Section 10 of the Children’s Act 38 of 2005 in South Africa 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 that views expressed by the child must be given due consideration.
The application of the section arose in HG v CG. The matter concerned four children whose parents were divorced in 2006. The eldest, a boy, M A was then aged eleven and his siblings, a set of eight year old triplets, comprising two boys R A and M N and a girl, K E. In terms of the settlement agreement the parents were awarded joint custody of the children, the intention being that the children would spend an equal amount of time with each parent. They agreed to sell two of the immovable properties jointly owned by them and divide the proceeds equally among themselves and further agreed that in order to facilitate the joint custody regime, they would each purchase a home. These homes were duly acquired and the contemplated arrangement became a reality, the children spending alternate weeks with each parent.
Three years later when the eldest child was fourteen years of age and the other three (triplets) were eleven years of age, the applicant, Mrs G, approached the High Court by way of urgent application for variation of the custody order. In the application Mrs G sought an order declaring her the primary care provider of the children as well as the authority to permanently remove them from South Africa to Dubai, a Persian Gulf state, there to live with a new man whom she planned to marry.
Experts commissioned by the applicant, being a social worker and clinical psychologist, recommended that the applicant be the primary care provider and that she relocate with the children to Dubai as proposed. Experts not commissioned by the applicant held a different view, finding that relocation would not be in the best interest of the children as they would miss their father, school friends and the city of Port Elizabeth to which they were accustomed. Chetty J dismissed the application and ordered each party to pay own costs.
The guiding principle in matters involving children is that the interests of the children are paramount. This is entrenched in the Constitution, section 28 of which provides that a child’s best interests are of paramount importance in every matter concerning a child.
The Children’s Act was promulgated to give effect to this constitutional imperative, section 9 of which echoes the constitutional injunction.
Section 6 of the Act under the rubric, General principles, contains various guidelines and inter alia provides that –
(2) All proceedings, actions or decisions in a matter concerning a child must—
(a) respect, protect, promote and fulfil the child’s rights set out in the Bill of Rights, the best interests of the child standard set out in section 7 and the rights and principles set out in this Act, subject to any lawful limitation;”
The best interests of the child standard referred to in the preceding paragraph is given content in section 7 of the Act which provides:
“7. Best interests of child standard.—(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—
(a) the nature of the personal relationship between—
(i) the child and the parents, or any specific parent; and
(ii) the child and any other care-giver or person relevant in those circumstances;
(b) the attitude of the parents, or any specific parent, towards—
(i) the child; and
(ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—
(i) both or either of the parents; or
(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child—
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(g) the child’s—
(i) age, maturity and stage of development;
(iii) background; and
(iv) any other relevant characteristics of the child;
(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child from any physical or psychological harm that may be caused by—
(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
(2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child.”
The Act has brought about a fundamental shift in the parent/child relationship from that which prevailed in the pre-constitutional era and now not only vests a child with certain rights but moreover gives a child the opportunity to participate in any decision making affecting him or her. Thus section 10 of the Act explicitly recognizes a child’s inherent rights in any matter affecting him or her and provides that –
Child participation.—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.
The court said that the Act brought about a fundamental shift in the parent/child relationship and not only vested a child with certain rights but also gave a child the opportunity to participate in any decision-making affecting him. The court was enjoined by the Act to give due consideration to the views of the children. In the present case the minor children were of an age and level of maturity to make an informed decision, namely to preserve the status quo of joint custody by both parents and reject relocation to Dubai.
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