Mandatory child-Inclusive mediation - a possibility in South Africa?

Abstract

South Africa is a signatory state to the United Nations Convention on the Rights of the Child (UNCRC) which promotes child participation as an essential right. South Africa has the advantage of the Constitution of South Africa and the Children’s Act 38 of 2005 which give the child a voice but has the disadvantage of the Divorce Act 70 of 1979 which is parent-centric. This research will show that a conundrum exists between realising Article 12 of the UNCRC, Section 28(2) of the Constitution, Section 10 of the Children’s Act and the Divorce Act. It will be shown that there are insufficient efforts currently practiced in dispute resolution related to parenting disputes because of the reliance placed by legal practitioners more on the Divorce Act provisions which show lack of support for child inclusion than the intent of the Children’s Act to include children. This research focuses on the process of mediation and its benefits that make it the ideal environment to include the voice of the child in separation and divorce processes. A case will be made out as to why South African legislators should consider making child inclusive mediation a mandatory process ancillary to the dissolution of the relationship between the parents. Pathways created by the Australian and Canadian jurisdictions, as signatories to the UNCRC, in realising Article 12 of the UNCRC will be looked at. Their initiatives will provide the backdrop for consideration to improving child inclusive practices in South Africa.