Module 11

Question 1

What does section 6(3) of the Divorce Act state?

Answer 1

The courts must decide which of the parents the child should live with after divorce, which of the parents will be reasonable for long term decisions about the child’s education, religious upbringing or medical care and which of the parents will be responsible for decisions on aspects of the child’s daily life.

Question 2

What does section 31(2) of the Childrens Act state?

Answer 2

Section 31(2) of the Children’s Act requires a parent to give due consideration to any views and wishes by any co-holder if parental responsibilities and rights in respect of a child when taking major decisions involving the child. Major decisions are defined in section 31(1)(b) of the Act.

Question 3

What is joint legal care?

Answer 3

Joint legal care means that although decisions about important aspects of the children’s lives such as education and health care.

Question 4

what does it mean when both parents have joint legal care and joint physical care?

Answer 4

When both parents have joint legal care and joint physical care of the children, they share responsibility for important long-range decisions involving the children and are responsible for day to day decisions while the children are living with them.

Question 5

What does section 35 of the Children’s Act state?

Answer 5

Section 35 of the Children’s Act provides that if a person who has care or custody of a child refuses to permit the other parent to contact the child or to otherwise exercise their parental rights and responsibilities as states in the parenting plan or in a court order they are guilty of an offence

Question 6

Who is child maintenance paid to?

Answer 6

The maintenance is paid directly to the parent with whom the children reside. The parent with whom the child resides can only apply for and receive maintenance on the child’s behalf if the child is a minor at the time of the divorce.

Question 7

What happens to child once a child is a majority?

Answer 7

The maintenance award can continue after the child attains majority. If the child has already reached the age of majority when the divorce case comes to court, it appears that the child must claim maintenance on there own behalf

Question 8

What is the main consequence of sole guardianship order?

Answer 8

The main consequence of sole guardianship order is that only the guardian’s consent is required for the activities listed in section 18(3)(c) of the Children’s Act. The other parent will no longer be the child’s guardian and will not be able to assist and consent to the child’s juristic acts or administer the child’s property.

Question 9

What does section 6(4) of the Divorce Act state about the approach taken?

Answer 9

Section 6(4) of the Divorce Act provides that in any matter concerning a child an approach which is conducive to conciliation and a confrontational approach should be avoided and a delay in any action to be taken must be avoided as far as possible.

Question 10

What does the family advocate office do?

Answer 10

The Family Advocates Office reviews and monitors all settlements agreements and courts documentation involving minor or dependant children in order to determine whether the arrangements contained in the documents are prima facie in the best interest of the children

Question 11

What does section 6(1)(b) of the Divorce Act state?

Answer 11

Section 6(1)(b) of the Divorce Act the family Advocate has compiled a report, the divorce court is obliged to consider it before making orders regarding the children

Question 12

What does article 12 of the United Nations Convention on the Rights of the Child do?

Answer 12

Article 12 of the United Nations Convention on the Rights of the Child gives children the right to express their views in all matters that affect them. The children own opinions on how they want to live their own lives, should be given due weight in accordance with their age and maturity

Question 13

What does section 10 of the Childrens Act state?

Answer 13

Section 10 of the Children’s Act provides that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration

Question 14

What does section 6(4) of the Divorce Act state?

Answer 14

Section 6(4) of the Divorce Act provides that a court may appoint a legal practitioner to represent a child at divorce proceedings and order one or both of the parents to bear costs

Question 15

What does LW v DB case state and the factors?

Answer 15

LW v DB case deals with the factors of national relocation in dealing with divorced children. The factors are:
- Best interests of the child
- The reason for the decision to relocate needs to be bona fide and reasonable
- Family Advocate’s recommendation

Question 16

When can a parent can relocate a child if?

Answer 16

• There is consent in accordance with s 18(3)(c) of the Children’s Act
• There is a court order to remove the child.
• No consent or court order and the child is removed illegally: - international child abduction.

Question 17

What is seen in the HG v CG case?

Answer 17

A parent can relocate a child internationally with a court order to remove the child. This is seen in the HG v CG case where the court considered expert reports and the views of the children

Question 18

Where is the Hague conventions codified in the Childrens Act?

Answer 18

Hague conventions on the civil aspects of international child abduction are in the Children’s Act chapter 17. This chapter is to secure the quick return of children wrongfully removed from/ retained in countries who are party to the convention.

Question 19

When can the Hague convention and the Children’s Act be used?

Answer 19

• Child removed from SA to another country without consent.
• Child removed from SA to another country with consent but retained there unlawfully.
• Child retained in SA unlawfully.

Question 20

What is the process of using the Hague convention and the Children’s Act Chapter 17?

Answer 20

• Applicant approaches central authority in SA - Role of the Chief Family Advocate
• Child must be younger than 16
• Child must be habitually resident in the country from which they were removed
• Parent must have rights of custody

Question 21

When can the court refuse a request for return of the child to a country?

Answer 21

• In Central Authority v TK, it stated that the timing of the application and considering if the child has settled is important
• There was in fact consent/acquiescence or Parental rights and responsibilities were not exercised
• Child will be exposed to physical or psychological harm if returned
• In LD v Central Authority, it was held that a Child will be placed in an intolerable situation if returned
• The child objects to being returned.

Question 22

What are the defences against returning the child to a country?

Answer 22

The defences against returning the child:
1. The parent didn’t have parental rights and responsibilities
2. Will create a grave risk to the child being exposed to physically, emotional and psychological damage
3. The child will be put into an intorable situation

Question 23

Whats the age limit on the Hague convention?

Answer 23

The Hague convection only applies to children under the age of 16