Termination, extension, suspension or restriction of parental responsibilities and rights – Section 28

Circumstances may arise such as the abandonment or disappearance of a parent which causes problems in and with the exercise of the parental responsibilities and rights and it becomes necessary for proper parenting to terminate or suspend the other parent’s  responsibilities and rights

A co-holder of parental responsibilities and rights in respect of the child and any other person having a sufficient interest in the care, protection, well-being or development of the child may apply to:

• the High Court,
• a divorce court in a divorce matter
• or a children’s court

within whose area of jurisdiction the child concerned is ordinarily resident.

for an order suspending for a period, or terminating, any or all of the parental responsibilities and rights which a specific person has in respect of a child or extending or circumscribing the exercise by that person of any or all of the parental responsibilities and rights that person has in respect of a child.

This application may be combined with an application for the assignment of contact and care in respect of the child and may be brought by:

• a co-holder of parental responsibilities and rights in respect of the child,
• by any other person having a sufficient interest in the care, protection, well-being or development of the child,
• by the child, acting with leave of the court, in the child’s interest
• by any other person, acting with leave of the court or
• by a family advocate or the representative of any interested organ of state.

When considering such application the court must take into account:

• the best interests of the child,
• the relationship between the child and the person whose parental responsibilities and rights are being challenged,
• the degree of commitment that the person has shown towards the child and
• any other fact that should, in the opinion of the court, be taken into account.

The court hearing an application may grant the application unconditionally or on such conditions as it may determine, or may refuse the application, but an application may be granted only if it is in the best interests of the child.

Whats great about being a single mother?  The truth….

My answer: Nothing! and I can say this in all honesty, as I have been through it all.

My first child a daughter, was born out of wedlock, the father not wanting to have anything to do with her until she was 20, and even then that relationship was short lived. So for 10 years I was on my own, no maintenance and minimal support, then I married had a son, and life was good, until my husband died when my son was 4, and I was thrown back into being a single mom.

Now eight years later, how I wish I was divorced. What I would not give to be able to send my kids over to their father every second weekend, or for them to spend half the school holidays with their Dad, I can only imagine all the “ me” time I would have. Not that I do not love my children, but being a mom 24 hours a day, 7 days a week, 365 days a year is not for sissies.

My day starts off at 5.30am, by making school lunches, putting on the washing machine, and getting up and ready and out the front door by 7.30am, I have the privilege of working from home, so now its time to sign onto the computer and start my day, I have already by this time had a telephone call or two, and have at least 5 urgent e-mails awaiting answers, and so the day begins, by the time I have answered all e-mails, assisted people over the phone, and completed what is urgent its past midday and not only have I not had my breakfast, but the kids breakfast plates are still on the dinning room table, the beds have not been made, the washing machine is still full of wet laundry from this morning. So now I take the phone off the hook, in order to grab a quick sandwich, carry the breakfast dishes from the dinning room into the kitchen while eating the sandwich and I unload the washing machine, Hold on what’s that ping, its someone trying to reach me on Skype, so telephone goes back on the hook, and I start answering my Skype messages, oh! And there is a whole bunch of e-mails that have to be answered.

Oops it is now 3pm and my son has just walked through the front door, dropping his suitcase in the passage and politely takes off his school shoes and socks in the lounge, while asking for a sandwich and juice, because he is starving. So phone back off the hook, sandwich made, juice poured and I am back to work, while a little voice is squeaking in the back, that life is so unfair, as he has 30 math sums for homework, as well as some Physics, English and French, and that he needs my help because he also has a project that need to be completed by Friday and lo and behold today is Thursday.

By 4.30pm when I finally decide okay it is  time to end my work day, I begin dinner, and the phone rings, another client asking for a progress report, and I spend at least 15 minutes on the phone while the onions burn black (I have learnt to take the pot off the stove) and I am back at the stove trying to put a nutritious healthy meal together, and supervise the homework at the same time. Dinner is served at 5.45pm and by 6.30pm, we are back to doing homework together, finally if we are lucky homework is completed by 8pm, but hold on we haven’t even begun the project yet, by 10pm, project completed, son in shower and I am making beds, picking up cups and plates from all over the house, while the water in the kitchen sink is over flowing.

