Family Law matter and legal representation by attorneys or advocates. What are common questions asked?

What follows are some  frequently asked questions regarding legal representation and family law matters.

What is the right of mothers in South Africa?

In South Africa, mothers have several important rights concerning their children, particularly in matters of custody, care, and parental responsibilities. Here are some key rights:
  1. Parental Rights: Mothers have the right to make decisions about their child’s upbringing, including education, healthcare, and religion, especially if they are the primary caregiver or have sole custody.
  2. Custody and Access: Mothers can apply for custody of their children, and the courts prioritize the best interests of the child when determining custody arrangements. They also have the right to seek visitation rights if the father has custody.
  3. Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
  4. Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
  5. Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
  6. Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
  7. Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
  8. Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.
It’s essential for mothers to be aware of their rights and seek legal advice if they encounter challenges in exercising them.

Can a mother keep the child away from the father in South Africa?

In South Africa, a mother cannot unilaterally keep a child away from the father without a valid legal reason. Here are some important points to consider:
  1. Legal Custody: If the father has legal custody or parental rights, the mother must adhere to any court orders regarding access and custody. Ignoring these can lead to legal consequences.
  2. Best Interests of the Child: South African law prioritises the best interests of the child. Keeping a child away from a parent without a justifiable reason (e.g., concerns about safety or well-being) is generally not in the child’s best interest.
  3. Valid Reasons: If there are legitimate concerns—such as abuse, neglect, or substance abuse—these should be documented and, if necessary, reported to the authorities or brought before the court.
  4. Court Orders: If there are disputes regarding custody or access, it’s advisable to seek a court order to formally address these issues rather than taking unilateral action.
  5. Mediation: Engaging in mediation can help resolve conflicts between parents regarding custody and access in a way that considers the child’s best interests.

Who has more rights over a child in South Africa, a father or mother?

In South Africa, both parents generally have equal rights over a child, as the law emphasizes the best interests of the child. However, specific rights can depend on factors like custody arrangements and parental responsibilities:
  1. Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
  2. Custody Arrangements: If there is a custody agreement or court order in place, the terms of that order will determine the rights of each parent. For example, if one parent has sole custody, that parent may have more decision-making power.
  3. Parental Responsibilities: The Children’s Act outlines parental responsibilities and rights, which include the right to care for the child, maintain contact, and contribute to the child’s upbringing. Both parents typically share these responsibilities.
  4. Best Interests of the Child: Courts prioritize the child’s best interests when determining custody and access, which can sometimes lead to one parent being granted more rights in certain situations.
Overall, while mothers and fathers have equal rights, individual circumstances and legal agreements can influence specific rights and responsibilities. Legal advice is recommended for parents navigating custody and access issues.

Who qualifies for legal aid in South Africa and how can one apply for it?

