DISCUSS (mo)
RECOMMENDATIONS IN REGARD TO A NEW COURT STRUCTURE FOR SERVING THE NEEDS OF CHILDREN
By Noel Zaal (Jun.-Sept.2000)
CONTENTS 1. INTRODUCTION
2. RESPONSES RECEIVED BY THE LAW COMMISSION
2. 1. Responses to the Issue Paper
2. 2. Responses to the Questionnaire on Courts
3. FUNDAMENTAL PROBLEMS IN THE PRESENT SYSTEM
3. 1 Too Many Courts
3.2 Courts as Out of Touch with the Parties
3.3 Conclusion
4. A NEW MODEL FOR A DECISION-MAKING FORUM: BASIC CONSIDERATIONS
5. LAY FORUMS
5.1. Advantages of Lay Forums
5.2. Disadvantages of Lay Forums
5.3 Conclusion
6. THE CORE OF THE PROPOSED SYSTEM: GENUINELY EFFECTIVE CHILD AND FAMILY COURTS
6.1 Capabilities for Decision-Makers in the Child and Family Courts
6.2 How Are the Capabilities to be Achieved?
6.2.1 Longer-term Solution
6.2.2 Short-term Solutions
6.3 Incorporating a Lay Element
6.3.1 Instigating a Lay Forum
7. LEVELS AND JURISDICTION OF THE CHILD AND FAMILY COURT
7.1 Multiple Courts Versus An Integrated Approach
7.2 Reception Component
7.3 Case Jurisdiction
7.4 Procedures of the Child and Family Court
7.4.1 Prompt Services
7.5 Clusters of Courts
7.6 Court Levels
7.7 Accessibility
8. HUMAN RESOURCES: STAFFING, TRAINING AND MOTIVATION
8.1 Selection and Training of Adjudicators
8.2 Child and Family Advocates
8.3 The Child and Family Protector
8.4 Legal Representation of Parties
8.5 Career Path and Motivation of Personnel
9. APPEALS, REVIEWS AND THE ROLE OF THE HIGH COURT
10. ORDERS OF THE CHILD AND FAMILY COURTS
10.1 Scope of Work
10.2 Ordering a Lay Forum
10.3 Child Care Orders
10.4 Additional Orders
10.5 Monitoring and Variation of Orders
10.6 Duration of Orders
11. EVIDENCE
12. COURT BUDGET\POWER TO ORDER PAYMENTS
1. INTRODUCTION An effective decision-making forum for children in need of alternative care and, indeed, for child-related and family Law dispositions generally, is a key component that will be crucial for the proper implementation of a new Children's Code in South Africa. The question of an appropriate forum for the handing down of legally-binding decisions affecting children has therefore been regarded as a significant one in the earlier phases of the work of the Children's Code Project Team. Key questions, such as the continued role of the High Court as the 'upper guardian of all minors' and when children should have a right to legal representation in court, were debated both at the regional workshops held by the Project Team in 1998, and at a focused workshop specifically on forums and forum orders that was held in Pretoria on 15 April, 1999.
A Law Commission Research Paper entitled : 'Children and the Courts: How can We Improve the Availability and Dispositions of Legal Forums?' (hereafter cited as 'The 1999 Forum Paper') has been circulated by the Commission. Whilst the 1999 Forum Paper discussed possible models for reform of South African Law and provided foreign comparative material, the purpose of this Chapter is to provide specific recommendations for a new court structure designed for producing legally-binding decisions for children specifically, and for Family-Law decision-making generally.
It should be noted that the situation of children who are charged or appear as witnesses in criminal trials is not covered in this Chapter. The reason for this is that the Law Commission Youth Justice and Sexual Offences Project Teams are currently dealing with different aspects of this subject.
Many of the recommendations in this Chapter are based upon responses to our Issue Paper. We have also been influenced by the outcomes of debates and views presented at our Workshops. Aside from group responses at Workshops, the Law Commission has also received individual responses to the questionnaire on courts. overview of opinions contained in these responses is provided in Part 2 of this Chapter, below.
2. RESPONSES RECEIVED BY THE LAW COMMISSION 2.1 Responses to the Issue Paper Responses to the Issue Paper are contained in a document entitled Collation of Comments on Issue Paper 13 - Review of the Child Care Act (SA Law Commission 1999). For convenience, this document will hereafter be referred to as 'Collation'. Responses to the Issue Paper (Collation p.17) stress the importance of the child's right to be present and to participate in decision-making processes. With regard to whether courts dealing with child and family matters should continue to operate as separate kinds of courts (the present approach) the majority of responses to the Issue Paper (Collation pp. 45-47 & pp. 74-75) favoured an integrated court which could deal with the whole range of domestic matters.
With regard to the role of the High Court in the future, the majority of Issue Paper responses (Collation 52-53) favour a transferral of the functions of the High Court as a court a quo to the Child and Family Court. There was, however, strong support for the High Court continuing to serve as a Higher Court of Appeal or Review. With respect to the High Court serving as the 'upper guardian of all minors,' this was supported only insofar ascommensurate with transferring a much greater role down to the Child and Family Court. The idea of a three-tier system was supported in some of the responses to the Issue Paper (Collation pp.52-53).
In responses to the Issue Paper there was considerable support for the Child and Family Court being a specialised forum in the sense that its adjudicating officers would be specialists both as regards their training and their concentration on child and family work. It was considered acceptable, if resources were limited, that one such court might serve several magisterial districts in areas where the case load might be low (Collation p.74-76).
On the question of whether all magistrates should continue to be eligible to do Child Care work, there was a division in responses to the Issue Paper. Respondents who stressed the need for specialisation and appropriate interpersonal skills felt that not all magistrates should continue to be eligible. Respondents who stressed the need for a sufficient number of adjudicators to be accessible to children throughout the country considered that all magistrates should continue to be eligible but stressed the need for special training (Collation pp.77-79). With regard to the training of adjudicators, there was support for a concept of apprenticeship and training through actual experience. There was also considerable support for qualifications involving exposure to disciplines such as psychology and social work, as well as law (Collation pp. 78-80).
With regard to the rank or status of the adjudicating officer, respondents to the Issue Paper were split between suggesting the level of a magistrate and suggesting a level half-way between that of a magistrate and a High Court judge (Collation pp.80-81). With regard to other persons sitting together with legally trained adjudicators in order to decide matters, responses to the Issue Paper were cautious. Having additional persons may unnecessarily complicate and slow down adjudication and may also intimidate the child. However, the preponderance of opinion leaves room for the possibility of an additional person, even a lay person, provided that the additional person in some way supplements the knowledge or language skills or experience of the adjudicator in a manner that will assist with the proper adjudication of the matter. Additional persons should not be added to the legally-trained adjudicator unless there are reasonable grounds for this (Collation pp. 81-82). Insufficient training of many of our present court adjudicators was stressed in some responses received.
In the Issue Paper,respondents were asked how a balance could be struck between allowing child-parties to give evidence but not pressuring them to do so. Many responses favoured the use of legal representatives to assist in this regard. There was also a view that striking this balance could be difficult in practice and would require appropriate experience and understanding of children from the court adjudicators. One adjudicator argued that a screening function should come into play so that the child's wishes about appearing can be ascertained before the hearing. It can then be decided beforehand whether the child should appear (Collation pp.82-84). There was support for the adjudicating officer being accorded the power to speak to the child privately where this is appropriate.
Issue Paper respondents were asked who should represent children. It was pointed out that there is a tendency at present for lawyers who represent children to present views other than those of the child herself. Nevertheless, there was strong support for the use of lawyers to represent children, although it was realised that this might not be feasible or necessary in simpler or less contentious matters. There was, in particular, strong support for specialist legal representatives, rather than the use of any available legal representative. Specialisation could be achieved by extending the role of family advocates, by using court staff such as a 'family law officer' attached the Child and Family Court itself or, finally, by using other lawyers (via the medium of Legal-Aid). But only lawyers who have experience and/or training in child and family law work should be used (Collation pp. 84-86).
With regard to the kind of training needed by representatives for children in the Child and Family Court, there was overwhelming support in the Issue Paper for such representatives requiring a legal training. However, appropriate legal training and knowledge in family and child law was stressed and there was strong support for additional appropriate training from other disciplines such as social work (Collation pp.86-87).
Issue Paper respondents were asked to assess the grounds when a legal representative should be appointed to a child via Legal Aid. They were referred to S8(A) and Regulation 4(A) of the Child Care Act 74/1983. The overwhelming majority of respondents approved of these provisions and recommended that they be incorporated within a Children's Code (Collation pp.88-90). However, an experienced Children's Court commissioner criticised all but two of the sub-provisions of Regulation 4A in a manner which points to a need to reformulate some of them (Response of Mr D Rothman p.90:Collation). With regard to Regulation 4A(1)(b), it does not seem appropriate that a social worker should be able to require an adjudicating officer to appoint a legal representative.
Issue Paper respondents were asked whether adult parties should be provided with legal representation at State expense. Views were divided on this question, largely because of the resource
implications. Respondents were also asked whether unmarried fathers should be required to proceed directly to the High Court where they wish to apply for guardianship, access or custody (Collation pp. 91-93). A strong majority of respondents considered that it should rather be the Child and Family Court which should become a forum of first instance in cases of this nature. Perceptions about the inaccessibility and expense of the High Court appear to have motivated these responses.
In the Issue Paper, respondents were asked some questions about specific types of possible court orders. There was considerable support in favour of an 'anti-harassment' order that would prohibit a named individual from interfering in specified ways with a particular child. It was suggested that such an order could take the form of a rule nisi which would set down a return day on which the respondent could challenge the order if she/he saw fit. This would be similar to the provisions of the Domestic Violence Act of 1998 (Collation pp. 100-101).
On the question of whether the Child and Family Court should have the ability to award a State maintenance grant to children in urgent need, responses to the Issue Paper were mixed. There was considerable support for the concept, but concerns were expressed by many respondents about the State's ability to fund such grants. Since many respondents agreed that appropriate cases do occur in practice, it would seem appropriate to allow for courts to have a power to award a special emergency grant, from a special budget, but in exceptional cases only where both the investigative social worker and the court feel that this is appropriate on a short-term basis whilst another, longer-term grant is being arranged through the normal social security system (Collation pp.101-102).