Its 10 past 10, children all in bed, and I am starting the dishes, still the floor to sweep and general tiding up to do. Its now just past 11pm, I jump into a shower and I am so hyped up I need to read for at least an hour, before pure exhaustion overtakes, and sends me into a dreamless sleep, only to wake up the next morning at 5.30am to start the whole process over again, weekends are no different, I still have to rise and shine at the crack of dawn to be at the shop at 8am, so that I can be at home  by 10am, to give the kids breakfast, and to do all the cleaning and ironing that was not done during the week.

If I am lucky with my time management I might get a bit of gardening done, although it so neglected, I am starting to refer to it as a country meadow. Saturday night I am lucky if I have enough energy to get through the main movie without falling asleep on the couch. Sunday morning, I have a sleep in until at least 7am, when I have to get up and do all the things I never accomplished on Saturday, that’s besides making a cooked late lunch or braai, and then its getting my son ready for school, making sure the school bag is packed and that all homework is completed, but does it end there no, its time for nails to be cut, ears to be cleaned….hold on what about ME, somewhere in this whole process I have lost me, who am I, when last did I say yes to a date, actually when last did I have the energy to date, how often do I see my friends, my family, 8 years have gone by, and I have lost ME. Who am I, what do I want, I am not sure anymore. What I would not do, to have every second weekend free, or just have some me time during the school holidays, to do the things I enjoy, simple things, like having a bubble bath, sleeping a little later, going out with friends for a glass of wine or a meal, taking a walk along the beach with a friend, or simply beaching myself on the sofa, with a soppy love story book or movie, without having my kids asking, Why are you crying? I want to have time to paint my nails and blow dry my hair.

So, to all you mothers out there, that are thinking, planning and keeping Dads out of your kids lives by making up stories, so that there is no contact, give a thought to who you are really punishing, him or you. Making the wrong choice will put you in your own emotional and mental prison for the next eighteen years, by robbing you of who you really are.

What to do when access is denied -  the role of the police

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It often happens in cases where the two parents are so actively enmeshed in a war over the children that they do not hear the cry of the children and it is the nature of this high conflict litigation between parents that there is a difference of opinion on what is in the best interest of the child.

The child’s opinion will invariably incur the disapproval of one of the parents and it is precisely for this reason that a child should have separate legal representation, independent from either parent. It is essential to ensure that the child’s views are respected as being their own and not influenced by either parent. The fact that one parent disagrees with that of the child does not necessarily mean that the decision is wrong. The actions of the child’s legal representative will be based on the instructions and views of the child as client and will invariably meet with disapproval from one or both of the parents.

Whether Parent’s agree or not this is the law as expounded and developed by our courts through the decisions of Soller v G where a separate legal representative was appointed by the court and the court distinguished between the role of the Family Advocate and a separate legal representative for a child. The Family Advocate had, prior to this case, been seen to be, as the independent role-player, the voice of the child.

This was followed by the case of Legal Aid Board v R in 2009 where for the first time the court ruled that in giving effect to section 28(1) (h) of the Constitution the Legal Aid Board is not constrained to obtain permission from a parent or guardian when making such appointments. The net effect is that the child, without the parent’s assistance and usually because of the parent’s actions can approach a legal practitioner, usually via the LAB to represent him or her in court and make their voice heard.

GUARDIANSHIP

The word guardianship like the word custody conjures up many emotive issues especially in the Divorce arena and in the struggle for power between spouses. Custody is no longer the issue we now talk about care and contact but guardianship remains.

In terms of the Children’s Act a person who acts as a guardian must:

- administer and safeguard the child’s property and property interests;
- assist or represent the child in administrative, contractual and other legal matters; or
- give or refuse any consent required by law in respect of the child, including—

- consent to the child’s marriage;
- consent to the child’s adoption;
- consent to the child’s departure or removal from the Republic;
- consent to the child’s application for a passport; and
- consent to a sale of any immovable property of the child.

The parents are usually joint guardians and are called the ‘natural guardians’. A natural guardian has a duty to support her or his children. If for some reason the natural guardian cannot carry out his or her duties, the court appoints a ‘legal guardian’ for the children.

The Guardianship Act (No 192 of 1993) has been repealed by the Children’s Act.

The Children’s Act also regulates the balance of power between joint guardians.  The first principle is that each guardian may independently and without the consent of any other guardian exercise any right or perform any duty arising from guardianship.

However, in the absence of a court order to the contrary, the consent of every guardian is required in respect of:

• the marriage of the minor child,
• the adoption of the child,
• the removal of the child from the republic by a parent or by any other person,
• the application for a passport by or on behalf of any child under eighteen and
• the alienation or encumbrance of immovable property of the child.

