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Tag Archive: child care and contact

Children’s Amendment Bill

South Africa has some of the most progressive children’s legislation in the world. The Amendment Bill before Parliament strengthens protective measures for children even further and aims to close gaps in the child protection system. This article provides a summary of the additional controls being introduced. Some of the amendments concern terminology, to align the original Act with current family and child law practice, including the UN Convention on the Rights of the Child. Some of the changes are more significant.

Unmarried fathers

The Bill makes further provision for the rights of unmarried fathers. Originally, an unmarried father enjoyed full parental responsibilities and rights if he was living with the mother at the time of the birth in a permanent life partnership…or… consented to be identified as the child’s father, contributed to the child’s upbringing for a reasonable period, and contributed to child maintenance expenses for a reasonable period.

Section 21, which covers unmarried fathers, has been amended to clarify that a father who is not married to the mother and who was living with her at any time between the child’s conception and birth automatically acquires full parental responsibilities and rights with regard to that child. A family advocate may issue a certificate confirming these parental responsibilities and rights.

Children in need of care and protection

Sections dealing with children in care or in need of protection have been tightened, and the interests of the child prioritised. A child who has been abandoned or orphaned and has no parent or other caregiver to care for them is considered a child “in need of care and protection”. This definition extends to “an unaccompanied migrant child from another country”, “a victim of trafficking”, or a child who “has been sold by a parent caregiver or guardian”. Furthermore, the Bill clarifies the application of the Children’s Act to all children in South Africa, including non-citizens. It extends the jurisdiction of the children’s court to include “guardianship of an orphaned or abandoned child” and an “unaccompanied or separated migrant child, or the child of an asylum seeker or refugee, as contemplated in the Refugees Act, 1998”.

The permitted duration for placing a child in temporary safe care has been amended. A child may not be placed in temporary safe care for more than 72 hours without a court order, or for more than six months at a time. If a child runs away from alternative care and is found and brought back within 48 hours, they will no longer appear before the children’s court. Instead, their social worker will assess the child and try to establish the reason for the escape. This acknowledges that some children find care homes very stressful and are not necessarily delinquent or unruly because they attempt to flee.

Child abduction

A new section has been added to the Children’s Act to expedite proceedings when a child has been abducted. This is to ensure that the interests of the child are represented and protected by eliminating delays in the judicial process. Children adapt and adjust quickly and, once adaptation to the new environment has occurred, it may not be in the child’s best interests to return home, even if the abduction was unlawful. On the day of the application for the return of a child, the Central Authority must bring the application to the attention of the judge president of the relevant division of the High Court for the appointment of a legal representative for the child.


Changes to Chapter 19 of the Children’s Act, Surrogate Motherhood, are minor, but ensure that the health and age of both the commissioning parents and surrogate mother are considered by the court before the surrogacy can be confirmed.

Early childhood development 

Chapter Six of the Children’s Act deals with early childhood development, long recognised as critical in the development of a child’s cognitive, emotional, social and physical potential. The Bill amends the definition to include provision for children with disabilities. It also obliges the government to develop a comprehensive national strategy aimed at securing a properly resourced, coordinated, managed and inclusive early childhood development system. At provincial level MECs are responsible for ensuring their provincial strategies are inclusive and provide for children with disabilities and special needs. There must be a record maintained of registered early childhood development programmes in the province with specific mention of inclusive programmes. Furthermore, an MEC may prioritise funding for early childhood development programmes in rural, underserved, or poverty-declared wards, to ensure appropriate targeting of this vital service.


Adoption is covered at length, with particular attention paid to inter-country adoption and the adoption of a child of a child.

