The role of children’s views during divorce

The Children’s Act 38 of 2005 (the Act) states that divorcing parents should consider the welfare of their minor children during divorce proceedings. The Act grants both parents full parental responsibilities and rights in relation to a child subject to certain exceptions provided for in the Act. A great deal of importance is placed on the participation of children in decisions regarding parental responsibilities and rights that affect them.

In 1989, the Convention on the Rights of the Child was adopted by the United Nations General Assembly which is a comprehensive internationally binding agreement on the rights of children. According to article 12(1) of the convention, ‘states parties shall assure to the 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 views of the child being given due weight in accordance with the age and maturity of the child.’ In terms of art 12(2), ‘the child shall 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’.

In terms of s39(1) of the Constitution of the Republic of South Africa 1996, when interpreting the Bill of Rights, a court, tribunal, or forum must consider international law. As such, South African courts are urged that when interpreting any legislation relating to children to have regard to the convention, charter and declaration referred to above. In terms of s232 of the Constitution, customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of parliament.

The views of minor children

In terms of s10 of the Act, ‘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 Act also provides that, ‘before a person holding parental responsibilities and rights in respect of a child takes any decision … 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.’

These provisions are in line with the international instruments referred to above. The Act does not provide clarity as to what age a minor child would be regarded as ready to express views that might assist the court in deciding what would be in his best interests. Similarly, the Act does not provide guidance on how the court will come to a decision that a particular child is mature enough to express views necessary to assist the court to decide what would be in his best interests. It is also unclear at what stage of development a child would be regarded as capable of assisting the court by expressing his views. It is a well-known fact that children develop at different rates and their state of maturity is not the same.

It is possible to find an eight-year-old child who can express more well-informed views that can assist the court than an 11-year-old might. Further, children’s articulation of the realities of the marital problems of their parents is not the same and some might not understand the realities of divorce. It is also possible for children to express views regarding their care and contact that favour the parent who is less restrictive. It is also possible that one parent can speak through the mouth of the minor child, in that the views expressed by the child are actually those of the parent. As such, it has been argued, that courts need to be sensitive to the dangers of listening to children.

It would be naive to think that all minor children’s statements will be of the same quality as the one referred to above. However, by interviewing the minor child with the consent of the parties, the court will be better placed to make a decision that is in the best interests of the child. The court will then be able to compare the report of the family advocate and the statements of social workers with its own interview with the minor child to reach a well-informed decision regarding the ‘care’ and ‘contact’ rights relating to the minor child.

Such an approach seems to be in line with reg 8(3)(a) to the Act, which provides that ‘due consideration must be given to the views and wishes of the child or children in the development of any parental responsibilities and rights agreement, bearing in mind the child’s or children’s age, maturity and stage of development’.