There was strong support in the Issue Paper for the idea of the Child and Family Court monitoring, varying and reviewing its own orders where it deems this appropriate (Collation pp.102-104). Some respondents considered specifically that a court must have the power to review, monitor and amend its orders especially insofar as they affect children. Some respondents pointed out that, where a court does change its order, the change (like any other order) should be subject to an appeal process by any aggrieved party who can establish grounds.
Issue Paper respondents were asked to comment on the present system, as set up in the Child Care Act, whereby officials functioning under the authority of the Minister of Social Development and the Minister of Education have the power either not to implement or else to alter child placements as ordered by the children's court. There was no support for the present system in this regard. A strong majority of the respondents argued that the ability to alter children's court orders must be that of the court alone.
Children's court orders can presently last for a maximum of two years. A strong majority of respondents to the Issue Paper were of the view that this time limit is not appropriate. In care proceedings and other forms of child placement situations the court should have an unfettered discretion to decide upon how long its order should last. In particular, the court should have the power to issue an order that will last until a child reaches the age of majority if this is appropriate. It is therefore recommended that the Child and Family Court have an unfettered discretion to decide upon how long its orders should last (see Collation pp. 105-106).
Respondents to the Issue Paper strongly supported the idea that, once a child has been placed by a court, that child should have the right to be brought back before the court if the child is substantially unhappy about some aspect of the placement. It was realised by some respondents that this right could serve as a way of uncovering abuse which sometimes occurs during the placement of a child (Collation pp.106-108). Respondents to the Issue Paper were particularly strongly against the idea that any administrative\civil service officials deldgated powers by a Minister should have the power to terminate a court order (Collation pp.126-127).
It has been widely recognised internationally that undue delays in completing court cases involving children tend to be particularly prejudicial to such children. Respondents to the Issue Paper were therefore asked whether more deadlines should be imposed with regard to the completion of court cases, in a Children's Code. Whilst there was some support for this approach, the majority view was to the effect that there is a danger of over-regulating where, in practice, each case has to be dealt with on its own merits and in a context where appropriate time frames may differ widely. There was, however, support for the current S14(3 of the Child Care Act 74\1983 which indicates that, once a care proceedings case has been started on the children’s court roll, it can be remanded, at most, for fourteen days at a time. It is therefore recommended that this particular deadline be continued.
There was also support for a court's power to impose deadlines as it saw appropriate. This power should therefore be accorded to the Child and Family Court. The court will then be able to impose deadlines as appear appropriate to a particular case (Collation p131) [See Part 7.4.1 of this Chapter for recommendations].
With regard to the procedures to be followed in the Child and Family Court, respondents to the Issue Paper were of the view that these should predominantly be covered in Regulations to the Children's Code. Pending the drafting of such procedures, the procedures currently governing the magistrates courts and the High Courts should be applicable where the same type of work is undertaken in the Child and Family Court.
There was a recognition that a decrease in formality of procedures and proceedings might make the Child and Family Court more accessible to the majority of our population, but this would have to be done in a way that retained fairness to all parties (Collation pp.149-160).
Respondents to the Issue Paper were strongly in favour of a capability for a future Court to be able to issue urgent interim orders in all types of cases affecting children, pending a main hearing at a subsequent date. There was even support for an approach (similar to that of the Domestic Violence Act 116 of 1998) allowing for an interim order to be issued, in emergency or very serious situations, even before there is an opportunity to hear the other party on a subsequent return day. The Child and Family Court should therefore have such powers.
2.2 Responses to the Questionnaire on Courts The responses to the questionnaire on children and the courts were collected and collated by Law Commission researcher, Amanda Louw (Project 110: Review of the Child Care Act: Children and the Courts) (hereafter cited as Project 110).
Like Issue Paper respondents, Court questionnaire respondents generally accepted the concept of a three-tier structure placed at district magisterial court, regional magisterial court and High Court levels. The Courts need a screening component and the Family Advocate concept should be extended so that they become child assistance officers who can investigate and bring before the court any appropriate case concerning a child. Staff attached to the Family Advocates’ office could instigate investigations on behalf of children and could register privately-reached parental responsibility agreements (plus variations thereof) or parenting plans (Project 110 p.20). The Family Advocates’ office could instigate or carry out mediation and facilitate family group conferences where these are required by the Court.
The new courts must have the power to instigate lay forum hearings where appropriate (Project 110 pp. 2-5). Lay forums specifically indicated could include family group conferences, mediation, and use of community courts or traditional courts (Project 110 p.5). Lay forums could provide preventive services and should be overseen by an officer of the court (Project 110 p.7). The role of the High Court should be that of appeal and review of decisions from the lower tiers (Project 110 p.7). With regard to adjudicators in the Child and Family Courts, there was considerable support by court questionnaire respondents (like Issue Paper respondents as noted above) for additional training in other relevant disciplines besides law. There was also support, once again, for a power to have an assessor from another discipline sit with the adjudicator if the adjudicator considered that this is necessary (Project 110 pp.10-11).
With regard to the training of High Court adjudicators, questionnaire respondents supported the idea of a specialized section of the High Court to hear appeals in child and family law matters or, failing this, at least having certain High Court judges who specialize in such work (Project 110 p.12).
As far as the cultural and linguistic affinity of Child and Family Court adjudicators is concerned, questionnaire respondents supported the idea of adjudicators who can speak at least three official languages. Failing this, it was considered that assessors who could speak the home language of a child or other party could sit with the adjudicator. An additional factor is proper training of interpreters for child and family work where interpreters have to be relied upon (Project 110 pp.13-14).
As far as the procedural role of adjudicators in the Child and Family Court is concerned, court questionnaire respondents were of the view that a more activist role, involving a shift to a more inquisitorial approach, should be required of adjudicating officers. It was felt that an adversarial procedure would still be required where there are disputes of fact to be settled (Project 110 pp. 22-23). Insofar as any child may be involved or affected, the most important function of any lawyers who may appear will be to assist the court in reaching a decision which treats the best interests of the child/children involved as paramount.
The need to improve the general public’s access to the courts was also stressed as an important requirement by respondents to the court questionnaires. It should not be essential to have a lawyer in order to appear in the Child and Family Court. Adjudicating officers will need to adapt their role accordingly. Legal-Aid must be available where it is needed (Project 110 pp.23-24).
There was strong support amongst the court questionnaire respondents for an integrated court system where a court could deal with different aspects of a domestic matter at one time. It was felt by respondents that this would save considerable time delay (Project 110 p. 24). Monitoring by a court of its order could be achieved by imposing a return day where the court sees fit. An additional form of monitoring would be to allow any social worker who is supervising or investigating parties during a post-court-order phase to instigate a re-hearing if the court's order is not being complied with (Project 110 p.25).
Questionnaire respondents were concerned to provide the proposed new courts with 'teeth'. It was suggested that both criminal sanctions and contempt of court orders should be available to the courts. In addition, the courts should be able to impose punitive cost orders on any party.
As regards the geographical jurisdiction of courts, the recommended solution is a broad availability of courts regardless of where in the country a cause of action arose. In this regard, there was support for an approach such as has been taken in the Domestic Violence Act 116 of 1998. A factor, however, could be in which locality it would be best for a child-party to have the matter heard. In the court questionnaire responses there was support for greater involvement of local authorities and designated lay community safe-guarders (Project 110 p.28). This will necessarily involve additional persons becoming subject to the orders of the court. Court questionnaire respondents were of the view that lawyers who appear in the Child and Family Court should be required to undergo specialized training in family law issues. They should have experience of working with children and understand family dynamics (Project 120 p.30).
As can be seen, a wide range of issues were helpfully addressed in the court questionnaires. It is also noteworthy that the court questionnaire respondents and the Issue Paper respondents were in agreement on most matters considered by both groups.
3 FUNDAMENTAL PROBLEMS IN THE PRESENT SYSTEM 3.1. Too Many Courts As is well known, we presently have a variety of courts which can issue orders that may refer to and significantly affect the lives of children. These courts include the High Court, Divorce Courts, Maintenance Courts, Children's Courts, Juvenile Courts and courts issuing Domestic Violence orders. A first serious point of weakness in the present South African court structure as it affects children is therefore the multiplicity of forums dealing with various aspects. As has emerged from the research of the Project Team, this multiplicity of courts has numerous disadvantages. For example, because each court deals only with certain types of case, a child or adult applicant\witness may have to appear in more than one court.
The system of conducting hearings and issuing court orders in an incremental manner and in a multiplicity of forums frequently increases privately-incurred and State expenses, and results in delays whilst the child and/or other parties are left to suffer from uncertainty and insecurity about her/their future. Another negative consequence of our multiple-court system is that children are sometimes 'systemically abused' by having to undergo multiple assessments and questioning by different persons for purposes of different court hearings. These children may have to relate painful details -for example, in regard to sexual abuse- over and over again to different professionals who are preparing for different cases.
The system of a multiplicity of courts is thus not only ponderous and slow, it frequently subjects children and others to secondary, systemic abuse which could be reduced by the use of a single, broadly-encompassing forum which could deal with all or most legal aspects of a multifarious familial problem.
The present multiplicity of courts is so daunting in terms of expense and time consumption that it is not surprising that the general public, and even child care professionals, may hesitate to make full use of the services which the courts offer. Whilst it would be quite unfair to place the blame wholly at the doors of the courts, the large numbers of streetchildren in many parts of South Africa are surely clear evidence that many children in need of alternative care decisions are not being dealt with effectively through the courts. As the AIDS pandemic progresses, the numbers of orphaned children and other children affected and infected by the Disease is growing steadily, and it is indeed necessary for the court system to be reformed so that considerably more children can receive the benefit of prompt, efficient, and effective court decision-making about their future placements, and legal rights generally.
3.2. Courts as Out of Touch with the Parties Aside from the overly narrow jurisdiction of many of our current courts and their inaccessibility as discussed above, there are further fundamental problems in regard to their functioning. In terms of effectiveness, our courts or other official decision-making forums need to become places where children feel empowered - they must genuinely feel that they can speak out and\or be genuinely represented, so that their voices will indeed be heard and their wishes and needs indeed be suffiently taken into account. Not only will this require a new culture of sensitivity to children, but it will also require far more effective communication between children (or their representatives) and decision-makers or decision-facilitators than has often been the case under the present court system. Major barriers in this regard have come to light in the course of the research already conducted by the Project Team, and some are noted in the next paragraph below.
