• by Samantha Rich
Section 28(3) of the Constitution of the Republic of South Africa 108 of 1996 states that a ‘child’ is a person under the age of eighteen years old. Section 28(1)(b) of the Constitution provides that every child has the right to family care or parental care, or to appropriate alternative care when removed from the family environment. Section 28(1)(c) of the Constitution provides that every child has the right to basic nutrition, shelter, basic health care services and social services. Section 28(1)(d) of the Constitution provides that every child has the right to be protected from maltreatment, neglect, abuse or degradation. Section 28(1)(h) of the Constitution provides that every child has the right to have a legal practitioner assigned to them by the state, at state expense, in civil proceedings affecting them, if substantial injustice would otherwise result.
Section 28(2) of the Constitution and Section 9 of the Children’s Act 38 of 2005 states that a child’s best interests are of paramount importance in every matter concerning the child. The court is the upper guardian of the protection of the best interests of the minor child and will not make an order which conflicts with the best interests of the child principle. The Family Advocate is part of the Department of Justice and assists the court in coming to a decision regarding the best interests of the child by providing recommendations. The Family Advocate assists parties who share rights and responsibilities in respect of the minor child/children, to come to an agreement regarding care and contact disputes and drawing up of parenting plans. The recommendations of the Family Advocate are not binding unless made an order of court. Courts are unlikely to grant a decree of divorce unless they are satisfied that the best interests of the child are served in terms of the custody arrangements. A favourable report or recommendation from the Family Advocate goes a long way in terms of the court being satisfied that the best interests of the child have been served.
According to Section 22(5) of the Children’s Act, before a parenting plan can be registered with the Family Advocate or made an order of court, the Family Advocate or Court must be satisfied that the best interests of the child have been served in terms of the parenting plan.
It is important to note that minor children are not bystanders in terms of decisions affecting them, in terms of Section 10 of the Children’s Act, the court must give due consideration to the views of the minor children if they are of an age, maturity, and at a stage of development to be able to meaningfully and appropriately participate in decisions affecting them. Therefore, minor children have a right to have their voices heard in decisions affecting them.