Monthly Archives: August 2013

Have we forgotten our disabled children?

Disability (Born to be Included)

I have recently started subscribing to a magazine called “Servamus” which is a community based safety and security magazine. In the May and June 2013 editions there was an article which really caught my attention: “The forgotten crime victims: Disabled Children”. The article was written in two parts – part 1 in the May 2013 edition and part 2 in the June 2013 edition and both written by Kotie Geldenhuys.

The article was very well written, packed with information and references which makes it very difficult to paraphrase the entire article, so I will share with you a few important points which stood out for me. I will be using the writers exact words so please do not credit any of this to me – I am merely pointing out important information for the benefit of those who might be interested and who do not have access to this wonderful magazine.

The writer starts off saying that children who are victimised are vulnerable to exacerbated suffering. Most victims will experience a sense of shock, disbelief or denial that the crime occurred, often followed by cataclysmic emotions: fear, anger, confusion, guilt, humiliation and grief among others. However, those with disabilities may have intensified reactions because they may already feel stigmatised and often have low self-esteem due to societal attitudes. In many ways, people with disabilities are the forgotten victims of crimes.

Types of violence:
According to the United Nations (UN), the type and the amount of violence against disabled children varies depending on whether it occurs within the family, in the community, in institutional settings or in the work place.

Many crimes inflicted on disabled people by family members, partners or caretakers who are employed to look after the welfare of the person. The more caretakers a disabled person has, the greater the risk of a hate crime being committed.

Violence in the home includes:
• Infanticide and mercy killings – disabled children may be killed either immediately after birth or at some point after birth and sometimes years after birth. Reasons include that the child is evil or will bring misfortune to the family or the community or that the child is suffering and will be better off dead.
• Physical, sexual, emotional and/or verbal abuse of the disabled child in a violent household. Many parents are violent towards children who are not disabled, but when a disabled child lives in a violent setting, his/her disability often serves to intensify the nature and extent of the abuse.
• Neglect as a precursor to violence – when parents respond to the stress of caring for a disabled child with neglect rather than active violence. When this neglect involves the denial of food, medicine and other life sustaining services, it must be considered a form of violence.
• Violence and abuse linked to social isolation – when a disabled child is shunned within the household. Only a few family members talk to him/her or overseeing their safety. The child is sometimes not allowed to leave the house to ensure his/her own safety but in many cases the child is kept isolated because the family fears the reaction from other members of the community.
• Abuse by support staff within the home – physical, sexual, verbal and emotional abuse may be conducted by caregivers without the parent’s knowledge, or while the parent is away.

Children who live with a form of disability (whether it is a physical, sensory, intellectual or mental health disability) are among the most stigmatised and marginalised of all the world’s children. Although all children are vulnerable and at risk of being victims of violence, disabled children have a significantly increased risk because of negative traditional beliefs and ignorance. Regarded as easy victims, the disabled are often targeted by abusers.

Violence in educational institutions:
• Because educational facilities for disabled children are scarce, many children travel long distances to school. These children may be physically or sexually abused by those responsible for transporting them to and from school.
• According to the UN, disabled children are also often bullied, teased or subjected to physical violence (being beaten, stoned, spat upon, etc) by members of the community on their way to and from school.
• Violence inside the classroom – disabled children may be beaten, abused or bullied by teachers, particularly untrained teachers who do not understand the limitations of some disabled children. Teachers who humiliate, bully or beat children not only directly cause harm to the child, but also model such behaviour for other children in the classroom who may follow the teacher’s lead in physically harming, bullying and socially isolating the targeted disabled child.
• Residential schools – children living away from home are often subjected to both physical violence and sexual abuse. Reporting mechanisms for violence in residential schools are limited or non-existent for most children. They often have little or no regular contact with their parents or cannot effectively communicate with their parents due to their disability.

Violence in institutions:
Many disabled children are placed in institutions at birth or as toddlers, and remain there until death. All available data show that children in institutions are far worse off socially, educationally, medically and psychologically than children raised in supportive community settings. Children in institutions are sometimes subjected to physical violence and sexual, verbal and emotional abuse by staff and even fellow patients.

According to a UN report, children with disabilities are sometimes kept in overcrowded wards where they have little or no physical contact with caretakers, lying for hours or days unchanged on urine-soaked mattresses and suffering from under-nourishment and malnutrition. They receive little or no stimulation in the form of individualised adult attention, toys or attempts at toilet training, training in self-care or other education.

Children who are considered demanding or troublesome may be inappropriately restrained by, for example, being chained to their beds. Many institutions are under staffed which contributes to the violence and abuse of these children.

