How to get urgent Access to your Children without the services of a Lawyer
Are you a father or mother of a child and the other parent refuses you access/contact to that child? If that is the case, you have a right to relief from the Court for Urgent Access.
A couple would bring a child into this world. Whilst the relationship is ongoing, they can see eye to eye on what is best for the child and both parties form a productive part of the child’s life. Even if the couple is not living together, the father would see the child regularly and bond with the child as is needed. However, once the relationship has severed, it often happens that the parties cannot see eye to eye on what is best for the child regarding regular contact by the father. The mother would either blatantly refuse the father access or would place strict measures on when and how the father can see the child. Should the mother refuse access or prescribe access to the child, which is not in the child’s best interest, the father, in this case, would have grounds to urgently approach the Court for relief.
Court procedure is very complicated. It is therefore strongly advised that you approach an attorney with knowledge and experience with these urgent applications. Furthermore, the attorney should have an advocate at hand to move the Application with or without opposition at Court. However, if you wish to do it yourself, read further should you wish to make the Application in the High Court.
Your application is urgent and therefore it is done on affidavit and not orally in Court. You may, however, be called to give oral evidence if the Judge so wishes. This is to clarify certain issues. However, this can mostly be avoided if your papers are properly drafted.
You should firstly draft a document called a Notice of Motion and a founding affidavit. I shall explain these documents next. Although reference below may be made to an attorney or advocate, you may attend to the process yourself. Lastly, for the sake of simplicity, the term contact and access is used, as opposed to care and contact.
Notice of Motion
In this document, you state exactly what you want the Judge to grant you. It is similar to the prayers in a summons. Of course, you want the Judge to grant you urgent access to your child. You are making the application urgently and sidestepping some rules of Court regarding time periods and procedure. The first thing you should, therefore, ask the Court is to condone non-compliance with its Rules. You will then ask the Court what relief you want, usually in the form of an interim order to be finalised later. Usually, you will ask for a rule nisi.
An example of the prayers in an urgent access application in the High Court are as follows:
- Condoning the Applicant’s non-compliance with forms and service and time periods provided in the Uniform Rules of this Honourable Court and permitting this Application to be entertained as a matter of urgency in terms of Rule 6(12) of the Rules of Court;
- That a Rule Nisi be issued, calling upon the Respondent to appear before Court on ____________________ 2017 at 10:00, in order to show cause why an Interim Order should not be confirmed in the following terms:-
- That the Applicant shall have unsupervised contact to the minor child as follows:
- Every alternative weekend commencing from Friday 18:00 to Sunday at 18:00.
- That the provisions above shall operate as an Interim Order, with immediate effect, pending the return date of the Rule Nisi;
This document is signed by your attorney, or by you if, you are acting in person.
In your Founding Affidavit, you provide relevant information under oath. Here you would provide details of you, the mother and the child. You would also need to provide information on a few or more of the following matters:
- Background information about your relationship with the mother of the child;
- Past access to the child;
- Past involvement in the child’s life;
- When access to the child seized/lessened and the circumstances surrounding it;
- Past maintenance or attempts to maintain the child;
- Why the application is urgent and substantive redress in due course would not be afforded to you; and
- Any other relevant information.
Issue and Service of the Application
Once the Notice of Motion and Founding Affidavit is in order, your attorney would make the necessary copies. Thereafter he would have the application issued at Court. A case number would be provided. If possible, you would have the application served on the mother of the child timeously. The Office of the Family Advocate should also be served. Here you may make use of the office of the Sheriff or your attorney would serve the papers on the mother.
If the mother of the child opposes the relief sort after being served with the Application, she should file an opposing affidavit to which you would have to reply. The parties would then have to argue the matter before the Judge.
Urgent Hearing at the High Court
If your matter has been set down on the Motion Court Roll, the Judge would have already read over the papers filed. You would then wait for your matter to be called up. Should your matter is to be heard before the Urgent Judge on duty that day, you or your Advocate would have to take the file to the Judge beforehand to read. If the mother or her Advocate is present at Court, and the parties cannot settle the matter, they would then have to argue the matter before the Judge. If, however, the mother after having been duly served does not appear at court, then the process is a bit faster.
After the judge decided on the matter, the following might happen:
- The Judge would grant the urgent access requested;
- Grant you urgent access but not on the terms as requested;
- Refuse to grant you any relief without a family advocate report;
- Dismiss your application for lack of merits and/or urgency.
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