As is often the nature of custody disputes, the decision regarding which parent is to have primary residence after the parents have divorced has enormous repercussions for the children involved.
The participation of a child in matters affecting them during a divorce or separation is obligated by the Children's Act 38 of 2005.
South African courts are obliged to place particular emphasis on the best interests of the child. This is not only because of their role as upper guardians of all minors but also because of section 28(2) of the Constitution of the Republic of South Africa, 1996.
Therein it states that a child's best interests are of paramount importance in every matter concerning the child.
This can refer to decision-making; to place more value in the child's input. The child's best interests play a role during family disputes and divorce proceedings in which the child has a right to participate through making their views known.
Historically, the child's voice was not given any preference, as they were deemed incompetent to make decisions regarding what is in their best interests.
A case that reflects this less sympathetic attitude towards considering the voice of the child is the Greenshields v Wyllie where wherein Flemming J held that:
"Court is not inclined to give much weight to the preferences of children of 12 and 14. It is not because what they say is not important but because the Courts know that there is more to it than the way they respond emotionally at this stage. It is therefore not that the Court simply ignores their desire, but, as a father sometimes tell a child 'no', the Court as the children's super father, can tell both their father and mother 'no' when it is necessary."
The narrative has changed, however, and children are treated as active participants in the processes and decisions that affect them.
Judges still have the discretion to determine the appropriate weight to give to the child's preference.
• Various courts have presented several factors that they take into consideration when determining the ability for a child to participate, and these include;
• The Age and maturity of the child.
• Capacity to make reasoned decisions.
• Level of Intellectual and emotional functioning.
• The nature of the child's relationship with each parent.
• Whether the child is vulnerable to parental pressures.
In Fletcher v Fletcher it was highlighted that when determining the best interests of a child, one of the factors that should be taken into consideration is the child's wishes.
The Court would often stipulate that significance should be given to the child's preference.
That is only if the Court is satisfied that the child has sufficient maturity. The child must also be able to give an accurate reflection of his or her feelings towards a relationship with both parties.
The core question that needs to be addressed is whether or not, only children of a certain age may participate in mediation.
Section 31(a) of the Children's Act stipulates that; "before taking any decision, a person holding parental responsibilities and rights with regards to a child 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."
The significance of children's rights are enshrined in the Bill of Rights and ought to be protected.
The primary duty rests on the parents or legal guardians of children to respect, protect, promote and fulfil the rights guaranteed by Section 28 of the Constitution.
Only when a child's parents fail to or are unable to protect an individual right for that child does the duty then rest on the state.
In Jooste v Botha it was stated that "the wide formulation of section 28(2) is seemingly so all-inclusive that the interest of the child would override all other legitimate interests of parents, siblings and third parties, in the Court's view, this provision is intended as a general guideline.
Sections 6(2)(a), 7(1)(a) – (n) and 10 of the Children's Act details the best interest of the child, and the right of the child to participate and voice their own views in all of the matters that affect and concern them. Also, their right to be heard in official proceedings in motion.
When handling situations involving a child, the main focus is to solve the problem at hand through any means possible. The goal must be to restore relationships and create an environment of harmony and cooperation, avoiding any delays.
Listed below are some of the factors that must be condered when a provision of the Children's Act requires the best interests of the child standard to be applied:
• The personal relationship between the child and the parents, or any other caregiver.
• The treatment of the parents towards the child and the exercising of their parental rights over the child
• The ability of the parents or caregiver to provide for the needs of the child.
• The priority to keep the child from any harm or violence.
• The possible effect on the child of any change in circumstances including the impact of any separation from both or either parent or siblings.
• Any disability or chronic illness of the child.
Lastly, Section 10 of the Children's Act, states that children who are at an age of maturity, and stage of development ,where they can participate in decisions concerning their future have the right to do so appropriately, and have due consideration given to their views.