Several studies suggest that 80 to 85 percent of criminal abuse of residents in institutions is never reported to authorities. When these crimes are reported, there are lower rates of Police follow-up, prosecution and convictions. These children are further victimised by the very system put in place to protect them and promote their welfare.

Violence in the community:
Stigma and prejudice allow some members of the community to regard disabled children as easy targets of rage, anger or sexual aggression. They are at increased risk because they are physically vulnerable and in some cases, emotionally needy. They are not only abused by adults in the community, but also by able-bodied children who physically, sexually, verbally and emotionally abuse such disabled children through teasing and bullying.

In addition to the risks encountered in community settings, some types of violence and abuse are, according to the UN report, disability-specific such as:

• Virgin rape and the AIDS epidemic – the belief that those with sexually transmitted diseases, such as HIV/AIDS can rid themselves of the infection if they have sex with a virgin. This is a particular risk for disabled children. In many societies, individuals with a disability are incorrectly believed to be sexually inactive.
• Exorcism and related traditional practices – in some communities it is believed that if a child is born with a disability or becomes disabled, attempts to “heal” the child by driving evil forces out through severe beatings, starvation or other forms of violence are unacceptable but widespread. Such violence against disabled children causes not only serious injury and death but can also do profound psychological damage to the child involved.

A child born with a disability, or who becomes disabled, in a community where such beliefs exist may be directly subjected to physical violence or sexual, emotional or verbal abuse in the home, the community, institutional settings or later on in the workplace. Disabled children are far less likely than their non-disabled peers to be included in the social, economic and cultural life of their communities.

Disabled children used as beggars:
The most common form of employment outside the household for disabled children is begging. Families place disabled children on street corners to beg for money and, according to the UN report, some are sold by their families to other people who keep disabled children in organised rings of beggars. Either way, such children are routinely subjected to violence, both in order to keep them on the streets, and, once on the streets, by members of the general public who regard such children as easy prey. The UN report made the shocking revelation that in some countries non-disabled children are physically maimed to ensure they will generate money as beggars.

Lack of knowledge about disability within the legal system:
While inaccessibility (eg lack of ramps, lifts etc) at Police Stations and Courts is a significant barrier that blocks children with a disability from seeking help or protection from violence under the law, an equally troubling fact is that disabled children are rarely believed when they do seek help.

Charges of violence or rape from individuals with a disability are often dismissed by the Police or Judges who are not familiar with disability. There are also assumptions that a disabled child is unable to tell “right” from “wrong” or can’t decide for themselves what they want or do not want to be done to their bodies. It is often decided on their behalf that disabled children will not make good witnesses and they are then discouraged from pressing charges.

The UN report found that in a number of countries, individuals with certain types of disabilities are barred from presenting testimony in court, wearing an oath or signing their names to legal documents. In this type of climate, those who want to perpetrate violence against children will seek out the disabled children as there is little or no consequences, even if the abuse is discovered.
Violence or rape is NO less traumatic for a disabled child than for a non-disabled child.

Ideal target:
Disabled children may be perceived as ideal targets because their disabilities may make them unable to escape or communicate their experiences easily. It may also be more difficult for disabled children to recover from abuse because of their dependency on others and the isolation created by the disability. Some reasons for the high rate of abuse among disabled children may include the following:
• Disabled children are perceived by some as being less human and therefore less worthy of care and concern
• There is a perception that disabled children have no feelings
• Parental stress and frustration in caring for a disabled child can lead to lashing our directed at the child
Abusers may think that it is safer to abuse disabled children, particularly those children who literally don’t have a voice.

Assumptions about disabled children:
• It is often assumed that children with severe complex and intellectual impairments do not experience the same emotions as non-disabled children. There are even those who believe that disabled children don’t mind abuse because they don’t know the difference. This is known as the “lost knowledge” of abuse within disability services.
• A myth exists in South Africa that mentally challenged children have a very high sex drive, which allows offenders to think that they are merely fulfilling the child’s needs in this regard b sexually abusing them. However, this myth is far from the truth. Some mentally disabled individuals have an inability to comprehend choices and would, for example, touch their genitals in public. This would not necessarily be a sexual act, but when they are approached and asked if they want sex, they would say “yes” not understanding what the act, the question and the answer to is actually involves. This behaviour may be interpreted by a potential abuser as a sexual pre-occupation.

