Phased in access is often considered when there has been a substantial break in contact between the non-custodial parent or other persons seeking access and the child, or where such a relationship has never existed. It serves gradually to reintroduce the child to the non-custodian whilst minimizing the potentially traumatic effects of this process. The assistance of a psychologist or psychiatrist may be invoked.
Depending on the relationship between the child and the biological father, there may be instances where no access is granted to the father who has not seen his children for many years. Everything will depend on the facts. South African courts prefer to leave the way open and usually after prescribed conditions- such as that the parties undergo counselling or participate in mediation- have been met.
In extreme cases where clearly, there has been a history of abuse such as emotional, physical and mental abuse in the past, the father will have to show the court that he is a changed person and in these instances, he should have limited supervised access to the child/children. In these cases, the father is accompanied by a social worker if he wishes to have contact to the child, for example, this type of access will be used in instances where a father is a recovering alcoholic or drug addict.
A divorced biological mother can apply to the High court and a separated biological mother can apply to the children’s court for an order to terminate access in severe cases. Therefore, I repeat, there is no hard and fast rule, and everything depends on common sense, expert reports of social workers and psychologists and what is in the best interest of the child.
Cases in which access was suspended or refused are set out in The Law Of Access To Children by Lawrence Schafer are as follows:
In Pogieter v Potgieter, the father was “addicted to drink”, behaved in a “riotous manner”, used abusive and disgusting language and had threatened the mother with violence. His behaviour had an obviously detrimental effect on his children. The judge refused to deny him access completely but suggested that he make a fresh application a year later.
In Soller NO V G, exemplifies the circumstances in which access might be refused outright. The divorce and subsequent proceedings were characterised by a remarkable degree of bitterness and animosity between the parents. The decree of divorce had expressly precluded “reasonable access to the said children, such including telephonic access.” Sole custody and sole guardianship were awarded to the mother. But the father was advised of his right to apply for a variation of this order “should the circumstances vary”. He did so and was granted access shortly afterwards. This was just the tip of the iceberg. The various issues between the parents engaged the attention of at least twelve judges within one division and the litigation was characterised by “ extraordinary levels of irrationality”. In the circumstances, the father was refused access totally
The real problem with all these applications is that it appears that there is a grave shortage of family advocates, people who are specially assigned by the High court to attend to the resolution of these matters, with the result that the matters can take months to resolve.
I am unaware of what the situation is in the children’s court where there are no family advocates but decisions are predominately made by social workers but have heard it on good authority that there is a shortage of social workers as well which only prolongs the process. It is accordingly impossible to state with certainty how many months it takes for disputes to be resolved.