I am sure many of us have heard the old adage “children should be seen, but not heard”. Well this has been thrown right out of our laws and our legislature now compels parties to listen to what the child has to say. Both the Childrens Act 38 of 2005 and the Constitution enjoins us to take the voice of the child into account in divorce proceedings and in all matters that effect children.
Sections 6(2)(a), 7(1)(a) – (n), 10 and 31(1)(a) of the Childrens Act addresses the best interest of the child standard and the right of the child to participate and express their views. Section 10 provides as follows:
“Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child, has the right to participate in an appropriate way and views expressed by the child must be given due consideration”
Section 31(1)(a) of the Children’s Act reads:
“Before a person holding parental responsibilities and rights in respect of the child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development”
The provisions in the Act does not imply, and nor should it be interpreted to imply, that a child must have the final say and that it must go the way the child wants it go to. For instance, if both mom and dad wish to have primary care of the child, this would not be determined only upon the opinion or wish of the child, and there will be various other factors that will be taken into account. There is also no exhaustive list of factors, but it would include factors such as the relationship between the child and the parents, the different environments of the mom and the dad, the capacity of the parent to provide for the needs of the child (which includes
emotional and intellectual needs), and various other factors. The ultimate criteria would be what would be in the best interests of the child. It is also not to be implied or encouraged, to actively engage the child in the disputes between the parents, and this is not what is meant by ‘the voice of the child’. In fact, one has to be very cautious in the approach when engaging children to have their voice heard.
It is sometimes even necessary to have someone appointed to give expression to the voice of the child. Any suitably qualified person can be appointed to assist in hearing the voice of the child, but it is submitted that a child psychologist would be a preferred appointment, although this does come at an expense. This type of appointment must not be confused with the appointment of a legal representative to act for the child.
Section 28(1)(h) of the Constitution provides that: –
“Every child has the right to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result”
The courts have on occasion appointed a curator ad litem, to assist and represent children in legal proceedings. Traditionally, the curator’s role was mainly to consider the child’s legal position and institute or defend legal proceedings on behalf of the child, but the courts are more often appointing a curator to safeguard the best interests of children in a range of different circumstances. A curator is not usually or necessarily appointed to determine the voice of the child, although a curator would ensure that the voice of the child is expressed or known.
The Family Advocate’s Office is also very instrumental in assisting with the voice of the child. The Office of the Family Advocate was established by the Mediation in Certain Divorce Matters Act 24 of 1987 and they act as advisors to the court as well as mediators between family members. The Family Advocate is impartial and does not represent any of the parties in a divorce or children’s matter, and they are required to investigate the issues in dispute and to
report and make recommendations to the court. During the process, the views of the child are considered and reflected in the report of the Family Advocate, although the recommendations are not necessarily in accordance with the views of the child and may differ.
In summary, our legislature and our courts have sat up and taken notice of the child in the process of divorce, in matters relating to the care (custody) of the child, and in fact all matters where the child’s best interest is at stake. In fact, the child’s best interests are always considered above that of the parents, and this advancement is most welcome and encouraged.
Kim Armfield
Attorney and Mediator : Henk Scheepers Inc.
Regus Office, Century City, Cape Town