Vulnerability:
Although children and young people with disabilities experience harm at far higher rates than their peers without disability, impairment does not in itself make a child or young person vulnerable. For example: having Down’s Syndrome does not make a teenager vulnerable. A lack of social connections, and networks, the absence of a trusted adult in their life, and caregivers who do not understand any individual communication methods they have would make them vulnerable. It is in the interaction between the person and others, and the relationships and support systems they might need to live a full and fulfilled life, where the relationship between vulnerability and harm becomes very important.

Social, cultural, economic, physical and psychological factors contribute to a climate in which disabled children become the victims of crimes. Negative attitudes towards disability have played a major role in making disabled groups more vulnerable to crimes. Crimes flourish in a climate of imposed hopelessness and disenfranchisement.

Types of victimisation:
Crimes against people with disabilities are often classed simply as “abuse” or “neglect” rather than being called “crimes”. These forms of abuse can include hitting, violating someone’s bodily integrity, torturing or killing a person.

Reported crimes against disabled children include sexual assault, illegal restraint and seclusion, aggressive physical force, violation of legal rights, neglectful lack of action or failure to respond to harmful incidents, restricting their access to training programmes, degradation, threatening patterns of communication (explicit threats, insults or harassment) usually high death rates, denial of medical treatment, chemical restraint and wrongful incarceration and emotional neglect. Included in incarceration is being locked in a place or not allowed out, overuse or misuse of medication, medical experimentation or involvement in invasive research without consent, all forms of sexual crimes, including rape and pornography-related crimes and financial abuse.

Recognising abuse:
Disabled children display the following non-verbal signals when they are being abused:
• Loss of appetite
• Sleeping problems
• Crying
• Nightmares
• Rage
• Introverted behaviour and apathy

When such behaviour arises, the caretakers of disabled children generally link these symptoms to bullying, failures, wrong medication and fear of future hospitalisation. In many cases of abuse, the closest family member/guardian knows what is going on, but neglects to acknowledge the sexual abuse if the child has a disability.

Contributing factors:
• Dependency of disabled children on others – physical, social or emotional dependence is a key factor in their vulnerability
• Emotional deprivation and social isolation
• Institutional care – represents segregation (physical, emotional and social isolation) to a greater degree
• Communication – is vital in the context of disability and child abuse. Some of the most vulnerable children are those whose impairments prevent them from communicating either verbally or behaviourally.
• Disabled children are being considered less credible than non-disabled children – when and if they report abuse
• Disabled children being unable to differentiate between appropriate and inappropriate physical contact, whether violent or sexual
• Negative attitudes towards disability
• A lack of support, advocacy and safeguards
• Inadequate cultural support for violence
• Gender and power imbalances
• The level of abuse in state institutions

Wow, all that’s left for me is to say thank you to Kotie Geldenhuys for writing this article. I look forward to sharing part 2 with you next week.

Inter-Personal Violence (Family Violence)

Love_Text with butterflies

For national Women’s Day last week, I was asked by a church to speak at their Women’s Day Ladies Afternoon Tea about Gender Violence and how we can make a difference. A lady contacted me afterwards for help as her mother was experiencing Elder Abuse at the hands of her son and the lady who contacted me, being part of the same family was subjected to abuse by the same person – her brother (Sibling Abuse).

This got me thinking about Inter-Personal Violence (Family Violence). How many of us think about this?

How many of us are subjected to this kind of violence without even realising it? As part of my BA Criminology studies this year, one of my modules deals with Child and Youth Misbehaviour and this is what I managed to find out about the subject of Family Violence.

There are generally two types of intra-familial violence committed by children and youth: (a) Parent abuse and murder and (b) Sibling Abuse.

Family violence is considered to be a private, domestic and even “normal” phenomenon by the victims and perpetrators, and interference by outsiders is not tolerated. Parent abuse is often overlooked because it is not seen to be an extensive or problematic aspect of family interaction.

Parents are also not likely to report the abuse that they suffer because they may blame themselves for the victimisation, or they may feel that others will blame them for their children’s behaviour. Parent abuse involves: physical attack, verbal and non-verbal threats and emotional battering of a parent or both parents by a child.

Parent abuse involves the throwing or use of objects as a weapon, pushing, grabbing, shoving, slapping, kicking, biting and threatening to use, or using a knife or gun in an impulsive or situational episode against a parent.

