10 LAWS ALL PARENT SHOULD KNOW REGARDING THE CARE AND CONTACT PERTAINING TO THEIR CHILD OR CHILDREN

CARE AND CONTACT: FAMILY PRESERVATION                                                                                                      Underpinned by the Children’s Act no 38 of 2005.

What exactly are Care & Contact Assessments?

Care & Contact Assessments are statutory investigations determining the best care and contact arrangements between the children concerned and all co-holders of parental rights. Social workers or other forensic practitioners are qualified to conduct Care & Contact Assessments at the request of the court. Care & Contact Assessments are thorough reports considering the views, experiences, and recommendations of the children concerned, their parents, siblings, extended family, educators, peers, and any other key informants able to provide collateral information.

The collective account of all key informants, combined with the expressed wishes of the children, and the theoretical and legal knowledge of the forensic practitioner, allow for the practitioner to draw conclusions and make recommendations for a ruling that represents the Best Interests of the Children concerned. These Interests are informed by The Children’s Act No 38 of 2005 and thus, an acceptable Care & Contact Assessment is structured according to this Act. Whilst this list of legal considerations from The Children’s Act is by no means comprehensive (as subjective cases cause for subjective clauses to be considered in the Act), but it is foundational to the beginnings of a Care & Contact Assessment:

 1. DEFINING CARE

With reference to the Children’s Act, No. 38 of 2005, Chapter 1, the following principles apply:

  • The Best Interest of the Child: In all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.
  • Child Participation: Every child that is of such an age, maturity, and stage of development has the right to participate in any matter concerning him/her. Views expressed by the child must be given due consideration.
  • Family Preservation: The promotion of the family throughout the renegotiation of family structure remains of paramount importance.
  • Care of the Child;
    • A suitable place to live
  1. Living conditions that are conducive to the child’s health, well-being, and development; and
  2. The necessary financial support
    • Safeguarding and promoting the well-being of the child
    • protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation, and any other physical, emotional, or moral harm or hazards;
    • respecting, protecting, promoting and securing the fulfillment of, and guarding against any infringement of, the child’s rights set out in the Bill of Rights and the principles set out in Chapter 2 of this Act;
    • guiding, directing, and securing the child’s education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child’s age, maturity, and stage of development;
    • guiding, advising, and assisting the child in decisions to be taken by the child in a manner appropriate to the child’s age, maturity, and stage of development;
    • guiding the behaviour of the child in a humane manner;
    • maintaining a sound relationship with the child and,
    • accommodating any special needs that the child may have.
  • Enforcement of Rights: The children, parents, extended family, friends and affiliations of the family, professional counsel, and/or any other person acting within the best interest of the children have the right to approach a competent court, alleging that a right in the Bill of Rights or this Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

Important considerations for one’s understanding of the Children’s Acts Definitions of Care & Contact are that they speak to a comprehensive list of factors that collectively constitute holistic care. The degree to which a child needs all of these factors to be holistically cared for is considered as the first line states, ‘care’, in relation to a child, where appropriate’. The capacity of the parental party is considered to as per point a) which states, ‘within the available means.’ This means a Care & Contact Assessment evaluates one’s ability to fulfill the needs of the children concerned as best they can within their means.

 It is also noteworthy that caregivers are not limited to a biological father and/or mother but to other categories of invested parties including foster parents, adoptive parents, grandparents, and other extended family members. Any party interested in the wellbeing of the child may apply to be a legal caregiver of the child or for a Care & Contact Assessment at their local children’s court. It is also important to note that multiple parties may have varying degrees of Care & Contact rights with respect to the child concerned.

2. DEFINING CONTACT

Contact is not defined by residency only– the quality of the relationship with the residential caregiver as well as other caregivers including those who visit or communicate regularly with the child via technological devices are evaluated within a Care & Contact Assessment too.

3. THE BILL OF RIGHTS

The Bill of Rights underpins the entire Care & Contact Process. The Bill dictates the manner that all parties treat children throughout the Care & Contact Process. It evaluates how well the parental parties are honoring the Rights of the Child as dictated in the Bill and makes recommendations for how to secure better Rights for the Children concerned.

