The Children’s Act

Safeguarding Children’s Rights Through Divorce – by Gillian Lowndes, attorney specialising in family law

In the South African Constitution, the Children’s Act of 2005, entrenches children’s rights to family or parental care, and also ensures that a child’s best interests are of paramount importance. Consequently, parents have a statutory duty to ensure that, in concluding parenting plans around an impending divorce, their children’s best wishes are treated as being of the utmost importance and central to all issues pertaining to their parenting.

Under the Children’s Act, the law prescribes certain rights for children. Specifically, the Act states that parenting plans may determine any matter in connection with where and with whom the child is to live; the maintenance of the child; contact between the child and the parties; and the schooling and religious upbringing of the child.

In practice, the duty to ensure that the child’s rights and best interests are central to the decision-making process is often overshadowed by the divorcing parents’ needs. Even if parents employ the services of professionals in an endeavour to distill what is in the best interests of their children, they are usually not satisfied with the result until such time as it mirrors what they believe to promote their own personal interests and needs.

The Children’s Act: Being Heard

The Children’s Act provides that a child, having regard to his or her age, maturity and stage of development, and a person who has parental responsibilities and rights in respect of that child, must be informed of any action or decision taken in a matter concerning the child. In addition, the law gives rights to children of a certain age, maturity and stage of development to be involved in any important decisions that concern them. Indeed, the rights of children to express views and be heard in an age appropriate manner is echoed in the United Nations Convention on the Rights of the Child.

Yet in spite of the clear indication by the Children’s Act that children’s views are to be obtained and given weighted relevance and importance in accordance with their age and maturity, very few legal professionals consult with children when preparing parenting plans on behalf of their clients – and accordingly, do not have the opportunity of hearing first-hand what the children’s needs and wishes are.

Relying on Professionals

Whilst many legal practitoners may not have the necessary skills to engage appropriately with children in terms of the Children’s Act, the risk of not meeting with the children who are the subject of the particular parenting plan may well result in a plan that is parent-focussed and not necessarily in the best interests of the children. It is often not sufficient to rely upon reports obtained from mental health professionals, as often these are reflective of the instructing parent’s needs and wishes.

In addition, a parent may often be incapable of focussing on what is in the best interests of their child or children in the face of the deluge of emotions that accompany the breakdown of a marriage. The volatility of the situation often does not lend itself to mature and wise parenting decisions.

Taking this into account, the Children’s Act gives guidance to the professional on the content and formalities of parenting plans. In preparing a parenting plan, it is essential that children, where age appropriate, have frequent and meaningful contact with both parents.

Working Together

Beyond the rights of children as outlined in the Children’s Act, it is essential that all aspects of care and contact are dealt with in sufficient detail to ameliorate the possibility of conflict occurring between parents. For example: schools should be notified in order that two sets of information, invitations and documentation be sent to both parents; the terms of residency should be clearly stated; the contact periods likewise; the transport arrangements for children should be set out in detail; and where possible the children should be cared for by parents and not secondary care-givers. Parents should work towards dealing with one another civilly should issues arise pertaining to their children, and the contentious matters pertaining to the divorce should not be discussed in front of the children, if possible. Parenting styles should be agreed up front and, if parents are in conflict over differing parenting styles a list of guidelines should be drawn up. Parents should ensure that they do not in any way endeavour to alienate the children from the other parent, and endeavour at all times to be respectful of the terms of the parenting plan and the other parent’s rights.

By following these guidelines, parents can legally part ways without doing irrevocable damage and respecting the rights of their children. This also lays the groundwork for the child’s peaceful and stable upbringing.

By Gillian Lowndes, attorney specialising in family law