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Everything you need to know about the role and responsibilities of a Family Advocate


Consulting a Family Advocate

The Family Advocate renders legal and family mediation services. The purpose of the Family Advocate is to promote and protect the best interests of minor/dependent children in legal parental responsibilities and rights disputes.

The professional component of the Office of the Family Advocate comprises of lawyers (Family Advocates) and social workers (Family Counselors) , who operate in multi- disciplinary teams to ensure a holistic and qualitative approach to the best interests of the child throughout the dispute resolution or the court adjudication process.

The legislative mandate of the Family Advocate accords with section 28(2) of the Constitution, which states that “A child’s best interests are of paramount importance in every matter concerning the child”.

The powers and duties of the Family Advocate according to the Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987) are:

  • To institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child;

  • To appear at the trial or hearing of any relevant application;

  • To adduce any available evidence ;and

  • To cross-examine witnesses giving evidence at such trial or hearing of an application.

This powers and duties have been extended by the new Children’s Act, 2005 (Act 38 of 2005) came into operation on 1 July 2007. This Act has makes it compulsory for parties to attend mediation by the Family Advocate in parental rights and responsibilities disputes over children born out of wedlock.

When can you consult a Family Advocate?

You may obtain the services of the Family Advocate if you have a dispute relating to either the best interests of a child and/ or parental responsibilities and rights. Other circumstances under which the family advocate may be consulted include:

  • When parties require assistance in drafting parental responsibilities and rights agreements and to register such with the Family Advocate or to amend, and/or terminate the said agreements registered with him or her.

  • When parties require assistance in drafting parenting plans and to amend or terminate such parenting plans registered with him or her.

  • An application to define contact.

  • A custody, access or guardianship dispute arising from the dissolution of a customary or religious marriage.

  • Domestic Violence and Maintenance cases referred to the Family Advocate in terms of the Judicial Matters Second Amendment Act (Act 55 of 2003).

  • Fathers of children born out of wedlock may request mediation of their parental rights and responsibilities (in terms of the Children’s Act).

  • Parental child abduction to and from South Africa.

Important points about the Family Advocate

The Family Advocate cannot be subpoenaed to Court as a witness to give evidence on behalf of any party even if his or her recommendation is in favour of that party. The recommendation of the Family Advocate is intended to assist the Court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless incorporated in a Court Order. The Family Advocate is a neutral institution and cannot act as the legal representative for either litigant (complainant), in a matter.

Steps to follow

Contact your nearest Family Advocate to request an enquiry or, mediation of your legal dispute Upon receipt of the request, the family advocate institutes an inquiry during which he or she interviews you and the parties involved to determine your personal circumstances and the background of the matter. Where mediation is requested the Family Advocate will be the mediator. The Family Counsellor then interviews the children separately, so as to enable such children to exercise their statutory right to be heard and to enable the Family Advocate to convey their views to the Court. The Family Advocate will communicate whatever decision taken, which significantly affects the welfare of the child, to such child. Upon completion of the enquiry or mediation process the Family Advocate will file a report for the Court and furnish copies to the parties or their lawyers.

Legal framework

Divorce Act, 1979 (Act 70 og 1979), Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987) and related regulations are available here:

Cost

The services of the family advocate are rendered to the public free of charge. However, where necessary, parties to a parental dispute may be required to obtain forensic evaluation or testing at their own costs.

Contact / More Information

East London (Buffalo City) Adv. K. Gounden (Senior Family Advocate) Tel: 043 722 8866/7, Fax: 043 722 8868 E-mail: EastLondon-FA@justice.gov.za Postal Address: P/Bag X0003, Southernwood, East London, 5213 Physical Address: 29 St Peters Road , Southernwood, East London, 5200

Source: Department of Justice and Constitutional Development