It has been pointed out by numerous respondents that there are weaknesses in the training, motivation, interpersonal skills and other skills of many of those who staff our courts. The problem includes adjudicators and can be found up to and including the level of the High Court. Many judicial officers conduct proceedings only in one or two of the official languages and, indeed, they are often obliged so to do. Regardless of what the position may be with adults, there is a need for decision-makers to be able to communicate directly with children in the languages with which the children are most familiar. There is also an urgent need for new forms of inter-disciplinary training for those who work with children in our courts. Current University systems of legal training do not produce sufficient graduates properly equipped to work constructively and effectively with traumatised children and their dysfunctional families. Conversely, graduates who have had a social work (or other relevant discipline) training are not being equipped to understand the nuances of, for example, evidential law and the purposes of cross-examination in certain situations. Nor is the difference between genuine child advocacy and making protective decisions for the child always appreciated, even by family advocates.
3.3. Conclusion There are thus a range of serious and fundamental problems which beset our current hierarchy of courts when viewed from the perspective of their ability to provide cost-effective and appropriate interventions on behalf of significant numbers children and their families. It is with a view to addressing these problems that a recommendation for a new court structure is offered in this Chapter. A further consideration which has to be kept in mind is the constraint of the limited financial resources available in South Africa at the present time. Any new structure has to pass stringent tests of cost-effectiveness.
4. A NEW MODEL FOR A DECISION-MAKING FORUM: BASIC CONSIDERATIONS It may be submitted that an important reform would be to move from a multiplicity of segmented courts to a more broadly-encompassing decision-making forum that can deal with legal issues affecting children and/or familial situations in a integrated, holistic manner. Ideally, the new forum must offer an attractive degree of accessibility, together with prompt, well-communicated decision-making. It should further offer strong powers of direct and culturally-empathetic communication with affected children and other family members.
Experience in other countries suggests strongly that the ideal forum would have the capability to be flexible in its modus operandi\method of working. Such a forum would have to have the capability to, procedurally speaking, 'shift gears' according to the type of case, or even the particular aspect of a certain case, with which it was dealing at a particular time. For example, there are cases (or aspects of cases) where an informal procedural mode may be the ideal one in encouraging the child and other involved persons to speak freely and to genuinely accept a constructive solution that is likely to meet the best interests of the child and a dysfunctional family unit. On the other hand, there frequently occur what may be termed the 'hard phases' of cases where it may be necessary to resort to cross-examination and other aspects of a formal, sometimes adversarial, procedure in order to get at the truth and protect the interests of persons at whom accusations have been directed. By way of illustration and substantiation, it may be pointed out that the children's panels in Scotland, whilst they have proved successful for many forms of child care proceedings, have been recognised as subject to shortcomings when it comes to dealing with child abuse cases.
In a case of child abuse, the stakes are high and a child might be considered by a forum for possible removal from a parent who has been accused of abusing the child. If the parent denies the abuse, it may well be argued that the parent has a right to all the protective features of a traditional adversarial hearing (obviously, subject to the child receiving appropriate procedural protection). On the other hand, in a case where the parent does not deny abuse and now wishes to help achieve what is in the best interests of the child, an adversarial approach might simply cause deeper familial rifts which may endanger future familial reunification that might be in the best interests of the child in the longer term.
The motor vehicle analogy of 'an ability to shift gears' is one which may perhaps be appropriately applied beyond merely the procedures to be used. It is also necessary for a new forum structure to be able to discriminate between complex and straightforward cases. In terms of cost-effectiveness, accessibility and a productive, high case turnover, it is surely necessary to be able to fast-track urgent, simpler and less-contested matters. On the other hand, there will always be more complex cases or ones in which there is a large array of disputed issues. In order to achieve optimum efficiency on behalf of the public, it appears to be necessary to have a simpler and faster procedure or a different, quicker forum to deal with more straightforward matters and emergency relief applications. Conversely, those involved in more complex matters deserve and require a forum which is capable of providing the time and expertise necessary to produce an appropriate response and resolution.
Finally, those members of the public who use a new forum structure should be accorded a degree of cultural and linguistic empathy which has, unfortunately, all too often been sadly lacking in courts under the present system. In addition to such empathy and meaningful direct communication, children and other applicants/participants should encounter professional persons who are appropriately trained in more than just the law.
5. LAY FORUMS In the 1999 Forum's Paper, consideration was given to a lay forums as utilised in many other legal systems in order to reach important and legally-binding decisions concerning children. Lay forums may be understood as serving purposes not altogether dissimilar from those of courts, but as avoiding the use of trained judicial officers for reaching a final decision.
5.1. Advantages of Lay Forums Avoidance of the use of legally-trained adjudicative officers and, concomitantly, formal court procedures, have been noted in various countries as bringing a number of basic advantages. In a less formal and adversarial environment, the child often feels less intimidated. This may also be true for other family members and may thus be conducive to more successfully healing problems that have occurred within the family.
Dispensing with trained judicial officers (and sometimes lawyers) may also bring improvements in accessibility and inexpensiveness of Lay Forums. With these advantages, the potential for setting up large numbers of Lay Forums at community or ‘grassroots’ level for children and domestic cases may begin to seem attractively practicable. Recently, the South African Law Commission, in its Discussion Paper entitled 'Community Dispute Resolution Structures', has endorsed community involvement in the resolution of disputes. There is thus support for involving community members in case adjudication.
One of the most successful forms of Lay Forum, the Family Group Conference, uses the wider family of the child to compose the Forum. Self-help and self-empowerment for dysfunctional or disputing families can thus be put forward as significant advantages of the Family Group Conferencing concept.
5.2. Disadvantages of Lay Forums Whilst an investigation of the advantages of Lay Forums was undertaken in the 1999 Forum Paper, it must also be realised that there are some difficulties and problematic aspects attendant upon their utilisation.
Just as much as informal proceedings may encourage some children to speak freely, case studies have shown that in other situations children may feel completely vulnerable and unprotected from abusing adults in an informal situation. Where the decision reached at a Lay Forum is to be accorded any kind of legally-binding status, concerns immediately arise in regard to the way in which the decision was reached. Specifically, in the absence of any legally-trained person making the decision, there is always a danger that unsubstantiated, incomplete or one-sided information may have been given undue weight. Fair and objective evaluation of evidence is a vitally important skill which legal adjudicative training and experience provides.
In the absence of a trained judicial officer, there is always the possibility that the rights of a person or persons involved may have been infringed. Persons who are not legally trained may, for example, confuse between a mere allegation and a fact which is properly proven. Children, being vulnerable and generally less effective than adults in asserting themselves, are especially at risk of having insufficient weight accorded to their wishes in lay forums. As was noted above, these dangers have been recognised in the Scottish system. Although Scottish children’s panels have trained adjudicators and 'Child Reporters' involved, they do not attempt to settle disputed facts. These are sent to a court for adjudication and the matter is then returned to the Panel.
5.3. Conclusion It is submitted that South Africa, as a nation with limited financial resources, will not be in a position to afford the luxury of moving a matter back and forth between a court and a lay forum in the manner used in Scotland to settle any serious factual dispute that might arise. Multi-culturalism and high levels of corruption and violence endemic in many South African communities at the present time also count against the viability of setting up a network of lay forums throughout the country.
A major additional problem would be the expense of setting up, monitoring and maintaining a whole new network of lay fora. It is submitted that the undeniable value of informal procedures for certain cases can be incorporated in a less expensive manner than setting up an entire separate network of lay-resolution bodies and supporting structures intended to assist children and dysfunctional families. A less expensive method for incorporating the advantages of informally-reached decisionmaking is suggested below at Part 6.3 of this Chapter.
6. THE CORE OF THE PROPOSED SYSTEM: GENUINELY EFFECTIVE CHILD AND FAMILY COURTS The Project Team proposes, as the central decision-making Forum for children in need of care and their families, a 'Child and Family Court' network which will provide adjudicators in every magisterial district, down to the present District Court level. These adjudicators should not merely hand down legal decisions; they should also be capable of engaging constructively during the court-hearing process with traumatised children and other members of dysfunctional families.
6.1. Capabilities for Decision-Makers in the Child and Family Courts An effective court for dealing with children and domestic matters in South Africa requires what may loosely be described as four fundamental capabilities. Firstly, it is clear that its functioning and adjudication are dependent upon a good degree of appropriate legal expertise. An adjudicating officer in this court must be sufficiently legally-trained in the sense that she/he requires a sound knowledge of family and child law, constitutional rights and fair court procedures. A legally-trained judicial officer is an essential element for protecting the rights of those who appear before the court and for making fair and legally-valid decisions.
However, when it comes to domestic matters and other matters significantly affecting children, mere legal training is not sufficient. A second area of capability is required which draws on a range of 'extra-legal' skills and knowledge traditionally associated with certain other disciplines besides Law. It must be recognised that Child and Family Court adjudicators require more than just a knowledge of legal rules -'black-letter law'- if they are to work really effectively in cases of relationship-dysfunction. A genuinely competent Child and Family Court decision-maker will often require some understanding of current knowledge in sub-fields such as child development, familial relationships and psychology. She or he will also need an understanding of local cultural practices. He or she will frequently require an appreciation of our current welfare resources and what can be achieved by mediation, family group conferences, play therapy, family therapy and social work techniques generally.
Aside from the legal expertise traditionally required of judicial officers and the other-discipline expertise alluded to the in the previous paragraph above, there are yet further capabilities which decision-making officers of a Child and Family Court will require if they are to have a significant impact in the face of our child- and family-related social problems. The adjudicating officers need a personality and orientation which is appropriate for dealing with dysfunctional families and, particularly, children who may be traumatised. Judicial officers who are only capable of working in a formal and adversarial manner are not appropriate for a genuinely effective Child and Family court. Their inter-personal capabilities should, wherever possible, be such as to enable them to interact effectively and constructively with children and dysfunctional family members.
The fourth basic and essential component for a genuinely effective Child and Family Court is an ability to communicate meaningfully with those who appear before it and, in particular, with any child who wishes to express views and who will be significantly affected by the decision to be reached by the Court. Many children who presently appear before South African Courts are confused, intimidated and alienated by what becomes for them, a strange, meaningless process.
