Abstract:
The United Nations (UN) Convention on the Rights of the Child, 1989
(CRC), the African Charter on the Rights and Welfare of the Child, 1990
(ACRWC) and sections 6(5), 10, and 31(1)(a) of the Children’s Act 38 of
2005 (Children’s Act) place an obligation on South African courts to
determine children’s views in their parents’ family law matters. This article
analyses thirteen judgments stretching from 2003 – 2020 and one 2018
psychological study in relation to parenting plans to ascertain how South
African courts determine children’s views and wishes in practice. The
judgments selected relate to divorces and disputes regarding children’s
primary residence and care and contact (custody and access disputes),
disputes where a parent intends emigrating with children, and matters
were a parent abducted a child. The judgments indicate courts have
diverging approaches to determining children’s views and wishes in family
law matters. The 2018 psychological study found legal practitioners
unfortunately fail to take into account children’s inputs for purposes of
drafting their parents’ parenting plans. In light of courts’ diverging
approaches to determining a child’s voice in their parents’ litigious
matters, as well as the current complete lack of guidelines in this regard,
there is a need to amend the Children’s Act to assist courts with particular
regulations or guidelines in this regard. If courts are equipped with
guidelines to direct their determination of children’s views and wishes in
family law matters, this will result in a more certain, and more congruent
approach and most importantly, it will assist courts to pay heed to their
duty to properly hear the voice of the child.
