Resolving Disputes with Regards to Child Participation in Divorce

Mediation

Amanda E. Boniface

Advocate of the High Court of South Africa and Divorce and Family Mediator; Post-doctoral

Research Fellow: Institute for Dispute Resolution in Africa, UNISA

1. INTRODUCTION

Mediation has become increasingly important in Family law, to an extent that the Children’s

Act1 makes mediation compulsory in certain instances. A child has the right to be heard

2 in

matters that affect him or her. The Act prescribes that the opportunity to exercise this right needs

to be provided for during the divorce mediation3 process. The question arises as to how this right

is protected and enforced in South African law as well as by divorce mediators in practice.

Moreover, the question that needs to be addressed is whether only children of a certain age may

participate in mediation or whether the maturity of the child has to be considered. Therefore this

article explores the provisions of International documents on children’s rigths and participation

in matters that concern them, namely the Convention on the Rights of the Child4 and the African

Charter on the Rights and Welfare of the Child5, the Constitution of the republic of South Africa

and the Children’s Act.

The first part of this article will contextualise the child’ rights in divorce matters6. Part two will

examsthe child’s right to be heard in divorce matters, as provided for in International documents

and South African legislation. Part three studies the participation a child in divorce mediation

BLC LLB LLM (child law) LLD (UP).

1 38 of 2005.

2 This is a right to participation.

3 This is where a neutral third party, the mediator, assists the parties who are divorcing to negotiate issues and reach

a settlement. This is a co-operative process. See further Roberts Mediation in Family Disputes: Principles of

Practice (1997) 142; Van Zyl Divorce Mediation and the Best Interests of the Child (1997) 142 and De Jong “Child-

Focused Mediation” in Boezaart Child Law in South Africa (2009) 112. Recent court decisions supporting mediation

include MB v NB 2010 3 SA GSJ and S v J (695) [2010] ZASCA 139. 4 The United Nations Convention on the Rights of the Child (CRC) UN document A/44/49, adopted 20 November

1989 and in force 2 September 1990. Ratified by South Africa in 1995. 5 (ACRWC) OAU Doc CAB/LEG/24.9/49 1990, adopted in July 1990 and entered into force on 29 November

1999. Ratified by South Africa in 2000. 6 Particularly in relation to care or contact.

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and deals with the advantages and disadvantages of such participation. The last part of this article

explores future prospects.

2. PARTICIPATION AND THE BEST INTERESTS OF THE CHILD

The word “participation” means to become involved in or take part in an activity.7

“Participation” can “refer to taking part in an activity and is often used to refer specifically to

taking part in decision-making.8 In relation to a child, the “participation principle” looks at

creating space for a child to think and act on their own and for adults to place more value a

child’s input.9 Importantly participation helps decisions to be accepted, even if everyone’s

concern cannot be included in the decision10

Divorce is generally defined as “an adult issue that requires solutions to be found by and for

adults”11

and a child is often treated more as a “victim” who requires protection than an “actor”

in the process of divorce.12

Thus, the decision as to whether to involve a child in mediation may

depend more upon the parents’ and the mediator’s view and not on the rights of the child.13

7 Oxford dictionary.

8 “It can also refer to either a process or to an outcome”: Thomas in Freeman 48.

9 Ang; Berghams; Cattrijsse; Delens-Ravier et al Participation Rights of Children (2006) 27, bearing in mind the

best interests of the child and the protection of the child. Hart states that there are different degrees of participation

and arranges them according to a scale, see further http://www.freechild.org/ladder.htm and Ang et al 33. Flekkøy

and Kaufman, The Participation Rights of the Child: Rights and Responsibilities in Family and Society (1997) 62-

63, submits that enforcing the rights of children requires a “shift in child-rearing patterns... from the authoritarian to

the authoritative” and that the CRC is “an instrument to further attitudinal change”. 10

“It secures social rest”: Ang et al 32. Participation also has to do with preparing children to live an individual life

in society: Preamble of the CRC. For reflection on the theory of child participation, including the historical

development of the concept and a comparative study see De Bruin Child Participation in Legal Matters (LLD

thesis, UP, 2010). 11

James “Squaring the Circle – the Social, Legal and Welfare Organisation of Contact” in Bainham, Lindley,

Richards and Trinder Children and Their Families: Contact, Rights and Welfare (2003) 145. 12

