By Clement Marumoagae

The Children’s Act 38 of 2005 (the Act) makes provision for divorcing parents to 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. The preamble to the Act states that it was promulgated to, among others, ‘give effect to certain rights of children as contained in the Constitution; to set out principles relating to the care and protection of children; [and] to define parental responsibilities and rights’. A great deal of importance has been placed on the participation of children in decisions regarding parental responsibilities and rights that affect them. This article discusses the role played by minor children with regard to decisions relating to their care, contact and welfare when their parents divorce.

International recognition of children’s rights

In 1989 the United Nations General Assembly adopted the Convention on the Rights of the Child, which is a comprehensive internationally binding agreement on the rights of children. Article 3(1) of the convention provides that ‘in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’. According to art 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 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’.

According to ‘General Comment No. 12 (2009): The right of the child to be heard’, prepared by the Committee on the Rights of the Child, art 12 of the convention addresses the legal and social status of children, who, on the one hand, lack the full autonomy of adults but, on the other, are subjects of rights. It assures the right of every child to freely express his views in all matters affecting him and the subsequent right for those views to be given due weight according to the child’s age and maturity (www.coe.int/t/dg3/children, accessed 29-3-2012). South Africa ratified this convention on 16 June 1995 and is legally obliged to monitor the implementation of the rights of children as set out in this convention (Sharmla Rama ‘Monitoring the implementation of the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child’ (2000), Statistics South Africa, available at www.statssa.gov.za, accessed 21-1-2012). The 1959 United Nations Declaration on the Rights of the Child also recognises the rights of children. Clause 6 of this declaration provides that, wherever possible, the child shall ‘grow up in the care and under the responsibility of his parents, and, in any case, in an atmosphere of affection and of moral and material security’.

South Africa is also a signatory to the African Charter on the Rights and Welfare of the Child, which came into force on 29 November 2009. The preamble to this charter states that ‘the child should grow up in a family environment in an atmosphere of happiness, love and understanding’. Article 4(1) of the charter also provides that: ‘In all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration’. In terms of art 4(2): ‘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 legislature, in implementing both the convention and the charter as far as the views of children with regard to judicial proceedings relating to their care and contact is concerned, enacted the Act. The preamble to the Act recognises that ‘the need to extend particular care to the child has been stated in the … United Nations Declaration on the Rights of the Child, in the Convention on the Rights of the Child and in the African Charter on the Rights and Welfare of the Child …’.

Rights of children in South Africa

In terms of s 28(1)(b) of the Constitution, every child has a right to family care and parental care or to alternative care when removed from the family environment. In terms of s 39(1) of the Constitution, when interpreting the Bill of Rights, a court, tribunal or forum must consider international law. As such, South African courts are enjoined when interpreting any legislation relating to children to have regard to the convention, charter and declaration referred to above. In terms of s 232 of the Constitution, customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of parliament. Furthermore, s 233 of the Constitution provides that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.

Parental rights and responsibilities: Care and contact

Section 6(1)(a) of the Divorce Act 70 of 1979 reads as follows:

‘(1) A decree of divorce shall not be granted until the court –

(a) is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependant child of the marriage are satisfactory or are the best that can be effected in the circumstances.’

The court granting the order has to consider the best possible, or at least near best possible outcome, which will go a long way in ensuring that children’s lives are not destabilised. This might be somewhat difficult given the nature of divorce proceedings and the emotions that accompany such proceedings, but the court has the duty to look beyond the parties’ feelings at the time and provide an outcome that will benefit the child involved. Section 9 of the Act provides that: ‘In all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance, must be applied.’

A court granting a decree of divorce is also called on to decide which of the parents will be granted permission to reside with the minor child if the parents will be residing at different places after the divorce, and also how the other parent will maintain contact with the child. By so doing, the court will assist the parties in exercising their parental rights and responsibilities regarding the child. Before the Act was promulgated, parental duties were referred to as ‘custody and access’. The Act now provides for the new term ‘parental responsibilities and rights’, which includes the right to care for the child and the responsibility and the right to maintain contact with the child (see chapter 3 of the Act). Even though the Act has brought about these changes, some practitioners still use the terms ‘custody’ and ‘access’ in their court papers instead of the terms ‘care’ and ‘contact’.

According to South African child law expert A Skelton: ‘At first glance, [the word “custody” in the Act] appears to have been supplanted by the word “care”. However, “care” is defined far more broadly than “custody”. Section 1 of the Children’s Act defines “care”, which embodies much more than providing a suitable place to live’ (A Skelton ‘Parental Responsibilities and Rights’ in T Boezaart (ed) Child Law in South Africa (Cape Town: Juta 2009) at 65). It has been argued that: ‘Care has a much wider ambit than custody. It means not only providing for the child’s daily needs, such as a safe home, food, education and love. It also includes promoting the well-being of the child, maintaining a sound relationship with the child and, of paramount importance, attending to the best interests of the child’ (W Domingo ‘“For the sake of the children”: South African family relocation disputes’ (2011) 14 (2) Potchefstroom Electronic Law Journal 148 at 149).

