33. The principal Rules are amended by inserting, immediately after Order 105, the following Orders:status of children (assisted reproduction technology) act 2013 |
Interpretation (O. 106, r. 1) |
1.—(1) In this Order, unless the context otherwise requires —“Act” means the Status of Children (Assisted Reproduction Technology) Act 2013 (Act 16 of 2013), and any reference to a section shall be construed as a reference to a section in the Act; |
“relevant child” means a child who is the subject of proceedings under the Act. |
(2) Expressions used in this Order which are used in the Act have the same meanings in this Order as in the Act. |
(3) Subject to this Order, these Rules shall apply, with the necessary modifications, to proceedings under the Act. |
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Commencement of proceedings (O. 106, r. 2) |
2.—(1) Unless otherwise provided in the Act or these Rules, every application to the Court under section 10 or 15 for the determination or declaration of parenthood must be made by originating summons in Form 4.(2) An application for leave of the Court referred to in section 10(2)(d) must be made by ex parte originating summons in Form 5. |
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Title of proceedings (O. 106, r. 3) |
3. Every originating summons to which this Order relates, and all affidavits, notices and other documents in those proceedings, must be entitled in the matter of the Act and in the matter of the relevant child. |
Parties to proceedings (O. 106, r. 4) |
4.—(1) Unless the Court otherwise orders, the parties to any proceedings under section 10 or 15 for the determination or declaration of parenthood, other than an application for leave of the Court referred to in section 10(2)(d), are —(a) | the plaintiff or applicant; and | (b) | every person referred to in paragraph (2) who is named as a defendant in the proceedings. |
(2) For the purposes of paragraph (1)(b), the following persons (other than the plaintiff or applicant) must be named as defendants in the proceedings:(a) | any person who, at the time the application under section 10 or 15 is made, is treated or claiming to be treated as the parent of the relevant child; | (b) | any person who, at the time the application under section 10 or 15 is made, is the de facto partner of the gestational mother of the relevant child; | (c) | the relevant child. |
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(3) The Court may at any time order that a person be joined as a party to the proceedings, if the Court considers it is desirable to do so. |
(4) The Court may at any time direct that any person who is a party to the proceedings be removed as a party, if the Court considers it is desirable to do so. |
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Supporting affidavit (O. 106, r. 5) |
5.—(1) An application under section 10 or 15 for the determination or declaration of parenthood must be supported by an affidavit which must —(a) | state the grounds of the application; | (b) | include any information which may assist the Court in determining the application and, notwithstanding Order 41, Rule 5(1), the affidavit may contain statements of information or belief with the sources and grounds of the information or belief; | (c) | state whether the plaintiff or applicant has made a previous application under the Act in respect of the same relevant child, and if so, to provide particulars of that application including any order of Court made in that application; | (d) | include a Statement in Form 231; and | (e) | include any document for proving the matters stated in the affidavit. |
(2) The supporting affidavit referred to in paragraph (1) must verify the information in the Statement referred to in paragraph (1)(d). |
(3) An application for leave of the Court referred to in section 10(2)(d) must be supported by an affidavit which must —(a) | state the grounds of the application; | (b) | include any information which may assist the Court in determining the application and, notwithstanding Order 41, Rule 5(1), the affidavit may contain statements of information or belief with the sources and grounds of the information or belief; | (c) | state whether the applicant has made a previous application under the Act in respect of the same relevant child, and if so, to provide particulars of that application including any order of Court made in that application; and | (d) | include any document for proving the matters stated in the affidavit. |
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(4) The plaintiff or applicant must file the supporting affidavit —(a) | in the case of an application under section 10 or 15 for the determination or declaration of parenthood, within 7 days after the date of filing of the application; and | (b) | in the case of an application for leave of the Court referred to in section 10(2)(d), at the time of filing of the ex parte originating summons. |
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Service of application and affidavit (O. 106, r. 6) |
6.—(1) Where an application under the Act is made by originating summons in Form 4, the plaintiff or applicant must, within 14 days after the date on which the supporting affidavit is filed, serve the application together with the supporting affidavit on each person who is named as a defendant in the proceedings.(2) The Court may order an ex parte originating summons in Form 5 and the supporting affidavit to be served on any person. |
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Objections and reply affidavits (O. 106, r. 7) |
7.—(1) A defendant who intends to object to or contest an application in an originating summons or to adduce evidence with reference to the originating summons must do so by affidavit.(2) The affidavit referred to in paragraph (1) must be filed and a copy of the affidavit served on the plaintiff or applicant and on every other party to the proceedings not later than 21 days after being served with a copy of the plaintiff’s or applicant’s supporting affidavit. |
(3) The plaintiff or applicant must, if he wishes to reply to a defendant’s affidavit, file and serve his affidavit on the defendant and on every other party to the proceedings within 14 days after being served with a copy of the defendant’s affidavit. |
(4) No further affidavit shall be received in evidence without leave of the Court. |
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Documents confidential (O. 106, r. 8) |
8. All documents filed in any application or proceedings shall be confidential and no inspection of the documents shall be given or copy of the documents supplied except as ordered by the Court. |
Court may require attendance (O. 106, r. 9) |
9.—(1) The Court may require any party to any proceedings under the Act to attend at any hearing of those proceedings.(2) Notwithstanding paragraph (1), the Court may refuse to make a determination or declaration of parenthood unless all parties including the relevant child attend before the Court, but the Court shall have power in its discretion —(a) | to dispense with the attendance of any party including the relevant child; | (b) | to direct that any party including the relevant child attend before the Court separately and apart from the others; or | (c) | to direct that any party including the relevant child be interviewed privately by the Court. |
