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of the abovementioned restrictions and requirements as required by the
Children’s Act have been met and the agreement includes adequate
provisions for the contact, care, upbringing, general welfare and best
interest of the child.
Before you consider surrogacy as an option, it is recommended that
you consult a family law specialist to discuss the requirements for a valid
surrogate motherhood agreement.

Can I enforce a settlement agreement to see
my children?

April 2017

“In terms of the settlement agreement with my ex-husband,
which was incorporated into the court order, the children
reside with him and I am entitled to regular contact. My ex-
husband however now does not allow me to see the children
or let them spend weekends and holidays with me. How can I
enforce the settlement agreement?”

The parental rights and responsibilities of parents and the interests of
children are governed by the Children’s Act 38 of 2005 (“Children’s Act”)
which dictates that the best interests of the child is always of paramount
importance and must be the determining factor when any dispute
regarding a child’s rights, or a parent’s rights in respect of the child, are
to be decided.
Section 35 of the Children’s Act states that any person having care of
a child and who refuses or prevents another person who has contact
rights to that child or who holds parental responsibilities and rights in
respect of that child in terms of an order or agreement to exercise such
rights or responsibilities, is guilty of an offence. In other words the section
criminalises the refusal or prevention of the exercise of such access or
parental responsibilities and rights. A person found guilty of this offence
can be liable to a fine or to imprisonment for a period not exceeding
one year.
In your situation it appears that the court confirmed settlement
agreement is not being complied with. This then leaves you with the
following options to enforce your rights:

You can institute contempt of court proceedings, which could result in Family
the other party being imprisoned. You can either lay a complaint with
the police, in which case the matter will proceed as a criminal matter,

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