A significant problem in South Africa is that, in many situations where children appear as parties, the language which the judicial officer uses differs from the language with which the child is most familiar. In a situation where adjudicating officers of a Court can neither speak directly to a child nor understand, at first-hand, what she or he is saying, it can hardly be said that the child has genuinely been given a right to be heard as is mandated by Article 12 of the 1989 UN Convention On the Rights of the Child. Article 12 of the Convention provides the child with a right to express views freely and to have due weight given to those views. In the absence of direct communication between the child and court, this right is necessarily diminished. The use of a court interpreter inevitably introduces an artificial constraint in communication and to some extent blurs meaning so that the child will never be fully certain about the weight accorded to her or his views.
Whatever may be the considerations which affect other courts, it would seem important, if we are to advance a genuine children's rights culture, that we strive to produce Courts which can communicate directly, supportively and meaningfully with the majority of children who appear before them. Where this is not achieved, it can be hardly be said that a Court is treating a child-party's best interests as "paramount" as required by S28(2) of our Constitution. Where a child who is a party to a matter is able and wishes to communicate in one of the official languages of South Africa, it is essential that at least one of the adjudicating officers, or someone sitting as an assessor with such adjudicator, be able to communicate directly with the child in that language. Where this is not achieved, the procedure of the forum is flawed, and may fall short of promoting a children's rights culture which treats the best interests of the child as paramount.
6.2. How Are the Capabilities to be Achieved? The capabilities referred to above appear to be essential ones for a genuinely-effective Child and Family Court which interacts meaningfully with members of the community, produces decisions and reasoning which parties can understand, and provides the best possible and most correct outcomes.
How, then, is the broad range of skills and capabilities required to be concentrated and embodied each time that the Child and Family Court sits?
6.2.1 Longer-term Solution In the longer term, there are significant implications for training of adjudicating officers. As has already been suggested, correct and supportive decision-making in regard to traumatised children in particular and dysfunctional families in general are not sufficiently facilitated by a merely legal training. As has also been suggested, a genuinely effective Child and Family Court requires an inter-disciplinary range of skills and/or experience. Present methods of University study which tend to confine students within, for example, either Social Work or Legal Training, need to be altered to permit students to obtain qualifications of a more inter-disciplinary nature. A mix between appropriately selected Law, Police Science, Social Work, Psychology and Criminology courses, for example, could produce graduates who, after appropriate experience, could serve as adjudicators who have the requisite range of capabilities. University students with career interests in children and families should also be accredited with and encouraged to study at least three official languages.
6.2.2 Short-term Solutions Where it is not possible to combine the requisite range of expertise within a single individual, our legislation should make it possible for up to three persons to adjudicate in court as a panel. The first (and chair) would be a legally-trained judicial officer. The second could be a person qualified in social work or another relevant discipline and the third (added if necessary) would be a person fluent in the official language of preference of a child-party who expressed a wish to communicate with the court in that language. This third person could be a professional or could add a lay element (with its attendant advantages as discussed earlier under Lay Forums) to the Court and would ensure that direct communication with the child (and\or other party) was possible. Of course, if either the judicial officer or the second professional adjudicator could speak the parties' language of preference and had sufficient community empathy, then a third panel member would usually not be necessary.
The simple answer, then, to providing the range of expertise essential to create a genuinely effective Child and Family Court would be to employ more than one individual as a decision-maker if and where necessary and feasible.
An alternative or additional solution for the short term would be to provide short, concentrated courses of training for adjudicators that are designed to complement the skills and knowledge which they already have. For example, a social worker could study family law and court procedure (perhaps also by spending a set number of hours observing courts in session). Conversely, a legally-trained person could do a course of study on child development, child abuse and non-adversarial dispute-resolution methods. Appropriate institutions such as Universities or the Justice Training College should be contacted with a view to offering courses for local candidates. Courses in indigenous languages and culture should also be provided for Child and Family Court staff at all levels. Members of the Children’s Code Project Team could easily design such a training course if requested to do so.
Note that some further recommendations concerning the eligibility and training of adjudicators are put forward in Part 8.1 of this Chapter, below.
6.3. Incorporating a Lay Element It is recommended that the lay component of the proposed new Child and Family Court be incorporated in two ways. Firstly, as has already been indicated above, a person may be placed on the adjudicating Panel of the Court purely in order to provide someone who can speak directly to and empathise culturally or community-wise with the child and/or other party. Such a person can be selected for appropriate experience in working with children and/or families and also to provide an element of community representation that will help to link the Court with those who appear before it. There is nothing strikingly new about this proposal. As early as 1937, it was proposed that assessors should sit with legally-trained judicial officers to deal with child care cases in South Africa. In article 21 of the Family Court Bill 62 of 1985 it was again proposed that up to two persons could sit with a family magistrate hearing a civil or criminal matter in the proposed Family Courts.
6.3.1 Instigating a Lay Forum Aside from the presence of adjudicators with extra-legal skills or experience, there is another way in which the advantages of informal decision-making ought to be incorporated. The new Child and Family Court should include amongst its capabilities the power to instigate either mediation or a family group conference. The latter, in particular, has been found in several jurisdictions to be an extremely successful method for resolving certain types of child care and other familial cases.
If it appears to a Child and Family Court that a tribal authority or other community organisation is well placed to assist with resolving or monitoring a case, or can assist in any other way, the Court should have the power (and budget) to make an appropriate order. The Child and Family Court therefore be able to require traditional leaders to attempt to mediate\monitor certain familial disputes where this appears to be appropriate. Relevant factors would be what resources are available in a particular community and whether the family regards itself as falling under a particular tribal authority [Mr Smit requested to draft a payment clause - P29 of the Bosberaad - minutes of our 16th meeting. Mr Mtshali will consider traditional court aspect\tribal authorities generally].
The proposed new Child and Family Court would thus be able to make use of lay forums, where these appear appropriate, without South Africa being committed to the expense and the difficulties of setting up and maintaining an entirely separate network of lay forums and supporting structures. It is submitted that this would allow us to use the advantages of informal decision-making in the familial sphere. We would be able to do so where this is most appropriate and in a practicable and cost-effective manner. With the Child and Family Court instigating the process and\or being reported to, the Court will be in a position to give legal validity to appropriate decisions reached by the lay forum or to hold proceedings of its own where no decision is reached or anyone wishes to appeal to the Court in regard to the lay forum decision.
It is recommended that both the District and Regional tier should have the power to instigate lay forums. This should be done within the limits of a fixed court budget. Using the Child and Family Protector [Part 8.3] should reduce costs. Practice should be allowed to develop naturally with regard to types of case\criteria. A social worker’s or Child and Family Protector’s report could be required as motivation by a court contemplating instigating a lay forum. Both levels of the Child and Family Court will need to have the ability to instigate lay forum strategies such as family group conferences where these appear to have potential for promoting the best possible outcome in a case.
In terms of who should provide family group conferencing and mediation services, Family Advocates may, in the course of their work help to reduce intra-familial\domestic tensions or hostility, since they have been trained in mediation. However, if they become directly involved in intensive mediation\lay forum activities they may come under procedural attack for not being in an independent position if they later have to represent a child from the same family in court. It is for this reason that the Child and Family Protector [see Part 8.3] is proposed for a primary role in less-formal, extra-curial techniques.
7 LEVELS AND JURISDICTION OF THE CHILD AND FAMILY COURT
7.1 Multiple Courts Versus An Integrated Approach [ Editing note: Mr Smit, in the Child Care and Protection Bill which he is presently preparing for the assistance of this Project Committee, has recommended that the children's courts continue to be kept separate from other courts dealing with family/domestic issues. This is not what the Project Team decided to recommend.]
The South African Family Court Bill of 1985 envisaged family courts as operating at the level and with the status of regional magistrates' courts. The South African Family Court Pilot Project begun in 1997 currently utilises a hybrid approach whereby both magistrates' and divorce courts operate alongside one another. It is submitted that the Project Committee must fashion a court capable of providing, as far as possible, a holistic resolution of a broad range of child and related familial problems, rather than continuing with what has been identified as a major weakness of the current system, namely, cases moving back and forth between different, narrow-jurisdiction forums. However, it was decided at the forums 'bosberaad' debate of the Project Team that it will be necessary to have a Court which can function at two different levels.
Rather than allocating different types of case to the two different levels of the proposed Child and Family Court, it is suggested that it might be better to allocate cases according to the length of time that they appear to require. It is worth noting that there are simpler matters which do not need a considerable amount of court time. For example, some undefended divorces, and child-placement cases where there is only one very obvious and appropriate placement for the child. An example of such a case would be where the child's parents have been killed in a motor accident and there is a relative with excellent parental skills who is the only available applicant to take over parental responsibility for the child. On the other hand, there are difficult matters which may reveal themselves by such possible indicators as more than two parties in contention, appointment of legal representatives and\or complex evidence or ethical issues arising out of factors such as artificial conception of a child and\or surrogate motherhood.
It is submitted that the Child and Family Court should be split into two levels or components. The first component should be geared for a higher case turnover of simpler and shorter matters. Its adjudicator or adjudicating panel should still possess the range of interdisciplinary expertise and communication-ability referred to above, but could be less experienced officers than those who will sit in level two. The officers in the second level will deal with matters that require more time or are complex. These officers will thus need to be more experienced and/or more extensively trained than those who staff level one.
It needs to be stressed that, in terms of a vision for a new and genuinely effective Child and Family Court, both sets of officers must be able to take a holistic approach and deal with all civil law child and related domestic aspects of a case. This may require more than one court appearance, with remands needed for investigation or preparation relevant to additional aspects which the court decides, mero motu (of its own accord), require resolution. In order to save on time and expense, the same adjudicator should, where possible, attend at subsequent hearings. This would be in accordance with the "One Judge One Family" approach as used in Hawaii.
Should it appear that a case is not appropriate for level one, then machinery must be built into the legislation to allow a quick and easy transfer to level two of the Court. Level two should also serve as an appeal or review facility from level one, and the High Court should serve as an appeal or review facility from level two, particularly in view of the support for this role which was expressed at the workshops held by the Project Committee.
7.2 Reception Component Given the scheme for dividing cases between different court tiers as proposed in this Chapter, a necessary component of a genuinely effective Child and Family Court will be a reception and screening officer to make decisions about which level of the Court a case should be referred to and also about whether additional investigation and \or a lay forum should be a necessary prerequisite to further resolution of the case. The reception officer could be named a Child and Family Protector. An introduction of this Officer is recommended as important since the current children’s courts have been severely hampered in their functioning since the withdrawal of children’s court assistants. It is submitted that the current description\terminology of, ‘children’s court assistant,’ does not accord afford sufficient recognition of work importance. Hence, a designation of ‘Child and Family Court Assistant’ is not recommended.