In South Africa, legal aid is available to individuals who cannot afford legal representation. Here’s a breakdown of who qualifies and how to apply: Qualifications for Legal Aid
  1. Financial Means Test: Legal aid is primarily aimed at those with limited financial resources. Applicants must meet specific income and asset thresholds, which are reviewed periodically.
  2. Type of Case: Legal aid typically covers civil, criminal, and family law matters, including:
    • Criminal cases where imprisonment may be a consequence.
    • Family law matters, such as divorce, custody, and maintenance.
    • Certain civil cases, such as disputes involving social grants or housing.
  3. Merit of the Case: The case must have a reasonable chance of success. Legal aid is not provided for cases deemed frivolous or without merit.
How to Apply for Legal Aid
  1. Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
  2. Complete the Application Form: At the office, you’ll need to fill out an application form. Staff will assist you in understanding the process and requirements.
  3. Provide Documentation: You may need to present supporting documents, such as:
    • Proof of income (payslips, bank statements).
    • Details about your assets.
    • Information about the legal issue you are facing.
  4. Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
  5. Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.
How does pro bono work in South Africa? Pro bono legal services in South Africa refer to legal work undertaken voluntarily and without charge, aimed at assisting individuals or communities who cannot afford legal representation. Here’s how pro bono work functions in South Africa: Key Aspects of Pro Bono Work
  1. Purpose: Pro bono services are intended to promote access to justice, particularly for marginalized or disadvantaged individuals who may be unable to afford legal fees.
  2. Eligibility: There are typically no strict eligibility criteria for receiving pro bono services, but organizations may prioritize cases based on need, urgency, and the potential impact of the legal issue.
  3. Types of Cases: Pro bono work often covers a range of legal matters, including:
    • Family law (e.g., custody, divorce)
    • Criminal defense
    • Land rights and housing issues
    • Employment law
    • Public interest litigation
How Pro Bono Work is Organized
  1. Law Firms and NGOs: Many law firms, both large and small, have pro bono departments or initiatives. Non-governmental organizations (NGOs) also provide pro bono legal services, often focusing on specific areas of law.
  2. Legal Aid Clinics: Some universities and legal organizations operate legal aid clinics staffed by law students under the supervision of qualified attorneys, offering free legal advice and representation.
  3. Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.
How to Access Pro Bono Services
  1. Contact Law Firms or NGOs: Individuals seeking pro bono assistance can reach out to local law firms or NGOs that offer these services. Many firms have specific programs dedicated to pro bono work.
  2. Legal Aid South Africa: While this is a separate entity, it’s important to note that Legal Aid South Africa provides legal services to those who qualify based on financial means, and they may refer clients to pro bono resources.
  3. Community Legal Clinics: Some communities have legal clinics that provide free advice and assistance. These clinics often focus on specific legal issues and can be a valuable resource.
Benefits of Pro Bono Work
  • Access to Justice: Pro bono work helps bridge the gap for individuals who might otherwise be unable to afford legal help.
  • Public Interest: It allows lawyers to engage in matters that benefit society as a whole, addressing systemic issues.
  • Professional Development: For young lawyers and law students, pro bono work provides valuable experience and the opportunity to develop their skills while making a difference.
Overall, pro bono legal services play a crucial role in promoting equality and justice in South Africa.

What is the difference between an advocate and an attorney?

In South Africa, the terms “advocate” and “attorney” refer to different roles within the legal profession. Here are the key differences: Advocate
  1. Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
  2. Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
  3. Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.
Attorney
  1. Role: Attorneys handle a wide range of legal matters, including providing legal advice, preparing documents, and managing client relationships. They often deal with clients directly.
  2. Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
  3. Law Firms: Attorneys typically work in law firms or practice independently. They may specialize in various areas of law, such as family law, criminal law, or commercial law.
  4. Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.
Summary In essence, attorneys are the first point of contact for clients and handle a broad range of legal work, while advocates specialize in courtroom representation and litigation. The two roles complement each other within the legal system.

Can a client pay an advocate directly?

In South Africa, it is generally not standard practice for clients to pay advocates directly. Advocates are typically retained by attorneys, who then handle the payment arrangements. Here are some key points regarding this process:
  1. Attorney-Advocate Relationship: Clients usually hire an attorney, who will then brief an advocate for specific legal representation. The attorney is responsible for paying the advocate’s fees.
  2. Direct Payments: While it’s possible for a client to pay an advocate directly in certain circumstances, this is less common and may require prior agreement. If an advocate is briefed directly (as in some cases of direct access), they may accept payment from the client.
  3. Fee Agreements: If a client and an advocate agree on direct payment, it’s essential to have a clear fee agreement in writing, outlining the services provided and the payment structure.
  4. Cost Orders: In court cases, if a client wins, the court may order the losing party to pay the legal costs, which could include the advocate’s fees, but these costs typically flow through the attorney.
It’s advisable for clients to clarify payment arrangements with their attorney or advocate upfront to avoid misunderstandings.
Posted on by Telelaw

Family Law matter and legal representation by attorneys or advocates. What are common questions asked?

What follows are some  frequently asked questions regarding legal representation and family law matters.

What is the right of mothers in South Africa?

