How to bring a matter before a Children’s Court.

Any person referred to in section 53 of the Children’s Act is entitled to bring a matter to the Children’s Court in their region. This person can be:

· A child who is affected by or involved in the matter to be adjudicated;
· anyone acting in the interest of the child;
· anyone acting on behalf of a child who cannot act in his or her own name;
· anyone acting as a member of, or in the interest of, a group or class of children; and
· anyone acting in the public interest.

Step 1

If a person intends to bring a matter to the Children’s Court, the first step would be to notify the clerk of the Children’s court of his or her intention to do so.

This can be done by completing a form 2, which can be found on the website of the Department of Justice and Constitutional Development, and submitting it to the clerk of the Children’s Court:

Form 2download form 2 here.

Step 2:

Within five days after the receipt of such notice, the clerk of the court will refer the matter to the presiding officer of the court. The presiding officer will then within seven days after receiving the documentation relating to the matter, refer the matter either for:

· mediation by either a family group conference as provided for by section 70 of the Children’s
act or to a lay-forum as provided for by section 71 of the Children’s Act.
· A pre-hearing conference in terms of section 69(1) of the Children’s Act.
· A hearing conducted by the court itself

Attendance of proceedings:

Step 3:

If the presiding officer of the court should decide that the matter should be referred to the Children’s Court, or where the matter could not be resolved through mediation by either a lay forum or a family group conference, the presiding officer of the relevant court must assign a date for the matter to be heard by the court itself.

This date should be assigned within thirty days after a decision was made by the presiding officer that the matter should be heard by the court, or after the matter was referred back to court after the attempted mediation by a lay-forum or family group conference.

Step 4:

Within five days after a court date has been assigned for the matter to be heard, and at least fifteen days before the date of the hearing, the clerk of the Children’s Court will notify the relevant parties to attend the court proceedings. This notification will be made by means of servicing or submitting a form 4 on the relevant parties:

Form 4

This notice must be:

~ Served personally on a party by a sheriff, a clerk, or a person authorized by the presiding
officer of the court; or
~ Submitted to a party by registered post; or
~ Served or submitted in any other manner as directed by the presiding officer of the court

Deviation from time periods:

Step 5:

A party to the proceedings in the Children’s Court, or his or her legal representative, may request in writing, stating the reasons for such request, and providing the relevant proof in order to support this request, for a deviation from any time period by the court.

· The Children’s Court may then grant a deviation from any period of time, on the conditions
where the court deems fit, and if no objections were raised by any other party and or the
other party did not respond but that party’s rights will not be affected if a deviation from any
period of time is granted.

· The Children’s Court may also refuse a deviation from any period of time if an objection is
raised by any other party, who’s rights may be affected if the deviation from the time period
is granted and further if the other party did not respond to the request, but that party’s rights
may be affected if the deviation request is granted.

Requirement of Witnesses:

Step 6:

· the presiding officer in the matter;
· the child or a person whose rights may be affected by an order that may be made by the
court in those proceedings; or
· the legal representative of a person referred to above

Who intends to have a witness subpoenaed (summoned to testify during court proceedings), must within fifteen days before the date of the hearing request the clerk of the Children’s Court, to issue a subpoena to that witness.

Step 7:

The clerk of the children’s court may then summons a person to appear as a witness in a matter before the court to give evidence or to produce a book, document or other written instrument, at least 10days before the date of the hearing.

This will be done by servicing or submitting a form which corresponds substantially with form 6 of the Annexure to such a witness:

Form 6Form 6

The summons must be:

· Served personally on a party by a sheriff, a clerk, or a person authorized by the presiding
officer of the court; or
· Submitted to a party by registered post; or
· Served or submitted in any other manner as directed by the presiding officer of the court

Additional powers of the Children’s Court:

If there is any uncertainty regarding the age of a person who appears to be a child, the respective court may either request any documentation, evidence or statements relevant to the estimation of the age of that person from any person, body or institution, or refer that person to a medical practitioner employed by the state of the court’s choice for an estimation of that person’s age.

If the person who appears to be a child is sent to a medical practitioner, a form 7 must be completed by the medical practitioner.

Form 7Form 7

If there is no valid birth certificate, identity document or passport on which the court could establish the age of the said “child”. The court will on all the available evidence, estimate the age and possible date of birth of the person by using the completed form 7 and a record of immunization issued by a clinic.

This estimation of age must be entered into the court record as the estimated age and date of birth of the person. Furthermore the court needs to complete a form 8 of the Annexure, and hand such a form over to the relevant social worker, who will hand it in at the Department of Home Affairs.

