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Children and divorce Flashcards

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1
Q

Which section protects the children?

A

Section 28 of the constitution.

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2
Q

What are some of the rights children have?

A

1.Right to a name and nationality from birth.
2. Right to family care, education, basic nutrition shelter yalo yalo

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3
Q

In addition to S28 of the constitution, which other acts protect children?

A
  1. Section 6 of the divorce act and Mediation in Certain Divorce Matters Act 24 of 1987.
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4
Q

What are the 2 conditions set out in S6(1) of the divorce act before the decree of divorce can be given?

A

4”

. The court must be satisfied that the arrangements for the welfare of any minor or dependent child (like care, contact, maintenance) are: Satisfactory, or
at least the best possible under the circumstance
2. Unless the court has considered the report issued and recommendations made by the Family Advocate

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5
Q

What does Section 6(2) says?

A

A court ay order an investigation to be carried out or order any other person to stand before the court for the protection section 6(1). An example can the social worker.

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6
Q

What does S6(4) says?

A

The court may order the legal practitioner to represent the child during the proceedings and may the parties or one of them to cover the cost of the representation.

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7
Q

Where does the Mediation in certain divorce matters act apply?

A

When it comes to the family advocates.

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8
Q

Who appoints the family advocates?

A

The FA are appointed by the minister of justice at each of the high court and they may specifically appoint a FA for a particular divorce application.

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9
Q

What are the functions of the FA?

A

They must institute a query if requested to do so after a divorce has been instituted or an application has been lodged for the variation, suspension or rescission of an order related to care, guardianship or contact.

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10
Q
  1. What is the purpose of such query?
A

Is to enable the FA to furnish the court with reports and recommendations regarding the welfare of each minor/dependent children.

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11
Q
  1. What if the FA is not requested ?
A

He may approach the court to authorize such query if they deem it to be to the best interest of the child(ren) involved.

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12
Q
  1. When and under what circumstances can the FA appear in court?
A

If he deems it to be to the best interest of the child, if the court requested him to and they can adduce evidence or cross examine the witnesses.

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13
Q
  1. What was mentioned in the case of Van Huurden v Van Huurden?
A

The specific instances in which the FA should approach the court for authority to investigate.

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14
Q

What are the specific instances mentioned in the Van Huurden case?

A
  1. When is is appeared that there is an intention to not place younger children under the care of the mother.
  2. When there is an intention to separate the children from one another.
  3. Where there is an intention to award the care of the child(ren) to someone else other than their parents
  4. When there is an intention to make arrangements regarding care or conduct, on the face of it prima facie appears to not be to the best interest of the child.
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15
Q

What observations were made in the case of Soller NO v G and Another regarding the role of the FA?

A

That the Family Advocate is a neutral expert who:
1. Tries to mediate and resolve family disputes,
2. Advises the court when no agreement is reached, and
3. Serves as a communication bridge between the family and the judge — always focusing on the best interests of the child

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16
Q

What is the concept of “to the best interest of the child centered to” and from which authority?

A

It is central to the children of the divorcing parents , quoted S28(2) of the constitution.

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17
Q

What does S7 of the children’s Act states?

A

It states that when the provision of this act requires the standard of the best interest of the child, the factors set out in this section must be taken into consideration.

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18
Q

What are the factors mentioned in S7 of the children’s act?

A
  1. The nature of the personal relationship between the child and their parent.
  2. The attitude of the parent toward the child and the exercise of parental responsibilities and rights in respect to the child.
  3. The capacity of the parent to provide for the needs to the child, including intellectual and emotional
  4. The child’s age, gender, maturity, background, and any other relevant characteristics of the child.
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19
Q

What is section 10 of the children’s act 38 of 2005 about?

A

It’s about the participation of the child.

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20
Q

What does section 10 states?

A

A child who is of sufficient age, maturity, and stage of development has the right to participate in any matter that concerns them, in an appropriate way, and any views expressed by the child must be given due consideration.

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21
Q

Which word was first used before changing to care in terms of the children’s act?

A

Custody

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22
Q

What does Act 38 of 2005 define care as?

A

A care in relation to the child include where appropriate within available means providing the child with
1. Place to live, Living conditions, financial support.
2. Well being of the child from
3. Protect child from harm
4. Protecting and the respecting the infringement of rights.
5. Providing and securing the education of the child, upbringing beliefs, traditional.
6. Guidance on the decisions they may take
7. Maintaining relationship
8. Accommodate any special needs
9. Ensure the best interest of the child is the paramount
10. Guiding behavior of the child in a humane manner

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23
Q

What are the orders the court may make regarding care?

A
  1. During the subsistence of the marriage, both parents have care over their minor child.
  2. At the divorce, S6(3) of the Divorce act empowers the court to award care or sole care to either of the spouses if it is to the best interest of the child to do so.
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24
Q

What is the care giving parent responsible for?

A

Giving effect to the elements mentioned in the definition of the care. The other spouse is generally obliged to contribute to the child’s maintenance.