The terms “victims” and “actors” are technical terms that refer to the way that a child is viewed and in particular

relate to the child’s ability to act independently or not. James in Bainham et al 145, “although parent are encouraged

to ascertain their children’s wishes and feeling[s] … there has been little enthusiasm amongst mediators in the UK to

involve children directly in the mediation process”: James, Haugen, Rantalaiho and Marples The Voice of the Child

in Family Mediation: Norway and England (2010) 318, see also 321 in this regard. The author is unaware of any

South African studies in this regard. 13

James et al 319. It is up to adults to give children the “possibility to participate”: Ang et al 35. In Norway

mediation, although only for an hour minimum, is compulsory when there is a divorce case: James et al 318 324.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

The best interests of the child14

play a role during family disputes and divorce proceedings in

which the child has a right to participate by means of making their views known. Prior to the

provisions of the Constitution regarding the best interests of the child, the best interest’s standard

was encapsulated in case law, in cases such as Fletcher v Fletcher.15

The courts stated that when

determining the best interests of a child16

one of the factors that must be taken into account is the

child’s wishes17

. Often the court stipulated that weight should be given to the child’s preference

if the court is satisfied that the child has the necessary intellectual and emotional maturity to give

a genuine and accurate reflection of his or her feelings towards a relationship with both parties.18

However, there are also instances where the wishes of the children are not mentioned at all19

,

despite the children being either teenagers or pre-teens. Additionally, there is case law where the

court ignores the wishes of the children for various reasons, such as that the children’s preference

is regarded as immature or unwise,20

or the child’s views are said to be affected by undue

parental influence.21

In some of these cases it is clear that the court could not have said that the

children were too young to express their opinion.22

Even if the child concerned is very young

every effort should still be made to hear the child’s views.23

14

A child is defined in S 28(3) the Constitution as well as in S1 of the Children’s Act as being a person under the

age of eighteen years. 15

1948 1 SA 130. Here it was held that the interests of children are paramount and in a custody dispute the primary

consideration is the welfare of the child. See also Stapelberg v Stapelberg 1939 OPD 129 and Kallie v Kallie 1947 2

SA 1207(SR). 16

In family matters. 17

See for example French v French 1971 4 SA 298 (W); Manning v Manning 1975 4 SA 659 (T) and McCall v

McCall 1994 3 SA 201(C). 18

McCall v McCall. 19

Van Rooyen v Van Rooyen 1994 2 SA 325 (W); Godbeer v Godbeer 2000 3 SA 976 (W). Sometimes the court

mentions that due weight must be given to the preference of the children but then does not consider the children’s

views, for example in Schlebusch v Schlebusch 1988 4 SA 548(E), where the children were aged thirteen and

sixteen; in Manning v Manning 1975 4 SA 659 (T), where the child was almost ten years old and in Baart v Malan

1990 2 SA 682(E) the views of the children, who were aged fifteen, thirteen, eleven and nine were not considered. 20

Even though the children were teenagers: Matthews v Matthews 1983 4 SA 136 (SE); Greenshields v Wylie 1989

4 SA 898 (W). 21

Evans v Evans 1982 1 SA 370 (W); Hlophe v Mahlalela 1998 1 SA 449 (T); Van Rooyen v Van Rooyen 1999 4

SA 435 (C). 22

In many instances the children were teenagers. 23

This is not the only factor used to determine what is in children’s best interests but one of a number of factors,

which will be weighed up against each other. The weight placed on the opinion of a younger child may differ from

that of an older child but all children’s opinions should be heard: Boniface Revolutionary Changes to the Parent-

Child Relationship With Specific Reference to Guardianship, Care and Contact (LLD thesis, UP, 2007) 536. The

courts have sometimes not taken the wishes of a child into account because of the age of a child: Matthews v

Matthews; Greenshields v Wyllie 899F. In Germani v Herf 1975 4 SA 887(A) the court held that a child aged

fourteen was young, impressionable and immature and was unable to decide for himself what is in his best interests.