There are also more subtle forms of abuse, i.e. personal and property theft, leaving a disabled person alone without food, water and help. Cursing and shouting at the parent to the extent that the parent experiences it as dehumanising is another form of parent abuse. Children who assault their parents:-

• Are likely to have friends who also assault their parents
• Approve of misbehaviour, including violence
• Show weak attachment to their parents
• Tend to be male

An extreme form of parent abuse is Parricide (i.e. the murder of one’s parents) There is a difference between Matricide (killing of the mother) and Patricide (killing of the father). Patricide (killing of the father) can be committed by any one of the three types of perpetrators:

• A severely abused child who is pushed beyond his/her limits
• A severely mentally ill child
• A dangerously anti-social child

SIBLING ABUSE:
It is not uncommon for conflict to occur between siblings, but the following criteria distinguishes conflict from abuse:

• The interaction becomes violent
• A sibling feels that he/she is powerless to stop the interaction
• The conflict persists over a period of time
• The interaction is directed towards only one sibling

The characteristics of sibling abusers are as follows:

• Prior victimisation by parents, older siblings and other non-family members
• Lack of impulse control
• Lack of empathy towards the victim(s)
• Inadequate social skills and emotional immaturity
• Alcohol and drug abuse
• Use of coercion and force to control the victim

Sibling abuse can be physical, psychological or sexual by nature.

PHYSICAL:
• When one sibling causes physical harm or injury to, or the death of another sibling.
• It includes pushing, hitting, kicking, beating and using weapons to inflict pain or injury.
• Contributing factors include: inner rage, impulsivity, a desire for power and control, drug use, prior victimisation and deficient interpersonal skills.

The family structure of the physical assaulter appears to be important in sibling assault, especially the birth order and gender of the children.

• First born males: use physical violence and are more powerful and bossier than younger siblings
• Sibling violence tends to occur more often in families with only male children as opposed to families consisting of only female children
• The rate of sibling violence for the age group ten to fourteen years among male only siblings is more than double that for girls in all-female families

PSYCHOLOGICAL ABUSE:
This could include the following:
• Emotional abuse – which includes the neglect of a sibling as well as forcing a sibling to witness violence
• Verbal abuse – aimed at ridiculing, insulting, threatening, terrorising or belittling a brother or a sister
• Acts aimed at rejecting, degrading and exploiting a sibling
• Destroying the property of a sibling

SEXUAL ABUSE:
Sexual abuse or sibling incest includes sexual behaviour between siblings that is long-lasting, not motivated by age-appropriate curiosity and for which the victim is not developmentally prepared. In the majority of cases the perpetrator of sibling incest is an older brother molesting a younger sister.

There are three possible explanations for this:

• The older brother uses the younger and less experienced sister for sexual experimentation
• A neglected or sexually inept brother sexually assaults the sister owing to a lack of parental affection or unavailable female peers
• The perpetrator himself was physically and/or sexually abused and forces the sister into a sexual relationship through coercion and violence

Apart from brother-sister incest, sexual assault can also be between sister and brother, brother and brother and sister and sister. When it comes to sister-brother incest, it has been found that in most cases the female incest offender had experienced prior physical and/or sexual abuse, most often at the hands of a male. The male victim of this type of incest is not likely to report the incident because of the socialisation process prohibiting boys from talking about their feelings, sharing problems or demonstrating vulnerability. Also, boys are generally less willing than girls to disclose information about sexual abuse.

Not much is known about brother to brother incest. From the research available, it appears that it usually involves older brothers having unsupervised contact with younger male siblings. Again, the victim is unlikely to report the abuse, because same sex assault may lead to questions around the sexuality of the victim and he may fear being stigmatised as homosexual.

One of the least studied themes is sister to sister abuse. The limited research available suggests that a father and/or older brother may have previously molested the perpetrator. It has been found that sister to sister incest is less traumatic for the victim, there is less force or coercion used by the perpetrator, it is shorter in duration than other types of incest and is less violating than brother to sister incest.

The common thread in all of the above is that regardless of the type of sibling abuse (physical, psychological or sexual), all the perpetrators were victims of abuse themselves.

Source: Bezuidenhout, C & Joubert, SJ. 2nd Edition. 2008. Child & Youth Misbehaviour in South Africa: A holistic approach. Pretoria: Van Schaik.

My thoughts?
Although the information above relates to child and youth misbehaviour, I am sure there must be a link to adult perpetrators of Elder and/or Sibling Abuse. The above information can provide insight as to what could possibly have gone wrong during their childhood which led to them becoming abusive as adults.

What do you think?

The Everyday Sexism Project

Happy Pencil Smiling

The Everyday Sexism Project exists to catalogue instances of sexism experienced by women on a day to day basis. They might be serious or minor, outrageously offensive or so niggling and normalised that you don’t even feel able to protest. Say as much or as little as you like, use your real name or a pseudonym – it’s up to you. By sharing your story you’re showing the world that sexism does exist, it is faced by women everyday and it is a valid problem to discuss.

