087 822 1639
Skip to content 087 822 1639
The Family Advocate is a neutral, legally qualified official within South Africa’s Department of Justice who assists with disputes involving children.
The Office may mediate, investigate care, contact and parental-responsibilities-and-rights disputes, obtain a child’s views where appropriate, and make recommendations to the court.
Its recommendations are not binding: the court ultimately decides what is in the child’s best interests.
This article provides general information about South African law and procedure. It does not constitute legal advice or predict the outcome of an individual matter.
| Question | General position |
What is a Family Advocate? | A legally qualified official within the Department of Justice and Constitutional Development |
Whose side is the Family Advocate on? | Neither parent’s. The Office is expected to remain neutral |
Is the Family Advocate the child’s lawyer? | No |
Can the Family Advocate mediate? | Yes |
Can the Office investigate a dispute? | Yes, where the applicable legal process permits or a court directs an enquiry |
Can the child’s views be considered? | Yes, in an age- and developmentally appropriate manner |
| Can the Family Advocate make a court order? | No |
| Is a recommendation binding on the court? | No. The court must reach its own conclusion |
| Can the Office assist with parenting plans? | Yes |
| Are the Office’s services free? | Yes, although external experts may involve additional costs |
| Is the Family Advocate only for divorcing parents? | No |
| Can the Office become involved after an earlier court order? | Yes, in appropriate later proceedings |
The Office of the Family Advocate forms part of the Department of Justice and Constitutional Development.
Family Advocates are legally qualified officials. They may work with Family Counsellors and other professionals when investigating disputes affecting children.
The Department describes a Family Counsellor as ordinarily a trained social worker and also records that registered social workers or psychologists may assist the Family Advocate with appropriate expertise.
The Office commonly becomes involved in disputes concerning:
The Family Advocate is not there to determine which parent should “win”.
The focus is the child.
No.
Historically, the Mediation in Certain Divorce Matters Act 24 of 1987 gave divorcing and divorced parents more direct access to the Office than parents who had never married.
That distinction was successfully challenged.
Centre for Child Law v T S and Others (CCT 157/22) [2023] ZACC 22 held that section 4 of the Act was unconstitutional to the extent that it prevented never-married parents, married parents who were not going through divorce, and their children from accessing the services of the Office in the same manner as divorced or divorcing parents.
The Constitutional Court introduced a reading-in remedy extending access to proceedings affecting parental responsibilities and rights and to appropriate applications involving non-parents.
The Court further provided that the reading-in would continue if Parliament had not cured the defect within the period it allowed.
The 24-month suspension period expired on 29 June 2025 without the defect having been cured by enacted legislation. The Constitutional Court expressly ordered that, in those circumstances, the reading-in would continue to operate.
As at September 2026, the General (Family) Laws Amendment Bill B20-2025 remains before Parliament and has not yet become law.
The Office performs several related functions depending on the nature of the dispute.
The Family Advocate can mediate disagreements concerning parental responsibilities and rights and assist parties to develop child-focused arrangements.
Where agreement is possible, resolving the dispute without protracted litigation may reduce cost, delay and conflict.
Agreement is not, however, the only objective.
Any arrangement affecting a child must remain consistent with the child’s best interests.
Where the parties cannot agree, or where the court requires further information, the Family Advocate may conduct an enquiry into the child’s circumstances.
Depending on the case, this may involve consideration of:
Where the dispute remains unresolved, the Family Advocate may provide the court with a report and recommendations.
The purpose of that report is to assist the court in determining the child’s best interests. It is evidence for the court to consider; it is not itself a judgment or court order.
No.
This distinction is important.
The Family Advocate’s work is child-focused, but the Family Advocate does not become the personal attorney of the child or either parent.
M.A.D. v R.G. (2025/047056) [2025] ZAGPJHC 543 expressly reaffirmed that the Family Advocate is not appointed to represent the mother, the father or the child.
The Family Advocate is required to remain neutral and to assist the court by placing relevant facts and balanced recommendations before it.
This is different from a situation in which a court appoints a legal representative specifically to represent the interests or views of a child.