Chapter 3 of the Act deals with parental responsibilities and rights. In terms of s 18(1) and (2) of the Act, a person may have either full or specific parental responsibilities or rights in respect of a child, which includes to care for the child, to maintain contact with the child, to act as a guardian of the child and to contribute to the maintenance of the child. This section provides a ‘basket of rights’ to any person who might be interested in the well-being and welfare of the minor child. Section 18 does not state that only biological parents of the minor child are eligible for this ‘basket of rights’. Any person having an interest in the care, well-being or development of a child may apply to a High Court, a divorce court in divorce matters or a children’s court for an order granting contact or care of the child on such conditions as the court may deem necessary (s 23(1) of the Act). In terms of s 23(2) of the Act, a court granting the applicant such an order will have to consider factors such as the best interests of the child; the relationship between the applicant and the child, and any other relevant person and the child; the degree of commitment that the applicant has shown towards the child; the extent to which the applicant has contributed towards expenses in connection with the birth and maintenance of the child; and any other fact that should, in the opinion of the court, be taken into account.

The role of the family advocate

In an attempt to safeguard the welfare of minor children who might be left vulnerable when the relationship of their parents disintegrates, the legislature enacted the Mediation in Certain Divorce Matters Act 24 of 1987 (MCDMA). This Act establishes the Office of the Family Advocate, which has the duty to protect the interests of minor children affected by divorce. The family advocate will be assisted by suitably qualified or experienced social workers in making an inquiry to enable him to furnish the court at the trial of such action or the hearing of such application with a report and recommendations on any matter concerning the welfare of each minor or dependant child of the marriage concerned or regarding such matter as is referred to him by the court (s 4(1) of the MCDMA). When conducting his inquiry, the family advocate will conduct interviews with the parents and the child if he is old enough to express a view.

After considering the evidence of both parties and the submission of the minor child, if applicable, the family advocate will compile a report with his recommendation, which aims to guide the court in coming to a decision to safeguard the welfare and the overall best interests of the child. Even though the family advocate’s report is not mandatory and can be challenged, in practice courts seldom deviate from the recommendations contained therein. This report provides the court with a better understanding of the personal circumstances of the parties before the court, thereby assisting it in making a decision as to which of the parties should be awarded the ‘care’ of the minor child concerned. It also provides guidance on how ‘contact’ can be exercised by the other party on reasonable grounds. To some extent this report provides the court with a picture as to which of the parties can provide the minor child with a stable home and environment that will enable the child to grow and develop as an independent social being.

The views of minor children

In terms of s 10 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 is able to express more well-informed views that can assist the court than an 11-year-old might. Furthermore, 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 with regard to 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, correctly in my view, that ‘courts need to be sensitive to the dangers of listening to children’.

‘Courts should be wary and not delude themselves into thinking that they are hearing a child’s voice when in fact they may be receiving “a distorted broadcast laced with the static of a charged emotional atmosphere; or the voice may be delivering a script written by another; or it may reflect the desire to placate, take care of, or pledge loyalty to a parent”’ (Domingo (op cit) at 162, quoting from RA Warshak ‘Payoffs and pitfalls of listening to children’ Family Relations 2003 at 382).

Conclusion

Courts, when deciding the ‘care’ and ‘contact’ rights of parents, in addition to assessing which parent will be able to provide the child with a stable home, also take the views of any minor children involved into consideration. However, even though the courts have stated that such views should be given weight, they have nonetheless failed to provide guidelines on what age, level of maturity and stage of development a minor child would be regarded as capable of expressing views regarding what would be in his best interests. It seems that the courts deal with this matter on a case-to-case basis. Nonetheless, it would be prudent to have basic guidelines as a starting point of the inquiry.

I am of the view that the better approach was outlined by King J in McCall v McCall 1994 (3) SA 201 (C), where the judge, with the consent of both parties, interviewed the minor child, who expressed a preference to live with his father. The judge found the minor child to be ‘an intelligent, articulate, persuasive, sincere and candid child’ who displayed ‘a degree of maturity and intellectual development’ that satisfied him that he was capable of forming and expressing an intelligent and informed judgment on what he subjectively perceived to be in his best interests. King J was aware that the minor child was still ‘of tender years’ and was ‘expressing a subjective view’ and that he may have been influenced to some extent by the views of others. Nonetheless, he was satisfied that the child was expressing statements and views that were ‘a genuine and accurate reflection of his feelings towards his relationship with each of his parents’. King J was satisfied that he could and should give weight to the child’s preference for his father that was ‘so clearly and firmly expressed’ (at 207G – 208E).

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 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 in order to reach a well-informed decision with regard to 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’.

Clement Marumoagae LLB (Wits) LLM (NWU) Cert in Advanced Broadcasting Law (Wits) is a candidate attorney at the Benoni Justice Centre.

This article was first published in De Rebus in 2012 (May) DR 38.