Quote:Refusal of access or refusal to exercise parental responsibilities and rights – Section 35
Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22, refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
A person having care or custody of a child whereby another person has access to that child or holds parental responsibilities and rights in respect of that child in terms of an order of any court or a parental responsibilities and rights agreement as must upon any change in his or her residential address forthwith in writing notify such other person of such change. A person who fails to comply is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
Is this what you're talking about, Kalai?
I'm not sure what relevance this has to your daughter not wanting to visit you - it seems that this section of the Children's Act works in your favour, basically guaranteeing that you have access to your children, and that you always know where they stay and (theoretically) can find them 24/7.
In plain English, your ex-husband, being the primary caregiver, must allow you any and all access as per the agreements you have in place, and also may not move house/home without notifying you of that change.
It doesn't specify that the children MUST spend any time with you - just that, if you are entitled to such access, your ex-husband may not impede this access in any way, shape, or form whatsoever.
You can, of course, force your children to spend time with you as per the conditions/terms of the current agreement.
From all accounts, however, that approach would appear somewhat counterproductive should they not want to spend time with you.
At about the age of 12 (years) a child can theoretically choose with which parent they would prefer to live, and all things being equal, and both parents being willing, the courts would support this decision as long as it is in the child's best interests.
It therefore appears that your daughter, for reasons of her own, is not too keen on spending time with you - she has every right to do spend time with you, and the courts would certainly support and even aid her should she want to spend time with you.
The key here is that the primary caregiver may not impede you in your exercise of parental rights and responsibilities - if they do, they are guilty of a criminal offence.
Is your ex-husband in fact guilty of such an offence?
The Section 33 hearing, I presume, would be in compliance with that section of the Act where parents are instructed to resort to mediation before litigation.
Quote:Section 33 (5) instructs parties to seek assistance of a family advocate, social worker or a psychologist, or mediation through a social worker or suitably qualified person in preparing a parenting plan as contemplated in section 33. It is obvious from the wording of section 33 that the co-compelled to seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or suitably qualified person. It is therefore quite obvious that a party cannot approach the court unless the matter is referred to mediation as discussed above.
Pretty standard stuff - but very good stuff at that - all it's meant to do is facilitate your creation and implementation of a parenting plan, in conjunction with your ex-husband, so that your children's rights and best interests are respected and upheld. Was this aim achieved?
When a child (as has your son) attains majority, they are entitled to make their own decisions insofar as they are capable thereof. Are you sure that your ex-husband is behind his refusal to visit you? He certainly shouldn't have to force your son to visit you.
Sadly, your son is a child in the eyes of the law no longer - and should he choose not to spend time with you, or to talk to you, it is his decision to make. Legally, he is now an adult.
The entire Children's Act as it now stands, especially since the changes enacted as at 01 April 2010, is geared towards what is best for the child. It is intended to ensure that
the child must come first.
The parents' hurt feelings, their anger, their loss - none of that matters. Only what is best for the children.
All decisions/rulings made in terms of the Children's Act are supposed to put the children's best interests first.
Is that actually happening in this case, do you think, or are the children's interests being sidelined?
If the children's best interests are being subverted or ignored, you have the law on your side - use it!
If not, remember that your children must come first. Do what is best for your children - and forget about your own hurt feelings.
Good luck!