Mediation in the Children's Act 38 of 2005



The object of the children’s Act as set out in Section 2 is that:

  • (i) best interests of the child are of paramount importance, to make provision for structure, services and means for promoting development of children;
  • ii) to strengthen and develop community structures and to generally promote the protection and well-being of children.

In Section 6, general principles are set out to assist in implementing the legislation and guiding proceedings, actions and decisions concerning a child. The Act recommends that a confrontational approach and delays are to be avoided.

Section 7 relates to the “best interests of the child standard” and this Section is relevant with regard to mediation as specific provision is made for action or decisions to be taken which “would avoid or minimize further legal or administrative proceedings in relation to the child”.

Section 21 relates to parental rights and responsibilities on unmarried fathers. Particularly if there is a dispute between the biological father and biological mother of the child as to whether he was living with the mother in a permanent life-partnership at the time of the birth or if paternity is contested or contributes in good faith to the child’s upbringing for a reasonable period and has contributed to the living expenses of the child for a reasonable period, then the matter must be referred to mediation to a family advocate, social worker, social service professional or other suitably qualified person. Any party to a mediation may have the outcome of the mediation reviewed – this section is retroactive.

Mediation is similarly envisaged in Section 29 which relates to court proceedings as Section 5(a) provides that a court may, for the purposes of a hearing order that “a report and recommendation of the Family Advocate, Social Worker or other suitable qualified person must be submitted to the court”. Therefore should the parties reach agreement through the mediation process, that mediated agreement would be referred to and taken into consideration by the court.

Section 33 refers to parenting plans which determine the extent of the co-holders of parental rights and responsibilities to the child. Should the parties experience difficulties in the extent of their rights and responsibilities then they must seek to agree on a parenting plan before going to court. Similarly, in preparing a plan, the parties must seek assistance of family advocate, social worker of psychologist or undergo mediation through a social worker of other suitably qualified person.

Chapter 4 refers to Children’s Courts and Section 45 refers to matters which Children’s Court may adjudicate.

Section 46 refers to Orders which the Children’s Court may make and specifically Section 46(1)(g) states that “the Court may make an Order subjecting a child, a parent or care giver of a child, or any person holding parental responsibilities and rights in respect of the child to :

  1. Early intervention services;
  2. A family preservation programme; or
  3. Both early intervention services and a family preservation programme”.
  4. Similarly Section 46(1)(8) allows the Children’s Court to make a Child Protection Order which Order can include: “instructing a parent or care-giver of a child to undergo professional counseling, or to participate in mediation, a family group conference, or other appropriate problem solving forum”. The Legislature has therefore clearly envisaged that mediation will play a large role both in Court Applications and particularly Children’s Courts in order to ensure that the best interests of the children are paramount, to avoid unnecessary delays and to move the process from an adversarial process to a resolutive one.

Section 49 is a specific empowering Section relating to “lay-forum-hearings”. In this Section, a Children’s Court is empowered, before it decides a matter to order a lay-forum-hearing in an attempt to settle the matter out of Court which may include:

  • mediation by a Family Advocate, Social Worker, Social Service professionals or other suitable qualified person;
  • a family group conference contemplated in Section 70; or
  • mediation contemplated in Section 71.

Section 70 relates to Family Group Conferences and makes provision for the Children’s Court to cause a family group conference to be set up involving the parties in the matter including any other family members of the child in order to find solutions for any problem involving the child. The Court must appoint a suitably qualified person or organization to facilitate at the family conference and it is here where mediators and facilitators whether legal or mental health professionals will be heavily involved. Naturally the facilitators are to keep a record of any agreement of settlement reached and any fact emerging from such conference which ought to be brought to the notice of the Court and then consider any report filed when the matter is heard. It is therefore clear that this Family Group Conference would not be on a without prejudice basis but further details hereof will be set out in the Regulations (which are still to be drafted).

Similarly Section 71 relates to “other lay forums”. Here the Children’s Court may refer a matter to any appropriate lay forum including a traditional authority in an attempt to settle the matter by way of mediation out of Court. Here mediation is specifically referred to and both legal and mental health professional mediators will be of assistance in bringing about a resolution in a non-adversarial manner. The only issue which is specifically excluded from any issue to be mediated is that of alleged abuse or sexual abuse of a child. Once again, the Court may prescribe the manner in which the record is kept in any agreement of settlement or any fact emerging from such conference and will consider a report on the proceedings when the matter is heard.

Section 72 relates to matters settled out of Court wherein a settlement which has been accepted by all parties and signed by all parties is submitted by the Clerk of the Court to the Children’s Court for confirmation or rejection. The Court may confirm the settlement and make it an Order of Court or, before deciding the matter refer the settlement back to parties for reconsideration of any specific issue or naturally reject the settlement.

An interesting section is Section 150 which relates to a child in need of care and protection. Herein specific remedial provision is made whereby it is found, after investigation by a Social Worker that a child who has been referred for investigation (in terms of sub-section 2) as a possible victim of child labour or in a child headed house-hold is found not to be a child in need of care or protection, the provision is made for the social worker to take such measures necessary to assist the child which could include mediation and various other services.

Section 155 relates to decisions of whether a child is in need of care and protection. Herein a social worker must investigate the matter before the child is brought before the Children’s Court and within 90 days compile a report on whether the child is in need of care and protection. It is open to the social worker to set out, in their report measures recommended to assist the family which could include mediation. The act takes a large leap forward in looking at alternative ways in which to resolve disputes, looks to move away from the adversarial approach to a more inclusive, participatory and softer approach to ensure that the best interests of the children are paramount and to resolve matters and disputes in a more gentle, humane and less adversarial manner. Mediation will play a very important part in this process and it is gratifying to note that the legislature has finally come to realize the importance of mediation.

Posted by CoParenting

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