13 Jul

Graeme Smith: A Father In Peril

Ivan Zartz was recently asked by YOU Magazine to comment on the recent spat between Graeme Smith and his wife, Morgan Deane. Morgan, the Irish pop singer whom Graeme Smith was infatuated with after the 2011 Cricket World Cup, gave birth to Gaeme’s two children, a girl and a boy in July 2012 and July 2013 respectively. What seemed as a match made in heaven quickly became a nightmare when news started circulating about Graeme’s extramarital affairs and the fact that the couple were fighting. By February this year, the couple formally announced their plans to divorce.

A situation that many deem to be caused by the ex-Proteas captain has developed into much domestic as well as international support for the Irish lady. Her comments on social media regarding her thoughts on her husband have amassed sympathetic responses from the public. But herein lies the tragedy. Much of the social-smearing can likely be a sign that Morgan may eventually alienate her children from their father.

Currently the children spend three days a week with Graeme, believed by Morgan to be too much time considering that she is the primary caregiver. Morgan also has an issue with the fact that the children’s Irish passports are currently in the hands of a third-party lawyer. Graeme should have access to his children three days a week because, not only is he their father, but he is also their provider, and will likely provide maintenance support after the finalization of the divorce. Graeme also has the right to put his children’s passports in the hands of a third-party lawyer if he believes that Morgan may attempt to take her children to Ireland.

Ivan Zartz recently had to travel with a client overseas to England to help in bringing back a child that was taken there by their one parent. Zartz argues that Graeme could be in a similar situation between Morgan and their children, and this is the reason marking his application to the High Court for a third-party lawyer to hold onto the passports.

It must be remembered that fathers have same rights to mothers in the case of custody over their children at the onset of divorce. Although modern trends show that the mother is at an advantage, Ivan Zartz’s is unbiased in his approach to helping his clients. For more information regarding child custody, contact Ivan Zartz attorneys today!

10 Jul

Hardship For Fathers

DOES A FATHER HAVE TO PAY A THIRD PARTY TO SEE HIS CHILD?

A recent case that I have been involved in demonstrates one of the sad realities of parental alienation.

The biological father of a child of 9 who is now 14 years of age had been alienated from the child by the mother. As a result of his lack of contact and in order to re-construct the contact between my client and the minor child it was proposed that his contact to the minor child be supervised by a third party. This proved to be impractical because there was no friend of the father who the mother trusted, and the father could not afford to pay for a social worker to supervise the visits.

It is a sad fact that there is still a grave shortage of skilled people to supervise re- constructed contact resulting in many fathers, through lack of means, abandoning contact to their children, particularly in the type of case referred to above.

The shortage of social workers in South Africa is major social problem in our country. A recent government study identified that there is a shortage of around 66 000 trained social workers required to successfully implement the Children’s Act; a 77% shortfall!

Unfortunately the department of social workers who should provide a social worker to supervise access have insufficient resources, so the absurd situation arises where a father has to pay to see his child.

For more information regarding child custody in South Africa, contact Ivan Zartz Attorneys.

06 Jul

Parental Alienation

The social science research advises that the most salient factor in determining risk for poor developmental outcomes for children subject to parental divorce is the level of conflict between parents.

High conflict separated parents, at least one parent, if not both holds a great deal of animosity which can lead to parental alienation. One or both parties will vilify the other. One or both will also present themselves as holding the best interest of the child on a greater basis than the other. Conflict tends to be unremitting and as soon as one issue is resolved, several others may surface. There may or may not be a realistic basis to some or all the complaints one parent has of the other. Children in these situations tend to be caught in the middle. They are often used as go-betweens and are at risk of having behavioural and emotional psychological issues that interfere with their daily functioning.

High conflict separated parents will in some instances poison the minds of the children to such an extent that all attempts by one of the parties to have contact to the minor children will be frustrated. The minds of these children are poisoned to such an extent that any ongoing relationship with the alienated parent will be severally jeopardised and will only be partially repaired by intense psychotherapy. The alienated parent inevitably gives up all hope of having proper contact to the child.

For the high conflict separated parents, the saying “tall fences make good neighbours” should guide intervention. The goal with high conflict separated parents is to structure a parenting plan that reduces the necessity for parental communication, contact and problem-solving. To affect this, the parenting plan tends to be highly structured and somewhat rigid. Parents are not to rely upon each other. Each will have their own supports available to minimize either having to depend on the other understanding that all points of contact provide risk for re-engagement in conflict – poison to the children.

Unnecessary Damage

In my experience when children are drawn into these battles between divorced and/ or estranged parents it says a great deal about the obsessiveness of the parties. Normally, both parents use the child as a punching bag to vent their frustration arising from the consequences that follow the breakup of a relationship, i.e. to rid themselves of their inadequacies, anxieties and disappointments. In the leading cases dealing with children in bitter divorces, i.e. asking children to express their views in court, often leads them to be subjected to a battery of questions from psychologists. The children in the main are very scarred by the legal and psychological process they have to undergo in these cases and they themselves will probably need therapy for the rest of their lives.

