Child custody appeals from the Children’s Court to the High Court of South Africa

This article deals with an appeal from the Children’s Court to the High Court. I’ve never been one to complain of my legal situation. The father of my daughter, and I have always had a cordial relationship. Until recently, the father of my minor child paid child support, and he would have contact with her regularly. However, what the father has done recently was approach the children’s court and make false allegations that I have been refusing him contact with his minor daughter. This was not to be done, and I could not allow him to continue lying to the court.

Our past relationship before approaching the Children’s Court

To give some context, the father of my minor child and I met 12 years ago. Soon after, I fell pregnant, and my minor child was born. The father was not involved much in the minor child’s life until soon after she was born. He only met the minor child for the first time when she was about seven months old. He saw her at least once a year until she started attending school. At this time, I approached him for child maintenance because he had not been paying adequate child maintenance for the minor child.

Approaching the Maintenance Court and the Children’s Court

We then approached the maintenance court, and the maintenance court ordered that he pay half the minor child’s school fees, place her on his medical aid, and pay a cash contribution towards her daily expenditure. At the same time, we also approached the children’s court, which assisted us in drafting a parenting plan. The father would see the minor child every second weekend from a Friday until late Sunday as well as one evening in the week. We would also share half the school holidays as well as special days. This would include the minor child‘s birthday, Father’s Day, Mother’s Day, and so on.

Father wanting every weekend with teh minor child

All went well regarding visitation until about a year ago. The father said I am limited his contact regarding the minor child. He wanted to have her on weekends with her as well. Me not agreeing to is, according to him, is refusing him contact. I told him that I also need time with the minor child on weekends. I already care for the child during the week. I attend to her homework and all her needs. At least two weekends a month, I require time to go out with her, take her to the beach, maybe watch a movie, and have some fun time together.

Father approaches the Children’s Court for a variation of the Parenting Plan

It is unfair that he should have the minor child every weekend and not take care of her during the week. Furthermore, the care and contact arrangement that is in place was finalised with the children’s court. I was therefore acting in terms of a court order. The father then approached the children’s court, and we had a hearing date. The matter proceeded to the children’s court magistrate, who heard both parties.

Decision of the Children’s Court

At the end of the enquiry, the children’s court made an order that the father may have the minor child in his care for three weekends per month. What the children’s court did not do was ask the minor child what the minor child wanted. Furthermore, it has not appointed a legal representative for the minor child. Lastly, there was no expert recommendation on this matter. For example, the children’s court did not appoint the office of all the family advocates, or are you a social worker to investigate this matter?

Appealing to the High Court regarding the Children’s Court decision

They failed to consider various factors and assistance from other parties that would assist the court in determining the minor child’s best interest. I then sought the assistance of an attorney, who advised me that I would need to appeal the children’s court’s decision. We then requested reasons for the children’s court decision. In short, the children’s court magistrate was of the view that the minor child does not need to spend so much time with me on the weekend, seeing that I am already caring for her during the week.

High Court dealing with the Appeal from the Children’s Court

The matter then proceeded to the High Court. The High Court took issue with the fact that the children’s court had not consulted with the minor child, has not obtained the assistance of the office of all the family advocates or a social worker, nor has the children’s court appointed a legal representative to the minor child to determine what the minor child’s view and wishes are. The High Court ordered that the care and contact arrangement that was in place should remain.

Possitive outcome of the Appeal to the High Court

I was thrilled that I took the matter to the High Court and appealed the children’s court decision. Had I not decided to take the magistrate to the children’s court on appeal, the father of the minor child would’ve had three weekends a month with the minor child and me only one. This, I believe, would have been unfair.

Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court

Should you require assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court, feel free to connect with the firm of Adv. Muhammad Abduroaf.    
Posted on by Telelaw

Child custody appeals from the Children’s Court to the High Court of South Africa

This article deals with an appeal from the Children’s Court to the High Court.

I’ve never been one to complain of my legal situation. The father of my daughter, and I have always had a cordial relationship. Until recently, the father of my minor child paid child support, and he would have contact with her regularly. However, what the father has done recently was approach the children’s court and make false allegations that I have been refusing him contact with his minor daughter. This was not to be done, and I could not allow him to continue lying to the court.

Our past relationship before approaching the Children’s Court

To give some context, the father of my minor child and I met 12 years ago. Soon after, I fell pregnant, and my minor child was born. The father was not involved much in the minor child’s life until soon after she was born. He only met the minor child for the first time when she was about seven months old. He saw her at least once a year until she started attending school. At this time, I approached him for child maintenance because he had not been paying adequate child maintenance for the minor child.

