South African courts' differing approaches to determining children's views in family law matters

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.