The scope of the family lawyer should be expanded to include actual mediation and parent training. Family Law Offices were created in terms of the Mediation Act to facilitate this.
LIMITATIONS: THE DIVORCE ACT 70 OF 1979
The facts of this case, in short, are that the plaintiff's parents have divorced, and the court has not wanted to take into account the children's views that they do not want to have contact with their father. The Center for Child Law and Prof Ann Skelton intervened to have the minor children's views heard by the court.38.
CURRENT AND INTERNATIONAL LEGISLATION
The best interests of the child shall be taken into account in all actions relating to the child by any person or authority. The Committee for the Rights of the Child43 compiled a General Comment on the right of the child to be heard.
NEW DAWN: THE CHILDREN’S ACT
Provisions in the Parenting Plan, however, may be the result of mediation by a Social Worker, or any other suitably qualified person. The provisions in the Children's Act are much more in line with the Children's Charter as well as the African Charter.
MEDIATION BENEFITS AND DRAWBACKS
It is therefore clear that these benefits for children in mediation and divorce should be considered if the best interest of the child and the meaningful participation of the child are considered. 53 South African Law Reform Commission Discussion June 2019 Paper 148 Project 100D 'Alternative Dispute Resolution in Family Matters' page 2. .. listening to the voice of the child; and .. the process to be followed when allegations of child abuse are raised during divorce or separation proceedings.'. Although small in number, these cases take a disproportionate amount of justice system resources and have devastating effects on children.
It is the restructuring of family relationships rather than their termination that is the central purpose of the family law process. The disadvantages of mediation are that the mediator, or legal representatives, must guard against an imbalance between the parties (where the husband has more financial power over the wife). , an unfair solution may be entered into.56 There may also be a history of domestic violence involved or child abuse. In these circumstances, mediation may not be suitable or advisable.57 The parties to mediation must also be careful not to 'put the child in the middle' of the parents' dispute and cause more harm and distress to the child.58.
Then the question arises, why the offices of the Family Lawyer are not practicing mediation in the normal sense of the word.
ANALYSIS OF PRESENT LEGISLATION IN SOUTH AFRICA
DISCUSSION ON THE FUNCTIONS OF THE FAMILY ADVOCATE IN THE MEDIATION ACT
19 form of a report which is submitted to the registrar of the regional court or another division of the high court. When the parties enter into an agreement regarding the support of the minor children, the Family Lawyer must still "approve" or approve the provisions of the agreement. This is where, secondly, a parenting plan comes into effect and where the family lawyer must be aware of the provisions of the Children's Act.
Before the entry into force of the Children's Act, a settlement between parties specifically with regard to the provisions of minor children was not referred to as a Parenting Plan. There is not much case law in our courts regarding the Mediation Act and the work of the family lawyer's offices, but some of the cases found are briefly discussed below. As mentioned in Chapter 1, the Family Lawyer's office does not mediate because of their conflict to act as facilitator on the one hand and then as an expert witness.68 This conflict came to the fore in the Van den Berg v Le Roux case69.
Therefore, the question arises why the office of the Family Advocate is not able to mediate conflicts between divorcing parties about the rights and access of minor children, as well as bringing the opinions of minor children before the court.
THE CHILDREN’S ACT AND ITS INFLUENCE ON MEDIATION
Any party to the mediation may have the outcome of the mediation reviewed by a court. The law emphasizes the importance of the child's right to participate in legal proceedings; therefore, section 69, subsection 3, that: The Children's Act refers very specifically to what must be considered to be. in the best interests of the child”.
A suitably qualified lawyer, experienced in working with children, can bring the child's wishes to the attention of the court.86. 83D A Louw 'Children's perception and experience of the family advocate system International Journal of the Sociology of Law 17–37 on page 20. The child's views should be 'given due weight in accordance with the age and maturity of the child '.
The legal worker stands directly in the corner of the child and has the task of presenting and arguing the wishes and desires of that child.