A Family Counsellor assists the Family Advocate with the social, family and developmental aspects of an enquiry.
The Department of Justice indicates that Family Counsellors are ordinarily trained social workers and that a registered social worker or psychologist may assist the Family Advocate with relevant expertise.
Depending on the case, the process may also involve other professionals, such as:
Not every dispute requires an extensive private expert assessment.
The type and extent of professional involvement should be proportionate to the issues that genuinely need investigation.
The precise process depends on the matter.
The Department of Justice explains that the Family Advocate, assisted by a Family Counsellor, may interview the parties to understand their personal circumstances and the background to the dispute. Interviews may occur together or separately where appropriate.
An enquiry may consider material such as:
The enquiry is not a conventional trial.
Its purpose is to obtain information that may assist the parties to reach agreement or enable the Family Advocate to make recommendations to the court.
A child may participate where appropriate.
Section 10 of the Children’s Act recognises the right of a child who is of sufficient age, maturity and stage of development to participate in matters concerning that child, with the child’s views being given appropriate consideration.
The Office of the Family Advocate may facilitate that participation with professional assistance.
This does not mean that a child simply chooses which parent to live with.
The way in which the child’s views are obtained and the weight attached to them may depend on:
Parents should not coach children or place them in the position of having to choose between their parents.
The Family Advocate can play an important role in preparing and registering parenting plans.
Section 33 of the Children’s Act provides that co-holders of parental responsibilities and rights may agree on a parenting plan regulating how those rights will be exercised.
Where co-holders are experiencing difficulties, they must first seek to agree on a parenting plan before approaching a court.
In preparing such a plan, the Act requires them to seek assistance from a Family Advocate, social worker or psychologist, or mediation through a suitably qualified person.
A parenting plan may address matters including:
Depending on the family, a more detailed plan may also regulate practical matters such as:
Section 34 permits a qualifying parenting plan to be registered with a Family Advocate or made an order of court.
For the broader legal framework, see Parental Responsibilities, Rights and Guardianship.
No.
A Family Advocate report can carry significant evidential weight, but the court must reach its own conclusion about the child’s best interests.
I.J.M v G.J.M (2023/077771) [2026] ZAGPJHC 303 stated that a court must consider the Family Advocate’s report while independently determining the child’s best interests.
The court also emphasised that expert material must rest on a proper factual foundation and logical reasoning.
H.M.M v D.M (2025/140422) [2026] ZAGPJHC 506 applied the same principle. The court stressed that it was not bound by either the expert report or the Family Advocate’s recommendation and had to determine whether the conclusions were properly supported by the facts.
The Family Advocate recommends. The court decides.
Yes.
The court is entitled — and required — to scrutinise the reasoning supporting a recommendation.
Relevant questions may include:
H.M.M v D.M provides a particularly useful example.
The Family Advocate recommended that a young child who had been living with his mother in the Eastern Cape be moved to live with his father in Johannesburg.
The High Court scrutinised the reports underlying that recommendation, found that inadequate weight had been given to the child’s established and settled circumstances, declined to adopt the recommendation and ordered that primary residence remain with the mother.
An unfavourable Family Advocate report should therefore not simply be dismissed as “biased”.
A proper challenge should identify the factual, evidential or legal reason why the recommendation should not be followed.
Relevant information should be organised and focused on the issues affecting the child.
Depending on the dispute, useful material may include:
More material is not necessarily better.
An enquiry should not become a document dump containing every disagreement that occurred during the adult relationship.
The objective should be to help the Family Advocate understand the child’s present circumstances and the practical options available.
Where the parties reach an appropriate agreement, the Family Advocate may assist with a parenting plan or parental responsibilities and rights agreement.
The Department of Justice confirms that agreements reached through the process may, where the legal requirements are satisfied, be registered with the Office or made an order of court.
Agreement can reduce:
Any agreement should nevertheless be clear, workable and consistent with the child’s best interests.
Yes, in appropriate later proceedings. The Family Advocate does not simply reopen a finalised court matter. However, the Office may become involved where properly instituted later proceedings concern the variation, rescission or suspension of an existing order relating to care, contact, guardianship or other relevant parental responsibilities and rights, or where a court directs a further enquiry.
