The Views of the Child in Divorce and Separation Cases
The Children’s Act 38 of 2005 (the Act) makes provision for divorcing parents to give consideration to the welfare of their minor children during divorce proceedings. The Act gives both parents full parental responsibilities and rights in relation to a child subject to specific exceptions provided for in the Act. The preamble to the Act states that give effect to certain rights of children as contained in the Constitution, sets out principles relating to the care and protection of children and defines parental responsibilities and rights’. A great deal of relevance has been placed on the involvement of children in decisions regarding parental responsibilities and rights that affect them.
The following two cases dealt with the views of the child:
AC v ADT
[2015] JOL 33077 (GJ)
Parent and child – Access to child
The battle between the parties over the applicant’s access to his child had a 12-year-long history. The father had relentlessly sought assistance from the Court to gain access to his minor daughter and the mother had frustrated the father’s every effort to gain such access to the child. The mother referred to the violent nature of the father in justification of her refusal to have the father gain access to the child. However, the father was comprehensively assessed by a clinical psychologist, whose professional opinion was that no reason existed to deprive him of access to his daughter. On the other hand, the mother had consistently refused the father’s requests to attend consultations with psychologists.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The Court found that fear and anxiety expressed by the child has been created by the mother. The Court sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests of the child to at least attempt establishing meaningful contact with the father, without the rights of the father being deliberately frustrated by the mother. An order facilitating that objective was issued.
CRI (born B) v MRI
[2013] JOL 29946 (ECG)
Divorce – Access to children
The parties in this matter were embroiled in divorce proceedings. In a rule 43 application brought by the applicant (mother), the applicant was appointed as primary carer of the children, and awarded her pendente lite custody of the children, subject to the condition that the respondent be allowed contact with them. The parties were not able to agree on how the respondent’s (father's) right to contact would be exercised, and he now sought an order defining that right.
In terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration to the views expressed by the minor children if they were of an age, maturity, and stage of development to be able to meaningfully participate in the proceedings. Their views however, had to be considered in the context of the fact that they had been in the applicant’s sole custody for more than two years, and that during that period they had not had any contact with their father.
The Court found that the respondent should be allowed to see his children and granted supervised contact, as defined in the order.
The following two cases dealt with the views of the child:
AC v ADT
[2015] JOL 33077 (GJ)
Parent and child – Access to child
The battle between the parties over the applicant’s access to his child had a 12-year-long history. The father had relentlessly sought assistance from the Court to gain access to his minor daughter and the mother had frustrated the father’s every effort to gain such access to the child. The mother referred to the violent nature of the father in justification of her refusal to have the father gain access to the child. However, the father was comprehensively assessed by a clinical psychologist, whose professional opinion was that no reason existed to deprive him of access to his daughter. On the other hand, the mother had consistently refused the father’s requests to attend consultations with psychologists.
As the best interests of the child is paramount, it is mandatory that due regard and due consideration be given to any views and wishes expressed by the child. The child in this matter was now 16 years old. The Court found that fear and anxiety expressed by the child has been created by the mother. The Court sits as upper guardian in the protection of the best interests of the minor child. It was in the best interests of the child to at least attempt establishing meaningful contact with the father, without the rights of the father being deliberately frustrated by the mother. An order facilitating that objective was issued.
CRI (born B) v MRI
[2013] JOL 29946 (ECG)
Divorce – Access to children
The parties in this matter were embroiled in divorce proceedings. In a rule 43 application brought by the applicant (mother), the applicant was appointed as primary carer of the children, and awarded her pendente lite custody of the children, subject to the condition that the respondent be allowed contact with them. The parties were not able to agree on how the respondent’s (father's) right to contact would be exercised, and he now sought an order defining that right.
In terms of section 10 of the Children’s Act 38 of 2005, the Court had to give due consideration to the views expressed by the minor children if they were of an age, maturity, and stage of development to be able to meaningfully participate in the proceedings. Their views however, had to be considered in the context of the fact that they had been in the applicant’s sole custody for more than two years, and that during that period they had not had any contact with their father.
The Court found that the respondent should be allowed to see his children and granted supervised contact, as defined in the order.