As per the Issue Paper responses, it is recommended that children have a legal right to be placed back before the court where they wish to raise an objection about some aspect of their placement (See Part 2.1, above). The Child and Family Protector, as a staff member attached to the Court, should be required to arrange this procedurally on behalf of any child who needs to reappear. (Further on the Child and Family Protector see Part 8.3, below).
The Court Protectors would provide an important function in deciding whether matters should be referred to a Level One or Level Two Court. This should be done before evidence is led in order to avoid unnecessary expenses and delays.
7.3 Case Jurisdiction In terms of the actual range of cases which should be dealt with by the proposed Child and Family Court, it is important to keep in mind that the Court will represent a gathering together of a broad range of legal, relevant extra-legal and communication skills which will render it capable of performing valuable services. Given this, it is necessary, from a cost-effective point of view, to get as much use from the Court as possible. It would therefore seem most appropriate to give the Court a wide jurisdiction as regards the range of cases with which it can deal.
Aside from cost-effectiveness, there is also the point that, if one goes forward on the basis of a holistic approach to child and familial problem- and dispute-solving (as has been discussed earlier in this Chapter as an important basic principle), then a wide category of dispute-jurisdiction is also indicated. It is therefore recommended that the Court deal with the full range of domestic/familial relationship cases, including divorce, domestic violence, maintenance, mental illness matters and all cases currently dealt with by the children's courts.
The Child and Family Court will not serve as a criminal court. More specifically, Child and Family courts will not serve as criminal courts for the purpose of trying children who have been charged with criminal offences. However, a juvenile criminal case may be converted to a Child and Family Court enquiry through diversion to the latter Court. If a matter is heard in a Sexual Offences Court, that Court should have the power to make a Care Order if the child is in need of alternative care. Thus, the matter should not necessarily have to be referred to a Child and Family Court for an order relating to the protection of the child. This is in order to reduce the problem of the child having to appear in or be assessed for more than one Court.
As has already been indicated, the broad approach recommended is a holistic, unitary one whereby each Child and Family Court can deal with all types of family matters. For example, if an application for a maintenance order has been made and the presiding officer comes to the conclusion that the child is also in need of care, he or she should have the power to make a care order without sending the child to another court where the matter will have to be heard afresh. So, even where the matter started off as a maintenance matter, the adjudicator should have the power to instigate a care enquiry and even make a child protection order. Similarly, an adjudicator dealing with a divorce matter must be empowered to make a domestic violence order or a child care order if it emerges that such remedies are necessary. Aside from a power to initiate enquiries or issue other orders besides those originally sought, adjudicating officers must have the power to instigate lay settlement techniques such as mediation or family group conferences if they conclude that such are appropriate (see further Part 6.3 above).
7.4 Procedures of the Child and Family Court It is recommended that it be expressly stated, as part of the procedures of the Child and Family Court, that the child has the right to be present and to participate at a court hearing (or to convey her views in chambers to the Adjudicating Officer), if she so wishes and is able. Amongst the procedural provisions in a new Children's Code must appear one which compels the presiding officer to ensure that the view of any child-party is heard if the child wishes to express a view. This must be facilitated and due weight given to the views and wishes of the child.
It will be remembered that it was recommended in Part 4 of this Chapter that, for best efficiency, the Child and Family Court needs to be able to shift between formal and informal phases as it deals with a case.
The need (also discussed above) for decision-makers with expertise or training in relevant non-legal disciplines would, it is submitted, help to produce a less formal environment in the Child and Family Court where this is procedurally appropriate. Conversely, the additional presence of a legally-trained judicial officer will give the Court the capability to shift into an adversarial or more formal mode if and where this is necessary to establish disputed facts or deal with points of law.
The usual procedure of the Child and Family Court should be informal and non-adversarial. This procedure should be maintained for parts of the case where there is no factual dispute between parties being traversed. Where a fact is placed in dispute, there can be cross-examination, if appropriate, in a 'trial-within-a-trial' situation. When the court has to deal with a dispute of fact it must convert the proceedings to a formal and adversarial mode with the condition that the child is not to be subjected to interrogation or intimidation which, given the age, personality and psychological state of the child, she or he is not able to sustain without serious harm. This will be a judgment-call for the Court, aided by any assessor and/or representative of the child.
The normal procedural mode will be informal, with the presiding officer having the power to declare a 'formal phase' whenever she or he deems it appropriate and, in particular, when it is necessary to settle a relevant dispute of fact. The decision when to start and terminate a 'formal phase' at a hearing will be that of the presiding officer based on whether there is a need, for example, for an adversarial phase, and also based on whether it will be in the best interests of a child or party to include or continue such a phase. Internationally, it has been found that it is sometimes necessary to use an adversarial type proceeding in order to get to the truth where there have been allegations of child abuse. In such cases, cross-examination may be necessary.
Whilst a child will have the right to remain present throughout the proceedings if she or he is a party, the Court must have the power to allow a child to leave the proceedings or be questioned through an intermediary system where the Court decides that this is in the best interests of the child (child-party or witness). It is submitted that the greater range of skills at the disposal of the proposed Child and Family Court (by comparison with existing courts) will place it in a better position to assess when or if a child needs to be present in Court.
Once a factual dispute has been traversed sufficiently to allow for the putting forward of all relevant evidence, the Court should have the power to move back to an informal mode of proceedings where this is appropriate. It is submitted that this is a less expensive and practical way to achieve what is achieved, for example, in the Scottish hearing system where (as mentioned above) factual disputes are shifted to a Court and then brought back to the Lay Panel for further pursuance of the case.
As regards the role of the adjudicating officer\s, it is recommended that the basic mode of functioning in the Child and Family Court be inquisitorial, as opposed to accusatorial. The proceedings in the Child and Family Courts will thus be sui generis with the presiding officer having the power to shift mode and, where necessary, declare the proceedings to be formal. Given the need for an inquisitorial role for the presiding officer, she/he must also have the power to call witnesses, or direct that there be further investigation where she/he feels that this is necessary for a proper resolution of the case.
In line with international trends in favour of less formal and technical proceedings in child and family matters, the presiding officer should have a discretion to accept hearsay evidence if she/he deems that this is appropriate. The Court must be permitted to take into account hearsay evidence, provided that this is in the best interests of justice and the child or other party. [Drafting note Mr Smit referred to S6 of the Divorce Act - more active role of presiding officer].
Children or other vulnerable persons must not be subjected to unnecessarily harsh cross-examination which is aimed primarily at confusing or intimidating them, as opposed to seeking legitimately to establish the truth in an appropriate manner. Presiding officers must have the power and discretion to halt cross-examination when it goes beyond the bounds of what is appropriate. This is another reason why considerable trust will have to be put in the judgement and discretion of presiding officers. The reason for including such a provision is that instances of very destructive cross-examination [secondary, systemic abuse] of abused children have been reported as occurring during court hearings.
It is recommended that the presiding officer be given the power to consult in private with a child or any party or other person who will be significantly affected by the order of the court [Juvenile Justice Bill has a similar provision]. If it appears to him/her to be in the interests of a proper resolution of the case, the presiding officer should be accorded the right to consult with a party or any other person in private before or during a matter.
The Court may, on occasion, need the power to remove a person from its proceedings - either temporarily or permanently. An example would be a situation where a child is suffering trauma at the proceedings. An abusive parent might be continuing with abuse during the proceedings - verbal abuse. Or a legal representative might be using inappropriately adversarial methods after being requested not to. Where a court uses this drastic power, it must justify having done so by putting down reasons in writing. The Court must have the power to conduct its proceedings in camera. However, limited numbers of persons other than the parties before the Court should have the right to attend proceedings of the court for purposes of training and bona fide research - this should override the confidentiality aspect. Permission must be obtained from the Court where any person wishes to publish\reveal the name\identity of any party\witness to proceedings in the Court. This applies where the publishing\revealing is to go beyond what is necessary in conducting a case or working on\investigating the case by involved professionals working in the best interests of a child or other party.
7.4.1 Prompt Services The emphasis in the Child and Family Court must be on prompt services, with a general presumption that delays will be prejudicial to children involved or affected. In particular, the Court should not be unduly delayed by awaiting other Court decisions, and should have the power to prevent legal representatives from unduly drawing out proceedings or postponing them without very good reason. In accordance with the Issue Paper responses provided by practitioners, it is not recommended that the Children's Code should contain numerous specific time deadlines. However, as recommended by respondents, the current S14(3) of the Child Care Act 74\1983, which allows for court remands only up to 14 days once a care inquiry has begun should appear in the Children’s Code specifically for such cases. There should also be a general presumption written in at the beginning of the Code that delays are presumed to be against the best interests of children. Legal representatives must not be permitted to delay proceedings based on reasons that have nothing to do with the merits of the case.
7.5 Clusters of Courts For convenience, it will still be permissible, at larger centres, to have clusters of courts where each court component is primarily geared for dealing with different types of child or family matter. However, as has already been indicated, a basic recommendation is that these courts all work holistically, in that they provide additional remedies when it becomes apparent that these are needed. Whilst cluster systems may be used for convenience at larger centres, there should no longer be separately operating networks of, for example, children's courts, divorce courts and maintenance courts. All should be subsumed under a single network of 'Child and Family courts'.
7.6 Court Levels
The Committee recommends that the Child and Family Court should consist of two levels. Firstly, there should be a level operating at district magisterial level and, secondly, a level operating at regional magisterial level. This suggestion is made in view of the importance of enhancing accessibility and affordability for the majority of our population. Personnel who staff both levels of the Court should undergo specialised training and may then be accorded a status different from that of staff who are only trained to serve in the ordinary magistrates' courts.
Both the Level One (District) Child and Family Courts and the Level Two (Regional) Child and Family Courts must have a court assistant named a ‘Child and Family Protector’. The Protectors may be drawn from another profession besides law, for example, social work. They will carry out important functions, inter alia, in deciding whether matters should be referred to a Level One or Level Two Court. This should be done before evidence is led in order to avoid unnecessary expenses and delays. [See further Parts 7.2 and 8.3]
As has already been suggested, when hearing cases, presiding officers at Level One and Level Two should have a discretion to appoint up to two additional adjudicators [Part 6.2, above].