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The Constitution states that the best interests of the child are of paramount importance in every

matter concerning the child.24

The Children’s Act also provides for the best interests of the child:

“[i]n all matters concerning the care, protection and well-being of a child the standard that the

child’s best interest is of paramount importance must be applied”.25

3. CHILD’S RIGHT TO BE HEARD

3.1 The United Nations Convention on the Rights of the Child26

The Convention on the Rights of the Child (CRC) has a heightened status in South African law.27

The Convention recognises the rights of the parents as well as the rights of the child. It also

In other instances the views of children have been taken into account, the children were eleven years old: Märtens v

Märtens 1991 4 SA 287(T). However, the case of Märtens has been criticized as a psychologist and a social worker

had described the children, who had been abducted by their father, from their mother in Germany, as confused and

angry. Clark “Custody: the Best Interests of the Child” 1992 SALJ 391 392–394 criticises the decision reached by

the court in this case and states the court should also not have reached its decision independently, without relying on

the decision reached by the foreign court in the matter at hand. Clark 1992 SALJ 394 stresses that although a child’s

wishes should be considered that the weight given to such wishes depends on the age of the child. The wishes of

children are given more weight after the age of puberty. In the case at hand the court found the children to be

intelligent but to not be mature due to their youthfulness. Clark is also critical of the fact that the court relied on the

wish of the children to remain with their father and thus granted custody to the father, as the children had also

expressed their desire to re-establish their relationship with their mother. The children had also wanted to return to

Germany. The courts are also concerned about what effect undue parental influence may have on a child and

whether the child is only expressing the view of a parent: Van Rooyen v Van Rooyen 1999 4 SA 435 (C); Hhlope v

Mahlalela 1998 1 SA 449(T); H v R 2001 3 SA 623 (C) and Evans v Evans. A factor that helped the court decide to

give effect to the children’s wishes was where the children did not seem to be merely expressing the wishes of a

parent: Märtens v Märtens; Van Rooyen v Van Rooyen 2001 2 All SA 37 (T) and Meyer v Gerber 1999 3 SA

650(O). 24

S 28(2) of the Constitution Act 108 of 1996. 25

In Minister for Welfare and Population Development v Fitzpatrick and others 2000 3 SA 422 (CC) it was stated

that the reach of S 28(2) cannot be limited to the rights listed in S 28(1) and that S 28(2) must be interpreted to

extend beyond those provisions and that it creates a right independently from those stated in S 28(1): Community

Law Centre, UWC “Report on Children’s Rights: ‘They Should Listen to Our Side of the Story’” 21 May 2001

http://www.communitylawcentre.co.za/projects/childrensrightsproject/Publications/other%20publications/Report%2

0on%20Children’s%20 Rights-%20They% (accessed 29-08-2012). 26

The adoption of the CRC was a significant development with regards to children’s rights: Robinson “An

Introduction to the International Law on the Rights of the Child Relating to the Parent-Child Relationship” 2002

Stell LR 309. See also Arts “The International Protection of Children’s Rights in Africa: the 1990 OAU Charter on

the Rights and Welfare of the Child” 1992 AJCL 139–141 for an overview of “Children’s Rights at the International

Political Agenda” and Woodrow International Children's Rights: An Introduction to Theory and Practice (LLM

thesis, Loyola University of Chicago, 2001) 3–8 for a brief history of the CRC. Viljoen “Supra-National Human

Rights Instruments for the Protection of Children in Africa: the Convention on the Rights of the Child and the

African Charter on the Rights and Welfare of the Child” 1998 CILSA 199 200 states that African involvement in the

drafting of the CRC was limited and that only 3 African states took part in the working group for at least 5 of the 9

years that it took to draft the final proposal. 27

Davel in Nagel 17. Section 39(1)(b) of the South African Constitution states that a South African Court “must

consider international law” when interpreting the Bill of Rights and section 233 of the Constitution states that the

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

imposes duties on parents, protects children from their parents and offers support to parents.28

Moreover, the Convention29

affirms that the best interests of the child is the primary

consideration in all actions concerning children.30

Article 12(1) of the Convention states that:

State Parties shall assure to the child who is capable of forming his or her own views the right to express

those views freely in all matters affecting the child, the views of the child being given due weight in

accordance with the age and maturity of the child.