The existence of an earlier court order does not mean that the Family Advocate can never become involved again.
The Constitutional Court’s remedy in Centre for Child Law v T S expressly contemplated Family Advocate enquiries where later applications seek the variation, rescission or suspension of orders affecting relevant child-related rights.
G.D v M.M (4809/2022) [2024] ZAGPJHC 65 provides a practical example.
The parents had divorced in 2019, and their settlement agreement dealing with parental responsibilities and rights had been made an order of court.
In later proceedings concerning the mother’s parental responsibilities and contact, the High Court ordered the Office of the Family Advocate to carry out a further investigation and report on whether those rights should be terminated.
The correct process will depend on:
The Family Advocate can be particularly important in contested relocation disputes.
Relocation may affect:
T.L.K v E.E.E.B (2024/149673) [2025] ZAGPJHC 101 dealt with an urgent dispute after the mother relocated with the child from Gauteng to Stellenbosch.
The father sought, among other relief, a declaration that the relocation was unlawful and an order directing the child’s return. The court did not grant that substantive relief.
It found that section 31 did not expressly impose a consent requirement for the interprovincial relocation, that the mother had given due consideration to the father’s views, and that the father had not established the return relief sought.
The court instead directed the Johannesburg Office of the Family Advocate, in conjunction with the Cape Town Office, to investigate the child’s best interests in relation to primary residence, care and contact.
Their respective reports were to be delivered within three months. Interim contact arrangements were imposed pending the investigation.
The three-month period was a case-specific court order. It is not a general rule governing all Family Advocate investigations.
For the substantive relocation law, see:
Family Advocate enquiries also frequently arise where parents disagree about:
The investigation may provide the court with an independent assessment of the child’s present circumstances and the practical effects of competing proposals.
For the broader legal principles, see Primary Residence and Contact With Children in South Africa.
The services of the Office of the Family Advocate are provided to the public free of charge.
That does not necessarily mean every aspect of a child-related dispute will be free.
The Department of Justice notes that parties may have to pay for additional expert reports, psychological evaluations or other forensic assessments where these are required.
Private attorneys and privately appointed experts also charge separately for their services.
There is no universal timeframe that should be promised.
The duration may depend on:
A court can impose a specific deadline in an individual matter. T.L.K v E.E.E.B, for example, required reports within three months. That should not be treated as a standard turnaround time for all matters.
Preparation should focus on the child and on practical evidence.
Consider:
The aim should not be to demonstrate that the other parent is a bad person.
What arrangement best serves this child, and what evidence supports it?
Read the report carefully before deciding how to respond.
Consider:
The court retains the final responsibility to determine the child’s best interests. Both I.J.M v G.J.M and H.M.M v D.M demonstrate that Family Advocate material must be evaluated rather than mechanically adopted.
An adverse recommendation is therefore not necessarily the end of the matter.
But disagreement alone is not enough. Any challenge should identify the factual, evidential or legal basis on which the recommendation should not be followed.
The Office of the Family Advocate is an important part of South Africa’s family-law system.
It may assist parties in reaching agreement, investigate parenting disputes, facilitate appropriate child participation, assist with parenting plans and provide courts with reports and recommendations.
Its role should nevertheless be understood accurately:
The Family Advocate investigates, mediates and recommends. The court decides.
That distinction protects the neutrality of the Office while preserving the court’s responsibility to determine the child’s best interests.
Martin Vermaak Attorneys Inc. advises on South African family-law matters involving Family Advocate enquiries and reports, parenting plans, parental responsibilities and rights, primary residence, care and contact, guardianship, relocation and related court proceedings.
Where a matter has been referred to the Family Advocate, or a report has already been issued, obtaining legal advice early can help identify the relevant issues, organise the evidence and assess how the Family Advocate process affects the next stage of the matter.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
Copyright © 2026 Martin Vermaak Attorneys. All rights reserved.
Terms of Use Privacy Policy
BannerText_Seraphinite Accelerator