A parent should never alienate a child from the other parent. The Children’s Act contains certain provisions that aim to prevent one parent from frustrating the exercise of responsibilities and rights by the other parent. Any parent who has care of a child and refuses to allow the other parent to exercise his/her responsibilities and rights contrary to a court Order, or properly concluded a Parenting Plan is guilty of an offence, and will be liable on conviction to a fine or to imprisonment for a period not exceeding one year.
What does the best interest of the child mean?
Section 7 of the Children’s Act deals with the following in terms of a parent’s right to contact with their child :
- It looks at the relationship between the parent or caregiver of the child, the person wanting access, and if it is beneficial to the child as is, or if it needs to be amended;
- The attitude of the parent or caregiver and the person seeking contact, towards the exercise of their parental rights and responsibilities in respect of the child, do they take it seriously, are they committed and is it done consistently. (This includes the regular payment of maintenance by the parent seeking access to the child).
Misconceptions about instances when access can be denied
There are misconceptions about when access can be denied, and if done unjustly, what can be done about it :
Misconception from the mother or caregiver / grandparents
- If he/she does not pay maintenance he/she does not get to see the child.
In terms of the Maintenance Act parents have a duty to support their child which includes the child(s) reasonable living, education, food clothing, medical care and accommodation needs.
The misconception arises from the fact that access to a child and maintenance are interconnected, in that if a parent for whatever reason fails to meet his/her maintenance obligations that the other parent now has the right to refuse that parent access.
This is not so, and although the parent is probably in contempt of an Order of court regarding the payment of maintenance the other parent now is also in contempt of the Order of court. If a parent cannot pay maintenance, he/she cannot be refused access to his/her child, conversely, the child cannot be denied their right to see the other parent.
Misconception about a remedy if you are denied access to your child
There exists a general misconception that when you are denied access, if there is an existing court Order that you can instruct the Police to take the child and have the other parent arrested if they do not cooperate with the court Order“. The Police will not get involved in matters pertaining to one parent refusing the other parent access and contact to a child.
Court Remedies
Section 35 of the Children’s Act, deals with the refusal of access or refusal to allow a parent to exercise his/her parental responsibilities and rights”. Section 35 states that, “any person who refuses a parent and /or person who holds parental responsibilities and rights in terms of an Order of court to exercise those rights, is guilty of an offence and liable to a fine or a period of imprisonment not exceeding a year”.
The correct approach in dealing with a matter which involves a parent refusing the other parent to exercise contact with their child is to instruct an Attorney who can bring an application to the High Court on an urgent basis to have the parent who is refusing the other parent access to be brought to court to explain exactly why they are refusing the contact.
Unless the parent has good reasons for refusing the other parent access to the child, the court will issue a warrant of arrest and hold it over. If the offending parent does not comply with the court’s directive then that warrant can (with the authorisation of the court), can be executed upon.
If there is no order of court, then you would need to approach a specialist family law Attorney to draft and prepare a parenting plan. This is not only done to safeguard your rights, but also the rights of the children to have you in their life.
For direct answers to your specific personal questions, please contact us directly.
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Author – Kate Bailey – Hill
