There is an old Swahili proverb that says: “When elephants fight, the grass gets hurt”. So similarly, when parents fight the children suffer. This is especially true in instance where one parent uses a child as a tool to inflict hurt on the other parent.
In circumstances such as these, we have successfully brought applications to the Court requesting an order on the care and contact of a child as well as in situations where one parent is frustrating the contact between the child and the other parent. Parental alienation is viewed very harshly by our courts and, in some instances, the court has removed a child from a custodial parent (the parent that the child was living with from birth) andplaced the child in the care of the non-custodial parent, awarding only reasonable supervised access and contact between the former custodial parent and the child. The Children’s Act promotes gender equality so; as long as one parent provides a good home for the child the court will grant the applicant a care and contact order, irrespective of whether it is the mother or father.
The emphasis that the Children’s Act places is on the best interest of the child and not on what is in the parents’ interests, rights or wishes. The child has a right to remain in the care of and have access to his/her parents, family and extended family, culture or tradition. To deprive a child of having access or contact with a parent is a contravention of the Children’s Act.
To determine what is in the child’s best interests the court will request evidence from an expert such as a registered social worker, family advocate, doctors, relatives or friends of the family, all of whom may be cross-examined on their evidence.
It is a misbelief that if a father does not pay maintenance that he does not have the right to see his child. Maintenance and contact are independent and separate issues in terms of South African law.