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Litigation: Law that penalizes some children ruled unconstitutional

While the Constitution and the Children's Act both provide protection to children, the Mediation in Certain Divorce Matters Act of 1987 falls woefully short, Acting Judge Franciska Bezuidenhout has ruled in the Gauteng High Court (Johannesburg). The court declared it unconstitutional that a Family Advocate's report on the best interests of children is not required if unmarried parents split up. The Act deals only with parents who are married and intent on divorcing. Bezuidenhout said the Act made an ‘arbitrary distinction’ by excluding children born out of wedlock. This exclusion also affects children born of Hindu and Muslim marriages, and vulnerable groups such as single parents, teenage parents, and even concerned grandparents and other relatives.

GroundUp reports that the case involved a couple who met overseas and had two children. They separated, but both parents returned to SA and remarried. The mother wants to relocate to Australia and take the children with her while the father, who has contact with the children, has refused to grant permission. The provisions of the Act dictate that the Family Advocate can only deal with children of married parents, so the mother was forced to approach the court to get an order to compel an investigation and report back on the best interests of the children. Bezuidenhout noted that the harsh reality is that parents had a choice to move on, but children did not, and this applied whether their parents were ever married or were once married but wanted to divorce. The judge directed that the Minister of Justice and the Centre for Child Law make submissions on this ‘arbitrary distinction’.

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