Level Two of the Court should be required to deal with more complex matters. It thus requires presiding officers with greater experience and expertise. Again, to assist with the problem of accessibility, Level Two Courts should be able to exercise jurisdiction over matters that can be dealt with in a Level One Court. Given that cases will sometimes be complex in nature, a Level Two adjudicator should provide reasons where she/he decides not to appoint any co-adjudicator or assessor.
For reasons of accessibility, it is recommended that all emergency orders and urgent interdicts should be available from a Level One Court. The Level Two Court should deal with all contested cases, divorce cases where children are involved and cases with an international dimension, such as international adoptions or abductions. Cases of non-accidental abuse, including non-criminal aspects of sexual abuse [care/removal proceedings resulting] should be dealt with in a Level Two Court.
Artificial procreation cases should be dealt with in a Level Two Court.
Parental agreements could be registered or interpreted in a Level One Court, but if disputed, would be dealt with in a Level Two Court. The Committee recommends that an unmarried father should be eligible to apply to a Level One Court to obtain some/all parental responsibilities, but if the allocation of such responsibilities is disputed by any person, he will have to apply to a Level Two Court. Proof that paternity of a child is unknown may be provided in a Level One Court, but disputed paternity matters would have to be heard in a Level Two Court. If a Court directs that a family group conference should be held in a case of child abuse, it must provide reasons why it has so directed, since this will often not be an appropriate step.
Because of the problems of accessibility and expense, even matters with an international dimension should be removed from the jurisdiction of the High Court to the Level Two Child and Family Courts.
7.7 ACCESSIBILITY The parties will usually be children and parents (or other relatives) or spouses. However, domestic disputes or cases may sometimes involve other persons, such as members of an extended family, siblings or neighbours. The Court should not adopt a technically-restrictive approach in order to deny someone who has a substantial interest in the proceedings from presenting his or her case and, where appropriate, from being regarded as a party. Cases may occur where, for example, two or more sets of persons wish to apply to become adoptive parents of one particular child. As regards such applicants, a 'first-come, first-served,' approach may not be in the best interests of the child concerned, nor may it be fair to all concerned. A provision needs to be enacted to the effect that any person who wishes to assert the right to be a party should be permitted to appear before the Court in order to try to make out a case that she or he has an interest in the proceedings sufficiently substantial that she should receive the status of being a party. Nor should cases involving children be finalised until a reasonable opportunity has been provided for hearing any known person who has a substantial interest that may be relevant to the proceedings or relevant aspects of the child's welfare.
With accessibility being a major failing at the moment, the Committee recommends that any bona fide person be permitted to bring a case or potential case to the notice of the Court assistant named the Child and Family Protection Officer. The latter may, if necessary , instigate an investigation by a social worker, other professional or via the auspices of the nearest office of the Child and Family Advocate. Particularly where children or other vulnerable or incapable persons are involved, a wide range of persons including, for example, neighbours or social workers should be able to take a case to court with the assistance of the Protection Officer. [Mr Smit, See new Domestic Violence Legislation in this regard for analogous provision]. The Protection Officer and the Child and Family Advocate will play an important role in receiving information and screening applications. They need to have the necessary experience and knowledge to make a correct decision about whether a particular matter should first be referred to a social worker, the police or a lay agency before it is referred to the Court.
When a child has been or needs to be subjected to an emergency removal (see the present S12 & S13 of the Child Care Act 74\1983) the Protection Officer must see that the matter is dealt with as a matter of urgency. Matters involving children with disabilities may also need urgent attention. Part of the work of the Protector will be to consider whether any case requires a preliminary/or interim order.
8. HUMAN RESOURCE ASPECTS: STAFFING, TRAINING AND MOTIVATION 8.1 Selection and Training of Adjudicators As regards training, although all adjudicating officers should undergo the rounded and multi-disciplinary training or experience recommended and discussed above in Part 6 of this Chapter, this should, realistically, not be an essential requirement before a magistrate or other appointed person can exercise the functions of an adjudicator in the Child and Family court. This suggestion is made for reasons of practicality and because it will take time to achieve the overall training required. It is essential that children and families have access to courts down to district magisterial level in the meantime.
Because of the vital importance of court accessibility for children and/or families, all magistrates, even at district court level, should be ex officio empowered to sit in the Child and Family court. However, in order to provide additional motivation, salary and status implications should attach to a course of training which should be set up for Child and Family Court adjudicators. A classic example of a situation which requires special training of adjudicators is the so-called, 'child abuse accommodation syndrome'. It is well-documented that children find it difficult to disclose abuse and that they do not necessarily recall and retell abuse in a systematic and chronological fashion. A judge who has only legal training about the credibility of witnesses might tend to reject evidence of a child given in such a fashion unless she/he was aware of the effects of the child abuse accommodation syndrome.
As regards Care Orders, adjudicators should be trained in regard to the limitations and disadvantages inherent in any institutional ('residential') child care facility environment. They should be required to consider all possible alternatives before placing a child in a residential care facility.
8.2 Child and Family Advocates
It is submitted that it is unfortunate that Family Advocates are presently confined mainly to undertaking work in divorce cases where there are children. Other types of case arise where children may need skilled representation - for example, care proceedings arising out of abuse of a child. Also, confinement mainly to divorce tends to limit Family Advocates somewhat to working with a wealthier part of the population, namely, those who can afford court divorces. It is thus submitted that Family Advocates should become eligible to represent children in any type of case that comes before the Child and Family Courts. They should do so where requested by the Court, by a Child and Family Protector, and of their own initiative.
In order to encourage support for children, it is recommended that family advocates be renamed ‘Child and Family Advocates’. The Child and Family Advocates will have the function of representing children in the Child and Family Courts and in Child and Family Court matters taken on appeal or review to the High Court. They will not appear in every case. Rather, they will appear in cases where they are requested to do so either by a Child and Family Protector or by an adjudicator in the Child and Family Court or in the High Court. The ground that will be used by a relevant person in deciding whether to require such representation will be:
In any situation where it appears that the child would benefit substantially from legal representation either as regards the proceedings themselves or as regards achieving in the proceedings the best possible outcomes for the child.
In considering whether this ground applies, any views expressed by the child in regard to such representation must be taken into account.
If she\he considers it necessary in order to represent the child properly, the Child and Family Advocate can direct a family counsellor to investigate and prepare a report.
Where an adjudicator in a Child and Family Court or a High Court considers that any adult party should have legal representation at state expence via legal aid, an instruction to this effect will be directed to the nearest office of the Child and Family Advocate. The Child and Family Advocate may either undertake the representation or contract the representation out to a private lawyer who is currently on the Famiy-Law Roster [As to the Roster, see further Part 8.4, below].
8.3 The Child and Family Court Protector The Child and Family Court Protector is based upon the previous concept of the children’s court assistant, but functions are extended. The tasks of the Protector will be to assist the Child and Family Court generally in its functioning. In particular, it will be the duty of the Protector to screen all matters brought to the court:
A. To see if further investigation\preparation is necessary and, if so, to issue directions; and\or
B. Where the ground applies, to direct the local Child and Family Advocate to provide or arrange for child representation. Child representation in this context means representation of the a child\children who is\are parties or is\are likely to be substantially affected by the proceedings or outcome thereof.
The Child and Family Court Protector may represent a child in court in an urgent matter where there is not time to brief the Child and Family Advocate [Part 8.2 above]. Where necessary, the Protector may help one or both unrepresented parties with the preparation and presentation of their evidence. [On the reception duties of the Child and Family Protection Officer, see Part 7.2 of this Chapter, above.]
Child and Family Court Protectors must be recognised as court staff and, as such, their salaries must be paid by the Department of Justice. A dual-Departmental control structure will be damaging to the efficiency of the functioning of the Child and Family Courts and will thus be detrimental to the many children and families who need their services.
In order to allow for as many cases as possible to be dealt with, and for cases to be dealt with as appropriately as possible, the Child and Family Protectors should also have the capability and jurisdiction to hold a pre-trial conference and/or to attempt mediation where this appears to be an appropriate initial step. This would simply be part of the broad range of capabilities envisaged for the new Child and Family Courts.
Acting on his\her own initiative or when instructed by an adjudicator of the Child and Family Court, the Protector may set up a family group conference, record the outcome thereof, and convey this to the Court. Details of the conference will be kept on file as part of the Court’s records. A member\s of the family may be required to pay the costs of the family group conference or, within the confines of the available court budget, some or all of the costs may be borne by the state.
8.4 Legal Aid Representation of Parties A party to proceedings will, of course, be at liberty to hire a legal representative of his or her choice.
In order to avoid wasting precious State financial resources only the following should be eligible to represent children at State expense:
1. Child and Family Court Protectors in Urgent Cases
2. Child and Family Advocates
3. Lawyers on the Family-Law Roster
Family Advocates are generally overloaded with cases at present. By opening their work to cover the generality of child representation in all types of domestic\child law cases, they may sometimes be extended beyond their capabilities in terms of staff availability. For this reason, it is recommended the the Senior Child and Family Advocate at each office be empowered to contract work out to private lawyers on the Family-Law Roster. This will have the added advantage of extending the possibilities of child representation, for example, to rural districts not presently served by family advocates [note also adult party representation as discussed above in Part 8.2].
The requirements for being listed on the Family Law Roster may be appropriately consigned to the regulations of the Children's Code. The idea is to confine the Roster to lawyers who have appropriate interpersonal skills and experience for family law work. Specialised courses of training and/or an accredited 100 hours of court work or observation in courts doing family or child care work would qualify a lawyer for a placement on the Roster. The purpose underlying the Roster is to ensure that only lawyers with appropriate personal orientation and skills and knowledge be the recipients of precious State-funding for appearances in the Child and Family Court. Research has shown that where appropriate lawyers are not available for children’s court work in particular, it is better to have no lawyer at all.
Provision must be made for the removal of lawyers from the Roster where it becomes apparent that they are not appropriate for work in the Child and Family Courts. Failure to do this will result in wastage of state financial resources and considerable disadvantage to vulnerable members of the public who appear in the courts. It is therefore recommended that three separate notations by three different court adjudicators in three separate cases should result in a lawyer being removed from the Roster for 3 years. A lawyer should be entitled to challenge whether his\her removal was well-grounded in the High Court. Lawyers not on the Roster will continue to appear when they are appointed privately by clients. Their removal will thus only apply to legal-aid cases.
