Abstract
The article discusses the right of children to legal representation at state expense in family disputes in South Africa as provided for in section 10 of the Children’s Act 38 of 2005 and section 28(2)(h) of the Constitution. Certain aspects are highlighted: the applicant applying for legal representation; the requirements for an appointee; the appointment criteria; duties and responsibilities of the appointee as well as the funding for such appointment. The South African legal principles are compared with the equivalent Australian provisions relating to the Independent Children’s Lawyer. The article concludes with some recommendations for lacunae identified in the South African system in light of the Australian experience.
Highlights
The article discusses the right of children to legal representation at state expense in family disputes in South Africa as provided for in section 10 of the Children’s Act 38 of 2005 and section 28(2)(h) of the Constitution
From the 2009 Review Report it is evident that the participation of the Independent Children’s Lawyer (ICL) in the legal process has been successfully incorporated into the legal process in Australia, which is well regulated and used in approximately a third of all cases to be decided by the courts.[212]
The impact of the United Nations Convention on the Rights of the Child has had a similar effect on the legal developments regarding the rights of the child to be heard, through legal representation, in South Africa and Australia
Summary
The article discusses the right of children to legal representation at state expense in family disputes in South Africa as provided for in section 10 of the Children’s Act 38 of 2005 and section 28(2)(h) of the Constitution. Certain aspects are highlighted: the applicant applying for legal representation; the requirements for an appointee; the appointment criteria; duties and responsibilities of the appointee as well as the funding for such appointment. The South African legal principles are compared with the equivalent Australian provisions relating to the Independent Children’s Lawyer. The article concludes with some recommendations for lacunae identified in the South African system in light of the Australian experience
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