Divorce Attorney Cape Town

Child participation – can a child choose where he or she would like to live after divorce?


Child participation

Children’s rights are often divided into prevention, protection and participation rights. The right to be heard or the right to express views are some of the manifestations of the participation rights of children.

The right of children to participate or express their views in all matters that affect them as well as their right to be heard in official proceedings are found in various international instruments.

Examples include: ICCPR, Hague Convention on International Child Abduction (art 13), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules – 14.4)

The United Nations Convention on the Rights of the Child (UNCR)

South Africa ratified the UNCR in 1995 and is therefore bound by its provisions. Article 12 of the UNCR is the most important right guaranteeing children’s participation in all matters that affect them.

Article 12 provides that:

“(1) State Parties shall assure to a child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the view of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”

Article 12 (2) is focused on child’s right to be heard in any judicial or administrative proceedings affecting him/her either directly or through a representative. This applies to proceedings when child is the main actor (ie cases of abuse and residency has to be determined) or when child in secondary position (i.e conflict situation related to divorce of parents.

Other specific rights include the right to participate in proceedings concerning a child’s legal removal or separation from his or her parents (article 9(2)) and right to participate in juvenile justice proceedings (article 37(d) and 40(2)(b)). The inclusion of these provisions changed the position conferred to children in the past where seen as objects not worthy of expressing a meaningful opinion and their views were not taken into account.

The rights in art 12 only extends to those children capable of forming their own views (so it appears to exclude very young children) – but it does not limit participation rights to children of a specific fixed age. It rather adopts a flexible approach in that the right is extended to children that are capable of forming their own views and it recognises that a child’s capacity to form his/her own views varies according to a child’s individual development and capacity to comprehend the events affecting him/ her and is not necessarily dependent on any age.

The views of the child is to be given due weight according to age and maturity of the child in question and once it is determined that child has the capacity to form an opinion, the next step is then to determine the weight to be attached to that opinion.

The opinion is to be examined according to the child’s age (an objective test) and the child’s degree of maturity (a subjective test). The child’s opinion is to be given “due weight” according to nature of problem and degree of interest it represents to child and others (ie parents, siblings, etc). The more serious and imminent the consequences of the decision are on the child, the more the child’s opinion deserves to be an important consideration.

The African Charter on the Rights and Welfare of the Child

Section 4(2) of the African Charter on the Rights and Welfare of the Child reads:

“In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.”

The South African Children’s Act

The Children’s Act mentions child participation as a guiding/general principle in the application or implementation of the Act but sets no particular age as to when a child can decide on his/her own, where he/she want to live.

Section 10 of the Children’s Act reads:

“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 the views expressed by the child must be given due consideration.”

Section 10 is not limited only to legal proceedings and hence the principle of child participation echoes throughout the Act it provides for the child to participate in any matter concerning the child, provided that the child is of such an age, maturity and stage of development as to be able to participate.

The principle inter alia extends to children in child-headed households, participating in lay forums, decisions taken by holders of parental rights (ie those that would change or affect child’s living conditions, etc), adoption proceedings, consenting to medical treatment, surgical operations and HIV testing; etc

The right to participate should however not place a burden of choice on the child, especially in care and contact situations where a child might feel caught up between loyalties to one or the other parent or caregiver. Substantial care and skill is required to create opportunities for children to express themselves without them feeling pressurised to choose between either their mother or their father, or between a foster parent and a biological parent.

The right to participate does not mean the child has the right to demand a particular outcome or course of action. The decision-maker still has power to decide what is in child’s best interests even if it is not what the child wishes provided the decision-maker has afforded the child an opportunity to participate and given due consideration to the child’s views.

The right of the child to participate is qualified – limited to children of such an age, maturity and stage of development as to be able to participate. Maturity refers to the ability to understand and assess the implications of a particular matter, and must therefore be considered when determining the individual capacity of a child.

Maturity is difficult to define; in the context of section 10, it is the capacity of the child to express her/ his views on issues in a reasonable and independent manner. The impact of the matter on the child must also be taken into consideration. The greater the impact of the outcome on the life of the child, the more relevant the appropriate assessment of the maturity of the child

Once it is established that child is able to participate – then inquiry shifts to what weight should be given to the view expressed. The more serious the consequences of the decision are, the more the child’s opinion needs to be considered having regard to the nature of the problem and degree of interests it represents to the child.