In South Africa, mothers have several important rights concerning their children, particularly in matters of custody, care, and parental responsibilities. Here are some key rights:

  1. Parental Rights: Mothers have the right to make decisions about their child’s upbringing, including education, healthcare, and religion, especially if they are the primary caregiver or have sole custody.
  2. Custody and Access: Mothers can apply for custody of their children, and the courts prioritize the best interests of the child when determining custody arrangements. They also have the right to seek visitation rights if the father has custody.
  3. Child Maintenance: Mothers have the right to claim child maintenance from the father to ensure that the child’s financial needs are met.
  4. Legal Representation: Mothers have the right to seek legal advice and representation in family law matters, including custody disputes and maintenance claims.
  5. Protection Against Unreasonable Actions: Mothers can seek legal recourse if the father is acting unreasonably regarding custody, access, or maintenance obligations.
  6. Participation in Major Decisions: Mothers should be involved in significant decisions affecting their child’s life, such as schooling and medical treatment.
  7. Maternity Leave and Benefits: South African labour laws protect mothers’ rights to maternity leave and benefits in the workplace.
  8. Access to Social Services: Mothers can access social services and support systems to help with parenting, health care, and financial assistance if needed.

It’s essential for mothers to be aware of their rights and seek legal advice if they encounter challenges in exercising them.

Can a mother keep the child away from the father in South Africa?

In South Africa, a mother cannot unilaterally keep a child away from the father without a valid legal reason. Here are some important points to consider:

  1. Legal Custody: If the father has legal custody or parental rights, the mother must adhere to any court orders regarding access and custody. Ignoring these can lead to legal consequences.
  2. Best Interests of the Child: South African law prioritises the best interests of the child. Keeping a child away from a parent without a justifiable reason (e.g., concerns about safety or well-being) is generally not in the child’s best interest.
  3. Valid Reasons: If there are legitimate concerns—such as abuse, neglect, or substance abuse—these should be documented and, if necessary, reported to the authorities or brought before the court.
  4. Court Orders: If there are disputes regarding custody or access, it’s advisable to seek a court order to formally address these issues rather than taking unilateral action.
  5. Mediation: Engaging in mediation can help resolve conflicts between parents regarding custody and access in a way that considers the child’s best interests.

Who has more rights over a child in South Africa, a father or mother?

In South Africa, both parents generally have equal rights over a child, as the law emphasizes the best interests of the child. However, specific rights can depend on factors like custody arrangements and parental responsibilities:

  1. Equal Rights: Both parents have equal rights in making decisions about the child’s upbringing, education, and healthcare, unless a court order states otherwise.
  2. Custody Arrangements: If there is a custody agreement or court order in place, the terms of that order will determine the rights of each parent. For example, if one parent has sole custody, that parent may have more decision-making power.
  3. Parental Responsibilities: The Children’s Act outlines parental responsibilities and rights, which include the right to care for the child, maintain contact, and contribute to the child’s upbringing. Both parents typically share these responsibilities.
  4. Best Interests of the Child: Courts prioritize the child’s best interests when determining custody and access, which can sometimes lead to one parent being granted more rights in certain situations.

Overall, while mothers and fathers have equal rights, individual circumstances and legal agreements can influence specific rights and responsibilities. Legal advice is recommended for parents navigating custody and access issues.

Who qualifies for legal aid in South Africa and how can one apply for it?

In South Africa, legal aid is available to individuals who cannot afford legal representation. Here’s a breakdown of who qualifies and how to apply:

Qualifications for Legal Aid

  1. Financial Means Test: Legal aid is primarily aimed at those with limited financial resources. Applicants must meet specific income and asset thresholds, which are reviewed periodically.
  2. Type of Case: Legal aid typically covers civil, criminal, and family law matters, including:
    • Criminal cases where imprisonment may be a consequence.
    • Family law matters, such as divorce, custody, and maintenance.
    • Certain civil cases, such as disputes involving social grants or housing.
  3. Merit of the Case: The case must have a reasonable chance of success. Legal aid is not provided for cases deemed frivolous or without merit.

How to Apply for Legal Aid

  1. Visit a Legal Aid Office: Applicants can visit a local Legal Aid South Africa office. These offices are located throughout the country.
  2. Complete the Application Form: At the office, you’ll need to fill out an application form. Staff will assist you in understanding the process and requirements.
  3. Provide Documentation: You may need to present supporting documents, such as:
    • Proof of income (payslips, bank statements).
    • Details about your assets.
    • Information about the legal issue you are facing.
  4. Assessment: Once your application is submitted, it will be assessed for eligibility based on financial means and the merits of the case.
  5. Await Decision: You will be informed about the outcome of your application. If approved, you will be assigned a legal representative.