In summary

The Bill runs to 102 clauses, many of which are “minor consequential amendments” for clarification. However, some of the amendments significantly enhance the protective environment for all children in South Africa, whether citizens or not. We welcome these changes, which are summarised below:

  • To provide for children’s right to privacy and protection of information
  • To further provide for the rights of unmarried fathers; to extend the children’s court jurisdiction
  • To further provide for funding of early childhood development programmes
  • To provide for the designation and functions for a Registrar of the National Child Protection Register
  • To further provide for the care of abandoned or orphaned children and additional matters that may be regulated
  • To further provide for rules relating to care and protection proceedings
  • To further provide for medical testing of children in need of care and protection or adoption
  • To provide for additional matters relating to children in alternative care
  • To further provide for matters relating to adoption and inter-country adoption
  • To further provide for the hearing of child abduction matters
  • To further provide for matters relating to surrogate motherhood
  • To provide for matters connected therewith

Get professional help with parenting issues

Cape Town law firm SD Law is an expert in family law. If you need help with child care and contact (custody and access) or a parenting plan, or if you have any questions about the Children’s Act and Amendment Bill, call Simon on 086 099 5146 or email We’ve helped many families reach agreement on complex parenting issues.

Further reading:

This article first appeared on on 2020-11-12.

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“I co-parent with my ex, but he threatens me and expects sex”

It’s time to free yourself from your manipulative former husband, says Mariella Frostrup

Reprinted from the Guardian – 2020-09-06

This reader’s dilemma from the UK’s Guardian newspaper caught our eye. It is not uncommon for divorced co-parents to continue in an emotionally dependent and unhealthy relationship. The constant contact of raising children can make it hard to sever the ties completely. This counsellor gives sound advice.

co-parenting with a manipulative ex
‘Our son is tired of the situation and so am I, but I can’t see a way out.’ Photograph: Azat_ajphotos/Getty Images/iStockphoto


The dilemma I split with my husband when my son was three – he was selfish and did not enjoy being a father. But we parted amicably and agreed to co-parent our son. I hoped for another relationship and another child.

Twelve years later and I have had one relationship, which caused my ex-husband to threaten suicide. He has constantly been in and out of my life – at first I thought he wanted to reconcile, but I realised he wants to cherry-pick the parts of marriage that suit him (mostly sex) and then go to his own house when he “needs space”. Whenever I put my foot down he threatens to take our son away. Even going to a solicitor didn’t help.


I feel like his mother. He turns up whenever he wants advice, and I help him (to my own detriment, as he is very depressive and pessimistic). He is on the autism spectrum and his family really don’t care about him. Other times he turns up for the evening with alcohol, wanting to stay the night and I let him, to save another argument. Our son is now 15 and my ex is still trying to get him to live with him, despite the fact that he works shifts and is out of the house for hours. Our son is tired of the situation and so am I, but I can’t see a way out. How will I ever have my own life?

Mariella replies It sounds simplistic, but where many of us go wrong is in refusing to take agency of our own lives – instead allowing others to make subservient our personal desires. It’s very hard, stuck in one form of reality, to conceive and create another, but it’s important that you dream up a vision for the future that’s realistic and achievable.

Your husband has maintained control over both you and his son for more than a decade, cynically placing his emotional needs and desires above both of yours. As you observe, it’s high time that you freed yourself from that bind, but this sense that you are doing it for your son is really a cover for your fear of taking your life in your own hands. Desperately holding on to your boy is neither necessary nor the answer. And I can reassure you that no court is going to significantly alter custody arrangements just because you put your foot down about your ex-husband’s overnight stays. Any fears over the custody of your son can be addressed through family mediation (try the Family Mediation Council or National Family Mediation).

I’m sad to hear that you haven’t found another partner or had the second child you desired, but you have to see how the perpetual helicoptering presence of your ex will have put people off.

While this situation continues you’re not free or available. Instead, you’re enabling your husband to stay in the driving seat of your life. I’m glad that you’ve managed to co-parent with him amicably, but at what cost? It really does sound as if your husband is a manipulative presence who has ensured that you’ve never enjoyed the freedom that should have been yours when you made the hard choice to move out.

Up until now he seems very much to have had his cake and eaten it with little opposition from you. He can’t take your boy away – that is an empty threat – and, very shortly, your son will be able to make his own choice. If he decides to hang out with his dad through his A-levels, good luck to him! You need to stop loading the responsibility for your entrapment on the fragile shoulders of your teenage son. What will make him want to stick around is the sight of you grasping your life with both hands and freeing him from his confusing position as a prize in a competition between his parents. You can get help in escaping from your husband’s manipulative behaviour – organisations such as Women’s Aid ( or Refuge (; 0808 2000 247) can advise you over what is, essentially, a kind of coercive control. And it goes without saying that if you are concerned about his threats of suicide, start a dialogue with him and suggest he seeks help (

Your ex has used you as an emotional crutch, handy booty-call and as a way to access his son without any responsibilities. Why would you give so much away for so little return? These are questions you need to ask yourself because, without understanding your impulses, you are unlikely to be able to change them.