If you prefer to e-mail me at laura@everydaysexism.com I can upload your story for you instead. Follow us on Twitter (and submit entries by tweet) at @EverydaySexism.

Here is the link………

http://everydaysexism.com

Protection from Domestic Violence

Rose opening Animation

If you are in a domestic relationship with someone who is abusing you, you could apply for a Protection Order in terms of the Domestic Violence Act. A Protection Order sets out conditions of what the abuser may or may not do. Should the abuser break these conditions he/she can be arrested. If the abuse involves a criminal offence a charge can be laid for that offence.

What is a “domestic relationship”?
You are in a domestic relationship if you
• Are or were married to each other, whether you live together or not
• Are same-sex partners, whether you live together or not
• Were or are engaged, dating, or in a customary relationship, or in any relationship you or the other person believes to be romantic
• Have been in a sexual relationship, even for a short time
• Are the parents of a child
• Share or recently shared the same home or residence

What is Domestic Violence/Abuse?
• Physical Abuse
• Sexual Abuse
• Emotional Abuse
• Verbal Abuse
• Psychological Abuse
• Economic Abuse
• Intimidation
• Stalking
• Damage to property
• When you are not living together, entering your property without your consent
• Any other controlling behaviour that may cause harm to your safety, health or well-being

Asking for a Protection Order does not mean that you are laying a criminal charge, and you do not need to lay a criminal charge in order to get a Protection Order. If the abuser commits a criminal act while abusing you, you can choose to apply for a Protection Order, or lay a criminal charge, or do both.

Acts of abuse which are also crimes include:
• Common assault
• Assault with the intention of doing grievous bodily harm
• Indecent assault
• Rape
• Incest
• Attempted murder
• Malicious damage to property
• Pointing a firearm
• Abuse of animals

Once you have the Protection Order, if your abuser breaks the conditions of the Order, that is a crime and he/she can be charged with the crime of Contempt of Court. If the breach involves a crime such as assault, then he/she can be charged with both Contempt of Court and Assault. Having a Protection Order means having the power to have your abuser arrested as soon as he/she commits an act of abuse. All you need to do is report that he/she has breached the conditions, and the Police must act immediately.

Interim Protection Order:
Before getting a Protection Order, you can get an Interim Protection Order quite quickly by filling in certain forms, and that Interim Order will specify a date at which the final Order will be considered (a return date). Once a final Order is made, it is permanent and can only be changed by applying to the courts.

The kinds of protection you can get in a Protection Order include conditions that:
• Your abuser must not commit any act of domestic abuse
• Your abuser must pay you rent, mortgage payments or other emergency money (Interim Maintenance Order)
• The Police must seize any firearms or dangerous weapons in your abuser’s possession
• The Police must go with you and help you to collect your personal property
• Your address must not be written anywhere on the Protection Order

Where should I go?
Form 2 is available at Police Stations and Courts, although Police may send you to the Courts for help with filling out the form. You could also get someone from a Paralegal office to assist you with completing the form. The Police should also give you a Form 1, which is a document explaining your rights. If you are hurt or need a different place to stay because of the abuse, the Police must help you to get medical treatment and help you with finding a place of safety.

Any Court that covers the area in which you live or work, or in which your abuser lives or works, or which covers the area in which any incidents of abuse took place can grant you a Protection Order. You should go to the Courts during ordinary Court hours (weekdays, 08:00 – 16:00). After-hours applications will normally be taken only if you can show that you will be hurt if the matter is not dealt with immediately.

Some Courts have a room set aside to deal with domestic violence cases. Volunteers are sometimes available to help you with filling our Form 2, and the Clerk of the Court may also be able to help. The Clerk will also give you a Form 3, which explains how the Protection Order works and warns you against lying when you complete Form 2, as this is a criminal offence.

Do I have to apply for an Order myself?
Someone else can make the application for you. All they need is your written permission to do so. If you are a child (under the age of 18 years), mentally retarded, unconscious, or unable to give permission for any other reason, someone else can apply for you without your permission. If you are a child you can apply for a Protection Order without the assistance of your parents, guardian, or anyone else. If you are applying for a child, you can do so without the child’s parents’, guardian’s or anyone else’s assistance or permission.

What information do you need to apply for a Protection Order?