OTHER JURISDICTIONS
AUSTRALIA
There are several reasons for comparing South African family law to Australian family law. The Hoexter Committee also considered it wise to refer to the Australian family law system in its advice on the Mediation Act,106. Other reasons for comparing South African family law to Australia's include the similarities the countries experience, such as the existence of Indigenous or customary communities with cultural and language barriers to the Western communities.
104M de Jong 'Divorce mediation in Australia – valuable lessons for family law reform in South Africa Comparative and International Law Journal of Southern Africa, p M de Jong 'Australian family relationship centres: a possible solution to creating an accessible and integrated family law system as provided for in document no. 31 South African Law Reform Commission Juta Journal of South African Law. 106 M De Jong 'An acceptable, usable and accessible family law system for South Africa - some suggestions regarding the family court and family mediation' 2005 TSAR. 107 Helga Schultz 'A legal treatise on the development of family law mediation in South African law, with comparisons particularly with the Australian family law system' (unpublished PhD thesis, University of Kwazulu-Natal, 2011).
108M de Jong 'Australia's Family Relationship Centres: A possible solution to creating an accessible and integrated family law system as envisaged by Juta Journal of South African Law' Issue Paper 31 of the South African Law Reform Commission.
OTHER AFRICAN COUNTRIES
The African Charter on the Rights and Welfare of the Child is a regional instrument that addresses the specific and unique problems of the African continent. 115 BD Mezmur 'The African Charter on the Child compared to the UN Convention on the Rights of the Child: nil-. 117 BD Mezmur 'The African Charter on the Child compared to the UN Convention on the Rights of the Child: nil-.
121 BD Mezmur ‘The African Children’s Charter versus the UN Convention on the Rights of the Child: a zero-. Pursuant to the Child Care Act 3 of 2015 (hereinafter referred to as the Child Care Act), provision is made for the appointment of a child advocate. 126 Website of the African Committee of Experts on the Rights and Welfare of the Child, ACERWC.
Zimbabwe adopted the Children Act in 2001 (Chapter 5:06).132 Section 3 of the Act provides for the establishment of children's courts.
CONCLUSION
INTRODUCTION
South Africa is unique in having the Mediation Act and Family Law offices. The procedure to be followed by the family lawyer was discussed in detail in chapter 4. Therefore, the Family Lawyer has the duty to convey to the court that the children born from the marriage of the divorcing parties, have adequate care and attention and that the necessary measures have been taken for
It is submitted that the Mediation Act should be more consistent with the 1996 Constitution and international instruments, in providing adequate opportunities for children's voices to be heard during a divorce.147 The Family Lawyer can play a vital role in family disputes. Currently, presiding officers in the Children's Court in many regions prefer to refer cases to NGO social workers or child protection NGO organizations rather than the Family Advocate's Office. It is clear from this report that the South African Law Reform Commission has noted the value of mediation and in recommendations150 that the Family Lawyer should play a more active role in mediation, rather than just providing an assessment.
The Mediation Act and consequently the family advocate could play a more important and focused role in the resolution of family disputes than envisaged by the South African Law Commission and its reports155.
BIBLIOGRAPHY
Bhaiseni, B 'Zimbabwe's Children's Act aligning with international and domestic legal instruments: clarifying the gaps' (2016) 6 African Journal of Social Work. De Jong, M 'An Acceptable, Workable and Accessible Family Law System for South Africa – Some Suggestions on the Family Court and Family Mediation' 2005 TSAR 33 – 47. De Jong, M 2007 'Divorce Mediation in Australia – valuable lessons for family law reform in South Africa South African Journal of Comparative and International Law, pp 280 – 305 .
44 De Jong, M 'Australia's Family Relationship Centres: A Possible Solution for Creating an Accessible and Integrated Family Law System as Envisioned by the Law Reform Commission of South Africa Issue 31, Utah Journal of South African Law. Louw D A 'Children's perception and experience of the family lawyer system International Journal of the Sociology of Law 17–37. Robinson T, E Ryke & Cornelia Wessels "Mental health and legal professionals' views of divorcing family and parenting plans Child Abuse Research: A South African Journal pages 14-26".
Sloth-Neilsen, J 'A new children's right in Botswana: reshaping family relationships for the twenty-first century The International Survey of Family Law.