This Article ensures that the child is given a voice in all decisions that affect them, and this

would apply to all actions that concern a child. 31

The fact that no specific age was specified has

been criticised as leading to a lack of clarity or legal uncertainty; however there is great

individual variability in how a child’s abilities develop.32

Specific age barriers to participation by

a child are not supported by the CRC, instead, in order to assess maturity, factors that must be

taken into account include character; the level of understanding; the decision that must be taken

and the specific context within which the decision is taken.33

Article 12 does not use the term

court must “prefer any reasonable interpretation of legislation that is consistent with international law over any

alternative interpretation that is inconsistent with international law”. S 39(2) of the Constitution: “When interpreting

any legislation, and when developing the common law or customary law, every court, tribunal or forum must

promote the spirit, purport and objects of the Bill of Rights.” The Convention has had a large impact on judicial

decisions which have been made in South Africa since it was ratified: Sloth-Nielsen “Children’s Rights in the South

African Courts: An Overview Since the Ratification of the UN Convention on the Rights of the Child” 2002 IJCR

137 152. Human “Teoretiese Oorwegings Onderliggend aan die Rol van die Staat en die Erkenning en

Implementering van Kinderregte” 2000 TvR 123, 134: “Die Konvensie verteenwoordig die mees omvattende en

gesagshebbende verklaring rakende fundamentele regte vir kinders.” Although no provision of the Convention is

self-executing ,due to the fact that the Convention is constitutionalised in s 28 of the Constitution as well as that the

South African Constitution states that a court must consider international law when interpreting the Bill of Rights in

the Constitution, the Convention has acquired legal significance via the Constitution: Sloth-Nielsen 2002 IJCR 139,

see also Robinson and Ferreira “Die Reg van die Kind om Gehoor te Word: Enkele Verkennende Perspektiewe op

die VN Konvensie oor die Regte van die Kind (1989)” 2000 De Jure 54, 58-67. Clearly the court will also have to

consider other international law as well as the Convention in its deliberations. 28

Rights as well as duties of parents are taken into account but the State will be able to override these where it is in

the child’s best interest to do so. 29

Allen and Pas “The CRC’s Self-Executing Charter” in Nijhoff Monitoring Children’s Rights (1996) 183: “the rule

whereby the ‘best interests of the child’ must be the primary consideration can be looked at in two ways: as an

objective which the state undertakes to pursue (see article 21) but also as a negative obligation, i.e. not to do

anything which would go against ‘the best interest of the child’.” This statement embraces the true application of

the best interests of the child principle. Art 3(2) states that: “State Parties undertake to ensure the child such

protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her

parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take

appropriate legislative and administrative measure”. 30

“Whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or

legislative bodies, the best interests of the child shall be a primary consideration”. 31

Community Law Centre, UWC (accessed 29-08-2012). . 32

Ang et al 12 33

Ang et al 18.

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“child participation” but the Committees general comment 12 indicates that the objective of the

article is to advance child participation.34

In terms of Article 12(2):

[f]or this purpose the child shall in particular be provided with the opportunity in any judicial or administrative

proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner

consistent with the procedural laws of national law.

Article 12 thus places an obligation on State Parties to ensure that a child can express his or her

opinion freely and that his or her opinion will be taken into account in any judicial or

administrative proceedings affecting the child.35

According to the Convention, a child can express his or her views through participation, where a

child is heard directly and consulted about their opinion or through representation, where child

has an attorney and seeks legal advice.36

Although Article 12 does not give a child the right to a

say that outweighs that of their parents or their families, it does give a child the opportunity to

express their opinion when matters affecting them are discussed.37

In certain circumstances a

34

Mahery “The United Nations Convention on the Rights of the Child: Maintaining its value in International and

South African Child Law” in Boezaart (2009) 309. Participation rights are a “cluster” of rights, included in Articles

12; 13; 14 15 and 5, see further Ang et al ch 1 35

Van Bueren “The International Protection of Family Member’s Rights as the 21st Century Approaches” 1995 HRQ

732 742. The two determining factors are the age of the child and the maturity of the child. Both of these factors are

of equal value. The listener has to understand the language of the child and “[ t]he sole test is that of capability, not

of age or maturity”: Van Bueren quoted in Community Law Centre “Report on Children’s Rights: Children and the

Creation of a New Children’s Act for South Africa” 2001 Community Law Centre UWC

<http://www.communitylawcentre.org.za/children/report-on-children’s-rights. doc> (accessed on 2006-05-10). For

a comparative law approach to the child’s right to be heard, see Tobin “Increasingly Seen and Heard: the

