The expanding role of the curator ad litem in protecting children’s rights in South Africa

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.