The parents are never satisfied by one court’s decision and drag the children from one Court to another until their financial resources are exhausted. The wishes of children should be respected, but courts should be sensitive in using children to give evidence in contact cases. There is no doubt, and this may sound repetitive, that it is the children who are the casualties of the war between the parents.

The Case of the Brave Child

In the leading case dealing with child alienation, the case illustrates that while in certain circumstances children, the wishes of children depending on their age should be heard. The court has to assess matters in which children’s opinions are expressed very carefully.

The matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of s 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole custody. The court went accordingly against the wishes of the child.

Additionally, there is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child which states that the best interest principal supersedes any wishes or opinions the child may have. In considering what is in the best interests of the child. A convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child.

Necessity for a Psychologist

In all parental alienation matters, it is necessary for a child psychologist to be agreed upon by the legal representative or by the court to evaluate what would be in the best interest of the child in bitterly contested custody matters. In terms of the Children’s Act, the court may appoint an Advocate or Attorney to represent the child’s best interest. I would suggest that in every matter concerning a child wishing to express their views in court, a trained expert psychologist should be present in court to ascertain the true wishes of the child.

I have a special note to separated parents, please play nicely and if you can’t, then leave each other alone and work through your therapist of intermediaries.

17 Jun

Emergency Child Custody

Unfortunately there are situations and cases whereby the well-being of a child is put in jeopardy. Children of a divorced or separated couple are already vulnerable to emotional trauma, but sometimes a parent, or both parents, can cause a child serious emotional or physical harm. In these cases the other parent, or a caring third-party, might recognize these abuses. Fortunately the ability to secure emergency child custody is a possibility.

What is Emergency Child Custody?

Emergency Child Custody is the courts decision to temporarily change the custody agreement of a child due to outstanding circumstances. This can be when one of the guardians does not fulfill his/her obligations or is directly abusing the child either physically or emotionally. Temporary ‘care’ of the child will either be taken solely by one of the parents in a co-guardian agreement, or will be taken by a family member, a person who cares for the child, or a registered home in the case of a sole-guardian agreement.

When is Emergency Custody Needed

Emergency Child Custody is almost always ensured when there are cases of physical or sexual abuse. The difficulty exists when trying to define the parameters of these abuses. It must be understood that corporal punishment ie. spanking, is also considered abusive. The parameters of sexual abuse is pretty clear, outlined and defined by South African law and can be further read in both the 2005 Children’s Act and the Sexual Offences section of South African Criminal Law.

Emergency Custody may be used when there is a case of child neglect or maltreatment. A child may also be taken from his immediate guardian if there are circumstances that may lead to the serious harming of a child’s being, physical, mental and social. All of the reasons for allowing emergency custody are laid out in Chapter 9 of the Children’s Act.

The Emergency Custody Process

It must be understood that by no means should a co-guardian or carer of the child take the child away from its place of residence, or institute their own measures of removing a child from potentially harmful circumstances. If this is done, then they will be expected to provide proof of neglect, abuse and maltreatment to the court. If they are found to be acting outside of the courts rules then they may face serious repercussions. A parent, guardian, caregiver and/or family friend must notify either the police or a social worker to attend the matter whereby it is their decision as to whom the child should be left with.

A parent, guardian, caregiver and/or friend can bring the matter to court directly without approaching the police or social worker, and, where proof of abuse or neglect is provided, the court may issue the order of emergency custody. Only then may a parent, guardian, caregiver and/or friend remove the child from their present unhealthy environment. In all cases the court will make its decision based on ‘the best interest of the child’ policy.

For any more information regarding child custody, and/or a host of other legal associated queries, contact Ivan Zartz Attorneys today.

21 May

How Loud Is the Voice of an Abducted Child?

How loud is the voice of a child who has been wrongfully removed from his/her usual place of residence and taken overseas by one of his/her parents in terms of the Hague Convention?

Usually parents whose children live with them and are under 16 years of age do not seek the opinion of their children even when making decisions that pertain to them. So when one parent with whom they live packs their bags and those of the child and tells them “we are going to go and live with granny in England” the child is very unlikely to protest.

However, in cases where a child has been wrongfully removed from his/her home by a parent and taken overseas without the permission of the other parent, the courts will hear the opinions of the child who has been wrongfully removed “unless it appears inappropriate”.[1]

For a child’s opinion to have weight in the eyes of the Judge children need to be of a sufficient age in terms of The Hague Convention[2] as well as possessing degree of maturity.

