to criminal matters.
Problems often brought to us by clients for our advice, include:
Issues between parents and their children;
Issues of custody, contact (access) – both pertaining to unmarried and married (or divorcing) parents;
Kidnapping or other unauthorised travel;
Issues arising from education, such as disputes arising from the Schools Act;
Bullying and other forms of child abuse;
Damages claims when a child has suffered injury or other loss;
And there are many more.
Dispute resolution | Mediation
The Children’s Act provides in Section 6 (4) that “an approach that is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided;”
This provision is only one of the many references to mediation in the law pertaining to children. We believe strongly in mediation and often participate in mediation processes for children and other family law disputes.
We handle issues pertaining to children, in all courts having jurisdiction to adjudicate upon cases pertaining to children, including:
Children’s Courts (Magistrates courts)
The High Court
Supreme Court of Appeal
Children may have their own lawyers
Both the Constitution and the Children’s Act provide that, in certain circumstances, both attorneys and advocates can be appointed as independent legal representatives for children. This might occur, for example, where a child is caught between two parents who are each claiming custody (‘care’) or access (‘contact’) to children.
Child participation in decision-making
Children have independent rights regarding medical care, from age 14. In addition, in any matter concerning a child, the child has the right to be involved in decisions, insofar as may be appropriate, depending on their age and state of maturity.
We work closely with other professionals when dealing with matters pertaining to the rights and care of children – including the Office of the Family Advocate, teachers, counselors, social workers, medical practitioners and psychologists.