The Children’s Act & the Office of the Family Advocate – Primary residence, care and contact of children in divorce / separation

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. [Section 9 of the Children’s Act, No. 38 of 2005]”


The Children’s Act 38 of 2005 (the “Act”) sets out the concepts of law to be applied when dealing with the protection of Children’s best interests. Because children lack the capacity to secure their own rights, they are a vulnerable group of society and this Act (in addition to provisions in subsections of other Acts specifically created for minors such as the Criminal Procedure Act relating to under-aged offenders) seeks to set the framework to prevent abuse of legal processes in a way that could negatively impact the children involved.

It is in no-way a failsafe and, sadly some single-minded individuals will still attempt to abuse the system to their own gain, even at the expense of the children involved. However, there are ways to rectify and prevent these abuses from happening.

One of the main concepts upheld in the Act is that the Courts are the upper guardian of minors. As legal professionals, we are Officers of the Court and similarly are expected to facilitate protecting the best interests of the children involved in legal proceedings.

Here I will demystify some of the concepts involved by answering some of the most common questions asked of me in regard to minor children involved in proceedings. Please note however that these are generalised questions and answers and your particular set of circumstances may require a more specialised approach. It is always best to seek professional legal advice based on your personal requirements.


What is the Office of the Family Advocate?

To facilitate application of those concepts to protect the rights of children embodied in the Children’s Act, the Department of Justice employs the Office of the Family Advocate, which assists the Courts in making Orders which are in the best interests of the children by independently determining (in consultation with the parties) what the best circumstances would be for the children in terms of primary residence (with whom the child will live on a daily basis), care (the rights and responsibilities of the parties in relation to the wellbeing of the child) and contact (the clearly defined access arrangements for the parent with whom the child is not primarily resident, to remain in regular contact with the child).


When does the Office of the Family Advocate usually get involved?

When parents of minor children get divorced, a document must be completed and annexed to the summons, which refers the matter to the Office of the Family Advocate. Even in the instance where unwed parents of minor children are in the process of separating and where the parties are unable to agree wholly on issues such as the primary residence and contact of the children, the Office of the Family Advocate is required to investigate and report on what it believes to be in the best interests of the minor children.


What if we agree? Does it still go to the Family Advocate?

Yes – an agreement in the form of a “parenting plan” will be compiled by your attorney incorporating the necessary clauses in line with the applicable legislation. This document is then submitted to the Family Advocate for an “endorsement”, to confirm that the Family Advocate does not take issue with any of the terms contained in the Parenting Plan, before it can be made an Order of Court. If there are any oddities in the Parenting Plan that the Office of the Family Advocate may not necessarily agree with, there office will respond requesting an enquiry to be held, which is an interview held with the parties and, depending on the age of the children and the necessity to do so, the children, to determine the reasons behind a certain arrangement and whether it is indeed in the best interests of the children.


Are the recommendations of the Family Advocate final and binding?

No, the Office of the Family Advocate compiles a report, signed off by a practising Family Advocate (a legal practitioner) based on and incorporating the recommendations of a social worker within the employ of the Office of the Family Advocate. This document is a framework guideline for what should be applied, in the opinion of the Office of the Family Advocate. This document can be made an Order of Court, which Order is then binding.

The recommendations made can be challenged by producing independent expert evidence by a Forensic Child Psychologist, however this is usually expensive and used mostly in instances where there is specialised issues, such as those where parental alienation is involved, which the Family Advocate may not necessarily be equipped to mediate upon.


I always emphasise to clients and colleagues alike that Family Law and more so, litigation (court proceedings) in Family Law is highly specialised because it is very different to regular civil litigation. Because each set of circumstances are so decidedly unique to those individuals, the approach taken in each instance must be closely tailored to those individual’s specific needs and requirements. This is particularly emphasised when there are the rights of minor children to consider.


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