Form 2 is made up of a number of sections:
Part 1: The Applicant:
This is information about the applicant, also called the Complainant. You are the applicant unless you are applying for someone else, in which case this is information about the person on whose behalf you are applying – the person who is the victim of abuse. You will need to give the applicant’s Identity Number, home and work address, telephone numbers, job, and relationship of the victim (for example, wife, friend, or flat-mate) to the abuser (the Respondent).

Part 2: If you are not the Applicant:
You don’t need to complete this section if you are applying for yourself. However, if you are applying on someone else’s behalf, this is information about you. This includes your Identity Number, home and work address, job, relationship to that person (for example, friend, counsellor or Police), reason for making the application, and whether you have permission from the person for whom you are applying.

Part 3: The Respondent:
Information about the abuser (the Respondent) including his Identity Number, home and work address, telephone numbers and job. The addresses are very important. If you do not know the addresses then you should give any information about where he/she can be found, such as clubs or friends he/she may visit often. This is so the Sheriff or Police can find him/her.

Part 4: Others affected:
Details of anyone else also affected by the domestic violence, how they are affected and whether any of them are disabled.

Part 5: Statement of abuses:
An Affidavit (statement) from you with information about the acts of domestic violence by the abuser, including whether weapons or firearms were used, what injuries you had and whether you needed medical treatment.

Part 6: Any information on how urgent the application is:
For example: it may be urgent if you have reason to fear the abuser may act violently again soon, because he has obtained a weapon or recently threatened you or something has happened that you know will provoke him.

Part 7: What conditions you need in the Protection Order:
These conditions should match up with the types of abuse you have noted. For example: if you have described economic abuse, you should ask that a condition of the Protection Order be that your abuser not abuse you economically. The form has a list of conditions and you need only tick the correct boxes. Do not tick all of them as some contradict each other, so decide carefully what protection you need.

Part 8: Any additional conditions:
You can also ask for conditions that are not on the first list. Some of these are listed and you need only tick the correct boxes and fill in details. There is also a block to fill in for any other conditions that may not be listed.

Part 9: Personal property:
A list of property that you consider to be personal. This is important if you have asked for assistance from the Police in collecting your personal property.

What will happen after completing the application form?
Once Form 2 has been completed it has to be certified. This means that you have to make an oath in front of a Commissioner of Oaths saying that you know and understand everything you have written in Form 2, that you don’t object to taking a sworn oath, and that you consider the oath to be binding on your conscience. This can be done at a Police Station, at the Courts by a Justice of the Peace, or by a Magistrate.

Once Form 2 has been completed and certified, you need to take it to the Clerk of the Court, who will fill out another form called Form 4: Interim Protection Order and set a return date (the date on which your final Protection Order will be considered) for the case. The Clerk will hand both Form 2 and Form 4 to the Magistrate, who may sign the forms granting an Interim Protection Order.

When will the Interim Protection Order be granted?
In some Courts, the Magistrate might meet with you briefly before granting the Order to ask any questions they might have about your request for immediate protection. At some Courts, you may have to return a day or two later to find out whether the Interim Order has been granted, while in other Courts the forms can be signed the same day; generally this depends on how buy the Court is, and how urgent your application is.

What happens once the Interim Order is granted?
Once it has been granted, you will be given a copy of the Interim Order and it will also be “served on” (handed to) your abuser by the Police, or if you can afford Sheriff’s charges, by the Sheriff (in South Africa the Sheriff is an Officer of the Court responsible for serving documents that need to be served in civil cases). The Interim Protection Order does not come into effect until it has been served.

Serving of the Interim Order by the Police is FREE. If you can afford the service charges, it is better to ask for the Sheriff as the Police have many cases and are likely to take longer than the Sheriff. The Clerk of the Court can also arrange for service by registered mail, but this involves a cost and will not work if your abuser does not go and collect and sign for the documents at the Post Office.

Whoever serves the Order must give the Clerk of the Court a “return of service” document to confirm that you have served the Interim Order and state when they served it. Once the Clerk has received the “return of service”, they must ensure that a certified copy of the Interim Order, as well as a Warrant for the arrest of the abuser (form 8) is served on (given to) you. This Warrant only comes into effect if your abuser breaks the conditions of the Interim Protection Order.

If you do not receive the Warrant you should go to the Court to collect it. Having the Warrant means that should your abuser break the conditions of the Interim Order you can have him/her arrested or charged by going to the Police and giving them the Warrant and an Affidavit (Form 10) describing how he/she has broken the conditions of the Interim Protection Order. The Police must then arrest him/her if it appears you might suffer harm.