Enforcement of Rights: The children, parents, extended family, friends and affiliations of the family, professional counsel, and/or any other person acting within the best interest of the children have the right to approach a competent court, alleging that a right in the Bill of Rights or this Act has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights.

4. THE BEST INTERESTS OF THE CHILD

Section 9 of the Children’s Act 38 of 2005, section 724 stipulates that the perspective and opinion of the child concerned is of utmost importance as such any view expressed by third parties is considered in relation to what the child considers to be within their best interests.

The Golden Standard of The Best Interests of the Child are described in Section 2 of the Children’s Act under the Bill of Rights. An assessment of the child with the Forensic Practitioner affords the child the opportunity to determine the subjective importance of each of his/her rights and evaluate the degree to which they are/ are not being fulfilled.

5. CHILD PARTICIPATION

In the absence of Child Participation, a child would remain victim to other adult party’s perceptions of what is in their best interests. Child participation not only considers the child’s voice to be the most important but also allows for age-appropriate and creative means of assessing children through play and talk therapy, proving to be a more effective means of hearing the child’s voice compared to a child taking the stand in court.

 6. MAINTAINING A SOUND RELATIONSHIP WITH THE CHILD

Caring for a child is more than the material sustenance of a child. The emotional attachment of a child to the caregiver is assessed by utilizing a concept termed, “Attachment” Theory (Bowlby). Attachment theory makes evident that the emotional attachments of childhood should be maintained as they promote positive relationships, attachments, and detachments in adulthood. Attachment is a purely relational process meaning that it is purely dependent on the consistent availability of an adult’s presence in a child’s life. As such, many parental parties are awarded increased Care & Contact rights with a child despite their financial destitution because they are consistently available to the child who is therefore positively attached to them.

 7. PERMANENCY

Consistency and predictability are key to the regulation of a child as such, recommendations within a Care & Contact Assessment always recommend the most permanent Care & Contact arrangements. Even when these assessments make provision for change, this change is regular and predictable or planned well in advance allowing the caregivers sufficient time to prepare the child concerned for this change.

 8. THE PROVISION OF SUFFICIENT FINANCIAL SUPPORT TO SUSTAIN THE CHILD.

When there are multiple interested parental parties who prove capable of caring for the child, the child’s expressed desires for Care & Contact with each party are considered as are the comparable ability of the interested parties to care and provide for the child. Whilst care & provision are not solely measured by resourcing and financial stability, they do impact the opportunities afforded to the child which are considered in awarding Care & Contact.

 9. FAMILY PRESERVATION The Children’s Act, No.38 of 2005, Section 23(2) and 24(2).

There is sufficient evidence to suggest that the child’s family of origin is always the best for the child concerned. Therefore a Care & Contact Assessment will always consider the possibility of family reunification in combination with the expressed wishes of the child. Family reunification often requires recommendations that better equip the parental parties/family and child concerned to reunify. Common reunification practices recommended within Care & Contact Assessments include substance use and abuse treatment programmes, parenting workshops, family and conflict mediation, interim foster orders, supervised contact time that increases over time, and open adoptions.

10. TERMINATION OR SUSPENSION OF A PARENT’S RIGHTS AND/OR RESPONSIBILITIES IS A LAST RESORT

It is extremely rare that a parent’s rights and responsibilities will be terminated completely. The principle of family preservation combined with the child’s expressed wishes and due consideration to the best interests, may cause a reduction in contact time or reduced parental rights however, rarely a complete termination of parental rights. Termination of parental rights is a final recommendation after many failed attempts at equipping the parent and child for reunification.

At The Connect Group, we are qualified to conduct Care and Contact Assessments while providing emotional support to the children concerned throughout the process. We advocate for the voice of the child, and value Child Participation.
Please contact us at admin@theconnectgroup.co.za to enquire about your Care and Contact Assessments.

 

 

 

 

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