The Voice Of The Child: Care and Contact Arrangements During Divorce Proceedings
The Children’s Act
Divorce is not an easy process to go through. The process is made even more strenuous when there are minor children involved. One of the most important pieces of legislation promulgated to protect the rights and interests of all minor children in South Africa is the Children’s Act No. 38 of 2005. Section 9 of the Act is of particular importance, which provides that “a child’s best interests are of paramount importance in every matter concerning a child.”[1].
The best interests of the minor child
In South Africa, the Court, acting as upper guardian of all minor children, must endeavor to minimize the disastrous effects that divorce proceedings can have on the minor child’s life. Courts have a duty to ensure that before granting an order of divorce, the Court must be “satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.”[2]. The best interests of the child is of paramount importance and must be applied at all times in making arrangements regarding the care and contact of the minor child.
The Office of the Family Advocate
The Office of the Family Advocate has a duty to launch an investigation into what would be the best arrangement to protect and promote the best interests of the child during divorce proceedings. In conducting this investigation, the Family Advocate will engage with the minor child, parents and family members to compile a report with his or her findings and recommendations. This report can go a long way in assisting the court when making its decision regarding care and contact arrangements for the minor child.
The duty to engage
During divorce proceedings, the Family Advocate has a duty to engage with “every child that is of such an age, maturity and stage of development as to be able to participate in any manner concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.”[3] The Act is however silent in providing grounds upon which a Court may make a determination on whether the minor child is capable of expressing his or her wishes regarding care and contact arrangements during divorce proceedings.
Risks
Depending on the age of the minor child, he or she may be too young to understand the realities of divorce. The minor child may also have difficulty in expressing the changes in their environment during the divorce proceedings and how such changes make them feel. Another major risk involved in placing too much weight on the views of the minor child is that sadly, oftentimes, parents’ resort to using their minor child as a mouthpiece, expressing their wishes regarding the care and contact of the child under the guise that such wishes are those of the child.
While the above risks do exist during the investigation by the Office of the Family Advocate, I am of the view that the point of departure in such an inquiry should be holding an interview with the minor child nonetheless to determine his or her wishes pertaining to the care and contact arrangements which will be imposed on him or her following divorce proceedings. In doing so, the court will be in a better position to thereafter make a decision which is in the best interests of the child. This approach also ensures that the voice of the child is heard in what is a very traumatic experience for all involved.
Caitlin Lee Clarke
Candidate Attorney
[1] Section 9 of the Children’s Act, Act No. 38 of 2005.
[2] Section 6(1) of the Divorce Act, Act No. 70 of 1979.
[3] Section 10 of the Children’s Act, Act No. 38 of 2005.
Provided by Van Zyl Kruger
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