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Children’s Act, access & the children's court

Prior to the new Children’s Act and the special Children’s Court; it was very difficult for a parent to have access to a child if their ex-spouse frustrated their rights. This has all changed. .

I have a friend who has a six year old son with an ex-girlfriend of his. They never married. It was a bitter breakup and his ex has continuously frustrated his rights of access to their child. She resented him for moving on in his life and meeting someone else. Her way of punishing him was to deny him access to their child.

Historically, High Court Application was requred

My friend never had the money to pay for a High Court application to enforce his rights of access to his child. This was in the past the only way a parent could enforce his/her rights, whether married or unmarried. This application could cost anything up to R100 000 or even more.

Children's court can now be approached

I as attorney was also most frustrated in the past when having to explain to people that they had to take the High Court route to enforce their rights of access. But nowadays this has all changed and the Children’s Court, a lower court, can be approached by a parent unhappy with his/her rights of access.

The Children’s Court in the past only dealt with issues where children had to be removed from homes where they were not being treated properly. This court however nowadays has the power also to deal with issues of access (now referred to as “contact”), which really is positive news for single parents.

Focus on who is the better parent

The new Children’s Court also no longer views mothers as having preference in custody cases. In the past the court looked at the age of the child and would usually decide that the young child is more in need of being with a mother than a father. Nowadays the court does not look just at gender, but also focuses on who is the better parent.

What I find interesting about the Children’s Act, is that courts are also becoming more child friendly. Children are encouraged to participate in court proceedings and to express their views. I respect this as at the end of the day it is their lives at stake.

Grandparents rights

The Children’s Court protects grandparents too, especially where they have raised their grandchildren all alone. In a custody dispute the Children’s Court will go out of their way to award care of a child to a grandparent who has looked after a grandchild.

Denying access

The Children’s Act allows a parent who denies another parent access to be fined or even sent to jail for up to a year. This is clearly in the best interests of the child. I recently had to defend a lady in a criminal case who had been locked up as she was not aware of the new legislature and had allegedly denied her ex access. I got her off successfully.

I find the new Children’s Act to be most interesting and well-written in many ways. Even though relationships come to an end, it is all about the children still, and nobody is allowed to deny a parent time with his/her child.

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