Abstract:
The appointment of the curator ad litem during litigation in which
children’s interests are concerned has, over the years, played a critical role
in advancing the child’s right to be heard and participate in matters
affecting them for the advancement of their best interests. Prof Boezaart’s
seminal article on the role of the curator ad litem and children’s access to
the courts set out a comprehensive review of the origins, duties and role of
the curator. Litigation and resultant court pronouncements subsequent to
the article have continued to affirm the importance of the curator’s role in
matters dealing with the care of children; delictual matters in which
children have legitimate financial claims; and acquisition of parental rights
and responsibilities of the unborn child. The courts have affirmed the fact
that the curator must only be appointed when their presence is necessary
and not duplicate the functions of attorneys representing parents or
caregivers of the children or the parents or caregivers themselves. The
curator represents and protects the interests of the children concerned,
prevents conflict with the interests of the parents, guardian or caregiver or
represents the child when such parent, guardian or caregiver is unwilling
to act in the interests of the child. The courts have held that in highly
contested matters, the curator must, as an officer of the court, keep an
open mind, remain neutral, and be open to all arguments in the interests
of the children concerned. They must not allow themselves to be
distracted by contentious issues in litigation and must honour their
obligation to provide insight into the wishes and views of children and to
apply their legal knowledge to the child’s perspective. The curator has also
played a critical role in protecting the interest of the unborn child by
conducting an objective investigation and ensuring that their interests are
fully before the court.