The Children’s Court and Family group conferences:

Step 1:

If a court orders that the matter must be referred to a family group conference as provided for in section 70 of the Act for mediation, the presiding officer of the court must appoint a person or organization, as facilitator of the family group conference.

The facilitator of a family group conference may be any suitably qualified person, including, but not limited to:

· a family advocate;
· a social worker;
· a social service professional; or
· a traditional leader

Step 2:

On receipt of an order that the matter has been referred to a family group conference, the clerk must, within three days, in the manner determined by the court:

· refer the matter to the facilitator by means of a form which corresponds substantially with
Part A of Form 5 of the Annexure;
· submit all certified copies of all the relevant documentation relating to the matter, to the
facilitator;
· Retain original documents relating to the matter
· Forward a copy of the referral to the parties; and
· Notify the parties of the documents submitted to the facilitator.

Step 3:

After a facilitator has received the documentation as provided as referred to above he or she must arrange a family group conference within 10 days but not later than 15 days after receipt of the documentation by:

· Setting the time, date and place of the conference; and
· Taking steps to ensure that all persons entitled to attend the conference are notified within a
reasonable time, of the time, date and place of the conference.

Step 4:

No notice needs be given to any person whose whereabouts, after reasonable enquiries, are unknown and failure to notify any person does not affect the validity of the proceedings of a family group conference.

Where a family group conference fails to take place on the time, date and place determined, the facilitator must arrange for an alternative date and notify the persons entitled to attend the family group conference accordingly.

Step 5:

The facilitator must discuss with the parties and attempt to obtain an agreement or settlement in respect of the matter.

Before entering into discussions at a family group conference, the parties must decide whether the facilitator is to file a full report on the conference, including anything that the facilitator considers to be relevant to the matter, or a report that either sets out any agreement reached by the parties or states only that the parties did not reach an agreement on the matter.

Step 6:

The report referred to and any agreement or settlement reached between the parties must be submitted to the clerk within 15 days after conclusion of the family group conference, who must submit it to the court for the court to make any agreement or settlement reached an order of the court.

Step 7:

If a facilitator refers the matter back to the court for a hearing, that referral must be in writing on a form which corresponds substantially with Part B of Form 5 of the Annexure, stating the reasons why the matter was referred back.

A court must, within five days from the date on which the matter was received back, order that the matter must be heard in court.

Step 8:

Within three days after such order the clerk must assign a date for that matter to be heard in court and notify the parties involved of the date, place and time of the proceedings. This notification must be done by ways of a form 4, referred to in step 4 under the attendance of the proceedings.

The Children’s Court and Lay forums

Step 1:

If a court orders that the matter must be referred for mediation to a specified lay forum as provided for in section 71 of the Act, the clerk must, within three days of receipt of the order, in the manner determined by the court:-

· Refer the matter to a specific lay forum by means of a form which corresponds substantially
with part A of form 5 of the Annexure;
· Submit certified copies of all the relevant documentation relating to the matter, to the lay
forum;
· Retain original documents relating to the matter ;
· Forward a copy of referral to the parties; and
· Notify the parties of the documents submitted to the lay forum.

Step 2:

After a lay forum has received the documentation as referred to above, that lay forum must within five days, appoint a person to act as a chairperson.

Step 3:

The chairperson must arrange a meeting within 10 days but not later than 15 days after receipt of the documentation by the lay forum by setting the time, date and place of the meeting, and taking steps to ensure that all persons entitled to attend the meeting are notified within a reasonable time, of the time, date and place of the meeting.

No notice needs to be given to any person whose whereabouts, after reasonable enquiries, are unknown and failure to notify any person accordingly does not affect the validity of the proceedings of a lay forum meeting.

Where a lay forum meeting fails to take place, the chairperson must arrange for an alternative date and notify the persons entitled to attend the lay forum meeting accordingly.

Step 4:

The chairperson of a lay forum must consult with the parties and endeavour to obtain an agreement or settlement in respect of the matter.

Step 5:

Before entering into discussions at a lay forum, the parties to that lay forum must, subject to any directions given by the presiding officer of the court, decide whether the chairperson is to file a full report on the conference, including anything that the facilitator considers to be relevant to the matter, or a report that either sets out any agreement reached by the parties or states only that the parties did not reach agreement on the matter.

Step 6:

This report, together with any agreement or settlement reached by the lay forum, must be submitted to the clerk within 15 days after conclusion of the proceedings of the lay forum.

Step 7:

The clerk must submit this to the court for the court to make any agreement or settlement reached an order of the court.

Step 8:

If a lay forum refers the matter back to the court for a hearing, that referral must be in writing on a form which corresponds substantially with Part B of Form 5 of the Annexure, stating the reasons why the matter was referred back.