GRANDPARENTS and ACCESS –The right to see your grandchildren.

Grandparents often receive the fallout from their chidren’s divorces – limited, restricted or no access to their often beloved grandchildren, In the past the law and the justice system were often inaccessible. This has all changed with the New Children’s Act whose main objectives are, amongst others  to:

• make provision for structures, services and means for promoting and monitoring the sound physical, psychological, intellectual, emotional and social development of children;
• strengthen and develop community structures which can assist in providing care and protection for children;
• promote the preservation and strengthening of families;

And calls for

• the prioritisation of the best interest of the child,
• the right to the child being able to participate in any matter concerning that child,
• a child’s right of access to court.

One of the issues covered by the new Children’s Act, is giving the right of contact and care to an interested person, in this instance the grandparent, by order of court, Children’s or HighCourt,

It also makes provision for any person having an interest in the care, well-being and development of a child to apply to the High Court for an order granting guardianship .

The Court In making its order, will consider and take into account:

• the best interests of the child;
• the relationship between the applicant and the child
• the degree of commitment that the applicant has shown towards the child
• the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and
• any other fact that should, in the opinion of the court, be taken into account.

Divorce should be the solution to a domestic problem but in reality divorce orders, especially where all issues haven’t been properly addressed, canvassed and resolved, can cause more aggravation than what they solve.

It is common practice to regulate the consequences of a divorce by means of an agreement between the parties by way of a settlement agreement, also called a consent paper in which they agree on matters such as the division of the assets, payment of maintenance, care of and contact to the children and also payment of costs of the proceedings. In terms of the Divorce Act the court may incorporate the spouses’ settlement into a court order if it is in writing. Once the settlement agreement is made an order of court a party may only vary or amend it on application to the court. The parties may do so by mutual consent, it is important to note that any amendment to the settlement agreement should be made an order of court. If one of the parties disagrees to amend or vary the settlement, the aggrieved party may approach the court on application in terms of Section 8 (1) of the Divorce Act for variation or rescission if a particular provision relates to guardianship, custody, access (now care and contact) or maintenance. If the dispute relates to maintenance the maintenance court may be approached in terms of the Maintenance Act.

Other issues that often need to be attended to post-divorce are:

• Fixed property – ownership, registration and transfer issues

• Pension funds –division and other issues

These are issues which the Court will, on Application also assist with.

Remember – If the settlement agreement is not incorporated into the divorce order it is merely a contract and it can therefore not be enforced in the same way as an order of court but is regulated and governed by the law of contract.

Remember too, that it is the Court which made the original order which normally has the required jurisdiction to hear these applications.

UNMARRIED FATHER’S RIGHTS

Much has been spoken about and many debates, in and out of the courts, have been fueled by the question surrounding the rights of the unmarried biological father. Many of these questions have now been settled by the Supreme Court of Appeal (SCA) where it held that  a father of a child born out of marriage, is the holder of full parental responsibilities and rights in terms of section 18 of the Children’s Act .

In this case the child’s mother and father, who is the appellant, were living together at the time of the child’s birth and intended to marry. The mother died shortly after birth. The first and second respondents are the child’s maternal grandparents. Both parties sought sole guardianship and custody of the child. The Court ruled that the child should permanently reside with his father. And  further held that the child’s grandparents have a right to] have regular contact with their grandchild

In terms of the Children’s Act if the father had been living in ‘a permanent life partnership’ at the time of the child’s birth, he would automatically have acquired parental rights and responsibilities.

As far as grandparents’ rights and responsibilities are concerned, section 23 and 24 of the Children’s Act, which govern non-parental rights to care and guardianship came into operation on 1 April 2010. Previously,  grandparents had no inherent rights or responsibilities and  only a high court, as the upper guardian of children could confer access, custody or guardianship on a grandparent. This would be done only if it were in the best interests of the child, but with regard to the rights of the biological parents.

The SCA also clearly stated that in matters regarding minor children the only real issue: what was in the child’s best interests

Lastly, the SCA recorded that the litigation had not been in any of the parties’ interests. The SCA endorsed the views expressed in MB v NB 2010 (3) SA 220 (GSJ) that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should be a last resort.

We are all extremely emotive when it comes to abuse, physical or sexual, but how many know that Hostile Aggressive Parenting or HAP is a serious form of child maltreatment and abuse, encountered in most high conflict child-custody disputes and often used as a tool to align the child with one parent during litigation.