When it comes to State subsidisation of representation of parties in the Child and Family Courts, a distinction must be drawn between straight-forward matters and more complex or disputed matters. In order to save costs, only the latter should normally be considered appropriate for legal-aid.
Given children's interest in a speedy resolution of cases, the State subsidy system for Roster lawyers should be structured in such a way as to discourage legal representatives from unnecessarily dragging out and adjourning Court sessions. Legal representatives for children will need to be trained to present the hopes and wishes of the child-client (genuine child advocacy), as opposed to merely conveying to a Court what certain adult persons feel is best for the child.
As has been indicated earlier in Part 8.2, the question of legal representation at State expence for indigent adult parties also needs to be addressed. It is submitted that an appropriate provision would be to allow adult parties to apply to either the Child and Family Advocates' office or to the adjudicator of the court to make out a case that there are reasonable grounds to consider that substantial injustice might result. On this limited basis, it is recommended that legal-aid be available to adult parties. 8.5 Career Path and Motivation of Personnel It is most important to be able to retain in the Child and Family Court system and develop a sufficient quota of professional persons who are child- and family-oriented, motivated and skilled. It is recommended that a career path be opened up. Persons could begin as Child and Family Protectors and then become eligible to serve as Child and Family Advocates. The next step up the ladder would be service as a Level One Child and Family Court adjudicator. A level Two Child and Family Court adjudicator would be the next step. From there, the adjudicator should become eligible for promotion to the specialised family division of the High Court.
Private lawyers in good standing on the Family Law Roster should, by completion of set numbers of cases involving appearance in court, become eligible to apply for appointments on the career path. Legal aid, private representation or pro amico cases (to be encouraged as a community service) should all count. The amount of experience required could be discussed with bodies representing advocates and attorneys.
By creating such prospects, it should become more possible to attract high-calibre personnel to our Child and Family Courts. This, in turn, should make these Courts more cost-effective in that more appropriate decisions will be given and a higher caseload accommodated.
The low status accorded to children's courts and the lack of a viable career path within the children's court structure were identified as problems by the Department of Justice in 1996. When magistrates and other persons work in the relevant capacity, they should be referred to as Level One or Level Two (respectively) Child and Family Court adjudicators.
As has been noted in Part 7.2, the current title of 'Children's Court Assistant,' implies a low status for these functionaries - that they do no more than 'assist'. It is suggested that a better title for those who will work in a similar capacity in the Child and Family Courts in the future should be the 'Child and Family Protector'.
The career path could be :
Child and Family Court Protector: Level One Court;
Child and Family Protector : Level Two Court;
Child and Family Advocate
Child and Family Court Adjudicator : Level One Court;
Child and Family Court Adjudicator: Level Two Court;
High Court Judge : Child and Family Division.
It is submitted that this should provide a career path sufficiently attractive to encourage quality personnel to move into the work of child and family adjudication.
As has already been recommended, for purely practical reasons and in order to have a system available immediately, those who are currently magistrates should be eligible to serve as Level One (District Magistrate) adjudicators and Level Two (Regional Court Magistrate) at present. However, in order to encourage the multi-disciplinary training which has been recommended for these positions, it is suggested that additional status and/or pay should be linked to completion of requisite training that will enable adjudicators to appreciate and to some extent provide multi-disciplinary assessments of children's and other family members' developmental and therapeutic needs.
The career path should be opened to other persons besides those who have traditionally become magistrates. For example, social workers who have had court experience or academics who have taught family law should also be considered for such positions. Completion of University Law School courses in the Law of Evidence, Family Law and the Law of Civil Procedure could make up for an absence of a law degree and enable professionals from other disciplines or persons with substantial appropriate work experience with children to enter the Court career path. This less restrictive approach will have the added advantage of helping us to work more quickly towards a staff of court adjudicators which better represents the demographics of our population.
It is submitted that a broad-based, rather than narrowly-technical approach will be more likely to secure applicants who are genuinely child and family oriented and capable in this specialist field. As has been recommended elsewhere in this Chapter, there needs to be full acceptance of the principle that child and family adjudication requires inter-disciplinary skills and appropriate inter-personal skills, as opposed to merely legal skills alone.
9. APPEALS, REVIEWS AND THE ROLE OF THE HIGH COURT With respect to matters heard at Level One, Level Two Courts should serve as courts of appeal or review. Until the Child and Family Court network is functioning, the High Court should retain its present jurisdiction. However, once the Child and Family Court network is operational, it is recommended that the High Court should not ordinarily have concurrent jurisdiction with Child and Family Courts. The High Court should ordinarily serve only as a Court of Appeal or Review, with matters being taken up from the Level Two Courts to the High Courts. The particular concern in mind here is to reduce costs and to prevent rich applicants from having an unfair advantage because they can take matters directly to the High Court as a Court of first instance.
It is recommended that the High Court should not serve as a court a quo except in rare instances where this is specifically requested by a Level Two Court. It will also hear appeals and reviews from the Child and Family Court Level Two. Within the High Court itself, a specialist division should be created to hear reviews, appeals and occasional direct referrals from the Child and Family Court. Whilst the High Court will usually hear only argument from legal representatives in appeals\reviews, it is recommended that it be accorded the discretion to call for any or all parties or witnesses to give additional direct evidence where it considers, prima facie, that this is likely to be in the best interests of a child.
Over the years, relatively few children have been able to approach the High Court as parties to request them to assist them in its capacity as 'upper guardian of all minors'. As a Court of first instance, the High Court has not been able to be of general assistance to many poor and underprivileged children. In order to create a Court system wherein appropriate skills and orientation are more focused downwards to be accessible to vulnerable groups of children, it is recommended that the High Court should cease to be a Court of first instance in matters involving children except where requested by a Level Two Court. The under-resourced children's courts, on a regular basis, currently have to make decisions which radically
affect the status and even the degree of liberty enjoyed by children.
Whilst it is considered preferable to limit the instances in which the High Court will act as a court of first instance in child and family matters, it is recommended that it should continue to do so in those cases where a Level Two Court is able to provide reasons why it does not feel itself qualified to deal with a particularly complex matter and the High Court to which the matter is sent accepts those reasons as sufficient. The High Court would continue to serve as ‘the upper guardian of all minors,’ but this would now be interpreted differently so that the ‘upper’ aspect means that a matter will first be put before a Child and Family Court before reaching a High Court.
10. ORDERS OF THE CHILD AND FAMILY COURTS 10.1 Scope of Work A Family Court Pilot Project is underway in South Africa. Mr D Rothman, Director of the Family Court Centre, Durban, proposed a list of areas of work in his written response to the Questionnaire on Courts. In order to stay in line with the Family Court Pilot Project, particular attention was give to Mr Rothman’s proposed framework. Although the list below is extended and altered, Mr Rothman’s contribution at this point is appreciatively acknowledged. It is recommended that the following areas of work should fall within the jurisdiction of a proposed new Child and Family Court system:
a. Nasciturus, child-birth, conception of children,
Surrogate Motherhood.
Education and Health\Medical Rights of Children.
Abortion, Sterilization.
Name and Nationality Rights of Children.
Divorce (Child aspects fall under mandate of Children’s Code Project Team)
Parental Responsibilities (Current terminology: Guardianship, Custody, Access)
Domestic Violence (Child aspects fall under mandate of Children’s Code Project Team)
Consent to Marry (Child aspects fall under mandate of Children’s Code Project Team)
Passports for Minors
Child Abuse
Child Neglect
Termination of Parental Rights
Foster Care Placements/Disputes
Residential Care Supervision
Adoption
Family Treatment
Persons in need of supervision (Child-related aspects fall under mandate of Children’s Code Project Team)
Referrals to rehabilitation (drug or alcohol abuse aspects covered) (Child-related aspects fall under mandate of Children’s Code Project Team)
Assessments (Child-related aspects fall under mandate of Children’s Code Project Team)
b. Financial Aspects:
Child Maintenance/Support/Grants
Spousal Support/Grants (Not under Project Team Mandate)
Other Grants (Under Mandate where children are recipients –includes temporary emergency grants from Court budget)
Paternity Testing
Foreign Maintenance
Contribution Orders
Other Cases Requiring Financial Expertise: eg. Spousal disputes in regard to division of matrimonial property/assets or spousal disputes in regard to pensions (Not under Project Team Mandate except
insofar as a child might have a substantial interest in the outcome).
c) Residual Jurisdiction for the Child and Family Court:
Generally, in any other case where the best interests of a child so require and no other court has exclusive jurisdiction, a case can be brought before the Child and Family Court under its residual capacity as ‘Protector of all Children’.
In regard to all of the above, emergency or interim court relief\remedies should be available. Also the court may monitor or review any orders made in regard to the above and the court may issue a timeframe in this regard. Insofar as the allocation of cases between the two tiers of the Child and Family Court is concerned, interim orders and uncontested matters should be dealt with at the first tier level. It is recommended that disputed cases must go to the second tier.
The Child and Family Court should divide between its first and second level all the work listed above. This will include currently undertaken by children's courts, divorce courts, courts in family court pilot projects, family law cases presently undertaken by the High Court, domestic violence work, work of the maintenance courts, state domestic/child grant disputes and cases involving disabled or impaired persons.
From the point of view of improving accessibility to the majority of the population and reducing the expense of court appearances, the Child and Family Court should become the ‘protector of all children’ whilst the High Court will remain the 'upper guardian of all minors' [Discussed in Part 9].
10.2 Ordering a Lay Forum The Child and Family Court will have the power to instigate mediation and/or family group conferencing if and when required. [See further Part 6.3.1
10.3 Child Care Orders: The current S15(1)(a) of the Child Care Act 74 of 1983 can be simplified in wording. The Court should have the power to order a child to be returned to or remain in the custody of the parent/s. It may place the child in the custody of any other person designated by the Court. The order must be changed to allow for the possibility of a return date when the matter must be brought back to the Court for monitoring purposes. The Court needs the power to allocate any or all parental and/or guardianship responsibilities. These may need to be divided out between the person designated to have custody of the child and other persons. The Court may place any/all caregivers under the supervision of another person such as a social worker, and may impose any condition or any other requirements the Court deems appropriate. Indicative terminology as proposed in Kenya is recommended: in terms of a supervision order, a child may be permitted by the Court to remain in the care of a person/s; but that care will henceforth be exercised under the supervision of a social worker or other suitable person designated by the Court.
