Parenting Plans, the Family Advocate, and the Professionals Who Shape Child-Care Decisions
When parents separate, one of the most pressing questions becomes: What happens to the children?
South African law is clear — the best interests of the child take precedence over all other considerations. This is not a vague moral guideline; it is entrenched in section 28(2) of the Constitution and given practical effect by the Children’s Act 38 of 2005.
But “best interests” is not self-executing. It is interpreted and applied through a network of statutory officers, courts, and expert professionals — all of whom can influence where a child lives, how often they see each parent, and even what school they attend.
Parenting Plans: A Co-Parenting Roadmap
In terms of sections 33–35 of the Children’s Act, when parents cannot agree on how to exercise their parental rights and responsibilities, they are expected to consider, and in some cases, develop, a parenting plan.
A parenting plan is more than just a schedule of weekends and holidays. Done properly, it becomes a blueprint for raising the child across two households. It can address:
Living arrangements and primary residence.
Schooling and educational decisions.
Religious upbringing and cultural practices.
Special needs or medical care.
Communication between the child and each parent.
Dispute resolution mechanisms to avoid future litigation.
Once finalised, the plan can be registered with the Family Advocate or made an order of the Children’s Court or High Court. This gives it the same legal enforceability as any other court order.
The Family Advocate: The Court’s Independent Eye
Established under the Mediation in Certain Divorce Matters Act 24 of 1987, the Family Advocate’s Office investigates and advises the court on what arrangements would serve the child’s best interests. Their role includes:
Mediating disputes between parents.
Interviewing the child in a neutral, child-friendly setting.
Subpoenaing witnesses or requesting expert reports.
Producing a detailed recommendation for the court.
Although the court is not bound by the Family Advocate’s recommendation, judges often give it significant weight, particularly when it is supported by credible evidence and grounded in developmental psychology.
The Children’s Court: Accessible and Focused
While high-conflict parenting disputes often play out in the High Court, the Children’s Court (established under Chapter 4 of the Children’s Act) has jurisdiction over care, contact, and guardianship matters.
It offers:
Less formality than the High Court, which can reduce stress for all involved.
Lower costs and shorter timelines.
Proceedings held in camera to protect privacy.
It cannot, however, hear divorce proceedings or complex constitutional challenges — those remain within the High Court’s jurisdiction.
Social Workers: Evidence from the Home Front
Courts often rely on social workers to conduct home visits, assess living conditions, and report on each parent’s capacity to meet the child’s needs.
Under section 47 of the Children’s Act, the court may order such investigations.
A good social work report will consider:
The child’s emotional security.
The stability of each household.
Parental cooperation and communication.
The child’s expressed preferences (if age-appropriate).
Private Psychologists: Specialised Expertise
In more complex cases, parents may engage private psychologists to provide assessments that go beyond what statutory services can offer:
Developmental psychologists evaluate emotional, cognitive, and social development, essential in determining appropriate care and contact schedules.
Educational psychologists assess schooling needs and the impact of stability or change on the child’s academic performance.
Industrial psychologists may (in rare cases) analyse how a parent’s work commitments and travel demands affect their availability for the child.
While private reports can be persuasive, they are considered alongside — not instead of — statutory reports from the Family Advocate or court-appointed social workers.
Why the Process Matters
Parenting plans and the associated professional processes are not mere formalities. They:
Reduce the risk of ongoing litigation.
Give children stability and predictability.
Provide a clear framework for parental cooperation.
Allow professional and legal oversight to ensure the child’s needs are met.
Handled well, they can turn potential conflict into a workable, child-focused arrangement. Handled poorly, they can fuel years of mistrust and repeat court battles.
Final Word from the Director’s Desk
In disputes involving children, process is substance. The statutes, courts, and professionals are not obstacles, they are the scaffolding within which the child’s best interests can be defined and protected. The challenge, and the opportunity, lies in using that scaffolding wisely.