What is sufficient age? “Sufficient age” has not beea defined in the Hague Convention however the older the child the more weight which can be given to his/her opinion. In the

In an English case of Re D (A Child)[3] a Judge stated that “the views of the child should have been canvassed after he had attained the age of seven as by then he ‘had reached an age where it could no longer be taken for granted that it was inappropriate for him to be given the opportunity to be heard’.” The Court listens to any opinions or objections the child may have to be returned to their home, however it is finally the Judge’s decision whether to use such opinions/objections in coming to a decision.[4]

In the United Kingdom there are three ways which a child can express their views to a court. These are:

  • Interview with a Cafcass officer
  • Speaking to the Judge
  • Speaking through a legal representative to put their views forward.

In most legal proceedings an interview between a Cafcass officer and the child is sufficient.[5]

The best interests of the child are always of the utmost importance in any court proceedings where children are involved.

Who are Cafcass Officers?

CAFCASS stands for Children and Family Court Advisory and Support Service. It is an independent body from the courts and other social services. They act as advisors to the Family Courts and put forward the wishes of the children to the courts and ensure that the best interests of children are upheld in all matters. They also provide support and advice to children and their families in adoption and divorce matters.

Dangers of allowing children’s opinions to be heard

Although the wishes of the children are taken into account courts have also warned against children becoming too involved in case. In the case of Re LC (Reunite: International Child Abduction Centre Intervening)[6] the Judge highlighted the fact that children entering into the “arena” of a court case could cause them to adopt a directly confrontational attitude toward the parent applying for the return of the child. It was further mentioned that this could disrupt family relationships which could also the resolution of the main issue being whether the child should be returned to their usual place of residence.

Certain circumstances where a child’s objections will not be thought to be sufficient by the Judge are the following:

  • “Where it is apparent that the child is merely parroting the views of a parent and does not personally object at all;
  • Where the objection is not an objection to the right thing;
  • Where the asserted objection is not an objection at all, but rather a wish or preference.” [7]

What happens when siblings have been abducted and one wishes to return but the other does not?

In the case where siblings are involved there are many conflicting opinions as to what to do. It is not thought to be in the best interests of the children to split them up. In all cases it is thought that it will be intolerable for the non- objecting child to be split from the objecting child.[8]

In the case of Zaffino v Zaffino (Abduction: Child’s Views)[9] it was stated that “the exercise of discretion cannot… properly be made by treating each child in isolation. The child’s place within the family, and the consequences of the exercise of discretion on that child, must be considered.”

In another case of In Re S (A Child) (Habitual Residence and Child’s Objections)[10] it was held that “ the court had been entitled to conclude that the separation of a 12 year old girl from her brother, aged 10, was mitigated by the fact that they were at an age where they would increasingly lead their own lives and that they would in future be able to communicate with each other via Skype.”

It becomes apparent from the above that yet again the court has the discretion to decide whether or not to split up siblings. Although they try to avoid this, when children are older it may be more permissible to split them up as it is very easy for children to communicate with one another as technology has developed so drastically.

Conclusion

From the above it is obvious that the courts have a very wide discretion to take into account or not to take into account a child’s objections. Courts will mainly focus on the nature and strength of the objections, whether the child’s opinion seems to have been influenced by a parent or third party, and whether what the child is requesting or suggesting is indeed in their best interests.

The Court needs to focus on whether the child’s objection is indeed an objection to be returned to their country of habitual residence and not just a general objection. A child’s capacity to judge what is in their medium and long- term interests is relevant to the exercise of the courts discretion.[11] If the only reason for a child’s objections is because it wants to remain with the abducting parent, who is also asserting that he or she is unwilling to return, the Judge is likely to overlook such as objection as the child is simply echoing the views of the abducting parent.[12]

It would appear from the cases that the older and more mature the child is the more weight their opinions carry. All objections have to be valid and have to be with regard to the return to the child’s place of habitual residence.

[1] Re KP (Abduction: Child’s Objection) [2014] EWCA Civ 554, [2014] 2 FLR 660.

[2] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[3] [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[4] JPC v SLW and SMW [2007] EWHC 1349 9Fam), [2007] 2 FLR 900, De L v H [2009] EWHC 3074 9Fam), [2010] 1 FLR 1229.

[5] Re D (A Child) [2006] UKHL 51, [2006] 3 WLR 989, [2007] 1 All ER 783, [2007] 1 FLR 961.

[6] [2014] UKSC 1, [2014] 2 WLR 124, [2014] 1 FLR 1486.

[7] Re M Republic of Ireland) (Child’s objections) (Joinder of Children as Parties to Appeal)[2015]EWCA Civ 26.

[8] The Ontario Court v M and M [1997] 1 FLR 475, Re T (Abduction: child’s Objections to Return) [2000] 2 FLR 192.

[9] [2005] EWCA Civ 1012, [2006] 1 FLR 410.

[10] [2015] EWCA Civ 2, [2015] All ER 9D) 56 (Jan).

[11] In Re M and Another (Children) (Abduction; Rights of Custody [2007] UKHL 55, [2008] AC 1288, [2008] 1 FLR 251.

[12] SvS (Child Abduction) (Child’s views) [1993] Fam 242, [1992] 2 FLR 492.