How does pro bono work in South Africa?

Pro bono legal services in South Africa refer to legal work undertaken voluntarily and without charge, aimed at assisting individuals or communities who cannot afford legal representation. Here’s how pro bono work functions in South Africa:

Key Aspects of Pro Bono Work

  1. Purpose: Pro bono services are intended to promote access to justice, particularly for marginalized or disadvantaged individuals who may be unable to afford legal fees.
  2. Eligibility: There are typically no strict eligibility criteria for receiving pro bono services, but organizations may prioritize cases based on need, urgency, and the potential impact of the legal issue.
  3. Types of Cases: Pro bono work often covers a range of legal matters, including:
    • Family law (e.g., custody, divorce)
    • Criminal defense
    • Land rights and housing issues
    • Employment law
    • Public interest litigation

How Pro Bono Work is Organized

  1. Law Firms and NGOs: Many law firms, both large and small, have pro bono departments or initiatives. Non-governmental organizations (NGOs) also provide pro bono legal services, often focusing on specific areas of law.
  2. Legal Aid Clinics: Some universities and legal organizations operate legal aid clinics staffed by law students under the supervision of qualified attorneys, offering free legal advice and representation.
  3. Referral Systems: Legal practitioners may refer clients to pro bono services if they identify that the client cannot afford legal representation.

How to Access Pro Bono Services

  1. Contact Law Firms or NGOs: Individuals seeking pro bono assistance can reach out to local law firms or NGOs that offer these services. Many firms have specific programs dedicated to pro bono work.
  2. Legal Aid South Africa: While this is a separate entity, it’s important to note that Legal Aid South Africa provides legal services to those who qualify based on financial means, and they may refer clients to pro bono resources.
  3. Community Legal Clinics: Some communities have legal clinics that provide free advice and assistance. These clinics often focus on specific legal issues and can be a valuable resource.

Benefits of Pro Bono Work

  • Access to Justice: Pro bono work helps bridge the gap for individuals who might otherwise be unable to afford legal help.
  • Public Interest: It allows lawyers to engage in matters that benefit society as a whole, addressing systemic issues.
  • Professional Development: For young lawyers and law students, pro bono work provides valuable experience and the opportunity to develop their skills while making a difference.

Overall, pro bono legal services play a crucial role in promoting equality and justice in South Africa.

What is the difference between an advocate and an attorney?

In South Africa, the terms “advocate” and “attorney” refer to different roles within the legal profession. Here are the key differences:

Advocate

  1. Role: Advocates primarily represent clients in court and are specialised in litigation. They provide expert legal opinions and arguments during trials.
  2. Direct Access: Generally, advocates are instructed by attorneys. However, in some cases, clients can approach an advocate directly (known as “direct access”).
  3. Chambers: Advocates typically work independently from their own chambers or practice, rather than as part of a law firm.

Attorney

  1. Role: Attorneys handle a wide range of legal matters, including providing legal advice, preparing documents, and managing client relationships. They often deal with clients directly.
  2. Court Representation: While attorneys can represent clients in lower courts, they may instruct an advocate for higher courts or more complex litigation matters.
  3. Law Firms: Attorneys typically work in law firms or practice independently. They may specialize in various areas of law, such as family law, criminal law, or commercial law.
  4. Regulation: Attorneys are regulated by the Law Society of South Africa and must complete practical legal training and pass exams to practice.

Summary

In essence, attorneys are the first point of contact for clients and handle a broad range of legal work, while advocates specialize in courtroom representation and litigation. The two roles complement each other within the legal system.

Can a client pay an advocate directly?

