How does the Family Advocate work?

Two parents who cannot agree about their children usually assume the only path is an expensive contested application. There is a state office that will look into it for nothing, and most people separating in South Africa have either never heard of it or think it is the enemy.

This guide is part of our Custody, care and contact in South Africa: the complete guide, which links every guide on the topic.

What it is

The Office of the Family Advocate sits within the Department of Justice and Constitutional Development. Its function is to promote and protect the best interests of minor and dependent children where parental responsibilities and rights are in dispute.

Under the Mediation in Certain Divorce Matters Act 24 of 1987, where requested by a party or by the court, the Family Advocate may institute an enquiry and furnish the court with a report and recommendations on matters concerning the welfare of each minor or dependent child.

Its role has broadened well beyond divorce. It becomes involved in relocation disputes, care and contact applications between unmarried parents, parenting plan disputes, and Children's Act matters generally.

What it is not

Getting this right removes most of the anxiety people arrive with.

It is not your lawyer and it is not your opponent's lawyer. It does not represent either parent. Trying to win it over as an ally, and treating it as hostile, are the two commonest mistakes and they both come from the same misunderstanding.

It cannot make an order. It reports and recommends. The court decides. A favourable report is influential and is not a judgment.

It is not a decision about who is the better parent. The enquiry is about arrangements that serve the child.

It is not a criminal investigation. Where abuse or neglect is alleged, the Children's Court, the police and the relevant social services have their own roles, and the Family Advocate is not a substitute for reporting a child in danger.

How an enquiry runs

It starts with a request. A party can request it, or the court can refer the matter. In divorce proceedings involving minor children the position is assisted by the Act, which requires the court to consider a report where one has been furnished.

Mediation first. This is the part people do not expect and the part that most often resolves the matter. The early purpose of the enquiry is to see whether the issues can be settled between the parties. A great many disputes that were heading for a contested hearing come out as an agreed parenting plan at this stage, which our guide on parenting plans explains.

Interviews. Both parents are seen, usually separately. The children may be seen, in a manner appropriate to their age and maturity, and their views are taken into account without being treated as the decision.

The family counsellor. A family counsellor, typically a social worker with experience in children's matters, assists the Family Advocate with the enquiry. Where further investigation is needed the counsellor may conduct home visits and speak to third parties: teachers, doctors, caregivers, sometimes family members.

The report. The counsellor reports to the Family Advocate, who considers it and prepares the report and recommendations for the court.

What it costs

The service is free.

The qualification is that where a matter requires a forensic or psychological evaluation, that assessment is generally at the parents' own expense. Those are not cheap, but they are ordered where they are genuinely needed rather than routinely.

For a parent who cannot fund a contested High Court application with expert reports, this is the single most valuable resource in the system, and it is worth saying plainly that it is under-used because it is not marketed by anybody.

How to deal with an enquiry

The difference between parents who come out of this well and parents who do not is rarely their circumstances. It is their conduct during the enquiry.

Be honest, including about the difficult parts. A parent who denies something that is documented loses credibility on everything, and the office sees a great deal of this.

Talk about the child, not about your ex. The strongest thing you can do is give specific, practical, child-centred information: the school, the routine, the medical needs, who does homework, who does the school run, what the child says they want. The weakest is a history of grievances.

Bring documents. School reports, medical records, the current schedule, messages that show the actual pattern of contact. Concrete beats assertion.

Propose something workable. A parent who arrives with a realistic plan that includes generous contact for the other parent is taken far more seriously than one who arrives asking for everything.

Never coach a child. It is identified more easily than parents believe, it is harmful, and it destroys your position.

Do not use contact as leverage while the enquiry is running. Withholding a child to make a point, or to respond to unpaid maintenance, is the fastest way to a bad report. Maintenance and contact are separate issues and our guide on what to do if maintenance is not paid sets out the proper route.

Attend. Everything. On time.

What weight the report carries

Substantial, in practice.

Courts take the Family Advocate's recommendations seriously, because the office is independent, has no financial stake, and has spoken to everybody including the child. A judge or magistrate with a heavy roll and two conflicting affidavits is being given an independent view by somebody who visited the home.

It is not binding. A court can depart from it, and does where there is reason. But a parent hoping to persuade a court against a considered Family Advocate recommendation is doing something difficult and should understand that before running the argument.

The paramount consideration in every decision is the best interests of the child, and the Children's Act sets out the factors. Our guide on the difference between custody and guardianship explains the concepts the report will use, which are care, contact and guardianship rather than the older vocabulary most people still reach for.

When it is not the right route

Where a child is in immediate danger. Report it: the police, a designated social worker, or the Children's Court. Do not wait for an enquiry.

Where there is domestic violence. A protection order is a separate and faster remedy, and our guide on applying for a protection order sets out the process. Mediation between parties where there is a power imbalance of that kind can be unsafe, and the office should be told.

Where the dispute is purely financial. Maintenance is the maintenance court's business, and our guide on how child maintenance is calculated explains the approach. The maintenance estimator gives an indicative figure.

Where you need urgent relief in a divorce. Interim maintenance, care and contact pending the divorce are dealt with under Rule 43, and our guide on Rule 43 interim relief covers it.

Worked example

This example is illustrative. Two unmarried parents separate. Their son is six and has lived with his mother since the split. The father has been seeing him irregularly and wants defined contact, including alternate weekends and half the holidays. The mother says the child comes back unsettled and that the father's flat is unsuitable.

Neither can afford a contested application with an expert report.

The father approaches the Family Advocate. An enquiry is instituted. At the first stage the office attempts to mediate, and both parents are seen separately. The father brings the boy's school reports, messages showing the contact he has in fact had, and photographs of the room he has set up. He proposes alternate weekends building to include an overnight midweek stay, and he offers to do the school run on his weeks.

The mother raises her concern about the unsettled behaviour. A family counsellor conducts a home visit to both homes and speaks to the boy's teacher, who reports no difficulties at school.

At that point the matter settles. The parents agree a parenting plan with defined contact, a handover arrangement at the school rather than at either home, and a review in twelve months. The Family Advocate endorses it, and it is made an order.

Nothing about that outcome required a judge to decide anything, and the total cost to both parents was their time. What made it work was that one parent arrived with documents and a proposal rather than with a list of complaints.