CHILD PARTICIPATION

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The child's voice

Overview

According to South African law, child participation in the South African Children’s Act 38 of 2005 means that every child has the right to express their views, and adults must listen to them in matters that affect their lives. This right depends on the child’s age, maturity, and stage of development. Key aspects include Section 10 (the right to participate), Section 6(5) (the duty to inform children), and court proceedings.

The voice of the child in South African custody or divorce cases is gathered through independent, child-friendly assessments rather than forcing children to testify in an open courtroom. This process ensures the child’s views are heard without placing them in the middle of their parents’ conflict.
 

Methods of hearing the child’s voice

    • Office of the Family Advocate: This is a state-appointed neutral body. A Family Advocate (a legal professional) and a Family Counsellor (a social worker or psychologist) interview the child in a non-threatening environment. They write a formal recommendation for the court regarding care and contact. (See our blog on the FA here)
    • Independent Experts: Parents can mutually agree to appoint private clinical psychologists or social workers. These experts conduct play therapy sessions, interviews, and home observations to assess the child’s true feelings.
    • Voice of the Child (VOC) Reports: A certified expert interviews the child specifically to draft a VOC report. This document captures the child’s perspective, maturity level, and wishes regarding their living arrangements.
    • Legal Representation (Section 28(1)(h)): If the case is highly contentious or the child’s rights are at risk, the court can appoint a separate attorney to represent the child directly. This lawyer acts strictly as the child’s voice in court.
    • Judicial Interviews in Chambers: In rare cases, a judge or magistrate may invite the child to speak with them privately in their office (chambers). This avoids the trauma of an open court, though a formal report from an expert is still preferred

Safeguards are vital

    • Age and Maturity: The child’s input is based on their age, maturity, and level of understanding. A teenager’s preference carries significantly more weight than a toddler’s. 
    • Parental Alienation : If a child has been coached or brainwashed by a parent to hate or reject the other parent, it may be possible that parental alienation is present.
    • Best Interests Priority: The court will listen to the child’s views and wishes but will make a decision based entirely on the child’s best psychological and physical interests as opposed to doing what the child has expressed, after weighing up all the factors at play. 

 Resources

 * The Children’s Act

Frequently Asked Questions

Do children have to participate in court proceedings that affect them?

Yes, by law children must be consulted, dependant on their ability to understand.

Children must participate when they are at an age to understand or take part in play. 

Yes, it is a service we can provide. It is not automatically included as not everyone who gets divorced has children and some people have their own therapists already working with their children. 

In those cases, the mediator will obtain a letter or have a discussion with the therapist to obtain their input regarding the child’s views on the parents.

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