In South Africa, it is generally not standard practice for clients to pay advocates directly. Advocates are typically retained by attorneys, who then handle the payment arrangements. Here are some key points regarding this process:

  1. Attorney-Advocate Relationship: Clients usually hire an attorney, who will then brief an advocate for specific legal representation. The attorney is responsible for paying the advocate’s fees.
  2. Direct Payments: While it’s possible for a client to pay an advocate directly in certain circumstances, this is less common and may require prior agreement. If an advocate is briefed directly (as in some cases of direct access), they may accept payment from the client.
  3. Fee Agreements: If a client and an advocate agree on direct payment, it’s essential to have a clear fee agreement in writing, outlining the services provided and the payment structure.
  4. Cost Orders: In court cases, if a client wins, the court may order the losing party to pay the legal costs, which could include the advocate’s fees, but these costs typically flow through the attorney.

It’s advisable for clients to clarify payment arrangements with their attorney or advocate upfront to avoid misunderstandings.

Related Post

21 Relocation with my minor child to Nigeria, Lagos (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 Lagos, Nigeria 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 three or four) 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 Cape Town or Johannesburg, South Africa, and you want to relocate to Lagos, Nigeria, 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 Lagos, Nigeria? The same applies when it comes to your minor child applying for a South African passport to relocate to Nigeria, 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 Lagos, Nigeria 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 Lagos, Nigeria. What can I do if the other parent does not want to consent to the minor child’s relocation to Lagos, Nigeria? 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 Lagos, Nigeria, 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 Lagos, Nigeria. 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 Lagos, Nigeria, 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 Lagos, Nigeria? If the other parent does not want to consent to the passport application and/or the relocation of the minor child to Lagos, Nigeria – 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 Lagos, Nigeria, 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 Lagos, Nigeria If you require legal assistance or representation with relocating to Lagos, Nigeria 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.

Posted on by Telelaw

Parenting Plans and the Law – Draft and Register you Plan

Sections 33 and 34 of the Children’s Act 38 of 2005 (the Act) came into operation on 1 April 2010. These sections make provision for “parenting plans”. Like many parents, legal practitioners, social workers, psychologists, social services professional and other suitably qualified persons would be faced with the task of acting in accordance with sections 33 and 34 of the Act; this guide attempts to facilitate a quick understanding.

What is a parenting plan?

The Act does not provide a definition of a parenting plan. However, looking at the provisions of the Act and its Regulations dealing with parenting plans, one could define it as a written agreement between co-holders of parental responsibilities and rights outlining in detail their respective responsibilities and rights of care, contact, guardianship and maintenance with regard to a child. Below I shall outline the relevant provisions of the Act and its Regulations dealing with parenting plans and how they should be applied in practice.

Who should agree on a parenting plan?

Not all holders of parental responsibilities and rights need to agree on a parenting plan and have it registered with a Family Advocate or made an Order of the High Court. Parenting Plans should be entered into only if there is a need for it. However, the choice is always there for the parties should they wish to formalise one. Section 33 of the Act provides for two (2) situations in which a parenting plan comes into play. This I shall refer to as the optional situation and the mandatory situation.

Optional situation – section 33(1)

Section 33(1) of the Act states the following:
“(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
  This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.

Mandatory situation – section 33(2)

The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:
“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached. As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.  

What must the parenting plan deal with according to the Act?

The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:  
“A parenting plan may determine any matter in connection with parental responsibilities and rights, including- (a) where and with whom the child is to live; (b) the maintenance of the child; (c) contact between the child and- (i) any of the parties; and (ii) any other person; and (d) the schooling and religious upbringing of the child.”  
  Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:
(1)  Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration. (2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service   professional, psychologist, suitably qualified person or the child’s legal representative.
Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied. Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:
“(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.”  
  Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:  
“A parenting plan must comply with the best interests of the child standard as set out in section 7”.
  Now we look at the Act and Regulations that come into play in preparing a parenting plan.  

Optional parenting Plan – sec 33(1)

With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8. With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.

Mandatory parenting plan – section 33(2)

According to section 33 (5) of the Act:
“In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.”
  Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:
(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.  
Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans. The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:
  (1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.  
  It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate. Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan.   Court proceedings for optional parenting plans Interesting to note is section 34 (6) of the Act where it states:
“Section 29 applies to an application in terms of subsection (2).”
Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above.   Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child.   Section 29 (5) states the following:
The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.
Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests. It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above.   Contempt of Court   The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court. Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.

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