SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
Section 31 of the Children’s Act relates to major deci ‑ sions involving a child that are not covered by Sec ‑ tion 18 (3)(c). It provides that due consideration must be given to the views and wishes expressed by the child before a person holding parental responsibili ‑ ties and rights in respect of said child takes any deci ‑ sion involving the child as set out in Section 31 (1)(b), bearing in mind the child’s age, maturity and stage of development. Section 31 (1)(b) defines these major decisions as those: • relating to consent to a child’s marriage or adop ‑ tion, consent to a child’s departure or removal from South Africa, the application for a passport, and the alienation or encumbrance of immovable prop ‑ erty owned by the child (Section 18 (3)(c)); • affecting contact between the child and a co-hold ‑ er of parental responsibilities and rights; • relating to the assignment of guardianship or care to another person in terms of Section 27; or • that are likely to significantly change or have an adverse effect on the child’s living conditions, edu ‑ cation, health or personal relations with a parent or family member or, generally, the child’s well-being. In addition, any co-holder of parental responsibilities and rights (usually the other parent) must be consulted in respect of any decision that is likely to significantly change the co-holder’s exercise of parental responsi ‑ bilities in respect of the child, or to have a significant adverse effect on the exercise of such responsibili ‑ ties. A practical example of this would be a decision by one parent to move to another town or province, which would clearly have an adverse effect on the other party’s right to contact. If a dispute arises that cannot be resolved through mediation (or facilitation by a court-appointed parent ‑ ing co-ordinator in some high-conflict matters), the aggrieved party is entitled to approach the High Court (the upper guardian of all minor children in South Afri ‑ ca) for the appropriate relief (eg, dispensing with the requirement that the other parent provides the requi ‑ site consent for international travel, directing which school a child should attend, or what medical treat ‑ ment a child should undergo).
When making a ruling, the court will have regard to any expert report that has been filed. If no such report has been filed, the court may exercise its discretion in reaching a decision and/or order the appointment of a suitable expert to produce a report with recom ‑ mendations to assist the court. Parental Alienation Parental alienation is recognised in South Africa and is considered a form of child abuse. When dealing with parental alienation, the court will usually require the evidence of an expert psychologist, preferably with experience in parental alienation. If the parties cannot afford this, the court will have regard to the report of the Family Advocate. This expert will con ‑ duct a full investigation into the child’s circumstances, including the family dynamics, and produce a report to the court with their findings and recommendations. In matters relating to parental alienation, the court may make the following orders following the expert’s rec ‑ ommendations: • the appointment of a play therapist or personal therapist for the child; • the appointment of a reunification therapist to assist in remediating the relationship between the parent and the alienated child; • the appointment of a parental co-ordinator or facili ‑ tator to assist the parents in navigating disputes in a more conciliatory and constructive manner; • the appointment of a curator ad litem (who is normally an attorney or advocate) who has spe ‑ cific powers to investigate the matter and furnish a report and recommendations to the court; • the appointment of a legal representative for the child; and/or • in cases of severe alienation, the court may make a protective separation order and remove the child from the alienating parent for a period pending the above-mentioned therapeutic interventions. Children Giving Evidence in Court The Children’s Act requires that the child concerned must, where appropriate, be informed of any action or decision taken in a matter concerning them and that affects them – taking into consideration their
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