Divorce Article 8: The Rights of Children and the Family Advocate.

Children’s Act 38 of 2005 (“the Act”), Section 9, “in all matters concerning the care, protection, and well-being of a

child the standard that the child's best interest is of paramount importance,

must be applied”.

Furthermore, in terms of the

High Court’s Inherent Jurisdiction, it shall act as the upper guardian of all minor

children. The Act, in Section 45(4), provides as follows: “Nothing in this Act shall be construed as limiting the inherent

jurisdiction of the High Court as upper guardian of all children”.

Therefore in divorce

proceedings involving minor children, the Court must have regard to and protect

the best interests of any minor children. The Act, in Section 7, proceeds to

set out factors that must be taken into consideration where relevant in the

determination of the standard of the best interest of minor children. This

section is however lengthy and falls outside the scope of this article. It is

suggested that due to its complexity, an attorney is instructed to assist you.

It is submitted that due to the Inherent Jurisdiction of the High Court Section

7 cannot be held to be all-inclusive.

Apart from the High Court’s

duty to protect the best interests of minor children, both in terms of the Act

and its Inherent Jurisdiction, the Mediation in Certain Divorce Matters Act 24

of 1987 provides the Family Advocate with limited statutory powers which is

also used to achieve the protection of the best interests of minor children.

If an action for divorce has

been instituted, or an application for the variation, suspension, or rescission

of an order made in terms of the Act relating to the custody, guardianship, or

access of any minor children if so requested by any party to such proceedings

or the court concerned, the Family Advocate is to institute an inquiry to

enable him to furnish the court at the trial of such action or the hearing of

such application with a report and recommendations on any matter concerning the

welfare of each minor or dependent child of the marriage concerned or regarding

such matter as is referred to him by the court. Furthermore, the Family Advocate

may, if he deems it in the interest of any minor or dependent child of a

marriage concerned, apply to the court concerned for an order authorizing him

to institute an inquiry contemplated above.

Any Family Advocate may, if he

deems it in the interest of any minor or dependent child of a marriage

concerned, and shall, if so requested by a court, appear at the trial of any

divorce action or the hearing of any application referred to above and may

adduce any available evidence relevant to the action or application and

cross-examine witnesses giving evidence thereat.

Please note that the

involvement of the Family Advocate is of paramount importance in actions

involving minor children as the Act, in Section 6(1), provides: “A decree of divorce shall not be granted

until the court-

(a)   is satisfied that the

provisions made or contemplated with regard to the welfare of any minor or

dependent child of the marriage are satisfactory or are the best that can be

effected in the circumstances; and

(b)   if an inquiry is

instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain

Divorce Matters Act, 1987, has considered the report and recommendations

referred to in the said section 4 (1)”.

In our next article, we shall

continue to focus on the aspects of guardianship, custody, and access.

Thereafter we shall focus on the issue of maintenance for minor children.

Related Practice Areas: Maintenance & Spousal Support | Child Custody

If you have questions about your specific situation, contact Nick Elliot for a confidential consultation.