It is often said “parents know best” - but when parents become embroiled in litigation against each other and children are involved, it can become very difficult for them to set their own interests aside and allow the interests of the child to take preference over their own. This also raises the question of whether a child involved in such a situation, has a voice and a say in decisions being made.
The principle of ‘in the best interest of a child’ provides a framework for addressing a broad range of issues affecting children. This principle is regarded as of such importance that it was included in our Constitution. Section 28(2) of the Constitution provides that:
“A child’s best interests are of paramount importance in every matter concerning the child.”
Our Children’s Act 38 of 2005 also gives practical effect to this and lists the various factors which must be taken into consideration whenever a Court needs to decide what is in the best interest of a specific child. It is clear that every child’s specific needs, personal relationships and emotional maturity must be considered when determining what is in that child’s best interest. The facts and circumstances differ however from case to case, resulting in different orders being made in different matters.
Importantly, Section 10 of the Children’s Act provides a child with the opportunity to participate in the process when a decision affecting him or her is to be made. This section explicitly recognises a child’s inherent rights in any matter affecting him or her, and provides that:
“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 continues to reinforce the role of the child, by providing that:
“Before a person holding parental responsibilities and rights in respect of a child takes any decisions 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.”
It is here that the family advocate plays an important role in protecting the interests of minor children. The family advocate is assisted by qualified and experienced social workers who are able to assist children in voicing their views. When conducting an inquiry, the family advocate will have interviews with the parents and the child, especially where the child is old and mature enough to express a view. After considering the evidence of all the interviewed parties as well as the child, the family advocate will compile a report with recommendations to the Court. Where necessary the child may also be assessed by other professionals and their reports will then be considered by the family advocate and included in its report and recommendation.
In Meyer v Gerber, a 15 year old boy decided to stay with his father and not his mother. Two psychologists, a family counsellor and the family advocate conducted interviews with him, during which he persisted in his decision to stay with his father. This view of the child was considered and included in the family advocate’s report. The Court decided that it was satisfied that in the circumstances the child was endowed with enough intellectual and emotional maturity to have made a calculated and intelligent decision and that the Court should attach due weight to his stated preference and choice. The child’s position was clearly not something which had become established overnight and bore the stamp of an important decision about which he had thought and contemplated for a long period of time and in which he had conducted himself as a mature and responsible young man.
To enable a child to effectively convey his or her view, it is important to allow the child the appropriate opportunity to do so. Professionals such as psychologist, counsellors and the family advocate are best suited to assist the Court in this regard rather than expecting a young child to express an opinion in the intimidating environment of a court room.
A child therefore does have a say in matters which affect them and where they are at such an age and stage of maturity and development to be able to express their views and wishes. However, even where a child’s opinion qualifies to be taken into consideration, the child’s best interest remains the deciding factor which our courts will ultimately weigh when considering the appropriate course of action in litigation which involves a child.