The bargaining chip in all this seems to be your son, and your ex will have been aware of that. In three years he will be free to strike out on his own and if you and his father are still locked in this dance, he’ll want to put as much distance between himself and both of you as possible.

Now is your last chance to enhance his still formative life experience by making some adult choices – ideally together with his father. A clear position and a voice at the table are the least he should be equipped with as he steps towards his own destiny.


We can help

SD Law & Associates are experts in divorce and family law and have dealt with many types of parenting issues. If your ex makes contact visits difficult, we can help you manage the situation, with a protection order, parenting plan, or other relevant intervention. Contact us on 086 099 5146 or 076 116 0623 or email Your enquiry will be dealt with in the utmost confidence.

Further reading:

Contact numbers:

  • GBV Command Centre: 0800 428 428 / *120*7867# from any cell phone
  • Persons with disabilities, SMS ‘help’ to 31531
  • Women Abuse Helpline: 0800 150 150
  • Childline: 0800 055 555
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Lockdown legal update: Parents win court bid to fetch children in another province

Two Cape Town parents, who are divorced, have won legal permission in court to travel in the father’s Land Rover to fetch their young children in a different province, to relieve their struggling grandparents.

Court rules: Exchange of children allowed inter province

The story involves elderly grandparents, doing their utmost to care for their grandchildren – while both suffering medical difficulties themselves – and two children, aged eight and 10, who have been desperate to return home.

The parents, identified in court papers only by initials, challenged the regulated prohibition on “movement between provinces and between metropolitan and district areas”.

Under revised government regulations published on 7 April, the movement of children between divorced parents is permitted – if parents can prove they share responsibilities in their divorce settlements. But that was not the issue in this case.

This case hinged on the court’s interpretation of whether children can legally be moved between “caregivers” – such as grandparents – and parents. The national Department of Social Development argued that this movement was prohibited.

But the Western Cape High Court disagreed (CD v Department of Social Development).

Judge Yasmin Meer ruled such movement was necessary, and is in line with the Constitution and the Bill of Rights, which demands “the best interests are of paramount importance in every matter concerning a child”.

The ruling was made on 14 April, and the court papers explained the saga: “The children had travelled to Bloemfontein on 22 March 2020 during the school holidays for a brief visit and were expected to return to Cape Town before the start of the school term on 31 March 2020.

“The lockdown intervened at midnight on 26 March 2020 and the children found themselves locked down with their grandparents in Bloemfontein. The Applicants are divorced.”

‘Childrens’ health and well-being are being put at risk’

Judge Meer wrote that the father, in an affidavit, explained that his own father and mother are 72-years-old and 68-years-old respectively, and are only able to take care of the couple’s children for “short periods”.

The father added that the grandmother suffers from arthritis and having the children around makes it difficult for her.

Meer’s judgment says: “The situation has become strenuous to his parents’ overall personal well-being and affects their ability to properly care for the children and themselves.

“Should the grandparents fall ill of Covid-19 they will not be able to look after the children. The situation will worsen if the lockdown continues. He also expresses concerns that the grandparents will not be able to supervise homework.

Children’s needs

“The First Applicant (the father) is a medical doctor and he states that the childrens’ health and well-being are being put at risk. He points out that he is equipped to deal with the childrens’ needs.

“Finally, he explains that even though the Applicants heard of the lockdown travel ban, they were under the impression that they would be permitted to travel to Bloemfontein to fetch the children and were not aware of the strict extent to which the travel ban would be enforced.”

Meer continued: “A memorandum by the Family Advocate of 7 April 2020, which supports the moving of the children, points out that there is no mention whether the grandparents are employing the Covid-19 precautionary measures, and states that the children require consistent management to ensure that they are abiding by the precautionary requirements of Covid-19 relating to good hygiene, regular sanitising and social distancing. Further to the memorandum, on 8 April 2020 a video conference interview was conducted by the Family Advocate at the request of the Respondent.

