FAMILY ADVOCATE: A HERO FOR CHILDRENS BEST INTERESTS by Ines Esmeraldo from Esmeraldo & Associates

FAMILY ADVOCATE: A HERO FOR CHILDRENS BEST INTERESTS by Ines Esmeraldo from Esmeraldo & Associates

“We must protect families, we must protect children, who have inalienable rights and should be loved, should be taken care of physically and mentally, and should not be brought into the world only to suffer” (quote by Indira Gandhi).

1. PURPOSE “…in serving the best interests of children, we serve the best interests of all humanity” (quote by Carol Bellamy).

1.1. The purpose of the family advocate is to promote and protect the best interests of minor or dependent children in parental responsibilities and rights disputes. 1.2. The family advocate assists parents to reach an agreement on disputed issues involving children. 1.3. If the parents are incapable to reach an agreement, the family advocate assesses their situations in light of the best interests of the child and makes a commendation.

2. OFFICE OF FAMILY ADVOCATES – WHO ARE THEY? “If we don’t stand up for children, then we don’t stand for much” (quote by Marian Wright Edelman).
2.1. The services of the Family Advocate are rendered to the public free of charge.

2.2. The Family Advocate is a legal officer hired by the Department of Justice and acts as legal representative of the children. “A child, like all other human beings, has inalienable rights” (quote by Lucretia Mott).

2.3. The professional constituent of the Office of the Family Advocate includes lawyers (family advocates) and social workers (family counsellors; social workers, psychologists, psychiatrists), who function in multi-punitive squads to guarantee all-inclusive and qualitative method to attain the best interests of the child during the dispute resolution or the court process.


3.1. Situations under which the Family Advocate can get involved:

3.1.1. In terms of parental plans: drafting parenting plans; applying for the recording of a parenting plan; making a parenting plan an order of the court; altering and/or dismissing a plan already recorded; 3.1.2. any request for the variation of a custody, guardianship or access order, 3.1.3. a request for the characterization of access, a custody, access or guardianship 3.1.4. dealing with care, contact or guardianship disagreements rising from the conclusion of a customary or religious marriage; 3.1.5. an application by an unwed father for custody, access or guardianship to his minor child or 3.1.6. any other matter involving minor children, where the Court has explicitly ordered the Family Advocate to mediate. 3.1.7. dealing with disagreements rising from the exercise of parental responsibilities and rights;
3.1.8. dealing with domestic violence and maintenance cases that have been referred to a family advocate. “It is clear that increasingly, children are targets, not incidental casualties, of armed conflict” (quote by Graça Machel-Mandela; 3.1.9. dealing with parental child kidnapping to and from South Africa; 3.1.10. an unmarried father applies for care and contact or guardianship; and


4.1. Any one of the two parents, or both of them together, can apply to the Family Advocate for determination of a matter.


5.1. In terms of the Mediation in Certain Divorce Matters Act, 1987 (Act 24 of 1987):

5.1.1. to institute an investigation so as to be able to provide the court with a report and commendation on the welfare of the minor child; 5.1.2. to appear at the trial or hearing of any applicable application; 5.1.3. to offer any existing evidence; and 5.1.4. to cross-examine witnesses giving evidence at the trial or hearing of an application.
5.2. In terms of the Children’ Act, these powers and duties have been protracted, which makes it obligatory for parents to be present at a mediation by a family advocate in parental rights and responsibilities disagreements over children born out of wedlock. 6. ROLE OF THE FAMILY ADVOCATE

6.1. to provide edification to family members and others tangled in the systems helping the family and youth. “Education is the way to move mountains, to
build bridges, to change the world. Education is the path to the future. I believe that education is indeed freedom” (quote by Oprah Winfrey); 6.2. to assist in recognizing the fortes and requirements of families; 6.3. to be a mediator between the system and the family by assisting to teach experts on the fortes and requirements of the family; 6.4. to assist family members to comprehend the diverse parts of the agencies tangled in the system and how they may affect the family, and to support families in recognizing and using essential facilities. 6.5. helps government and local agencies and systems implement more strengthbased and family-driven curricula, procedures, and amenities.


7.1. Communicate with the nearest Family Advocate to request an investigation or, intervention of the legal disagreement 7.2. Upon receiving the request, the family advocate institutes an investigation aided by a Family Counsellor (generally a qualified social worker), throughout which he consultation the parties tangled to establish the party’s individual situations and the circumstantial circumstances of the dispute. 7.3. The Family Counsellor then consultation the children discretely, so as to permit such children to exercise their constitutional right to be heard and to permit the Family Advocate to carry their opinions to the Court. This avoids the child from partaking in Court. 7.4. The Family Advocate will convey to the child, whatever conclusion has been made by them. 7.5. Upon conclusion of the investigation or conciliation process, the Family Advocate will file a report for the Court and provide duplicates to the parties or their lawyers.


8.1. Important points about the Family Advocate 8.1.1. A matter previously finalised by a Court, cannot be taken to a Family Advocate. The commendation of the Family Advocate is proposed to support the Court in deciding a matter and arriving at a particular order. The commendation itself is not enforceable except if merged in a Court Order. 8.1.2. The Family Advocate cannot be compelled to Court as eyewitness to give evidence on behalf of any party even if his or her commendation is in favour of that party. 8.1.3. The Family Advocate is a unbiassed establishment and cannot act as the legal representative for either complainant.


9.1. Reduces costs and time. – If the parties reach arrangement on disputed matters then it will not advance to trial. 9.2. Children’s voices can be heard. – Children are provided a chance to be heard with regard to their feelings on the dispute. “I speak for those children who cannot speak for themselves, children who have absolutely nothing but their courage and their smiles, their wits and their dreams”(quote by Audrey Hepburn). 9.3. Unbiased. – The Family Advocate is a unbiased person who emphases exclusively on the best interests of the child. 9.4. Child-friendly. – Process is less firm and serious than court proceedings. 9.5. Reduce hostility. – Techniques of alternate dispute resolution reduces the hostility between the parties. 9.6. Works with other professionals. – The Family Advocate works in cooperation with other experts (example social workers, psychologists psychiatrists, therapists).

Parents fight and battle their differences believing they are fighting for their children. This often is mistaken. Parents act on emotion and such emotion is clouded by their animosity to each other. Children are overlooked in this battle, resulting in a war of passion, instead of resolution of peace to safeguard and protect our children’s best interests. Family Advocates are unbiased and examine what is in the best interests of the children. They are the hero’s in most war of minds. “Anyone who does anything to help a child is a hero to me” (quote by Fred Rogers)


Cape Town, Western Cape

Call 021 830 5451

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