A parent suffering from HAP will do their best to interfere with the relationship of a child with another person, usually the other parent or guardian. Such interference could include but is not be limited to using an older sibling to control the child, guilting the child into submission, not allowing telephone, email or any other communication between the child and the other person.
Although Hostile-Aggressive Parenting is often confused with Parental Alienation Syndrome (PAS), HAP and PAS are not the same. HAP refers to the behaviours, actions and decisions of a person, whereas, PAS relates to the psychological condition of the child. HAP is often the cause of PAS.
HAP is most often identified in individuals with controlling and bullying personalities or those with mild to severe personality disorders and can be a factor in all types of parenting arrangements. It is sole custodial parents who are most often reported to practice Hostile-Aggressive-Parenting, especially in its most severe form.
In general, parents exhibiting Hostile-Aggressive-Parenting have not succeeded in getting on with their own life and remain, instead, controlled by their negative emotions and continue to exercise power and control over their ex-spouse’s life, their ex-spouse’s parenting and to a large extent, over the children of the relationship as well. HAP parents will blame everyone else except themselves. HAP parents just don’t have any insight they just don’t get it. And they will normally stop at nothing to achieve their goal of alienating the child from the other parent justifying their actions with “the end justifies the means”.

High degrees of conflict during custody settlements and litigation are almost sure signs of HAP in these affected families. Hostile-aggressive parents are unable to appreciate the needs of their child and in many cases view their child as a possession belonging to them and no other persons have any right to the child, especially not the child’s other parent or other persons that the HAP parent does not like. Hostile-aggressive parents will use the child as a weapon against the other spouse and family members whenever they have the opportunity. A parent engaged in Hostile-Aggressive Parenting will also take comfort in that the community in general will choose not to get involved, probably because they don’t know what to do. Angry and vindictive HAP parents are often able to bring a reign of terror and revenge on to a non-custodial parent and their family, their goal being to get them out of the child’s life or at the very least to severely damage their child’s relationship with the other parent and other parent’s family.

PAS

Children should be seen and not hurt

The Parental Alienation Syndrome, so named by Dr. Richard Gardner, is a distinctive family response to divorce in which the child becomes aligned with one parent and preoccupied with unjustified and/or exaggerated denigration of the other, target parent. In severe cases, the child’s once love-bonded relationship with rejected/target parent is destroyed

Effects of PAS on Child and Target Parent

The effects of PAS on children and the target parent can be classified as emotional/psychological abuse.

For the children, unlike the target parent, they are totally helpless to help themselves. They can only rely on the adults handling their case to release them from this nightmare. If intervention does not come, the child is left to grow up with dysfunctional thoughts. Not only may the child never regain a positive relationship with the target parent but his/her own thought processes have been interrupted and coerced into unhealthy patterns. As the pattern of physical abuse is widely accepted; that the pattern of behavior can not stop until the person makes a conscious choice, so to we will find the pattern of emotional/psychological abuse passed down from generation to generation.

Therapy for children in the severe category is often not possible while they are still living in the (brainwasher’s) home. “There is a sick psychological bond between the children and the mother (brainwashing parent) that is not going to be changed by therapy as long as they remain in her home.”¹⁾

We have had the opportunity to interview hundreds of children after environmental change has taken place, and we can quote one child as a fair summary of the others²⁾:

I would never have made the change to spend more time with my mother if the court didn’t make it happen and you didn’t suggest it. Now that I have, I’ve gotten to know my mother. She’s a nicer person than I ever believed, and I realize that I could have grown up without ever knowing her and what she believes about life. It’s been real important, and I want to thank you (child extends hand to shake). I have also learned that I don’t know everything and I have to be real careful about making closed opinions in the future.

(This commentary was made by a seventeen-year-old child after approximately one year of reconciliation with his mother.)

As for the target parent that has literally lost their children to the severe case of PAS, their children have died. The target parent grieves. Without the intervention of the court system the target parent has no choice but to continue to love their children from a distance. Target parents parallel their grief to that of a death of a child. The only hope for the target parent is that someday someone will be able to reach their child and explain the insanity that has happened and that the child will be willing to start a relationship with their lost parent.

Brainwashing, programming, manipulation, whatever term you want to call it, is destructive to the child and target parent. Not one of these individuals will lead a healthy normal life unless the abuse is stopped.