In this short article I will trace the idea of possible ways in which children might participate in litigation, and how the various forms of participation might affect them in a positive or negative way, considering the possible advantages and disadvantages for the child in dispute resolution. The role of children in family litigation seems rather unexplored, particularly in the decision making proses. The best interest of the child is paramount and throughout the litigation process this should continuously be considered.
It will appear that our courts have not been familiarised with the idea of the child as an autonomous being with the right to litigate and to be separately represented, the notion that children should be protected brings about concern within judges about children being directly involved in litigation. Nevertheless the Children’s Act 38 of 2005 sheds light on this predicament, recognising the autonomy of the child as well as the underlying principle of the child’s need for protection that can be found in Section 54 and 55 of the Children’s Act 38 of 2005:
“Where a child involved in a matter before the children’s court is not represented by a legal representative, and the court is of the opinion that it would be in the best interests of the child to have legal representation, the court must refer the matter to the Legal Aid Board referred to in section 2 of the Legal Aid Act, 1969 (Act 22 of 1969).”
The Constitution and child participation:
The Constitution of the Republic of South Africa 108 of 1996 in Section 28(1)(h) provides a platform for the child to be heard and directly participate in litigation. With help of a legal representative that will place the views of the child before the courts. This section is an extension of the right of every accused person to have legal representation during criminal proceedings (section 35 of the Constitution), which gives the child the right to legal representation during civil proceedings.
Chief Justice Langa made the following observation in Minister of Education v Pillay 2008 (1) SA 474 (CC):
“Legal matters involving Children often exclude the children and the matter is left to adults to argue and decide on their behalf.”
The reality is that the need for the child to be heard is acute when the decision concerns the child. Recently the Constitutional Court has developed a practice of appointing a curator ad litem for children involved in cases before the court.
In Soller NO v G & another 2003 (5) SA 430 the court illuminated the roles played by the legal representative and the Family Advocate. The court maintained that the mandate of the legal representative should be in accordance with Section 28 of the Constitution, that he or she should use their legal skills in representing the best interests of the child and thus allowing the voice of the child to be heard through legal representation. The family advocate is to provide a professional and neutral channel of communication between conflicting parents and the courts.
Therefore the need for the child to have separate legal representation in certain circumstances can be used as a tool to prevent substantial injustice. The court in the Soller-matter defines substantial injustice in the recognition that is found in Section 28(1)(h) as well as the United Nation Convention of Rights of the Child, that even though it may seem as such, the best interests of the child and the adults interests my not reconcile. Therefore separate legal representation is needed in order for constitutional and substantial justice not to be breached.
The child’s right to separate legal representation:
As a general principle in the Children’s Act there is no specific inclusion providing for separate legal representation for the child in all matters, but there is provision for legal representation for the child in different chapters of the Children’s Act. In Ex parte Van Niekerk & another  JOL 14218 (T) legal representation was appointed for the first time for the children, as well as children joined as parties in the matter between their parents. In an unreported case, R v M (Durban and Coastal Division, case number: 5493/02) six years of tremendously adversarial litigation forced Legal Aid to appointed an attorney to represent the child in a disputed custody case. The child finally received a legal representative and after years of legal battles it was reported that the matter was settled.
In Legal Aid Board v R & another 2009 (2) SA 262 (D) it was decided that Legal Aid South Africa was the correct organisation to approach for legal representation of the child, a 12 year old girl who was subject to the legal battle between her parents since she was 5 years old. The Legal Aid Board approached the court on an urgent basis in order to appoint a legal representative for the child that may consult with her and represent her during the litigation proses between her parents concerning her. Counsel for the mother opposed, claiming that such an appointment was unnecessary as the mother was the guardian of the child and acting in her best interest. Furthermore it was argued that Legal Aid South Africa was not in a position to appoint legal representation for the child, and that it must either be the guardian or court who appoints the legal representation.
Presiding Judge Willis found that questions regarding where the child lives and which parent will be making the most important decisions in the child’s life are to be considered and because the child is the subject of the decisions being made it is the child that needs to live with the consequences. It is extremely important that the child’s views be heard and are taken into consideration. The appointment of a legal representative was not only helpful but it allowed the child to participate in the litigation process.
It seems that in certain circumstances it will be in the best interest of the child to be joined as a party in certain divorce matters and it is evident from case law as well as the Constitution of South Africa that it may result in a substantial injustice if a separate legal representative is not appointed for children in certain matters where it is clearly in the best interest of the child.
by Samantha Wonfor