The Court should not be compelled to require supervision as it sometimes is under the Child Care Act.
Placement with a suitable foster parent as is presently possible under S15(1)(b) should continue to be an option. But the Court should have the power to allocate any/all parental responsibilities to the foster parent during the period of foster care. Another question is whether all foster care placements should continue to be 'under the supervision of a social worker'?
As regards S15(1)(c)-(d), the Child and Family Court should have the power to send a child to any available category of residential child care facility which it deems appropriate for the child concerned. Again, the Court should have the power to allocate any/all parental responsibilities with regard to the child to the person in charge of the designated child care facility if this is deemed appropriate. As regards S15(3), it should continue to be possible for a child to be kept in a place of safety where necessary and appropriate, pending implementation of an Order of the Court. As regards S15(5), it should not be permissible for the Court's order to be administratively altered. If it is not possible for officials within the Department of Welfare and Population Development to implement an Order of the Child and Family Court, they should be obliged to bring the matter back to the Court for reconsideration. [See Part 10.6 ?]
10.4 Additional Orders
Release\Return: The Court should have the power to order that a child be released from or returned to the custody of any person. This provision is designed to deal with wrongful holding of children - including children not designated as being in need of alternative care. Parental Responsibilities: The Court should have the power to order a person to sign an undertaking with or without sureties to exercise certain parental responsibilities. Counselling: The Court should be accorded the power to order a person to seek the assistance of a professional counsellor. The Court may need to designate State funding for this purpose. The Assessment: Court should be accorded the power to order a child or other person to undergo a professional assessment considered by the Court to be appropriate in the best interests of a child or in the proper resolution of a problem or case. Again, the Court should have the discretion to provide for State funds for this if the person involved cannot afford to pay for the assessment. Emergency Maintenance: The Court should also be provided with a limited budget from which it may order the payment of short-term maintenance on behalf of a child in urgent need. An example of such a case is where a Court, having heard the evidence, comes to a conclusion that a grant would prevent the removal of a child into (much more expensive) alternative State care. Another case might be where a child with special needs is in dire need of maintenance of some kind. Again, the maintenance could be made on a temporary basis until some other form of financial grant can be accessed. Personal accountability order: Because of the extreme vulnerability of children, it is sometimes necessary to make other individuals accountable for their actions against children or failure to take action. The personal accountability order should give the Court the power to order to appear before it any particular individual who may have failed in his/her obligations towards a particular child. These obligations may have arisen contractually, because of consanguinity or a relationship with child, or simply ex officio because of a position which a person occupies. They may have also arisen from a professional obligation or profession occupied by the person. The obliged person will be required to appear before the Court and to show good reason as to why she/he failed to perform or acted wrongly. The Court, at its hearing, will consider whether there has been a failure to provide a service delivery or action to which the child was entitled. If it finds that there has been a failure on a balance of probabilities, the Court may fine the person concerned and take such other steps as it considers appropriate. Service Injunction: This is relevant where it appears to the Court that an official or Government authority has failed to sufficiently assist a family or person in getting access to services to which they are legally entitled. The Court may order such officials/authority to provide the assistance and/or service by a date set by the Court. Should the official/authority not oblige by due date, the Court will have the power to call the official or a representative of an authority before it to explain the failure. Should the Court find that an official has negligently or otherwise wrongfully failed in his/her duties, the Court may issue an appropriate fine. The Court may also\alternatively require the official to pay damages\costs to the person disadvantaged. The Court may order an official to pay from his\her private funds\through a garnishee order, or require the relevant Department\Provincial\Local or other authority to pay a fine and\or damages\compensation. Alternative Remedies Order: The Court can at any stage before or after it issues an order require a parent, guardian, care-giver, child or young person to undergo counselling, mediation or a family group conference. Child Protection Register Order: The Child and Family Court ought also to be able to reach a determination, on a balance of probabilities, that a person should not be permitted to undertake employment or voluntary services which involve him\her in activities with children. An aggrieved person will have the right to appeal against this determination. A Child and Family Court which reaches such a determination shall send the personal particulars of the person to be recorded on a national Child Protection Register. Any person who applies for employment which involves contact with children may be required by the prospective employer to furnish a certificate from any Child and Family Protection Officer that she\he is not listed on the the register. Failure to supply such a certificate when requested to do so may be treated by the prospective employer as a negative factor when considering the prospective employee [a similar system is used in the Netherlands]. Damages\Compensation Order: Amongst the new powers which must be accorded to a Child and Family Court is the power to award damages (like a regular Civil Court) which have arisen out of a case heard by it. For example, where a child has been raped, it should not be necessary for that child to have to be taken before another Court for damages to be obtained from the perpetrator. Further, it should even be possible for the parent of the child, or a witness or other person, to claim damages. For example, damages might be claimed for crimen iniuria by a third person who was compelled to witness abuse of the child. This adds support to the suggestion that the right to become a party to proceedings in the Child and Family Court should not be overly circumscribed by a barrier of technical requirements.
Openness to multi-party involvement is supported by this factor. Again, the aim of the suggestion is to encourage reparations to victims and not to force them to go to another court, namely, a civil court, in order to obtain such reparations Perpetrator Orders: Although the Child and Family Court is not a Criminal Court, it should have extensive powers in respect of, for example, a person whom it finds (on a balance of probabilities) to have perpetrated child abuse, or domestic violence. It will need the power, on appropriate occasions, to order the offender to leave the home where the child lives, to order the offender to contribute to an abused child's or other person's treatment, or to provide maintenance.
Orders made in respect of persons found to be offenders should not provide immunity for such offenders with regard to a possible criminal court prosecution. However, the prosecution should be required to consider any representations made by a Child and Family Court assistant if these are to the effect that the offender [perhaps conditionally or temporarily] not be subjected to prosecution. Such representations must only be made where (from the evidence obtained by the Child and Family Court) the best interests of a child will not be served by an immediate prosecution of the offender.
10.5 Monitoring and Variation of Orders Where it deems this to be appropriate, the Child and Family Court must be accorded a monitoring power. What is meant here is a power to do a follow-up on a case which it heard earlier. The Child and Family Court may, when making its original order, instruct that a party/ies, for example, a child, be required to reappear before the Court at a date set in the future. The Court should be encouraged to use this power where it is placing a child in residential care or where it is, for any reason, concerned to monitor the future progress of the child or an adult party. From its budget, the Court may decide to pay travel and accomodation costs necessarily required.
Under the Child Care Act in its present form, many of the Orders of the Children's Courts can be administratively altered or terminated. Orders of the Child and Family Court must be accorded proper, binding status in that it should only be possible to change, reverse or terminate them by going back to the Court which issued the Order, or by a process of review or appeal in a higher Court. One exception to this which is recommended is Care Orders which have resulted in a child being placed in a residential care facility. Where officials designated by the Minister of Social Development decide to change such an Order, this should be permissible without returning to the Court which gave the Order for permission, but only provided that the intention is not to move the child deeper into the care system. In other words, it should be permissible where the child will not be moved into a more restrictive or controlled environment -the child would not be facing increased restrictions upon his/her liberty as compared with what was laid down in the Court Order. In order to move a child into an environment where she/he will face greater restrictions upon his/her liberty, it must be necessary to go back to the Child and Family Court with grounds.
As far as requesting the Child and Family Court to change an Order goes, any person should be entitled to make such an application and be permitted to attempt to show that good reasons exist for the requested change. For example, a person might be permitted to show that an Order is no longer in the best interests of a child who was the subject of the Order. It is recommended that technical procedures should not be set up which limit persons who can approach the Child and Family Court. Even persons who were not originally parties to the Order should be permitted to approach the Court. Frivolous applications or ill-motivated applications to interfere with Orders of the Court can be dealt with by the Court making an appropriate Order as to costs or in extreme cases, issuing a fine and ordering that no branch of the Child and Family Court will entertain repetitions of the application.
It is recommended that the Child and Family Court have the power to monitor and\or vary any of its orders and to set times at which a party/ies including the child may have to reappear before the court. (See Collation 102-104). It is also recommended that the Ministerial powers to alter child placements as ordered by a court be terminated and the court substituted as the authority for this work [see responses considered in Part 2, above].
10.6 Duration of Orders As regards duration of orders, (S(16) of the Child Care Act 74 of 1983) the Court should have the power to indicate the duration of its order without a two-year limit. It is submitted that this will be necessary because many different kinds of orders will be issued by the Court.
11 EVIDENCE Information which emerges at a criminal trial may be used at a Child and Family Court hearing. Information which emerges at a Child and Family Court hearing can only be used at a different court hearing if it will not be to the disadvantage or against the best interests of a child who was the subject of the original Child and Family Court hearing. In order to use such information, the permission of the Court which obtained that information would have to be obtained in writing.
It is submitted that, once any other Court has reached an evidential determination - whether it be on the, "beyond reasonable doubt" or merely upon the, "balance of probabilities," evidential test, the Child and Family Court should be able to use such a determination without requiring the same evidence to be produced again before it. The Child and Family Court should have the right, however, to add to the record received from the Criminal or any other Court by obtaining additional evidence if it sees fit.
By allowing the Child and Family Court to use evidence obtained from other Courts, one reduces the need for the child-victim to go through the traumatic process of rehearsing evidence again for a second time.
The Child and Family Court requires the power and capabilityto order that the evidence of a child be taken via and intermediary. Where intermediaries are used to take evidence from a child, we require a rule of law which forbids the putting of any 'scandalous or insulting question' via the intermediary, to the child. [Obtain from C Kimble - Law Commission - The New South Wales authority in this regard].
12 COURT BUDGET\POWER TO ORDER PAYMENTS A number of the capabilities recommended in this Chapter involve the Court ordering limited payments. It is therefore submitted that the Court should have appropriate power to order such payments from a special budget, subject to availability of funds in that budget.
As can be seen in the Chapter, the idea behind the proposed Court budget would be to apply it to cases where limited, short-term or one-off funding, as ordered by the Court, is urgently required and\or could save the State much more expenditure in the long-term. The instances recommended as thus those of a cost-saving kind. The aim would also be to meet the best interests of children in dire circumstances and where other resources have, for whatever reason, not been accessed or have not sufficed.
The Court’s power to impose fines could be used to bring funds into the budget.