Constitutional Recognition of Children’s Rights” 2005 SAJHR 86. Van Zyl Divorce Mediation and the Best

Interests of the Child (1997) 14 submits that : “ [t]he better approach is to weigh up the child’s wishes against the

suggestions of adults, bearing in mind that they [the adults] usually display more maturity, wisdom and balance than

the child itself”. 36

Davel in Nagel 18. In South Africa divorce mediation generally takes place without legal representatives being

present. Due to space constraints this article will not look at the legal representation of children. 37

Sloth-Nielsen “Ratification of the United Nations Convention on the Rights of the Child: Some Implications for

South African Law” 1995 SALJ 401, 406. Sloth-Nielsen at 410–411 also states that art 12 is one of the four core

elements providing the Convention with a “soul” as it recognises that children’s and adults’ interests are not always

the same. See also Sloth-Nielsen and Van Heerden “New Child Care Protection Legislation for South Africa?

Lessons from Africa” 1997 Stell LR 289, 298. Robinson 2002 Stell LR 314 states that art 12 means that due weight

must be attached to the age and maturity of the child and that these criteria are of equal value and that this article

“places a duty on states to involve children when they wish in all matters which affect them”. For an in-depth

discussion of the implementation of the Convention, see Parker "Resources and Child Rights: an Economic

Perspective" in Hinnes (ed) Implementing the Convention on the Rights of the Child: Resource Mobilization in Low-

Income Countries (1995) 33–54. Parker emphasises that use must be made of traditional and non-traditional

resources, human and organisational activities and that existing resources must be used to their maximum

extent. Ledoger "Realizing Rights through National Programmes of Action for Children" in Hinnes (ed)

Implementing the Convention on the Rights of the Child: Resource Mobilization in Low-Income Countries (1995)

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

child may need to be protected from their parent’s views38

and be allowed to state their own

views.39

This can be accomplished by giving a child the opportunity to make their views known

in juridical and other proceedings. 40

The question that arises is under which circumstances the State is obliged to respect the parent’s

right to direct a child’s intellectual freedom and when the child’s view must enjoy

preference.41

Article 13 of the Convention deals with the child’s right to freedom of expression.

The Convention lists aspects of this right, “the freedom to seek, receive and impart information

and ideas of all kinds” and specifies that this may take place by means of oral, written, printed or

artistic means42

55–68, explores the problem of how to avoid too many countries using the escape provided in art 4 of the

Convention that State Parties shall undertake such measures to the maximum extent of their available resources.

Ledoger states that an instrument with great potential for this purpose is the National Programme of Action. 38

Van der Linde Grondwetlike Erkenning van Regte ten Aansien van die Gesin en Gesinslewe met Verwysing na

Aspekte van Artikel 8 van die Europese Verdrag vir die Beskerming van die Regte en Vryghede van die Mens (LLD

thesis, UP, 2001) 313–314. 39

Note the difference between art 12 which is not subject to the rights of the parent and art 14(2) which allows

parents to direct the child in exercising his or her rights to freedom of thought, conscience and religion. The

interests of the child and the interests of the adult may not always intersect, so it is important that the child’s views

are heard: Sloth-Nielsen and Van Heerden “Proposed Amendments to the Child Care Act and Regulations in the

Context of Constitutional and International Law Developments in South Africa” 1996 SAJHR 247, 250. Toope "The

Convention on the Rights of the Child: Implications for Canada" in Freeman (ed) Children's Rights: A Comparative

Perspective 41, stresses that children's rights make adults uncomfortable as they represent either new ideas or old

ideas in new forms and are a signal that adults, and existing practices, have to change. He says that a concept of

children's rights requires changes in social attitudes in almost all nations of the world. Toope emphasises that the

child's right to freedom of expression is not conditioned by the parent's right to filter expression or information,

although it could be argued that all the children's rights in the Convention are affected by the rights, responsibilities

and duties of parents referred to in art 5 of the Convention. Robinson (2002 Stell LR 320) points out that “South

African courts appear to be slow to acknowledge the right of the child to be heard, but at least some progress has

been made”. In divorce proceedings children’s voices are often silent and their future is often simply part of a

settlement agreement. Parents also use their children as weapons in their bitter battle with their spouse: Zaal and

Skelton “Providing Effective Representation for Children in a New Constitutional Era: Lawyers in the Criminal and