Approaching the Maintenance Court and the Children’s Court

We then approached the maintenance court, and the maintenance court ordered that he pay half the minor child’s school fees, place her on his medical aid, and pay a cash contribution towards her daily expenditure. At the same time, we also approached the children’s court, which assisted us in drafting a parenting plan. The father would see the minor child every second weekend from a Friday until late Sunday as well as one evening in the week. We would also share half the school holidays as well as special days. This would include the minor child‘s birthday, Father’s Day, Mother’s Day, and so on.

Father wanting every weekend with teh minor child

All went well regarding visitation until about a year ago. The father said I am limited his contact regarding the minor child. He wanted to have her on weekends with her as well. Me not agreeing to is, according to him, is refusing him contact. I told him that I also need time with the minor child on weekends. I already care for the child during the week. I attend to her homework and all her needs. At least two weekends a month, I require time to go out with her, take her to the beach, maybe watch a movie, and have some fun time together.

Father approaches the Children’s Court for a variation of the Parenting Plan

It is unfair that he should have the minor child every weekend and not take care of her during the week. Furthermore, the care and contact arrangement that is in place was finalised with the children’s court. I was therefore acting in terms of a court order. The father then approached the children’s court, and we had a hearing date. The matter proceeded to the children’s court magistrate, who heard both parties.

Decision of the Children’s Court

At the end of the enquiry, the children’s court made an order that the father may have the minor child in his care for three weekends per month. What the children’s court did not do was ask the minor child what the minor child wanted. Furthermore, it has not appointed a legal representative for the minor child. Lastly, there was no expert recommendation on this matter. For example, the children’s court did not appoint the office of all the family advocates, or are you a social worker to investigate this matter?

Appealing to the High Court regarding the Children’s Court decision

They failed to consider various factors and assistance from other parties that would assist the court in determining the minor child’s best interest. I then sought the assistance of an attorney, who advised me that I would need to appeal the children’s court’s decision. We then requested reasons for the children’s court decision. In short, the children’s court magistrate was of the view that the minor child does not need to spend so much time with me on the weekend, seeing that I am already caring for her during the week.

High Court dealing with the Appeal from the Children’s Court

The matter then proceeded to the High Court. The High Court took issue with the fact that the children’s court had not consulted with the minor child, has not obtained the assistance of the office of all the family advocates or a social worker, nor has the children’s court appointed a legal representative to the minor child to determine what the minor child’s view and wishes are. The High Court ordered that the care and contact arrangement that was in place should remain.

Possitive outcome of the Appeal to the High Court

I was thrilled that I took the matter to the High Court and appealed the children’s court decision. Had I not decided to take the magistrate to the children’s court on appeal, the father of the minor child would’ve had three weekends a month with the minor child and me only one. This, I believe, would have been unfair.

Assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court

Should you require assistance with an Appeal to the High Court, Supreme Court of Appeal or the Constitutional Court, feel free to connect with the firm of Adv. Muhammad Abduroaf.

 

 

Related Post

Top tips from a Senior Family Law Advocate on how to deal with your Child Custody matter in the Potchefstroom Children’s Court

 

Family law legal matters can be very stressful. This is so whether you live in Potchefstroom or any other city in South Africa. Especially so if you have no idea how the legal processes work. It is one thing to know that you are entitled to child support, but it is a totally different matter to know the law and procedure on how to claim child support. Luckily in child maintenance matters, the maintenance court is there to assist you in completing the application form. However, many times that is not enough. Especially so if the other parent has a lawyer and knows how to present the case for his or her client.

This article, however, deals with some top tips in care and contact or custody matters in the Children’s Court in Potchefstroom. It would explain the processes involved and advise on how to be best prepared for your matter. This advice is applicable whether you live in Potchefstroom or any other city in South Africa.

What to do before visiting the Potchefstroom Children’s Court

Before you approach the Children’s Court in Potchefstroom, first try to resolve the issues with the other parent. Therefore, if you want more contact with your child and the other parent is refusing, try to resolve the matter first with that parent. If that does not work, try mediation. The mediator can be anyone, from a trusted mutual friend, priest, or other religious leaders, or a professional like an attorney, psychologist, or the office of the Family Advocate. Potchefstroom has many professionals that can assist you in this regard. If resolving the matter by yourselves is not possible, or mediation fails, then we suggest you approach the Potchefstroom Children’s Court for assistance.

TIP: Focus on getting someone neutral to assist in mediating your matter. Organisations like FAMSA and FAMAC can be of assistance. Google them.