The Interim Protection Order will have a date called a “return date” listed on it. On this date you (the Applicant) and your abuser (the Respondent) will have the opportunity of giving the Court further information about the abuse, and the conditions in the Interim Order will either be confirmed, changed or set aside by the Magistrate, in a final Protection Order. The “return date” may not be sooner than ten days after serving of the Order.

What happens if the Interim Order is not granted?
In some cases, the Magistrate may decide not to grant an Interim Protection Order. Instead, a notice (Form 5) will be served on your abuser, which will also have a “return date” and which will warn our abuser to appear in Court on that day and give reasons why a Protection Order should not be made against him/her. No Warrant of Arrest is issued.
What happens on the “return date”?

On the “return date”, your final Protection Order can be granted. This is a permanent Order and will remain in force until an application for setting it aside is granted by a Magistrate. On the “return day”, your case will be considered in the Magistrate’s chambers (office) not in open court. Nobody except Officers of the Court and people directly involved in the matter may be present. However, you may bring along up to three people to support you. You or the Respondent can have Lawyers representing you at any stage of these proceedings. No one is allowed to publish or reveal the identity of any party in these proceedings. Your physical address may also not be revealed in any documents and proceedings related to the Protection Order if you ask for that on Form 2 (unless it is necessary for describing the conditions of the Protection Order).

Under what conditions will a final Protection Order be granted?
If your abuser does not oppose the Order, or if your abuser is not present but there is proof in the Interim Order or notice was served on your abuser, or if neither of you is present but there is proof the Interim Order was served, then it is likely the final Protection Order will be granted.

Under what conditions will the Protection Order be set aside (not granted)?
If neither of you appear, and there is no proof of service, then it is likely that the Interim Order will be set aside. If only you appear but there is no proof of service, then it is likely the Interim Order will be extended to another “return date”. If you alone appear or both of you appear and request that the Interim Order be set aside, then it will be set aside.

Under what conditions will the case go to trial instead?
If your abuser is present and contests the granting of a final Protection Order, the case will go to trial, which means the Magistrate will hear all the evidence given by you or any other witness and make a decision. At trial, the Magistrate can direct that any cross-examination of you or any other witness by the abuser (where a Lawyer is not doing the questioning for him) be done by putting the question to the Court and then having it relayed to you by the Magistrate, so that the abuser does not question you directly. You should ask that if you think you will feel intimidated under cross-examination.

If the Court at trial finds on a “balance of probabilities” i.e. that it is more likely than unlikely – that your abuser (the Respondent) has committed or is committing an act of domestic violence, then it will issue a final Protection Order.

What happens once a final Protection Order is granted?
A Warrant of Arrest is issued immediately on the granting of the final Protection Order, but it is suspended as long as your abuser does not break the conditions of the Protection Order. You must make sure you take the Warrant of Arrest with you. Having the Warrant means that should your abuser break any of those conditions, all you need to do is complete a sworn Affidavit (Form 10) stating how the conditions of the Protection Order have been broken, and hand your Affidavit together with the Warrant of Arrest to the Police, who must arrest your abuser immediately if it appears you might be harmed. If you are in no immediate danger, the Police may give your abuser a notice to appear in Court on a criminal charge of breaching the Protection Order.

If you use up the Warrant (it can only be used once and becomes “executed and cancelled”) and you need a second one, or the first Warrant is lost or destroyed, you can apply for another one (Form 9). If your abuser is found guilty of breaking the conditions of a Protection Order in a criminal case, he can be fined or sentenced to prison for not more than five years.
Source: http://www.capegateway.gov.za

To maintain or not to maintain, that is the question . . .

White Unicorn Animation

Do you live in South Africa? Are you planning or are you in the process of a divorce? Do you know what our law says about maintenance?

Do you know that you can apply for an Interim Maintenance Order while you are waiting for your divorce to be finalized to help with your expenses?

MAINTENANCE:
• Encompasses accommodation, food, clothes, medical and dental expenses and other necessities of life on a scale that is in line with the social position, lifestyle and financial resources of the parties. The scope of maintenance is always determined according to the standard of living of the parties concerned. In other words, you should be able to maintain the lifestyle you were accustomed to while you were married – you should not be worse off or better off.
• A child is entitled to reasonable maintenance to provide for his/her needs as in first bullet point above as well as in education and training and, where applicable, even recreation (sports, hobbies etc).
• In the assessment of maintenance for children their needs and the parent’s ability to pay are the primary factors to be considered, but the most important factor is always in the best interests of the child.
• Payments cannot be made directly to the child – it has to be done via the parent who has custody of the child.
• A father who has re-married must adjust his own standard of living rather than allow his children to be prejudiced i.e. he cannot get married again to “spite” his ex-wife or children.
• The Divorce Act provides for maintenance orders as well as to the division of the assets of a marriage. The court will decide how long the Maintenance Order will be in force – for a set period of time or until the death or re-marriage of the party who is to receive the maintenance.
• The means of support includes property that could be used to produce income.
• Duration of the marriage – if the marriage was of short duration, it should not be difficult for both spouses to pick up the threads of their previous lifestyles and means of support. However, if they have been married for a long time, it may be extremely difficult for the wife to become self-supporting because of her age, possible lack of job skills and experience

