For parents in the process of divorcing or separating, the care and contact of minor children is often contentious. Under South African law, these arrangements are governed by the Children’s Act and determined with reference to a key legal principle, namely ‘the best interests of the child’.
The legal framework
Section 18 of the Children’s Act provides the statutory framework for parental responsibilities and rights, including care and contact (previously referred to as custody and access). The Children’s Court, Regional Magistrate’s Court hearing divorce matters, and the High Court, which acts as the ‘upper guardian of all minors’, have jurisdiction to adjudicate disputes relating to children’s care and contact. While Children’s Courts deal with most day-to-day disputes, the High Court retains inherent jurisdiction and may intervene whenever necessary to protect a child’s welfare.
The best interests of the child
When determining care and contact arrangements, courts apply the ‘best interests of the child’ standard. Incorporated under section 28(2) of the Constitution and codified in section 7 of the Children’s Act, this principle treats the child’s best interests as ‘paramount’ in all matters concerning the child.
Where parents cannot agree on care and contact arrangements following divorce or separation, a court will consider various factors, including the child’s age and maturity, emotional needs, current standard of living, and the capacity of each parent to provide for the child’s needs, to reach a decision that aligns with their best interests. Beyond this, our courts may consider any relevant factor in order to reach a decision that promotes the child’s best interests.
In practice, courts are often assisted by the Office of the Family Advocate, which conducts investigations and provides recommendations on what arrangements would serve the child’s best interests. Parenting plans, mediation, and expert reports may also play a role in guiding the court’s decision.
An inclusive, child-centred approach
Importantly, the court’s inquiry is child-centred rather than parent-centred. As such, the convenience or preferences of the parents are secondary to the child’s best interests. Adopting a case-by-case approach, the court assesses each matter on its own facts and circumstances. This may result in a variety of outcomes, including primary residence with one parent, shared care and contact, or supervised contact where necessary to safeguard the child.
The Children’s Act also recognises that more than one person may hold parental rights and responsibilities, and courts may assign care or contact to non-parents where appropriate. Applications for such orders may be brought by parents, interested parties, or even the child (with leave of the court), which reflects the Act’s inclusive approach. Significantly, the Children’s Act permits a child, who is of sufficient age and maturity, the right to express their views, which must be given due consideration. This ensures that the child’s voice is heard, although it is not decisive.
For expert legal guidance in all family law matters, contact our skilled team of Cape Town-based divorce attorneys today.
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