Approaching the Potchefstroom Children’s Court

The Potchefstroom Children’s Court should be approached if it is the closest Children’s Court to you. You need to verify with the Potchefstroom Children’s Court that you fall under their area of jurisdiction. If not, they would direct you to which Children’s Court is applicable to you.

Once you arrive at the Potchefstroom Children’s Court, they will provide you with a form headed “Bringing Matter to Court in Terms of Section 53 Children’s Act, 2005 (Act no. 38 of 2005) Regulation Relating to Children’s Court and International Child Abduction, 2008 [Regulation 6]. This form is also called Form 2.

In this form, you will provide all your particulars and that of the child or children and the other parent. The sections in the form are as follows:

  • PART A: PARTICULARS OF CHILD(REN)
  • PART B: PARTICULARS OF *CHILD WHO IS AFFECTED BY OR INVOLVED IN THE MATTER/PERSON *ACTING IN THE INTEREST OF THE CHILD/*ON BEHALF OF THE CHILD WHO CANNOT ACT IN HIS/HER OWN NAME/ *MEMBER OF A GROUP OF CLASS OF CHILDREN/*IN THE PUBLIC INTEREST (SECTION 53(2)
  • PART C: PARTICULARS OF PERSONS HAVING AN INTEREST IN THE MATTER
  • PART D: PARTICULARS OF MATTER

In part D, the following is stated which you need to provide in the form:

  • Nature of matter brought to Court: (Please give full details of the matter e.g., registration/amendment of parenting plans, removal of child to safe care, children in need of care and protection, placement in youth care centers, adoption etc.
  • Documents: Are there any documents relating to the matter? (If so please attach)

Once you have completed the form and attached the relevant documents to it, you must take it to a commissioner of Oaths to have it commissioned. It does not have to be in Potchefstroom.

TIP: Draft a separate affidavit explaining your case. Outline some background information and reasons why the Court should give you what you request. Attach it to Form 2.

Processing your Application at the Potchefstroom Children’s Court

Once you complete the Form A and submit it to the Clerk of the Potchefstroom Children’s Court, they will process it and allocate it a case number or reference number. The Clerk of the Court would then allocate a date to the matter and advise the parties accordingly when the court date is. Please note that some courts follow a different process for processing the application and informing the parties of the court date. Please enquire from the Court when making the application what process they follow.

TIP: Obtain the contact details of the Court for you to contact them to obtain the Court date or other information. Ask for their contact number and email address.

Appearing in the Potchefstroom Children’s Court

When notified of the Court date, both you and the other parent should attend. If you are making use of a lawyer (Advocate or Attorney), inform them timeously of the date. Depending on the Court, you may first see the Clerk or go directly to the Magistrate. The Children’s Court would do its best to try to resolve the matter. If the parents cannot come to an agreement, the Children’s Court may postpone the matter for either of the following:

  • Get a social worker involved in the matter;
  • Appoint a legal representative for the minor child;
  • Implement interim care and contact arrangements;
  • Having the parties attempt to agree on a parenting plan;
  •  

In serious matters, the Court may remove the minor child from both parents and place the child in foster care. The powers of the Children’s Court are extensive. It will, however, focus on what is in the child’s best interests.

TIP: Be as vocal as possible. Do not expect the Court to be understanding of your case or be on your side. It is your duty to explain your case and provide the Court with all the relevant information they require for them to make a fair decision.

Finalising the matter in the Potchefstroom Children’s Court

Once the Potchefstroom Children’s Court has enough information to make a final decision, it will do so. Depending on the facts of the matter, that could either be making a Parenting Plan, an Order of the Court or a final care and contact Order. The Court may even make further interim orders, where the parties are to return to Court after a few months, or a year later.

TIP: Do not agree to something just because the social worker, a lawyer, or the Court suggest it. You need to be happy with what is decided.

The above Potchefstroom Children’s Court Application tips should apply to the following provinces and cities:

Eastern Cape:

Alice, Butterworth, East London, Graaff-Reinet, Grahamstown, King William’s Town, Mthatha

Port Elizabeth, Queenstown, Uitenhage, Zwelitsha

Free State:

Bethlehem. Bloemfontein, Jagersfontein, Kroonstad, Odendaalsrus, Parys, Phuthaditjhaba, Sasolburg, Virginia, Welkom

Gauteng:

Benoni, Boksburg, Brakpan, Carletonville, Germiston, Johannesburg, Krugersdorp, Pretoria, Randburg, Randfontein, Roodepoort, Soweto, Springs, Vanderbijlpark, Vereeniging

KwaZulu-Natal:

Durban, Empangeni, Ladysmith, Newcastle, Pietermaritzburg, Pinetown, Ulundi, Umlazi

Limpopo:

Giyani, Lebowakgomo, Musina, Phalaborwa, Polokwane, Seshego, Sibasa, Thabazimbi

Mpumalanga:

Emalahleni, Nelspruit, Secunda, North West, Klerksdorp, Mahikeng, Mmabatho, Potchefstroom, Rustenburg, Northern Cape, Kimberley, Kuruman, Port Nolloth

Western Cape:

Bellville, Potchefstroom, Constantia, George, Hopefield, Oudtshoorn, Paarl, Simon’s Town, Stellenbosch, Swellendam, Worcester

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32 Relocation with my minor child to South Korea, Seoul (Consent and Refusal) – Advocate Muhammad Abduroaf The world is becoming a much smaller place, and technology plays a huge role. People are moving across the world for employment, love and happiness, something that was not the norm a few decades ago. There is no reason why you should remain in South Africa if you can find a better life for yourself and your family overseas. Moving overseas may provide you with the quality of life you want or the possibility of experiencing things you always wanted. The same applies to your child or children relocating with you. Relocation of your minor child to Seoul, South Korea If you are single and do not have any minor children, then moving around the world would not be too complicated. All you need to do is ensure that you have the necessary travel documentation and travel ticket (and spending money), and off you go. However, if you want to travel with your minor children (for example, ages nine or ten) or relocate to another country, things may not be that simple. Firstly, if there is another parent, and he or she has parental responsibilities and rights, then his or her consent is required. For example, let us say you live in Soweto or Polokwane, South Africa, and you want to relocate to Seoul, South Korea, you would require the other parent’s consent to leave South Africa with your minor child. This can cause challenges, especially if the staying parent (in South Africa) does not agree to the relocation. What about Passport Consent to travel or relocate to Seoul, South Korea? The same applies when it comes to your minor child applying for a South African passport to relocate to South Korea, or any country. Both parents who have parental responsibilities and rights of guardianship will have to consent to the minor child’s passport application as well. In this regard, both parents have to be at the Department of Home Affairs (or the relevant bank that also assists with passport application) when making the Application with the minor child. This can be challenging if you have a disinterested parent who does not want to cooperate with the passport application. As you will see later, legal action would need to be taken. What are the steps to follow when I want to relocate to Seoul, South Korea with my minor child? There is there another parent. To simplify the process for relocation, the first step would be to receive the other parent’s consent in principle for the relocation and that he or she will co-operate in this regard. Once that has been resolved, the parent relocating would need to make the appointment for the minor child’s passport application as well as the application for the relevant VISA. Each country has different requirements; however, seeing that it is a relocation, you need to apply for the correct VISA. For that, you need the Passport. Once the visa and travel arrangements have been finalised, the parent remaining behind will sign a parental consent letter for the international travel. That letter can be found on the Department of Home Affairs website. Basically, the parent remaining behind would state that he or she gives consent for the minor child to leave the Republic of South Africa and travel and/or relocate to Seoul, South Korea. What can I do if the other parent does not want to consent to the minor child’s relocation to Seoul, South Korea? If the parent remaining in South Africa does not want to consent to the minor child’s passport application and/or his or her relocation to Seoul, South Korea, then you would need to approach the Court. The Court, as upper guardian of the minor child, may order that the parent’s consent for the passport application and relocation be dispensed with. What this entails is submitting Court documents explaining why you want to relocate to Seoul, South Korea. The other parent would also have an opportunity to give reasons why he or she objects. At the end of the process, the Court would determine what is in the minor child’s best interests. If it is in the minor child’s best interests to relocate to Seoul, South Korea, the Court would make it possible despite the issue of consent or refusal. What is the first step I should take if the other parent does not want to consent to the minor child’s passport application and/or relocation to Seoul, South Korea? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Seoul, South Korea – in that case, we suggest you approach an attorney or advocate (trust account) to assist you with the legal process. He or she would then contact the other parent explaining the reasons for the relocation and request the necessary consent. If the parent remaining in South Africa does still not agree to the passport application and/or to the relocation to Seoul, South Korea, then the attorney or advocate will proceed to take the matter to court. The legal route can be expensive. However, it is necessary to make the relocation of the minor child possible. You may also attend to the legal process yourself. Getting legal assistance or help with your relocation application to Seoul, South Korea If you require legal assistance or representation with relocating to Seoul, South Korea due to the other parent not cooperating or providing consent, then feel free to contact us for assistance. The Firm Advocate, Muhammad Abduroaf, deals with these types of matters.

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