Children’s Courts” 1998 SAJHR 539, 540, see also Van den Berg v Le Roux 2003 3 All SA 599 (NC) 613 par 36. 40

However, the Convention does not examine this aspect in depth and the connection between articles 12 and 14 is

not dealt with. Additionally, Art 8 specifies the right of a child to preserve their family relations and Art 9 stipulates

that in selecting residences when parents are separated all interested parties, this includes children, are to participate

and make their views known: Flekkøy and Kaufman 58, this could be done via a mediator or a psychologist. 41

Van der Linde, Pars 1-19, agrees with Sloth-Nielsen that the participation rights of children “kom alleen neer op

ondersteunende en aktiewe deelneming en moet nie verwaar word met ‘self-beskikking’ – ‘n term wat nie alleen die

reg om deel te neem aan besluitneming impliseer nie, maar ook die reg dat sienings (van die kind) inderdaad gevolg

word”. 42

Or in any other media. Goose 129.

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A child’s right to participate means that children can, in a supported way, actively participate in

matters affecting them.43

Their ability to actively participate and to make decisions will differ

from case to case;44

an older child’s ability to make decisions can be similar to the ability of

adults.45

The Convention is dualistic in that it sees a child as an independent bearer of rights but

also acknowledges the importance of the family and the difficulties that exist due to a child’s

temporary inability to exercise many of the rights themselves.46

The Convention recognises that

the primary responsibility for the child is within the family47

. There may be a conflict between

the interests of the adult members of the family and the best interests of the child, thus the

Convention states that the primary responsibility for the raising of the child lies with the family

but that the best interests of the child shall be their primary consideration.48

43

Davel in Nagel 15 18. 44

Van der Linde 320–321. In Gillick v West Norfolk and Wisbech Area Health Authority 1986 AC 112, 186 the

court stated that “parental rights yields to the child’s right to make his own decisions when he reaches a sufficient

understanding and intelligence to be capable of making up his own mind on the matter requiring decision”. The

court also stressed that “[i]t will be a question of fact whether a child seeking advice has sufficient understanding of

what is involved to give a consent valid in law”. “Article 12 is clear on a number of interesting issues: It concerns a

child who is ‘capable of forming his or her own views’. No lower age limit is set on children’s right to express their

views freely. The child has ‘the right to express these views freely’ implies that there are no boundaries or areas in

which children’s views have no place. The right is be assured in relation to ‘all matters affecting the child’ and

should thus apply in all matters, even those that might not specifically be covered by the Convention, whenever

those matters have a particular interest for the child or may affect his or her life, this would include divorce

mediation. “States are left with a discretion as to how the child’s views should be heard, but where procedural rules

suggest that this be done through a representative or an appropriate body, the obligation is to transmit the views of

the child. This principle should not be confused with the obligation in article 3 to ensure that the best interests of the

child are a primary consideration in all actions concerning that child”: Davel in Nagel 19. See also Hodgkin and

Newell Implementation Handbook for the Convention on the Rights of the Child (1988) 151–152. 45

Van der Linde 313–314. 46

Sloth-Nielsen 1995 SALJ 406 and Van der Linde 324-325 47

Sloth-Nielsen 1995 SAJHR 404: “the right to self-determination should be balanced by the child’s inability to

choose what is in fact in his or her best interest and that the child’s notional independence should be countered by

the enjoyment of a happy childhood as a child”. Children do not have a right of “self-determination” guaranteed by

the Convention. There is no guarantee that the children’s decision will actually be followed because a balance

between parental rights and the best interests of the child must be respected: Ang et al 18. 48

The Convention sees the child as part of a unit, the family, which carries the primary responsibility for the welfare

of the child. Children are not children of the State. However, the Convention does make it clear that the children are

the bearers of the rights in the Convention: Van der Linde 326. Other than in the CRC, the African ACRWC

expressly protects the family as an institution in art 18.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

3.2 The African Charter on the Rights and Welfare of the Child49

The preamble to the African Charter states that “for the full and harmonious development of his

personality, the child should grow up in a family environment in an atmosphere of happiness,

love and understanding”. The special care needed by a child is also emphasised in the

preamble.50

Article 2 of the Charter defines a child as being every human being below the age of eighteen

years. Compared to the CRC this allows for the protection51

of and provision to the widest group

of young people.52

The African Charter on the Rights and Welfare of the Child also provides for the best interests of

the child to be the primary consideration, “[i]n all actions concerning the child undertaken by any

person or authority”.53

Article 4(2) states that:

[i]n all judicial and administrative proceedings affecting a child who is capable of communicating his/her own

views, an opportunity shall be provided for the views of the child to be heard either directly or through an

49

For an in-depth discussion of all the aspects dealt with in this Charter, see Viljoen “The African Charter on the

Rights and Welfare of the Child” in Davel (ed) Introduction to Child Law in South Africa (2000) 214–231. See also

Davel “The African Charter on the Rights and Welfare of the Child, Family Law and Children’s Rights” 2002 De

Jure 281 and Viljoen 1998 CILSA 204–212. Lloyd “A Theoretical Analysis of the Reality of Children’s Rights in

Africa: An Introduction to the African Charter on the Rights and Welfare of the Child” 2002 AHRLJ 11, 15 states

that although the law appears to be neutral towards children, “in reality it embraces the language and thought

processes of adults, highlighting children’s lack of power under the law and contributing to their traditionally

perceived vulnerability” and that there is continually a need to give a voice to children, either by way of a

constitutional order or by way of legislation. The African Charter has gone some way in establishing a legal

framework for the recognition of children’s rights. See also Lloyd “Evolution of the African Charter on the Rights

and Welfare of the Child and the African Committee of Experts: Raising the Gauntlet” 2002 IJCR 179, “How to

Guarantee Credence: Recommendations and Proposals for the African Committee of Experts on the Rights and

Welfare of the Child” 2004 IJCR 21. 50

Arts 1992 AJCL 139, 144 submits that this is demonstrative of a “rather protective attitude” towards

children. Gose “The African Charter on the Rights and Welfare of the Child” 2002

<www.communitylawcentre.org.za/children/publications/african_charter.pdf> (accessed on 03-05-2006) 24 states

that the ACRWC has “a fairly traditional and apparently ’welfarist’ approach that needs to be reconciled with the

concept of the child as an independent being with rights to participate in matters affecting his or her life”. Ehlers and

Frank “Child Participation in Africa” in Sloth-Nielsen Children’s Rights in Africa: A Legal Perspective 2008 111 at

113 states that the intention of the Charter is “to afford African children additional protection in light of their

particular vulnerability” due to socio-economic, cultural, traditional and developmental circumstances and that the

ACRWC was developed in tandem to the CRC, not in opposition thereto. 51

Art 3 of the Charter states that every child is “entitled to the enjoyment of the rights and freedoms in it,

irrespective of the child’s or his or her parents or legal guardians’ race, ethnic group, colour, sex, language, religion,

political or other opinion, national and social origin, fortune, birth, or other status. It does not mention two grounds

of discrimination which are included in the UN convention (article 2), these being property and disability. On the

other hand it adds one new element, namely fortune”: Arts 1992 AJCL 146. 52

Arts1992 AJCL 145 53

Article 4(1).

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139

impartial representative as a party to the proceedings, and those views shall be taken into consideration by the

relevant authorities with the provisions of appropriate laws.

Article 7 of the Charter governs the right to freedom of expression. The Charter refers to the

child’s ability to communicate his or her view and is a general provision.54

According to Gose

55this is:

[a]n important aspect of the freedom of expression is neglected by the Charter – there can be no freedom of

expression if the individual cannot receive the information necessary to form his or her opinion. Without this

the whole guarantee of freedom of expression is empty.

A matter of concern is that as the Charter is silent on this point, this could hamper the

effectiveness of the right.56

Article 4(2) provides that the child has a right to be heard either directly or by means of a

representative.57

The right to be heard that is provided for in the Charter is more restrictive than

the right in the Convention on the Rights of the Child.58

54

Gose 129. 55

129. 56

Gose, 130, says that “the Convention’s version is preferable as it protects the way in which ideas can be expressed

while the Charter merely safeguards the expression of opinions and does not prevent certain means of expression

from being restricted”. There could also “be a difference between ‘opinions’ as protected by the Charter and

‘information and ideas’, as provided for by the Convention”: Gose 130. Gose states that the version of the CRC is

preferable, as it is clearer. 57

Thompson “Africa’s Charter on Children’s Rights: A Normative Break with Cultural Traditionalism” 1992 ICLQ