“A report compiled by a specialist also urged that the children be returned to Cape Town. From the interview with the grandmother, the report stated that the grandmother has chronic ailments of arthritis and backpain necessitating a schedule 3 medical prescription.

“The lockdown has prevented grandmother’s daily house help from coming in and grandmother has to attend to everything for the household and children. She is currently physically exhausted and her ailments are deteriorating as a result. She is normally accustomed to taking care of the children for shorter intervals and cannot cope in the current circumstances. This is going to impact negatively on her care for the children.

“They are quite active and she cannot manage them. The grandfather provides limited support. The children are going through different emotions and get heartbroken for not being with their parents.

“An interview with the grandfather confirmed his wife’s exhausted state as recorded in the report. He assists in playing with the children.

‘Unrefuted evidence’

Interviews with the children revealed their desire to return home, the judgment continued. The specialist report could not confirm whether the children are at risk in terms of hygiene or that their levels of hygiene are optimal as required.

“The unrefuted evidence makes clear that the task of caring for the children by the grandparents is already proving not to be sustainable and this will only continue and be exacerbated over a further prolonged period. The well-being and physical health of the children in these turbulent times are being placed at risk.

“The best interests of the children would undoubtedly be served if permission were to be granted for them to be fetched to travel from Bloemfontein to Cape Town.”

Judge Meer thus granted the order to allow the applicant to travel to Bloemfontein and fetch his children, and then return to Cape Town with them under strict conditions.

“The First Applicant is authorised and directed to fetch the children at[…], Heuwelsig, Bloemfontein, and to travel back with them to the Western Cape, to the residence of the First Applicant;

“The First Applicant is permitted to sleep over for one night after travelling to Bloemfontein at the paternal grandparents’ home at the above mentioned address, after which the First Applicant and the children shall return to the First Applicant’s address;

“The First Applicant shall travel to Bloemfontein in the First Applicant’s 7-seater Land Rover Discovery vehicle and the First Applicant and the children shall return to Cape Town in the said vehicle;

“This order dispenses with any further need for permit(s) to travel.”

The respondent – the national Department of Social Development – was ordered to pay the couple’s legal costs. Comment has been sought from the department and will be added once received.

Source: News24 and reblogged by DACT (emphasis by SD Law*)

* SD Law, aka Simon Dippenaar & Associates Inc., is a law firm of specialised divorce attorneys, and family lawyers in Cape Town, now operating in Johannesburg and Durban.

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Stop Press! Child contact visits now allowed during lockdown


Child contact visits now permitted during lockdown

We are past the halfway point of lockdown. I doubt anyone would say it is flying by. For most, the lack of exercise, the absence of social contact, and the sheer monotony of staring at the same four walls every day is making the time drag. For single parents stuck at home with no respite, it’s bound to be an even more testing time. But it may also be difficult for the children who are deprived of the right to see their other parent or caregiver. And the prohibition against moving a child between parental homes may go against the principle of “the best interests of the child”.


When the initial directives regarding lockdown came out, there was some ambiguity as to the transport of children between the homes of co-parents. We originally wrote on 24 March that there was no specific mention of child contact with a parent in a different location. The situation was vague and we urged parents to proceed with caution.

On 30 March, the Minister of Social Development issued new directives (GG 43182, NO. R.430 – the R430 SD directives) which explicitly stated: “Movement of children between co-holders of parental responsibilities during the lockdown period is prohibited. This is to ensure that the child is not exposed to any possible infection whilst moving from the primary caregiver premises to the other; (ii) The child must remain in the custody of the parent with whom the child was with, when lockdown period started.”

Yesterday, Minister of Social Development, Lindiwe Zulu, signed an updated directive, (GG 43213, NO. R.455) reversing that prohibition. It is now permitted, as long as certain conditions are in place:

Movement of children between co-holders of parental responsibilities and rights or a caregiver, as defined in Section 1(1) of the Children’s Act 2005 (Act No. 38 of 2005) is prohibited, except where arrangements are in place for a parent to move from one parent to another, in terms of:

  • (aa) a court order; or
  • (bb) where a parental responsibilities and right agreement or parenting plan, registered with the family advocate, is in existence.
  • Provided that, in the household to which the child is to move, there is no person who is known to have come into contact with, or is reasonably suspected to have come into contact with, a person known to have contracted, or reasonably suspected to have contracted, COVID-19.

