The Voice of the Child in Family Law Matters

By Anastacia Willemse | SchoemanLaw Inc 

Introduction 

One of the most significant developments in South African family law has been the recognition of children as rights-holders. The Children’s Act 38 of 20051 provides not only protection but also a voice for children in decisions that affect them. This shift reflects the principle that children should be seen, heard, and taken seriously in legal processes that shape their lives. 

Legal Framework 

Section 10 of the Children’s Act provides that every Child of sufficient age, maturity, and stage of development has the right to participate in matters concerning them and to have their views considered. This aligns with Section 28 of the Constitution2, which entrenches children’s rights, and with South Africa’s international obligations under the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child. 

The principle is also closely tied to the overarching test in all family law matters: the best interests of the Child, as set out in Section 9 of the Children’s Act3 and Section 28(2) of the Constitution.4 

How the Child’s Voice is Heard 

Children’s views can be presented in different ways, depending on the circumstances: 

• Direct consultation by the court: Judges may, in some instances, interview a child in chambers. 

• Through a legal representative: Section 28(1)(h) of the Constitution provides that every Child has the right to a legal practitioner assigned by the state at government expense in civil matters, if substantial injustice would otherwise result. 

• Through the Family Advocate: In divorce and care disputes, the Office of the Family Advocate plays a critical role in assessing the Child’s circumstances and ensuring their voice is included in the report to the court. 

• Via experts or mediators: Social workers, psychologists, and mediators often facilitate the expression of children’s views in a child-sensitive manner. 

Age and Maturity Considerations 

The Act does not set a fixed age at which a child may express their views. Instead, it uses a flexible standard based on the Child’s level of maturity and understanding. A younger child may still be capable of expressing a meaningful view if they are sufficiently mature, while in other cases, an older child’s opinion may carry greater weight. 

Courts are careful to balance the Child’s participation with the need to protect them from harm, undue pressure, or being drawn into adult disputes. The aim is not to make the Child choose sides, but to ensure their perspective is considered as part of a holistic assessment of their best interests. 

Why It Matters 

Recognizing the voice of the Child has both legal and practical importance: 

• It affirms the Child’s dignity and autonomy. 

• It promotes fairness and accuracy in decision-making. 

• It reduces the risk of children feeling alienated or ignored in processes that profoundly affect them. 

• It helps courts craft solutions that are more realistic and sustainable for the family. 

Practical Guidance for Parents and Practitioners 

1. Respect the Child’s role: Children should be supported, not pressured, to express their views. 

2. Use professionals where needed: Social workers, psychologists, and family advocates possess the expertise to facilitate child participation sensitively. 

3. Balance with best interests: A child’s wishes are important but not decisive — the court must weigh them alongside all other factors. 

4. Prepare the Child: If a child will meet a mediator, advocate, or court official, explain the process in an age-appropriate way. 

Conclusion 

South African law recognizes that children are not merely passive subjects in family law matters but active participants with voices that deserve to be heard. While their views are not the only factor in determining outcomes, they are an essential part of the process. By respecting and including the voice of the Child, our legal system moves closer to decisions that are not only legally sound but also compassionate, fair, and truly in the Child’s best interests. 

For further assistance, consult an attorney at SchoemanLaw.  

Anastacia Willemse | SchoemanLaw Inc   

Candidate Attorney

https://schoemanlaw.co.za/our-services/family-law/