When do children require legal representation?

Throughout the Children’s Act (38 of 2005) there are provisions for children to participate and to express their views in matters which concern them, as well as having legal representation. Listed below are some examples.

Section 10 states that “Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.”

Section 29(6) states ‘The court may, appoint a legal practitioner to represent the child at the court proceedings; and that order the parties to the proceedings, or any one of them, or the state if substantial injustice would otherwise result, to pay the costs of such representation.

Section 31 obliges any holder of parental responsibilities and rights to consider the views and wishes of the child when making any decision.

Section 55 (1) provides that if the children’s court is of the opinion that it would be in the best interests of the child to have legal representation, the court must refer the matter to the Legal Aid Board.

Section 61 obliges a presiding officer in a children’s court to give the child an opportunity to participate.

An adoptable child who is ten years or older must consent to his or her own adoption in terms of section 233.

Most importantly the Constitution makes provision for the right to legal representation in section 28(1)(h) of the Bill of Rights.

A child may require legal representation if any of the following situations exist (this is not an exhaustive list and I am simply providing guidelines) :

• When there are allegations of physical, sexual, or psychological abuse.
• When there is an apparently intractable conflict between the parents.
• When there are real issues that relates to cultural or religious differences that are affecting the child.
• When there are issues relating to the sexual orientation of either or both parents (or other person having contact with the child) that are likely to deepen the conflict.
• When one of the parties proposes removing the child permanently from the court’s jurisdiction.
• When it is proposed that siblings or a group of children who usually live together will be separated.
• Where there is a dispute between the wishes of the child and the recommendations of the Family Advocate or an expert.
• Where the child is the subject of a maintenance dispute and can testify about disputed facts.
• Where a child of sufficient age and maturity is strongly expressing a view and a desire to participate.

 

There are two models of legal representation that are currently being used in South Africa; firstly, the client directed legal representation and secondly the best interests’ legal representation.

The client directed legal representation, is suitable for children who are of sufficient age and maturity to be able to express a view and give instructions. Here a normal attorney client relationship exists, and the legal representative will be acting on behalf of the child and not the parent as the child directs the litigation.

The best interest’s representation is suitable for children who are either too young or immature or unable due to give instructions. This model ensures that the child’s interests are paramount in the representation, the child does not give instructions, but the legal representative must inform the court of the child’s wishes. The legal representative will have more contact with parents and other role players.

At the first consultation the legal representative must establish whether the child does require legal representation and decide what model of legal representation should be followed.

Should you require any further information on the above please feel free to contact me.