Felicity Guest is the founder of Child Maintenance Difficulties South Africa (CMDSA), and through the organisation assists primary caregivers by empowering them to know their rights regarding child maintenance laws, and when seeking financial support through the South African Maintenance Courts.
In spite of the great strides made in gender equality, it has not manifested in the Maintenance Courts, it seems that patriarchal constructs are still very much in place.
The latest Media release from the Minister of Justice’s office dated 1 April 2020 reads:
"Essential justice services will be available at courts only between 10.00 and 13.00 daily during the national lockdown period (27 March until 16 April 2020).
Family law services will only attend to urgent applications in respect of matters referred to the Family Advocate by the court with urgent applications.
Applications for protection orders will still be addressed as will enforcement orders.
Persons whose matters are on the court rolls and not urgent should therefore, for purposes of the lockdown, stay home and not attend to the courthouses until after lockdown.
The courts will also ensure that they are advised of the new dates to which their matter were postponed."
Deafening silence of government
Whilst the restriction on movement is critical to flatten the curve, Government has been silent in addressing the dire situation that many mothers find themselves in.
The systemic problems in the Maintenance Courts pre-existed and will only be exasperated by the restrictions imposed by The Disaster Management Act to control the spread of the virus.
My contention is not with the restrictions but the deafening silence of Government to directly address child support.
There have been no statements regarding the person who is required to pay maintenance and encouraging them to prioritise paying maintenance, if not the full amount at least part of it.
Set their own operating conditions
The regional heads were given permission to set their own operating conditions during lockdown so some courts are accepting maintenance cases others telling people to return when courts are fully functional.
Many courts are not answering their phones so people are unable to confirm if they should attend or not.
On the 2/04/20 the deputy Minister of Justice said during an interview on Power Talk that if people do not arrive at the courts it is assumed they will be postponed. Over a week into lockdown and people are still not sure if they should go to court or not.
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No specific relief options
There are no specific relief options for parents who are primary caregivers who now find themselves without any financial assistance, who don’t qualify for social grants, who are themselves not receiving an income yet are left with the sole responsibility of providing for the children during this lockdown period.
It is a function of the state not only to provide a good legal framework, but to put in place systems that will enable these frameworks to operate effectively.
Our maintenance courts and the laws that they implement are important mechanisms to give effect to the rights of children protected by section 28 of the Constitution.
Failure to ensure their effective operation amounts to a failure to protect children against those who take advantage of the weaknesses of the system.
Compounding these logistical difficulties is the gendered nature of the maintenance system.
Additional financial burden
The material shows that on the breakdown of a marriage or similar relationship it is almost always mothers who become the custodial parent and have to care for the children.
This places an additional financial burden on them and inhibits their ability to obtain remunerative employment.
Divorced or separated mothers accordingly face the double disadvantage of being overburdened in terms of responsibilities and under-resourced in terms of means.
Fathers, on the other hand, remain actively employed and generally become economically enriched. Maintenance payments are therefore essential to relieve this financial burden.
The dignity of women
These disparities undermine the achievement of gender equality which is a founding value of the Constitution.
The enforcement of maintenance payments therefore not only secures the rights of children, it also upholds the dignity of women and promotes the foundational values of achieving equality and non-sexism.
Fatalistic acceptance of the insufficiency of the maintenance system compounds the denial of rights involved.
Relief that is effective
Effective mechanisms for the enforcement of maintenance obligations are thus essential for the simultaneous achievement of the rights of the child and the promotion of gender equality.
The appropriate relief required by Section 38 is relief that is effective in protecting threatened or infringed rights.
Where legislative remedies specifically designed to vindicate children’s rights as efficiently and cost-effectively as possible fail to achieve that purpose, they do not provide effective relief.
The Courts need to be alive to recalcitrant maintenance defaulters who use legal processes to side-step their obligations towards their children.
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Nothing has changed in 18 years in the enforcement of Children’s Rights to be financially supported by both parents in spite of the many amendments.
Mothers are told that women wanted their independence, they now have it and should not be asking men for financial support,
Another common misconception is that the mothers spend it on themselves and not their child, and the other one is that women want maintenance in order to stay at home and not work.
It is an absolute minute percentage of people that would fall into any of these categories.
The Department of Justice has always used the excuse that they are under resourced; in fact the problem is political will and not resources.
Will to protect children’s rights
If there was political will to protect children’s rights, there would be clear policy in place regarding financial support and the implementation of the Maintenance Act.
As a result of neglecting this Constitutional imperative, women and children are living in abject poverty and with no clear directive pertaining to maintenance orders during lockdown; women and children have never been more vulnerable and marginalized.
Thousands of women went into lockdown with arrear cases already spanning several years, many cases were postponed for months before this.
One can only imagine the nightmare that awaits mothers post lockdown in addition to the new arrears cases due to the income interruption of fathers who have maintenance orders against them.
Although this is a humanitarian crisis it will reveal just how unequal and skewed the system has always been against the mother.
Mothers will bear the brunt
If both parents have been financially compromised during lockdown the mother will bear the brunt during and after lockdown and the courts will show leniency to the person unable to pay.
Previous stats of approximately 52% of children living in homes headed by single mothers with little or no financial support will grow rapidly in the months ahead.
Australia has made one off $750 Economic Support grants available.
In the US, individuals who are overdue on child support payments should not expect to receive a stimulus check or expect a reduced amount according to an Iowa Senator.
In the United Kingdom parents are able to log into their child support cases to update their current situation.
In South Africa: silence.
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