FAMILY LAW CONFERENCE THEME: FAMILY LAW FRONTIERS 17 TH -19 TH MARCH 2010 CAPE TOWN

1. FAMILY LAW CONFERENCE THEME: FAMILY LAW FRONTIERS 17TH -19TH MARCH 2010CAPE TOWN THE FAMILY ADVOCATE’S PLAN TOWARDS IMPLEMENTING THE CHILDREN’S ACT AND THE CHILD ABDUCTION HAGUE CONVENTION PRESENTER : P.I. SEABICHIEF FAMILY ADVOCATE DEPARTMENT OF JUSTICE & CONSTITUTIONAL DEVELOPMENT

2. INTRODUCTION CHILD PROTECTION INTERNATIONAL INSTRUMENTS RATIFIED / ACCEEDED TO BY SOUTH AFRICA. • The UNCRC on 16 June 1995. • The ACRWC on 7 January 2000. • The Hague Convention of the Civil Aspects of International Child Abduction [1980] on 8 July 1997. • The Hague Convention on the Protection of Children and Co-Operation in Respect of Inter –Country Adoption [1993] during 2003.

3. CHILD PROTECTION INTERNATIONAL INSTRUMENTS RATIFIED / ACCEEDED TO BY SOUTH AFRICA. • Currently being considered: The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children [October 1996]. • The 1996 Hague Convention will alleviate a number of problems in implementing other child protection instruments, including the prevention of human trafficking Bill that is currently in the legislative process.

4. THE INTERNATIONAL CHILD ABDUCTION CONVENTION: OBJECTIVE: • To afford paramount importance to the interests of the child in the matters relating to their custody, therefore, consistent with section 28(2) of S.A. Constitution Act; • To protect children internationally from, the harmful effects of their wrongful removal / retention; • To ensure the prompt return of children to the State of their habitual residence; and

5. THE INTERNATIONAL CHILD ABDUCTION CONVENTION: • To secure protection of rights of access. • The Convention also provides for an efficient method of cross–frontier child protection; and • Provides for amicable dispute resolution between parents in both abduction / unlawful retention and contact /access cases.

6. IMPLEMENTATION BY THE FAMILY ADVOCATE • TheChief Family Advocate is the designated Central Authority for South Africa in terms of section 3 of the enabling Act . • The Central Authority is empowered by section 4 of that Act to delegate powers and duties to other Family Advocates • In terms of the Family Advocate mandate (emanating from local legislation), the core function of the component is to promote and protect the best interests of the child, and to provide Mediation Services in accordance with relevant legislation. • The mandate consequently resonates with the objects of Hague Convention.

7. THE FUNCTION AND DUTIES OF THE CENTRAL AUTHORITY ARE SET OUT IN ARTICLE 7 OF THE CONVENTION AND INCLUDE: • Discovering the whereabouts of the child; • Preventing further harm to the child / further prejudice to interested parties; • Securing voluntary return of the child or to bring about an amicable resolution of the issue; • Exchanging where desirable, information relating to the social background of the child; [Continue…..

8. THE FUNCTION AND DUTIES OF THE CENTRAL AUTHORITY ARE SET OUT IN ARTICLE 7 OF THE CONVENTION AND INCLUDE: • Providing information, where desirable, on the law of S.A. in connection with the application ; • Initiating or facilitating the institution of judicial proceedings; • Providing such administrative arrangements as may be necessary and appropriate to secure the return of the child. • Keeping each other informed with respect to the operation of this Convention and as far as possible, eliminate any obstacles to its application.

9. PRACTICAL EXECUTION OF DUTIES • Tracing The Family Advocate taps into various resources within government –the maintenance investigators, the police including Interpol, and private investigators where the aforegoing are not available. • Preventing further harm Urgent applications to obtain child’s and often the abducting parent’s travel documents brought with the State Attorney . The F.A. is a litigant in applications. Removal of the child into safe/ alternative care pending application –Family Counsellors / Social workers and other authorities empowered to issue form 4 (removal) in terms of the (soon to be repealed) Child’s Care Act .

10. EXECUTION OF DUTIES • Voluntary return mediation services by Family Advocate or external mediators as and when circumstances require. Considering recent developments in Hague Cases more emphasis on mediation is required. e.g. S.A. expats requesting return of their children to their newly established homes in foreign countries.

11. EXECUTION Exchanging social background • The Family Advocate has partnered with International Social Service unit in the Department of Social Development to arrange / avail such reports; Family Counsellors. Applicable S. A. Law The Family Advocate compiles the statements including relevant case law, statutes, etc Administrative arrangements Various resources. Dept. International Relations & Co-operation for travel arrangements; Dept of Social Development’s escort services where the child travels unaccompanied; supervision of exchange at departure airport done by the Family Advocate and Family Counsellors.

12. HAGUE STATISCS

13. STATISTICS

14. THE CHILDREN’S ACT:NEW PROVISIONS • Mediation of disputes between parents of children born out of wedlock • Parental rights and responsibilities [PRR] • Parenting plans [P.P] • Registration, Amendment, Rescission of P.R.R Agreements • Lay Forums • Family Group Conferencing • Children’s Courts • Related Litigation matters • Underpinned by the Guidelines and Principles in sec 6 subs (4) and (5) of the Act- CONCILIATION & AVOIDANCE OF DELAYS

15. The composition of Family Advocates in the country: There is a total of sixteen (16) Family Advocates service delivery points nationally. The provincial breakdown is as follows: PROVINCE ESTABLISHMENT PROFESSIONAL STAFF TOTAL 1 3 9 1 12

16. PROVINCE ESTABLISHMENT PROFESSIONAL STAFF

17. Cornerstone costing IP Low: Personnel required

18. IMPLEMENTATION PLANS • INDENTIFIED MAJOR COST DRIVERS IN IMPLEMENTATION: • HR/Staffing • Training at all personnel levels- by Justice College and service providers outside government • Accommodation with child friendly facilities • Systems and Processes – monitoring currently through manual reports, statistics kept manually in the main. • Research capacity • Monitoring and Evaluation • Knowledge Managent • Public Education /Awareness Raising Campaigns, esp in disadvantaged communities

19. IMPLEMENTATION PLANS • SUPPORTED BY: • Policy Guidelines • Aligned Strategic Framework- Emphasis on Access to Justice • Sound Communication strategy • Operational policies • Uniform performance standards nationally

20. ENE BudgetFamily AdvocateR million

21. WAYFORWARD • Combating under resourcement – Outsource and/or contract in specific functions ; re-engineer business processes; • Utilize the tendering system for specific specialization; • Entering into Strategic Partnerships with the NGO Sector • Policy development for effective implementation- including mediation, accreditation of service providers, giving effect to sec 6 guidelines and principles • Develop S.A. models of mediation, jurisprudence on P.R.R.

22. WAYFORWARD • Development of uniform operational standards- project already at advanced stage; • Gathering of reliable statistical information that will inform future bids for resources, esp. ENE adjustment; • Development of The Integrated Case Management System is underway [ICMS]

23. THANK YOU