South African courts' differing approaches to determining children's views in family law matters*

• Jurisdiction: South Africa
• Date: 01 June 2023
• Pages: 309-329
• Author: Alet Magdaleen Uys
• Published date: 01 June 2023
• DOI: 10.17159/2225-7160/2023/v56a20

South African courts’ differing approaches to family law matters 309

South African courts’ differing approaches

to determining children’s views in family

law matters*

Alet Magdaleen Uys

BCom LLB (University of Pretoria), LLM (UNISA)

Practising Attorney

SUMMARY

The United Nations (UN) Convention on the Rights of the Child, 1989

(CRC), the African Charter on the Rights and Welfare of the Child, 1990

(ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children’s Act 38 of

2005 (Children’s Act) place an obligation on South African courts to

determine children’s views in their parents’ family law matters. This article

analyses thirteen judgments stretching from 2003 – 2020 and one 2018

psychological study in relation to parenting plans to ascertain how South

African courts determine children’s views and wishes in practice. The

judgments selected relate to divorces and disputes regarding children’s

primary residence and care and contact (custody and access disputes),

disputes where a parent intends emigrating with children, and matters

were a parent abducted a child. The judgments indicate courts have

diverging approaches to determining children’s views and wishes in family

law matters. The 2018 psychological study found legal practitioners

unfortun ately fai l to take into account children ’s inputs fo r purpose s of

drafting their parents’ parenting plans. In light of courts’ diverging

approaches to determining a child’s voice in their parents’ litigious

matters, as well as the current complete lack of guidelines in this regard,

there is a need to amend the Children’s Act to assist courts with particular

regulations or guidelines in this regard. If courts are equipped with

guidelines to direct their determination of children’s views and wishes in

family law matters, this will result in a more certain, and more congruent

approach and most importantly, it will assist courts to pay heed to their

duty to properly hear the voice of the child.

1Introduction

South African legislation1 and two prominent treaties2 require South

1 This article is based on research that was done for a dissertation submitted

in partial compliance of the LLM Degree (with specialisation in Family Law)

at the University of South Africa. The author thanks the supervisor, Prof

Jacqueline Heaton, for her unfettered patience and for providing me with a

sense of direction in respect of the dissertation and drafts of this article.

1 See ss 6(5), 10, and 31(1)(a) of the Children’s Act 38 of 2005 (Children’s

Act) .

2 See art 4 of the African Charter on the Rights and Welfare of the Child,

1990 (ACRWC), and art 12 of the United Nations (UN) Convention on the

Rights of the Child, 1989 (CRC).

How to cite: Uys ‘South African courts’ differing approaches to determining children’s views in family law

matters’ 2023 De Jure Law Jo urnal 309-329

http://dx.doi.org/10.17159/2225-7160/2023/v56a20

*

310 2023 De Jure Law Journal

African courts to allow child3 participation in legal matters where the

outcome may affect a child, provided that the child is of a specific age,

level of maturity, and stage of development to participate. Participation

occurs when courts allow children to express their views, when adults

listen to such views, and when courts give due weight to the children’s

views, interests, and goals.4

Article 4(2) of the African Charter on the Rights and Welfare of the

Child, 1990 (ACRWC) provides as follows:

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.

Article 12 of the United Nations (UN) Convention on the Rights of the

Child, 1989 (CRC) provides as follows:

1. 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.

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.

Section 6(5) of the Children’s Act 38 of 2005 (Children’s Act) stipulates as

follows:

A child, having regard to his or her age, maturity and stage of development,

and a person who has parental responsibilities and rights in respect of that

child, where appropriate, must be informed of any action or decision taken in

a matter concerning a child which significantly affects the child.

Section 10 of the Children’s Act stipulates as follows:

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.

3 S 1 of the Children’s Act: “child” means “a person under the age of 18

years”. Art 2 of the ACRWC: “child” means “every human being below the

age of 18 years”. Art 1 of the CRC: “child” means “every human being

below the age of eighteen years unless under the law applicable to the

child, majority is attained earlier”.

4 Krappman “The Weight of the Child’s View (Article 12 of the Convention on

the Rights of the Child)” 2010 International Journal on Children’s Rights 502.