Child abuse allegations in child custody disputes : a civil procedure approach

Abstract

The Family Court in private child custody disputes involving child abuse allegations must ensure that not only is care and custody granted to the party best suited to ensure the well-being of the child but it is crucial that the child is protected during the Court procedure. The Family Court when faced with allegations of child abuse should seek to ensure that the allegedly abused child is protected against any abuse and that the child is not abused by the same system that should seek to protect him/her. With the main focus of the thesis being that of considering whether the Court procedure in child custody disputes involving child abuse allegations is child friendly, the thesis delves into both the substantive part as well as the procedural part of the subject in chapter 1 and 2 respectively. This is done by scrutinizing both local legislation that applies to these cases and international legal instruments whose implementation would be beneficial to the child in these cases. While jurisprudence relating to the subject under examination is made reference to throughout the thesis, findings from Court files for the purpose of scrutinizing the Court procedure are analysed in chapter 3. Interviews conducted with professionals appointed by the Court in these cases are analysed in chapter 4. Particular importance is given to the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice which are recommended to be implemented in all cases where the child is directly or indirectly involved. The thesis establishes certain short comings in the procedure implemented by the Family Court in ensuring that the child is protected and in this regard, conclusions and recommendations are put forward in chapter 5.