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25
What can the sole care parent do about the care of the child if they die?
Sole care (unlike shared/general care) gives one parent the exclusive right to appoint a fit and proper person in their will to be vested with care of the child
26
What if the sole parent fails to make such provisions?
The care will automatically revert to the surviving parent. (In the absence of a court order)
27
3. A joint care can be awarded, how?
For both parents. However there is a different between the joint legal care or the physical care
28
What does joint legal care implies?
That joint legal care is limited to joint decision making about the important aspects like. (Where should the child be educated)
29
What does joint physical care implies?
implies that the child spends significant periods of time with each parent (such as a portion of each week)
30
What should encouraged before granting the joint care?
1. If it is to the best interest of the child. 2. The relationship between the parties 3. The circumstances of each case
31
Why were the courts hesitant to grant joint care awards?
1. It was believed that only one parent should control the child's life, so that the child would know where he or she stood; 2. Joint care poses the risk of parental conflict; 3. Joint care may be confusing or unsettling for the child; and 4. Joint care may pose logistical difficulties.
32
What are the arguments in favor of joint care?
1. The child benefits from the involvement of both parents in his or her life; 2. A parent does not have to bear the responsibility of raising the child alone; and 3. It removes gender stereotypes.
33
What was held in the case of Krugel v Krugel?
That joint care promotes children's rights and contributes to achieving gender equality by giving effect to changing parental roles.
34
When will a joint care not be awarded?
Where there is a history or threat of domestic violence
35
4. What is the so called maternal preference rule?
The preference if given to the mother when deciding the issue of the mother. (This rule might be in conflict with the bill of rights)
36
What is another name for the maternal preference rule?
tender-years doctrine
37
What's the exception to giving mothers the care award for young children?
Where she is a less responsible parent
38
What was decided in the case of Van de Linde v Van de Linde about the preference rule?
That fathers can also be just good as a mother. Vice versa.
39
What was said in the case of Madiehe (born Rabotlo v Madiehe about the preference rule?
While courts can consider the realities of pregnancy and childbirth (like the physical and emotional bond that may form), they are not allowed to give these facts too much or unfair weight when deciding who should get care of the child.
40
Why do we not give these factors more weight?
Doing so will be constituting unfair discrimination on the basis of gender. The best interest of the child is the paramount concern.
41
5. Can the court separate the children from one another?
Yes, but rarely.
42
How can the separate happen according to the Van der Linde case?
1. One child is seriously neglected by one of the parents. 2. If doing so will dramatically improve the child's position.
43
6. Can the court award the care to a third party?
Yes, this can only happen in exceptional cases and thus will deprive the parents of care. (Hoyi v Hoyi)
44
7. What are the limitations court can order the care giving parent?
1. They cannot move away from the court jurisdiction without the consent of the other parent. (Di bona v Di bona)- Not even to relocate around SA freely
45
When can this kind of order regarding limitations of movement be made?
Where the fear the exists that the care giving parent may run away with the child.
46
8. When can a deferred/ postponed care award be granted?
This implies that the parent will only be given care at a later stage, for example after satisfying the court that adequate arrangements have been made for the child to be placed into his or her care.
47
9. How can a court order regarding be varied?
In terms of S8 of the 70 of 1979. With sufficient reasons that it is to the best interest of the child. The child who meets the requirement for S10 of the children's Act may participate in such proceedings.
48
What was the word contact known as before it was changed in the children's act?
Access
49
What is contact defined as in terms of Children's Act?
Maintaining a personal relationship with the child. and if the child is living with someone else, there is a communication on a regular basis with the child in person including visiting the child being visited by the child and communication on a regular basis with the child in any other manner through post or telephone or any other form of electronic communication.
50
Whom does contact usually relates to?
The parent who is not awarded care.
51
2. What is the right of reasonable contact provided by?
Common law
52
What is the reasonable contact aimed at?
maintaining relationship between the children and the non-custodian parent.
53
To what extend can the parents agree on the reasonable contact?
The agreement for contact can be made an order of court, but a court is not bound to make such an order, It's a discretion. The court will not agree to an agreement which is not to the best interest of the child.
54
4. When can the child visit the non-care giving parent?
The agreement usually state that children may visit the non-care giving parent over certain weekends or during school holidays.
55
What are the restrictions to the visitation of the child?
The care giving parent still retain such powers during such periods and they have a final say in terms of dispute but the they cannot impose unreasonable restrictions in this regard.
56
5. What will happen in the case where the parties cannot reach an agreement or the court decides not to sanction the agreement of the parties?
The court make make an order regarding the contact which it deems fit.
57
When can the court make an order for the restriction of a parent's contact to the child?
If it is to the best interest of the child.
58
When conditions can be made as restriction of a parent's right to contact?
When there are concerns about the parent's influence, behavior.
59
What are the types of restriction that can be made?
1. Treatment/therapy 2. Supervised contact 3. Prohibition of physical contact
60
Why are such restrictions made?
To protect the child from (perceived) harmful influences of such parent
61
What was decided in the case of Van Rooyen v Van Rooyen?
Any restriction must be justified by actual harm.
62
What was said in the case of V v V
The court reinforced that all decisions must be child-centered, not based on outdated or discriminatory beliefs.
63
How was the approach in Van Rooyen criticized in V v V?
In V v V, the court criticised Van Rooyen for implying that homosexuality is abnormal, affirming instead that courts must respect parental rights and strike a constitutional balance between those rights and the best interests of the child.
64
In which circumstances can the court order no right of contact for non care giving parents?
1. In exceptional circumstances If the parent is no fit and proper person to have contact with the child. 2. The child's opposition to the contact is not enough (Germani v Herf) 3. Extreme aversion to contact from the care giving parent to the non is also not enough (Kouginas case
65
In which cases can the child participate in the proceedings of matters about the contact?
If they meet the requirements of Section 10. Reference of a case for this is I v S
66
When can order regarding contact be amended?
S8 of the divorce act with sound reasons and if doing so its for the best interest of the child

Family law (21 decks)

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