Child Law
"Children are the future of our society and the most important parties in any family law dispute, yet the ones often most neglected. We are duty bound to ensure that their voices are heard in any dispute relating to their care, maintenance, contact and guardianship."
In all matters concerning the care, protection and well-being of a child, a court must apply the best interest of child standard and consider the factors recorded in section 7 of the Children's Act.
To put into perspective how important the welfare of children are in any dispute involving them, the Divorce Act prohibits the granting of a decree of divorce if the court is not satisfied that the children have been properly provided for, or that the provision made for the children are the best that they can be in the circumstances.
The court must be satisfied that children are cared for, maintained, and have appropriate contact with their parents. Unless otherwise determined, this is the responsibility of the child's parents.
Whenever a dispute arises concerning a child, the Children's Act provides that an approach conducive to conciliation and problem-solving should be followed and that a confrontational approach should be avoided.
PARENTAL RESPONSIBILITIES AND RIGHTS
This refers to the responsibility and right to care for your child, maintain contact with your child, as as his or her guardian and contribute to his or her maintenance. The right and responsibility goes hand in hand and cannot be separated from one another.
Care
Prior to the Children's Act, this was referred to as "custody". According to the Children's Act, care entails, within your available means, to provide your child with a suitable place to live, living conditions conducive to his or her health, well-being and development and his or her required financial support.. In addition, it includes:
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safeguarding and promoting the well-being of your child;
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protecting him or her from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards;
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respecting, protecting, promoting and securing the fulfilment of, and guarding against any infringement of, your child’s rights set out in the Constitution and the principles set out in the Children's Act;
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guiding, directing and securing your child’s education and upbringing in a manner appropriate to your child’s age, maturity and stage of development;
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guiding, advising and assisting your child to make decisions in a manner appropriate to his or her age, maturity and stage of development;
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guiding your child's behaviour;
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maintaining a sound relationship with your child;
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accommodating any special needs that he or she may have; and
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generally, ensuring that his or her best interests is the paramount concern in all matters affecting your child;
Contact
Prior to the Children's Act, this was referred to as "access". According to the Children's Act, contact entails maintaining a personal relationship with your child and, if your child lives with another person, such as your current or previous spouse, communicating with your child on a regular basis. The communication can include communication through visitation in person or via telephone or another form of electronic communication.
Maintenance
In our legal system, the terms "support" and "maintenance" is used interchangeably. The applicable legislation, however refers to "maintenance".
Whether your child was born in or out of wedlock, both parents have a duty to support him or her in accordance with your respective means. Child maintenance should be sufficient for your child's physical, mental, spiritual, moral and social development. This obligation exists irrespective of whether a parent has contact with his or her child and parents cannot during a divorce agree that one party is not liable to support their child.
According to the Maintenance Act, a child is entitled to reasonable maintenance for his or her proper living and upbringing. This includes housing, clothing, medical, dental and health care as well as education and training.
CHILDREN AFTER DIVORCE
Together with the decree of divorce, the court must make an order which provides for the children. The order will determine the parental responsibilities and rights of the parties and the court must be convinced that the order granted will be in the best interest of the children.
Where the parties enter into a settlement agreement, the terms that provides for the children will be considered by the court. If the court agrees, the court will order that the parties' parental responsibilities and rights are to be exercised as agreed between them.
Where no agreement is reached between the parties, the court must base its order on the evidence presented to it by the respective parties. Each of the parties will present evidence to the court in support of that party's contention as to what will be in the children's best interest. This evidence normally include reports by experts such as clinical psychologists or social workers. When considering the evidence, the court must take into consideration the factors listed under section 7 of the Children's Act which inludes the following:
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the nature of the personal relationship between the child and the parents;
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the attitude of the parents towards the child and the exercise of parental responsibilities and rights in respect of the child;
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the capacity of the parents to provide for the needs of the child, including emotional and intellectual needs;
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the likely effect on the child of any change in the child’s circumstances, including of any separation from—
(i) both or either of the parents; or
(ii) any sibling, other child, or person, with whom the child has been living;
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the practical difficulty and expense of a child having contact with any of the parents and whether that difficulty or expense will affect the child’s right to maintain personal relations and direct contact with the parents;
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the need for the child to remain in the care of his or her parent, family and extended family; and
to maintain a connection with his or her family, extended family, culture or tradition;
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the child’s—
(i) age, maturity and stage of development;
(ii) gender;
(iii) background; and
(iv) any other relevant characteristics of the child;
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the child’s physical and emotional security, intellectual, emotional, social and cultural development;
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any disability or chronic illness that a child may have;
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the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
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the need to protect the child from any physical or psychological harm;
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any family violence involving the child or a family member of the child; and
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which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
Uncontested and mediated divorces
Contested divorces
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