WORD OF WARNING:
Before accepting your final Maintenance Order, please ensure provision is made for future earnings on your side. Think about the risk of losing your job (at your age) and the risk involved in getting another job and the risk of getting another job that will pay enough money for you to support your children.

In other words, if you are already struggling on your existing salary. What happens if you lose your job tomorrow? Do you have the necessary skills to get another better paying job? What is the risk of you getting another job at the same salary you are earning now? What is the risk of you never finding employment again due to your age? Your Lawyer must make allowances for all this BEFORE YOU SIGN THE FINAL MAINTENANCE ORDER.

You said he can keep his pension and you can keep yours – don’t be too hasty to say this. Think about your retirement years. How are you going to survive on your pension alone until you die?

DO NOT ONLY THINK OF TODAY – YOU COULD LOSE YOUR JOB, YOU COULD BE FORCED TO STOP WORKING BECAUSE YOU OR ONE OF YOUR CHILDREN BECOMES ILL OR DISABLED ETC.

• In terms of the Maintenance Act, an order for a lump sum payment of maintenance is possible.

INTERIM MAINTENANCE:
• Rule 43 of the High Court rules provides an inexpensive and speedy remedy where the following are sought:
– Maintenance (pending the Divorce suite) i.e while the Divorce is pending
– A contribution towards costs of a pending matrimonial action

This will require the Applicant to deliver a Sworn Affidavit setting out what is claimed and the grounds for the claim (in your case, you don’t earn enough to cover all the expenses on your existing salary). Use the same form you used to apply for Maintenance to guide you as to how this Affidavit must be structured to strengthen your case.

Grounds for payment – must be based on fact. You cannot thumb suck. Provide copies of receipts/invoices etc if you have them to solidify your case. The objective of these proceedings is to be as inexpensive and as speedy as possible so provide as much information up front as possible so you don’t waste the Court’s time.

The Court will broadly speaking apply the principles relating to the NEED of the parties or of the child (children) concerned, means of the parties and their obligations to support the children or each other. The emphasis falls on a just and speedy decision.

• An Applicant is entitled to reasonable Interim Maintenance but not to luxuries.
• The fees which the Advocate and Attorney may charge are limited by the court rule. Where there is an existing Maintenance Order made by the Maintenance Court an application for Interim Maintenance cannot be brought to the High Court under rule 43.
• Interim Maintenance Orders in the Maintenance Court – A Maintenance Court can grant an Interim Order for maintenance pending a divorce and it can also replace or discharge an Interim Order it has made, or replace or discharge a High Court Order for Interim Maintenance.

Maintenance for children over 18
In terms of our law, a child becomes an adult these days at the age of 18. A lot of people believe that in fact that is when an obligation for maintenance ends.

The Maintenance Act itself does not comment on the duration of this responsibility to support a child and in the circumstances, the answer is found in our common law which provides that a parent has a duty to support the child, until the child becomes self-supporting. This was also confirmed in the 1999 case of Bursey v Bursey & Another in the Appellate Division. A child cannot be self-supporting, if for example, the child is still studying or if for example, the child is handicapped and cannot look after him/herself.
In terms of the new Children’s Act, maintenance is payable until the age of 18 years. Before the new Children’s Act came into effect, maintenance was payable by the parent in respect of the minor child until the minor child was 21 years of age or self-supporting, whichever event should occur first.
Section 305 (4) of the Children’s Act 38 of 2005 provides that “A person who is legally liable to maintain a child is guilty of an offence if that person, while able to do so, fails to provide the child with adequate food, clothing, lodging and medical assistance”. Section 305 (6) provides that a person can be sentenced to imprisonment of 10 years and provides “a person convicted of an offence in terms of subsection (1), (2), (3), (4) or (5) is liable to a fine or to imprisonment for a period not exceeding ten years, or to both a fine and such imprisonment”.