The parent or caregiver transporting the child concerned must have in his or her possession the court order or the agreement referred to [above]…or a certified copy thereof.

Emphasis ours.


What this means is that, so long as a court order or parenting plan is in place, it is permitted to transport your child to the home of the other parent, and vice versa. However, if you do not have a formal arrangement, then unfortunately you are not covered by this directive. This might be because you and the other parent of your child were never married, or your divorce was amicable and you did not require a parenting plan. We’ve written before about the usefulness of a parenting plan even when it is not mandated by the courts. We could not have foreseen the current circumstances, but this directive is an (admittedly extraordinary) example of why it is always wise to have a plan in place.

If you filed your parenting plan away with your divorce papers, now is the time to dig it out. You must carry it with you when travelling with your child to the home of the other parent. Given that it is permitted to go to the shops for essential items, and if you are a single parent you must of course take your child with you, it’s hard to know how the police will determine your destination and enforce this condition. But our advice is to comply with the directive and follow the laws of the land.


We are pleased to see the relaxation of a harsh legal position, which seemed to completely ignore the emotional needs of the child and was so out of line with other countries in similar circumstances. It was challenged by senior counsel and family law expert Janet McCurdie, who is also an advocate and admitted member of the Cape Bar. In a cogently argued comment paper, McCurdie said that for  some children, and some parents, the enforced separation – or enforced confinement with one parent – could in fact be detrimental to their well-being and even harmful. The Children’s Act, not to mention the Constitution, puts the interests of the child first. But it may not be in the child’s interests to be with a particular parent or without a particular parent for the period of the lockdown. She also made the point that, in following the directive, parents could be in contempt of court if they fail to adhere to the terms of a court order.

Lastly, she questioned the authority of the Minister of Social Development to “issue regulations or directives regarding the exercise by parents of their rights in terms of a parenting plans / court orders… Similarly, the Minister of Social Development is not authorised in terms of any Regulation issued in terms of the [Children’s] Act, to issue directives pertaining to the exercise by parents of their rights of care and contact to their children.”


Right now the priority is getting through the lockdown, looking after our children, families and neighbours, and staying well. However, if you have dusted off your parenting plan and realised that it no longer reflects your current situation, this might be a good time to think about reviewing and updating it. Should another emergency occur, you want to be sure your legal position is watertight. And in the course of normal life, a parenting plan can help you and your co-parent navigate the issues that arise in raising children with minimal conflict and antagonism, thus ensuring the best interests of the child always come first, and your own mental health doesn’t suffer in the process.


If you have any questions regarding the directive or your co-parenting arrangement, now or at any time, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email


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International child custody


Moving overseas with a child is subject to certain conditions. Don't fall foul of them.

It is becoming increasingly common for couples to marry across borders. International travel is more accessible and over the past decade there has been an influx of immigration into South Africa, resulting in more marriages between partners of different nationalities. Inevitably, some of these marriages will end in divorce. Equally predictably, some parents will want to return to their country of birth with the children of the marriage…in other words they will seek international child custody.

In this post we will look at 1) how you can do that legally and 2) what to do if the other parent has removed your child to another country without your consent.


South African law does not explicitly govern international child custody, and relocation with children post-divorce. All matters concerning children are legislated by the Children’s Act 2005. This progressive piece of legislation takes the focus away from the rights of the parents and places the child at the heart of all decisions. “In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied” (Section 9). The Children’s Act does not directly mention the relocation of one parent or the other, nor does it legislate consent procedures. However, Section 18 stipulates that consent of both parents is needed if one or other wants to emigrate with the child(ren).

The wellbeing of the child extends beyond simple contact with each parent. In some cases the move might be in the child’s best interests. For example, if one parent has an employment opportunity overseas that will significantly enhance the quality of life or environment the child experiences, that situation may be considered as good for the child as remaining near the non-custodial parent. South African law has tended to decide international child custody matters on a case-by-case basis. Furthermore, the views of the children will be considered, though not necessarily accommodated.

