Refusal of contact rights

Denying a parent access to a child could land you in jail

When a couple with children divorces, the primary consideration is the wellbeing and welfare of those children. Many hours are spent agreeing custody arrangements and working out a parenting plan that defines contact hours, holiday provisions, and other aspects of a child’s physical routine and emotional care. When the divorce is finalised, these terms are often formalised via a court order, particularly where a divorce is not amicable. However, some former spouses find it hard to be civil to each other and discussions about childcare can become heated. Handovers can be unpleasant or even acrimonious. Sometimes the parent with primary custody takes matters into their own hands and denies the other parent access. What are the parental rights and legal consequences in this scenario?

There may be legitimate reasons for denying the other parent access to a child. If you are worried that they are abusing alcohol or drugs while caring for the child, or leaving the child unattended, or in any way not exercising due care and attention in their parental duties, you may be reluctant to hand your child over. If you are worried for the safety of your child, speak to your lawyer or the Family Advocate. The court order can be revised to allow only supervised visits, or to disallow overnight stays. There is provision in the law to protect children. But the law also ensures that children can maintain a relationship with both parents and the interests of the child come first. 

Parental alienation

What happens if the child refuses – or expresses unwillingness – to spend time with the non-custodial parent? They may even express hostility towards the parent. Much depends on the age of the child. The wishes of a child deemed old enough to make decisions must be respected. Often all that is needed is patience on the part of the parent. But if a much younger child is openly hostile to a parent, the other parent may be guilty of parental alienation. Parental alienation is rarely a natural response by the child, provided there is no physical or emotional abuse present. Rather, it is usually the result of deliberate sabotage by one parent against the other. It manifests in the child as denigration or hatred of the targeted parent. While it would be unfair to force a child with these feelings to spend time with the parent they appear to dislike, it must be recognised that they have been manipulated into this position and it is equally unfair on the victimised parent. According to Anthony Douglas, CEO of the Children and Family Court Advisory and Support Service in the UK (Cafcass), the deliberate manipulation of a child by one parent against the other should be treated as neglect or abuse and not accepted as an inevitable consequence of divorce. If you think your ex-spouse is alienating your child against you, speak to your family attorney urgently.

The Children’s Act

The Children’s Act is the great protector of South African children. What does it say about denial of contact rights? Section 35 (1) states explicitly: Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22(4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities and rights or who prevents that person from exercising such access or such responsibilities and rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year. (Emphasis ours.) 

Not all parenting plans are the subject of a court order. They can also be registered with the Family Advocate. Some couples manage without one, but we always recommend drafting a parenting plan even in an amicable divorce. No one knows what the future holds and the post-divorce relationship that starts out friendly can turn acrimonious when one party enters a new relationship. But where a parenting plan is enforced by court order, refusal to comply is contempt of court, which is an offence.

A real-life example

This happened very recently, in the case of B.M.G.S. vs. M.B.S., when a mother was found to be in contravention of two previous court orders concerning parental access and contact with a minor child. The mother failed to comply despite being obligated to provide the father with reasonable contact, as granted by the first court order. As a result, the father filed an application to have her declared in contempt of court for her disobedience and refusal to reinstate contact. 

Contempt of court explained

In legal terms, contempt of court is any conduct that disrespects, insults or defies the authority and dignity of a court. It is designed to safeguard honour and maintain the effectiveness of the judicial system.

Contempt of court can be either civil or criminal. Civil contempt refers to the wilful disobedience of a court order. It is not intended to punish, but rather to protect the rights of the party affected by the order and to ensure compliance. Criminal contempt is the wilful violation of the court’s dignity and authority. In this case, the primary purpose of the offence is punitive, e.g., imprisonment. 

To establish contempt of court, the following elements must be proven beyond a reasonable doubt:

1. The existence of a court order
2. The notice of the court order to the alleged person in contempt
3. The non-compliance with the terms of the order
4. The deliberate bad faith of the non-compliance

The case B.M.G.S. vs. M.B.S. highlights that wilful disobedience of a court order regarding parental access rights can lead to a criminal offence. In theory this should ensure compliance with the court order by the parent in question. After all, if the non-compliant parent is convicted and serves a custodial sentence, the other parent is highly likely to take over full-time care of the child. Imprisonment of a parent is rarely in the best interest of the child, which the Children’s Act aims to protect. However, the court’s primary objective is to uphold the rule of law and ensure compliance with its orders, thereby preserving the integrity of the judicial system.

Burden of proof

The courts do not like sending parents to jail, at least not for parenting-related “crimes”. (Obviously if a murderer also happens to be a parent the interests of justice and the safety of society take priority over parenting concerns!) For a parent to be imprisoned, the disobedience must not only be deliberate but must also be executed in a mala fide (bad faith) manner. This means the parent has intentionally and in bad faith disregarded the court order without good reason. Accordingly, the burden of proof for the first three elements above rests on the the person bringing the charge of contempt of court, while the fourth element, deliberate bad faith, must be disproved by the respondent, i.e., they must provide evidence that failure to adhere to the court order was not intentional and was not done in bad faith. 

In the case of B.M.G.S. vs. M.B.S., the mother failed to prove her case and was given a prison sentence of 12 months for her continued non-compliance. The father was granted immediate access to the minor child. 

This case highlights the constitutional duty to obey court orders to uphold the rule of law and the authority of the judiciary. Equally, it emphasises the importance of prioritising matters concerning a child, particularly with regard to the best interest principle. Contempt of court in family-related matters concerns the court and the parent who has contravened the court order and does not materially concern the relationship between the subsequent parents (though that may be affected by the charge). The case of B.M.G.S. vs. M.B.S. serves as an important lesson to those who refuse to abide by court orders. 

We can help

Simon Dippenaar & Associates Inc. is an established Cape Town law firm with extensive expertise in divorce and family law. If your ex-spouse is refusing you access to your child, or if you feel you have been alienated from your child, we can review the parenting arrangements and bring a contempt of court charge if appropriate. We can arrange for the services of a mediator or child psychologist if required. We recommend seeking a mediated solution to resolve access issues and avoiding contempt of court if possible, as this is in the best interest of the child.

At Cape Town Divorce Attorneys, we have a reputation for empathy and professionalism, with a personal touch. We will listen to you and help you find a solution that is in the best interests of all parties – most importantly the child. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za. 

Further reading:

• Parental Alienation and the Child
• The impact of parental alienation on a child
• Children are the losers in parental alienation

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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