Respect for the opinion of children is critical in promoting children’s rights and protecting children more effectively. This is known more commonly as ‘child participation’.
Allowing children to actively contribute in essential decisions affecting them personally is of the utmost importance, instead of allowing them to merely remain as passive recipients of adult care and protection.
Children’s interests and adults interests should not be seen to intersect and therefore there is a need for children’s views to be voiced separately. Children’s views are sometimes needed in bitterly contested legal cases involving access and primary residence.
The Constitution of the Republic of South Africa guarantees that children have a right to be heard through a legal representative. Furthermore, the right is extended in terms of Section 28 (1) (h) whereby every person has a right to legal representation, which encompasses the right of children to have legal representation in civil matters. Section 35 of the Constitution further gives children the right to representation in criminal cases.
The right to participation and the recognition of children’s autonomy is also recognised in terms of the Children’s Act. The underlying principle can be found in Section 55 of such Act.
In terms of Section 10 of the Children’s Act, “Every child that is of such 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.”
However, it appears that neither Section 10 nor the above-mentioned international articles deal with when exactly a child will have capacity to express his/her views.
Useful guidelines in assessing the capacity to participate of a child
There is no clear-cut criteria such as a specific age or stage of development mentioned as a guideline, leaving all views and statutes open to interpretation, and open to the wide discretion of the court. Each formulation of this right requires a factual assessment of the specific child’s capacity by reference to his age, maturity and stage of development.
The above-mentioned assessment method is reinforced by the Committee on the Rights of the Child. They state that a child’s right to participate should not be constricted to fixed attributes. Their reasoning is that no two children are alike and they may gain maturity at different ages and stages of their lives. The main criteria to assess a child should be (i) their ability to understand and assess the implications of the matter at hand and (ii) the child’s capacity to express their views in a reasonable and independent manner.
In terms of Article 12 of the United Nations Convention on the Rights of the Child (“the Convention”) the court is required to afford a child who is capable of forming a view on a matter affecting him or her, the right to express those views.
The various ways children may choose to communicate (i.e. in a playful manner, body language or verbally), should be borne in mind by the decision maker, therefore it would not be suitable merely to assess a child’s ability to participate with regard to whether they are able to give evidence in court. Children should be approached and assessed with the utmost sensitivity bearing in mind their wishes and always putting the best interests of the child before all else. It needs to be remembered that judges are not trained child psychologists and may therefore be ill-equipped to establish what the wishes of the child truly are. In order to solve this problem I would suggest that in every matter concerning a child wanting to express their views in court, a trained expert in child psychology should be present in court to assist the judge to ascertain the true wishes of the child.
The case of F v F is a perfect illustration of the abovementioned point. It is stated at paragraph 54 thereof-
“If she found interaction with professionals daunting, it is then only logical to expect an encounter with five strange judges, ill-equipped to deal with the situation, to be thoroughly intimidating. Such an exercise would clearly not bear much, if any, fruit. It seems to me that, if either of the parties considered that there was a need to submit additional evidence in this regard, the proper route to follow would have been to have had the child interviewed by appropriate professionals, as was done previously, and to seek to place that evidence before the court.”
Are the child’s wishes always in their best interests?
From a practical point of view children are represented by a lawyer in court. These people are normally appointed by the court and they are experts in the field of what is in the best interest of the child, and they too will do a report to court after they interview the parties and the child. One must keep in mind the difficult position the Constitution and the Children’s Act may bestow on the legal representative acting on behalf of the child as they would have to decide whether to act in the best interests of the child, as stated in the Children’s Act, or whether to give precedence to their client’s wishes and thereby give precedence to the relevant Constitutional principles.
In Soller No v G and another, the court clarified that a legal representative of the child must always act in terms of Section 28 of the Constitution and “use his or her legal skills to represent the interest of the child, acting as their voice.”
The case further illustrates that the court has to assess matters in which children’s opinions are expressed very carefully.
The matter dealt with an adolescent child who approached the court for a variation of a custody order. The court assigned a legal representative in terms of Section 28(1)(h) stressing that “a child in civil proceedings may, where substantial injustice would otherwise result, be given a voice.” The Judge obtained a report from the family advocate to assist her in deciding whether custody should be awarded to the father of the child. Evidence showed that the father had instructed the child to be obstructive making the child feel as though he had to favour a certain parent. The psychologists were of the opinion that the child had made his decision due to duress or undue influence. It was held that the father was found to be a manipulative obsessive man and that it would not be in the best interest of the child to award him with sole custody. Accordingly, the court went against the wishes of the child.
Additionally, there is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child which states that the best interest principle supersedes any wishes or opinions the child may have. In considering what is in the best interests of the child, a convenient point of departure is the Constitution. Section 28(2) of the Constitution provides that “a child’s best interests are of paramount importance in every matter concerning the child”. This is a universal principle which is found in most of the international instruments or conventions dealing with the rights of a child.
The African Charter on the Rights and Welfare of the Child (“the Charter”), Article 4: Bests Interests of the Child, in subsection (1), further provides:
“In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.”
Leading Cases in the Matter of Participation
Ford v Ford  1 All SA 571 (SCA)
This case dealt with a mother who applied to remove the child born of the marriage from South Africa in order to relocate with her to the United Kingdom. The father had refused to consent to the child’s removal.
In order to come to a decision the court emphasised that the test in matters of this nature is ‘the best interests of the child’. The court had to evaluate a number of different factors including the child’s wishes where she is adequately mature to articulate her wishes.
Thanks to the evaluation of the child by child psychologists it was found that the child’s interests would be best served by remaining in South Africa and that the move would be prejudicial to her emotional and psychological well-being.
Rosen v Havenga and another  4 All SA 199 (C)
This case the dealt with a variation of a Guardianship and Custody Order, similar to the Soller case that was previously discussed. A mother applied to have sole custody. The court held that, in the circumstances, it was in the best interest of the child that an advocate be joined as the boy’s legal representative and that the father’s access and the question of sole guardianship and custody be suspended, pending the father undergoing psychological assessment and evaluation. The best interests of the child were yet again paramount o the court’s decision.
- The views of children should not be undermined. Adults should take more cognisance of the views of children which are often communicated but fall on deaf ears. Participation by children creates better results for the child, and more importantly, promotes their fundamental human rights and best interests.
- It is evident from the above discussion that the discretion to allow children to participate in matters and to promote their true wishes lies with the courts, which assess the situation together with trained child psychologists. If this is done properly children’s rights to participate will be effectively implemented. The court however is required to be very weary as to promote the best interests of the child when making a decision.
- In my experience when children are drawn into these battles between divorced and/ or estranged parents it says a great deal about the obsessiveness of the parties. Normally, both parents use the child as a punching bag to vent their frustration arising from the consequences that follow the breakup of a relationship, i.e. to rid themselves of their inadequacies, anxieties and disappointments. In the leading cases dealing with children in bitter divorces, i.e. asking children to express their views in court, often leads them to be subjected to a battery of questions from psychologists. The children in the main are very scarred by the legal and psychological process they have to undergo in these cases and they themselves will probably need therapy for the rest of their lives.
- The parents are never satisfied by one court’s decision and drag the children from one Court to another until their financial resources are exhausted. The wishes of children should be respected, but courts should be sensitive in using children to give evidence in contact cases.
There is no doubt, and this may sound repetitive, that it is the children who are the casualties of the war between parents.
Submitted by Ivan Zartz