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Where previous application refused (O. 106, r. 10) |
10. If the plaintiff or applicant has made a previous application under the Act for the determination or declaration of parenthood in respect of the same relevant child and that application has been refused, the Court must not make a determination or declaration of parenthood with respect to that relevant child unless the Court is satisfied that there has been a material change in the circumstances of the case. |
11. The Court may make such orders as to costs as it thinks just. |
Orders of Court (O. 106, r. 12) |
12. Where the Court makes a determination or declaration of parenthood of a relevant child, the order of Court must be in Form 232. |
ORDER 107CHILD REPRESENTATIVES IN FAMILY PROCEEDINGS |
Interpretation and application (O. 107, r. 1) |
1.—(1) In this Order, unless the context otherwise requires —“child” means a person who is below the age of 21 years; |
“mental health professional” includes a psychiatrist, a psychologist and a counsellor. |
(2) This Order applies only to proceedings in the Family Division of the High Court or a Family Court. |
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Appointment of child representative (O. 107, r. 2) |
2.—(1) Where a child is a party to or subject of any action or proceedings, or where any action or proceedings involves a child or the custody or welfare of a child, the Court may, on its own motion or on the application of any party to the action or proceedings, appoint a child representative for the child, if the Court is of the opinion that it is in the best interests of the child to do so.(2) An application under paragraph (1) must be made by summons and supported by an affidavit. |
(3) The summons and supporting affidavit must be served on every other party to the action or proceedings. |
(4) The Court may, when appointing a child representative under paragraph (1), make such orders as the Court considers necessary to ensure the independent representation of the child’s interests. |
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Role of child representative (O. 107, r. 3) |
3.—(1) The child representative must —(a) | form an independent view, based on the evidence available to him, of what is in the best interests of the child; and | (b) | act in what he believes to be in the best interests of the child. |
(2) Subject to paragraph (1) and unless the Court otherwise directs, the child representative must, as far as possible and to the best of the child representative’s ability —(a) | provide the child with the opportunity to express and clarify the child’s views on the matters in the action or proceedings; | (b) | ensure that the child can express the child’s views free from the influence of any person; | (c) | ensure that the child’s views, as expressed by the child, are fully and accurately presented to the Court; | (d) | ensure that the child has the opportunity to be advised about significant developments in the action or proceedings; | (e) | bring to the Court’s attention matters which are relevant to advancing the interests of the child, including information on the relationship between the child and any party to the action or proceedings; | (f) | if the child representative is satisfied that the adoption of a particular course of action (which may include the examination or assessment of the child by a mental health professional) is in the best interests of the child, apply or propose to the Court to adopt that course of action; | (g) | if any mental health professional is appointed, whether by the Court or otherwise, to examine or assess the child —(i) | liaise with that mental health professional; and | (ii) | bring to the Court’s attention any evaluation made by that mental health professional which has not already been disclosed to the Court; |
| (h) | create and provide the opportunity for the child and the parties to the action or proceedings to resolve any issue or matter relating to the action or proceedings; | (i) | facilitate the resolution of any issue or matter referred to in sub‑paragraph (h) in a manner which is in the best interests of the child; and | (j) | provide such information, support and assistance to the child as is necessary for the action or proceedings, as and when requested by the child. |
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(3) A child representative must inform the Court —(a) | of any matter or evidence relevant to the action or proceedings which the child representative is aware of, if doing so is in the best interests of the child, and even if there is any objection from the child or from any party to the action or proceedings; and | (b) | of any objection referred to in sub‑paragraph (a). |
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(4) The child representative may —(a) | personally provide the information, support and assistance referred to in paragraph (2)(j); or | (b) | with the approval of the Court, arrange for the information, support and assistance to be provided by another person who is qualified to do so. |
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Written submission of child representative (O. 107, r. 4) |
4.—(1) Unless the Court otherwise orders, the child representative must file a written submission to the Court, signed by the child representative, on the matters referred to in Rule 3(2) and (3), together with any supporting documents, within one month after the date of the appointment of the child representative or such other period as the Court may direct.(2) Unless the Court otherwise orders, the written submission referred to in paragraph (1) may propose the adoption of a course of action (including a course of action referred to in Rule 3(2)(f)) which, in the opinion of the child representative, is in the best interests of the child. |
(3) The written submission referred to in paragraph (1) must be served on the child, and on all parties to the action or proceedings, within such period as the Court may direct. |
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Application to Court and pre-trial conference (O. 107, r. 5) |
5.—(1) The child representative may, at any time during the action or proceedings, apply to the Court to adopt a particular course of action.(2) The Court may, at any time during the action or proceedings, on its own motion or on the application of the child representative or any party to the action or proceedings, convene a pre-trial conference to determine any issue relating to the confidentiality, disclosure or use of any document or information which has come into the possession, or to the attention, of the child representative. |
(3) During an application under paragraph (1) or a pre-trial conference under paragraph (2), the Court may make such order as it thinks fit, including an order as to costs. |
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Remuneration of child representative (O. 107, r. 6) |
6.—(1) The remuneration of the child representative —(a) | shall be fixed by the Court; and | (b) | shall include any disbursements reasonably incurred by the child representative. |
(2) Unless the Court otherwise orders, the parties to the action or proceedings shall be jointly and severally liable to pay the amount fixed by the Court for the remuneration of the child representative.”. |
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