Can I enforce a settlement agreement to see my children?

“In terms of the settlement agreement with my ex-husband, which was incorporated into the court order, the children reside with him and I am entitled to regular contact. My ex-husband however now does not allow me to see the children or let them spend weekends and holidays with me. How can I enforce the settlement agreement?”

The parental rights and responsibilities of parents and the interests of children are governed by the Children’s Act 38 of 2005 (“Children’s Act”) which dictates that the best interests of the child is always of paramount importance and must be the determining factor when any dispute regarding a child’s rights, or a parent’s rights in respect of the child, are to be decided.

Section 35 of the Children’s Act states that any person having care of a child and who refuses or prevents another person who has contact rights to that child or who holds parental responsibilities and rights in respect of that child in terms of an order or agreement to exercise such rights or responsibilities, is guilty of an offence. In other words the section criminalises the refusal or prevention of the exercise of such access or parental responsibilities and rights. A person found guilty of this offence can be liable to a fine or to imprisonment for a period not exceeding one year.

In your situation it appears that the court confirmed settlement agreement is not being complied with. This then leaves you with the following options to enforce your rights:

You can institute contempt of court proceedings, which could result in the other party being imprisoned. You can either lay a complaint with the police, in which case the matter will proceed as a criminal matter, should the Director of Public Prosecutions decide to prosecute, or you can bring an application for contempt of court in the High Court. A party seeking an order of contempt must prove beyond a reasonable doubt that a court order was granted, that the other party has knowledge of the order and that the other party is not complying with the order. The party not complying with the order must then prove that his non-compliance with the order was not wilful and in bad faith. 

It should be noted though that the fact that a parent is in contempt does not mean that a court as upper guardian of children, will automatically enforce the existing order, if it would not be in the best interests of the child involved that the terms of the order are executed. 

Disputes between parents should never negatively affect the children involved. Our courts also see it as important that children have good and secure relationships with both their parents and take a stern view of parents who unreasonably deprive children of same.

In your situation, it does appear that you have access rights that can be enforced. It is strongly advised that you seek the help of an attorney to assist you on the best course of action to enforce your rights.

May 8, 2017

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