The question when is a child of an age, maturity and stage of development to participate is no quick and easy answer. Each case is dependent on circumstances and personal competencies of the child; the latter is usually a question of fact. Factors to consider are cognitive ability, biological and mental age, level of maturity in comparison to peers, ability to understand and answer questions and comprehend, school grade appropriate to age, etc.

The importance of recognising the child’s right to participate is further highlighted in section 31 of the Children’s Act, which deals with major decisions involving children by a person holding parental rights and responsibilities, normally the parents. It provides explicitly that, as far as decisions which might constitute a significant change in the education of the child are concerned, or which have an adverse effect on the child or the general well-being of the child, due consideration must be given to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.

Section 31(1)(a) of the Children’s Act reads:

“Before a person holding parental responsibilities and rights in respect of a 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.”

South African Case Law

H G v C G 2010 (3) SA 352 (ECP)

In this case the applicant (mother) sought an order declaring her primary carer and an order entitling her to relocate with her three children to Dubai. The children were between the ages of 11 and 13. The court recognised the children’s right to be heard in sections 10 and 31 of Children’s Act. The applicant’s experts (psychologists) approached the matter on the basis that children should be relieved of the responsibility of themselves deciding with which parent to live. The Court determined the matter on the basis that the voice of the child should be heard and the relocation was found not to be in their best interest, accordingly the application was dismissed.

GCH v GNB [2012] ZAGPPHC 218

The applicant (mother) and the respondent were previously married but divorced in 2010. Two sons were born of the marriage, who at the time of the application was 13 and 11 years old. In terms of the settlement agreement concluded between the parties when they divorced, both parties retained their parental responsibilities and rights in respect of the care of the children. The primary residence of the children was awarded to the applicant. The respondent’s rights of contact with the boys were spelt out in the agreement. The applicant was the primary caregiver of the children since the respondent left the common home during May 2008. The applicant applied for an order granting consent for the two boys to relocate with her to Australia. The respondent opposed the application. He also filed a counter-application for an order that, in the event that the applicant leaves South Africa without the two minor children, clauses 2 and 3 of the settlement agreement in the divorce action, which deal with the parties’ rights and responsibilities in respect of the children and with the maintenance which the respondent had to pay for the children, be deleted, alternatively that, in the event that the court granted an order authorising the applicant to remove the children to Australia, that certain specified contact rights with the children be granted to him. A factor which weighed heavily with the court were the views of the children themselves as expressed to the psychologist, the Judge, the family advocate and the family counsellor that they have decided that they want to go to Australia with their mother. In view of the good relationship which they had with the respondent, the decision was undoubtedly very difficult and one which caused them much anguish. The court allowed the mother to remove the children and found that the children’s decision must carry weight and must be respected because of their age, maturity and stage of development.

BROSSY V BROSSY (602/2011) [2012] ZASCA 151

In this case the court took note of international and regional instruments to which South Africa was a party, such as the United Nations Convention on the Rights of the Child (CRC)and the African Charter on the Rights and Welfare of the Child (ACRWC), both of which entrench children’s rights to express their views in all matters affecting them and their right to be heard in all judicial and administrative proceedings affecting them.

LEGAL AID BOARD V R 2009 (2) SA 262 (D)

In this matter the court found that when one is dealing with acrimonious litigation concerning the fundamentally important questions of where a child shall live and who shall be responsible for his/her principal day-to-day care and the central decisions concerning their lives, such as schooling, health, religion and the like, and where the voice of the child has been drowned out by the warring voices of her/ his parents, a substantial injustice to the child will result if he/ she was not afforded the assistance of a legal practitioner to make his/ her voice heard.

Conclusion

There is a real risk of unduly diluting the child’s right to be heard to one of merely listening to children without affording them a real opportunity to voice their own opinions and to take part in decisions in an age- and developmentally-appropriate way.

Children should not only be listened to, but should also be supported in expressing their views – and these views should be taken into account in decision making. By considering the views of children build their self-esteem, create a sense of belonging, increase empathy and responsibility, and lay a proper foundation for citizenship and democratic participation.

About the author

Bertus Preller is a Family Law and Divorce Attorney and Mediator at Bertus Preller & Associates Inc. in Cape Town and has more than 25 years experience. Bertus is the author of Everyone’s Guide to Divorce and Separation, published by Random House.

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