Child maintenance: putting children first

Discussions about maintenance often exclude those most affected by non-payment ? the children. Instead, discussions focus on the parents and their interests, most often at expense of children?s interests.

Discussions about maintenance often exclude those most affected by non-payment – the children. Instead, discussions focus on the parents and their interests, most often at expense of children’s interests.

Maintenance defaulters, irresponsible parents and employers (employees) shrug off their duty to support children; meanwhile these children go to bed on empty stomachs. These children are denied access to the only source of income that stands between them and poverty. Despite this the courts continue to under-prioritise maintenance as the number of cases is on the increase.

What is not often spoken about is that the non-payment of maintenance is more than about money – it is also about mindsets and attitudes. Many defaulters do so because of differences with their ex-partners. Some default because they have been socialised in a patriarchal society and believe that defaulting is a way of proving their masculinity – showing that as men they are in control. It is tragic that the interests of the parents have been put before those of children.

What is needed is an evaluation of the way in which maintenance is viewed by various stakeholders – including parents and the courts. This is important as it will determine our responses and the strategies we adopt in addressing the challenges. I argue that maintenance and child support have not been on the agenda of many role players. A clear example is the Maintenance Act of 1998, a good piece legislation paper, which however has not converted into real benefits for the children and women for whom it was designed.

It is essential that we deal with the deep seated attitudinal notions which work against the payment of maintenance and encourage the notion that it is about the interests of the child. Society needs to take an active role in ensuring that issues of maintenance are afforded the same status and attention as other pressing societal concerns such as high crime levels, HIV/AIDS etc.

I argue that we need to challenge some of our assumptions and beliefs. One such belief is around money. While money is an important economic maintenance mechanism for children we need to ask for more from fathers. We should work towards transforming maintenance from being a monthly financial transaction to a holistic package necessary for the well being of the child. Thus we should also attach the emotional, psychological, social and physical aspects to the financial aspect of maintenance. It is not fair to children as well as to fathers to ask just for money. We need to move beyond the notion of cheque-book fatherhood or “ATM fathers” in our definitions of child support. Child support must be defined in its totality.

We must start talking about fathers and the roles they play in their children’s lives. What do children think of when they see their fathers? What defines a father and fatherhood? Is there an alternative to biological fatherhood? What are the new roles that fathers have taken up in the families? These questions need to be framed in the understanding that there are many ways of becoming a good father.

An important question to address is to what extent can society build other notions of fatherhood that would work as safety nets for children? These are real challenges that we need to confront when dealing with the rights of children.

Another point that needs to be made relates to the duty of employers towards facilitating the support of children. Society would benefit greatly if employers changed their attitude towards maintenance. A 2003 study on employers’ enforcement of the Maintenance Act’s provision for emoluments order showed that employers failed to respect the provisions of the Act to deduct maintenance money on behalf of their employees in instances where the defaulter had been served with an order. This raises the need for educational and awareness raising programmes that would focus both on the employer and the employees on the rights of children and the need to take maintenance as a building block of a good society. Employers also need to be aware that they are liable to prosecution if they fail to enforce court orders.

While the picture painted looks bleak, there have been some improvements in the system. The Maintenance Act itself is progressive in several respects. It makes provision for an order by default, which allows a magistrate to issue a maintenance order in the absence of the respondent if he has been notified and does not attend the hearing. This is a major innovation as previously cases would be held up indefinitely due to the failure of respondents to appear in court. A court can also order the employer of the defaulter to pay arrears and maintenance money from the employee’s salary. Significantly, the deduction of maintenance payments takes priority over any other court order requiring payments to be made, and failure by the employer to comply could result in criminal and or civil prosecutions.

Problems in accessing maintenance are the result of a variety of causes, including structural and systemic factors. What we must remember is that the Maintenance Act does provide the framework in which we can effectively address maintenance issues. What will be required is the cooperation and commitment of all stakeholders and role players to putting the interests of children first.

Bhekinkosi Moyo is a researcher with Tshwaranang Legal Advocacy Centre. He is the editor of “What about the Children: The Silent Voices in Maintenance.” The article is part of a special series of articles produced for the Sixteen Days of Activism.

This article is part of the GEM Opinion and Commentary Service that provides views and perspectives on current events.

janine@genderlinks.org.za for more information.