CASE IN POINT | Department of Justice
The Role of the Family Advocate in South Africa
The role of the Office of the Family Advocate (OFA) is a fundamental one in ensuring justice for those who cannot speak for themselves. In South Africa, the Family Advocate: Office of the Family Advocate falls within the jurisdiction of the national Department of Justice and Constitutional Development and deals with disputes between parents or family members over the custody of children. The Office of the FA can be contacted regarding steps to be taken should a child be abducted or illegally removed, contrary to an agreement between the parents or a court order. The parent left behind will be guided and assisted throughout the process. This service is free of charge. The OFA in South Africa deals with 40 to 50 cases of child abduction annually.
The role of the Office of the Family Advocate, as a family law specialist and unbiased third party in a family dispute over children, especially during divorce, is to provide mediation with a view to reaching
an agreement between the disputing parties. The OFA also assists parents in drafting parental rights, plans and responsibility agreements, registers parenting plans, parental rights and responsibility agreements, and amends or terminates those registered by his or her office. The office also mediates in a dispute as to whether or not an unmarried father of a child has parental rights and responsibilities.
As part of his or her mandate, the OFA is equipped to assist with parental responsibilities and rights, including care of and contact with a child, as well as guardianship and maintenance. Parents can enter into an agreement on their own terms and register it with the OFA, or make it an order of the Family Court. The mainstay of the OFA’s job is to ensure a positive outcome, not only for the child or children involved, but also for the parents and family members without the case being taken to court. This saves unnecessary legal costs and wrangling as well as valuable time.
The OFA can, without enlisting the assistance of the court, amend or terminate parental rights and responsibility agreements registered with the OFA, should the parties involved wish to amend the original agreement at any time. Courts or judicial officers are required by law to consider the report and/or recommendations of the OFA when making a decision as to what is in the best interest of the minor and without the report or recommendations of the OFA, will not readily consent to a divorce decree where a dispute regarding minor children exists.
The OFA may be consulted on any of the above, free of charge. However, parties are responsible for the cost of additional expert advice. Courts also make orders whereby the OFA has to conduct an inquiry as to what is in the best interest of the child. But, the OFA cannot become involved in any matter which has already been finalised by the court or be called upon to act as a witness or give evidence on behalf of any party even if his/her recommendation is in favour of that party in a court case. The recommendation of the OFA is intended to assist the court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless made an order of court. The Office of the FA is a neutral institution and cannot act as the legal representative for either litigant in a matter.
The Department of Justice and Constitutional Development encourages communities to make use of the Office of the Family Advocate.