While relocating with a child is not as difficult as you might think, it is still a situation that needs to be handled carefully and with due consideration for the law. Failure to follow the correct procedures could have unwelcome consequences down the line. Furthermore, once a child is settled in an environment, even a foreign one, courts are usually reluctant to disrupt the child’s wellbeing by reversing an earlier decision. So if you are considering moving abroad with your child, or if your child’s other parent is relocating with your consent, it is a good idea to take legal advice regarding international child custody. Cape Town family law firm SD Law will ensure your conduct complies with the Children’s Act, in letter and in spirit. We will look after the interests of the child while at the same time respecting your wishes and those of the other parent.


International child abduction is a much more serious matter and is increasingly common globally, as air travel becomes more affordable. The abducting parent may not think of themselves as such or even realise that their behaviour is classed as abduction.

International child abduction is monitored (note – not governed; it is not a piece of legislation) by the Hague Convention on Civil Aspects of International Child Abduction (“the Hague Convention”). The Hague Convention is an international treaty designed to prevent the removal of a child from their home jurisdiction by a parent (or other caregiver) without the consent of the other parent. It also aims to return a child thus illegally removed to their home country. South Africa has been a signatory to the Hague Convention since 1 October 1997 (ratified in 1996).

The Hague Convention defines the removal of a child as improper if it breaches the custody right of anyone based on the laws of the nation where the child was resident prior to their removal. Where two parents have shared (equal) care of a child (i.e. custody), both parents must give consent for a child to be removed, as also required by Section 18 of the Children’s Act. When there is a dispute about a child’s care between countries that are both signatories of the Hague Convention, the courts of the destination country are responsible for returning the child, if appropriate, i.e. unless there is a risk of a human rights violation such as female genital mutilation, and as quickly as possible. Under the Hague Convention, the return should be effected within six weeks.


Unfortunately, only South Africa, Mauritius and Zambia are signatories to the Hague Convention on the African continent. This can make the return of the child more complex, and naturally many  marriages in South Africa are between nationals of African countries. Therefore the Hague Convention does not apply. The Convention only applies to wrongful removals that occur after the treaty comes into effect between two countries.

The return of a child, whether from a Hague Convention signatory country or other, is a matter for the Central Authority in South Africa (the Family Advocate’s Office). You can approach the Central Authority on your own behalf, but it is strongly advised to use the services of capable family law attorneys to lodge an application to court. The Central Authority can be overwhelmed with child abduction applications and a good divorce lawyer, with deep knowledge of child law, can navigate the pathway more expediently than a private individual. The Central Authority will oversee the process. Your legal representative will seek to:

  • Discover the location of the child
  • Secure the voluntary return of the child if possible, or initiate legal proceedings


With luck, and in most cases, the Central Authority and/or your divorce attorney will be able to locate your child and negotiate their return without involving foreign courts. However, if the matter does go to court, there are factors beyond legislation to bear in mind. Has your child been taken to a jurisdiction where cultural or religious beliefs are different to ours? Some countries have a tendency to grant sole custody to mothers. Others may lean toward awarding care to fathers. If a girl child is promised in marriage at a young age, traditional cultures may defend this practice and resist returning the child to the home country. While you can’t change entrenched beliefs in another jurisdiction, the more you are aware of the issues that may impact your case and the better prepared your legal advisers, the greater your chances of success.


In order to begin the proceedings,  for international child custody, that will hopefully result in the return of your child, you need:

  • Completed questionnaire in English
  • Recent photographs of the child and the parent who abducted them
  • Certified copies of birth certificates
  • Proof of parental rights, such as court orders concerning care and contact (custody and access) and/or guardianship
  • Certified copy of marriage certificate, if relevant
  • Last known details of the child and the abducting parent’s possible location
  • Sworn translations in English of all relevant documentation in other languages (e.g. marriage certificates)


At Cape Town family lawyers, we know that being separated from your child is traumatic for you and them. We will work tirelessly to effect a speedy reunion with as little distress for all parties as possible.

If you are relocating with the full consent of the other parent, we will help you revise your parenting plan to reflect the changed circumstances and protect the rights and interests of the child and both parents. Excellent legal advice regarding international child custody will ensure the best outcome in either scenario.

Contact Simon on 086 099 5146 or email to discuss your case in confidence.

Further reading:

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