The court must, within five days from the date on which the matter was received back, order that the matter must be heard in court and….

Step 9:

the clerk must then within three days after that order, assign a date for the matter to be heard in court, and notify the parties involved in the matter on a form which corresponds substantially with Form 4 of the Annexure of the date, place and time of the hearing.

    The Children’s Court and Pre-hearing Conferences

Step 1:

If a court has ordered that a pre-hearing conference as provided for in section 69 of the Children’s Act must be held, the court must direct who must attend the pre-hearing conference and who will chair the pre-hearing conference, and further if necessary the court may direct that a court interpreter must attend the pre-hearing conference.

Step 2:

The clerk must, within three days after such an order is made assign a date for the pre-hearing conference, this date must be within 10 days after the order was made.

Step 3:

The clerk should then notify the parties involved on a form which corresponds substantially with Form 3 of the Annexure, of the date, place and time of the pre-hearing conference, and keep record of how the parties were notified.

Step 4:

The chairperson of the pre-hearing conference must give directions in respect of the conduct of the proceedings as he or she deems fit, and if a party is unrepresented, inform him or her of his or her right to be represented at his or her own expense by a legal representative of his or her own choice and if he or she cannot afford legal representation, that he or she may apply for legal aid, and of the institutions which he or she may approach for legal assistance.

Step 5:

The chairperson of a pre-hearing conference must, within five days after the conclusion of the pre-hearing conference, submit to the court a full written report of the pre-hearing conference, containing:

· any agreement reached between the parties
· any settlement reached between the parties;
· any matters to be dealt with by the court; and
· any other matter the chairperson deems necessary

Step 6:

If a party fails to attend a pre-hearing conference without any good cause, after having been notified thereof, the chairperson of the pre-hearing conference may either proceed with the pre-hearing conference in the absence of that party, postpone the pre-hearing conference if that party is likely to make a valuable contribution regarding the best interests of the child in question, or refer the matter back to the court for a hearing.

The Children’s Court and Investigations:

These proceedings are applicable to situations where the children’s court requires further investigations before a final decision can be reached.

Step 1:

In order for a further investigation to be carried out the court must complete a form 9 to give effect to such an order.

Step 2:

A person who has been ordered by a Children’s Court to carry out an investigation or further investigation may, for the purpose of performing his or her functions question any person who is likely to give material or relevant information about any matter that the court ordered him or her to investigate, and request a person to identify himself or herself to the satisfaction of the investigator.

An investigator may, in investigating a matter and with due consideration to speed up the investigation of that matter, request any person to meet with him or her at a specific time and place on a specific date, in order to and provide him or her, with information relating to the matter and documentary proof of the information, if applicable.

Step 3:

An Investigator that was appointed by the Children’s Court must keep a written record of:

· the manner in which the request for the meeting was made;
· any matter he or she investigates;
· any meetings held with him or her; and
· the outcome of the investigation.

Step 4:

The investigator must submit this report to the court within 10 days after the conclusion of the investigation.

For any questions or inquiries: Jacques Jansen Attorney

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2 Responses

  1. Anonymous
    Anonymous November 7, 2014 at 7:20 am |

    Good morning, I need clarity on something regarding children. I have a child and broke up with the mother. She denies me access to my son. I want to know what my rights are. She wants me to see my child twice per month and on weekends. I feel it’s unfair to me. I want to see my son when I want to, as I believe it is in my rights to do so.

  2. Lorenzo Willemse
    Lorenzo Willemse November 7, 2014 at 8:30 am |

    The Children’s Act explains your right as a father as follows, to wit: –

    In Section 18 (1):

    ” A person may have either full or specific parental responsibilities and rights in respect of a child.”

    In terms Section 18 (2), these rights include:

    “(a) to care for the child;
    (b) to maintain contact with the child;
    (c) to act as guardian of the child; and
    (d) to contribute to the maintenance of the child.”

    Section 20 of the Act provides:
    “The biological father of a child has full parental responsibilities and rights in respect of the child –
    (a) if he is married to the child’s mother; or
    (b) if he was married to the child’s mother at –
    (i) the time of the child’s conception;
    (ii) the time of the child’s birth; or
    (iii) any time between the child’s conception and birth.”

    In terms of Section 20 therefore, you have full parental rights and responsibilities in respect of the child.

    I suggest that you and the mother of the child invest in a parenting plan, in which both parties’ rights and responsibilities are clearly defined. This will serve to limit any or all dispute regarding the child. A parenting plan will endorsed by the Family Advocate and can be made an order of court.

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