Family law and the justice system are like oil and water—they simply do not mix. Imagine asking a mechanic to perform open-heart surgery on you for a brain tumor. It’s absurd, right? Similarly, using the current legal justice system for family-related matters is a fundamental misstep. It’s the wrong professional, the wrong system, and the wrong outcome, resulting in suffering for all involved.
The justice system, by its very design, requires a winner and a loser. In criminal cases, for example, if you steal, you go to jail. But does that punishment restore the person you stole from to their original status? No, it doesn’t. The victim loses even more by having to take time off, hire a lawyer, and go through the court process. The same lose-lose scenario plays out in family law, where the focus should be on the best interests of the child—not on creating conflict between parents. To reiterate using the current family law system is using the wrong professional, the wrong system, and the wrong outcome, resulting in suffering for all involved.
The Inherent Bias and Incompetence in Family Law
The professionals currently handling family law matters—lawyers, advocates, psychologists, and social workers—lack the ethical standards and understanding necessary to prioritize the child’s well-being. Instead, they deliberately and maliciously exploit the system for financial gain, prolonging cases unnecessarily and leaving both parents worse off than when they started. The system is broken by design, perpetuating conflict rather than resolving it.
The Need for a New Approach: Mediation and Arbitration
The Nugent Commission in the late 70s and early 80s recommended the establishment of mediation and arbitration departments for family law, similar to the CCMA in labor disputes. This system has proven effective in labor relations, where mediation and arbitration precede any court involvement, ensuring that only the most complex issues reach the courtroom.
In family law, the infrastructure exists: the Family Advocate’s office and the Family Court system are attached to every magistrate’s court in South Africa. However, these resources are underutilized, understaffed, and overwhelmed. The Family Advocate’s office should be driving mediation as a final and binding step, with arbitration as the next level if mediation fails, and only then should cases go to court.
The Constitutional Crisis: Sections 19, 20, and 21 of the Children’s Act
Sections 19, 20, and 21 of the Children’s Act are unconstitutional, openly hostile, and gender-biased. These sections unfairly place mothers in a superior position, setting up the conflict between parents from the start. By default, they assume that the mother is the superior parent, which contradicts the very essence of equality enshrined in our Constitution.
These sections must be removed and rolled into Section 18, which should automatically grant both parents equal rights of contact, guardianship, and maintenance from birth. This approach eliminates the need for costly and drawn-out legal battles, focusing instead on the child’s best interests.
The Path Forward: Automatic Equal Rights and Responsibilities
The solution is simple: both parents must automatically receive equal rights and responsibilities regarding contact, care, guardianship, and maintenance from the birth of their child. This standard should not be influenced by marital status, culture, tradition, or religion. These are important social constructs but do not determine a parent’s ability to raise a child.
The Family Advocate’s office must function like the CCMA, with the power to mediate binding solutions and default to arbitration if necessary. Court involvement should be limited to specific, unresolved issues, not the entire case. This approach ensures that both parents are involved in their child’s life, which is critical for the child’s development into a fully functional adult.
The Government’s Responsibility: Put Up or Shut Up
We have been in contact with the Department of Social Development for the last five years, offering solutions to these problems. The portfolio committee has acknowledged the issues and committed to addressing them. However, until these changes are made, the government cannot point fingers at absent fathers.
Fathers are not the problem anymore. We have identified the issues and proposed solutions, and are waiting for the government to act. If they are unwilling to make the necessary changes, the government must simply stop blaming fathers. The responsibility now lies with the government to fix a system that is fundamentally flawed and failing our children.
Contact Information for The Official Fathers 4 Justice South Africa
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Email: info@f4j.co.za
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