SOUTH AFRICAN POLICE SERVICE

LEGAL SERVICES : LEGISLATION

2005-8-29

To: The Chairperson: Children's Bill Joint Steering Committee

Dear Dr Mabetoa,

 

PROPOSED AMENDMENT TO THE CHILDREN'S BILL (B70B-2003) WHICH WAS

ADOPTED BY THE SOCIAL DEVELOPMENT PORTFOLIO COMMITTEE ON 14 JUNE

2005

The Children's Bill (B70B-2003), which was adopted by the National Assembly during June 2005, refers.

During the process which preceded the adoption of the Bill, the South African Police Service submitted comments with regard to Schedule 4 of the Bill. This Schedule provides that section 1 of the General Law Further Amendment Act, 1962 (Act No. 93 of 1962) (hereinafter referred to as "the General Law F In its comments, the Police Service requested that the said section should be incorporated in the Children's Bill. It would appear that the Bill, as adopted by the National Assembly, still provides for the repeal thereof.

Section 1 of the General Law Further Amendment Act, 1962, reads as follows:

Failure to comply with order of court relating to access to children or to notify change of address of parent having custody of child.

(1) Any parent having custody, whether sole custody or not, of his or her minor Child in terms of an order of court who contrary to such order and without reasonable cause refuses the child's other parent access to such child or prevents such other parent from having such access, shall be guilty of an offence and liable on conviction to 8 fine or to Imprisonment for a period not exceeding one year or to such imprisonment with Out the option of a fine.

(2) Any parent having custody whether Sole custody or not, of his or her minor child in terms of court whereby the other parent is entitled to access to such child shall upon any change in his or residential address forthwith in writing notify such other parent of such change.

(3) Any person who fails to comply with the provision of subsection (2) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding three months,"

The effect of the amendment is as follows: If a parent has custody of his or her minor child in terms of a court order, such a parent must allow the other parent access to the child in accordance with the court order and must, in writing, inform the other parent if he or she has moved and therefore changed his or her residential address. A failure to do either constitutes an offence in terms of the section.

Members of the Service are normally confronted with this problem if approached by a parent who alleges that he or she is divorced and presents a copy of the order issued by the divorce court in terms of which he or she is entitled to have access to his or her child or children who are in the custody of the other parent and further alleges that the other parent refuses or prevents him or her to have access to the child or children or failed to inform him or her in writing of a change in that parent's residential address. The section is however not limited to parents who are divorced. Any court order that grants custody of a child to one parent of the child and allows access to the child by the other parent, is also covered by the section.

The South African Police Service is of the opinion that the said section should not be repealed. Experience has shown that especially divorced parents that have custody of their children in terms of a court order, often attempt to prevent the other parent from gaining access to the children as provided for in the court order. This is either done by failing to inform the other parent of a change of address or simply, refusing the other parent access to the children. This normally results in the parent who is prevented from having access to the children becoming extremely agitated and emotional. about. the conduct of the other parent and has often resulted in such parent physically attacking the person or property of the parent that prevents access to the children. As already mentioned above, failing to inform the. non-custodian parent. of a Change of address. refusing the non-custodian parent access to the children in accordance with the divorce court order, presently constitutes an offence in terms of section 1 of the General Law Further Amendment Act, 1962. A non-custodian parent is therefore entitled In those circumstances to approach the Police and lay a complaint against the parent having custody of the child or children. The existence of the said section enables the Police to calm the complainant down and assure him or her that such conduct constitutes a criminal offence. and that the offending parent will. have to answer to a criminal court for his or he r conduct.' This normally has he desired effect of preventing the non -custodian parent from taking the law into. his or her own hands and enforce the court order himself or herself.

According to statistics gathered, 10.786 complaints have been received by the Service. with regard to the contravention of section 1 of the General Law Further Amendment Act, 1962, for the period 2000 until 2005. As one can gather from these statistics, the Police Service receives numerous complaints of this nature.

By repealing the said section, the Police Service will no longer be in a position to deal with the matter as set out above but will have to take the tedious road of trying to register a complaint of contempt of court which is unlikely to result in a criminal conviction because of all the legal technicalities involved in a case of this nature.

Cognizance has been taken of the fact that section 298(1)(q) of the Bill creates an offence in those circumstances in which a court order is issued in terms of this Bill and is contravened. This does however not address the issue alluded to above. The said section only refers to court orders issued in terms of this Bill and can therefore not apply to court orders issued prior to the commencement of this Bill or to parental rights agreements only registered with the Family Advocate and which have not been made an order of court.

The South African Police Service therefore strongly urge the Select Committee on Social

Services (NCOP) to consider to remove the reference to section 1 of the General Law

Further Amendment Act, 1962, from the list of repealed legislation contained. in Schedule

4 of the Bill.

Kind regards

 

ASST COMM

HEAD:LEGAL SERVICES: LEGISLATION

T GELDENHUYS