432, 435. 58

Davel in Nagel 20: The CRC states that states must assure that children express their views “in all matters

affecting the child”. See also Chirwa “The Merits and Demerits of the African Charter on the Rights and Welfare of

the Child” 2002 IJCR 157, 161. The ACRWC states that the child will be heard “as a party to the proceedings” and

that this implies that before a child can be heard, he or she must be a party to the proceedings. Art 12(2) of the CRC

refers to a “representative”, whereas art 4(2) of the ACRWC says that an “impartial representative” is required. In

the ACRWC the child must be “capable of communicating his or her views”; this capability may not only be related

to the age of the child but also the level of education of the child or the articulacy of the child. The ACRWC

stipulates that the child’s views must be considered “in accordance with the provisions of appropriate law”, this

provision is less favourable than that of the CRC which states that view of the child must be given “due weight in

accordance with the age and maturity of the child". In the ACRWC the best-interests principle appears in the same

article as the principle that the child’s voice should be heard. This could also relate to the more restricted

application of the notion that children should have a separate voice.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

A key aspect of the African Charter on the Rights and Welfare of the Child is that the document

represents a regional contribution59

to the development of international human rights law that is

applicable to children.60

The Charter has been described as a document which shows the

priorities of Africa but does not affect the status and relevance of the global Convention on the

Rights of the Child. 61

3.3 The Children’s Act

Mediation applies directly and indirectly. Mediation is mandatory where there is a dispute

between the child’s unmarried biological parents about whether the father has fulfilled the

requirements in terms of section 21(1)(a) in order to obtain full parental responsibilities and

rights..62

Mandatory mediation must also take place with regard to parenting plans63

. However, in

certain instances it could be said that although mediation is not mandatory, the implication is that

mediation should take place64

, particularly where the child’s mother enters into an agreement

with the unmarried father who does not have parental responsibilities and rights or another

person who has an interest in the child’s care, well-being and development in order to confer

parental responsibilities and rights65

and where a co-holder of parental responsibilities and rights

enters into an agreement with the other co-holder to allow that co-holder, or another person, to

exercise parental responsibilities and rights on the parent’s behalf66

. Other instances include

where there is a post-adoption agreement67

or surrogate motherhood agreement68

.

59

Arts 1992 AJCL 144 submits that the reason for the codification of a separate African Charter which deals with

children’s rights is that “Africa’s recognition and protection of human rights should reflect the spirit of its traditional

cultural values”. However, Gose (140-141) stipulates that “[u]nfortunately, the Charter is not able to maintain these

innovations throughout the whole document. Thus, even though some parts of the Charter can be said to bear the

‘African Cultural Footprint’ this is mostly not the case”. Gose further states that the ACRWC does not substitute the

CRC or lower the level of protection offered to children. 60

Arts 1992 AJCL 144. 61

1992 AJCL 144. Art 1 of the Charter provides that nothing in the Charter shall affect any provision in the law of a

State Party or international convention or agreement that is in force in that State, which is more conclusive to the

realisation of children’s rights. 62

S 21(3)(a) 63

S33(2) read with S33(5) stipulates that if co-holders of parental responsibilities and rights in respect of a child are

experiencing difficulties in exercising their responsibilities and rights then they must first seek to agree on a

parenting plan by attending mediation 64

De Jong 2008 THRHR 639 states that mediation would play a role in these instances as there would have to be

facilitated negotiation between the parties in order for them to reach agreement. 65

S22(1). 66

S30(3). 67

S 234(1). 68

S292 read with S 293 and S 295.

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141

In any matter concerning a child an approach which is conducive to conciliation and problem-

solving should be followed and a confrontational approach should be avoided.69

Moreover this

principle should apply because “[e]very child that is of such an age, maturity and stage of

development as to be able to participate in any matter concerning the child has the right to

participate in an appropriate way and the views expressed by the child must be given due

consideration”.70

This is different to the provisions of the African Charter on the Rights of the

Child in that the Charter does not place focus on age but on the ability to participate.71

The General Regulations Concerning Children72

state that “due consideration must be given to

the views and wishes of the child or children in the development of any parental responsibility

and rights agreement, bearing in mind the child’s or children’s age, maturity and stage of

development”. The Regulations73

stipulate that where a child in respect of whom parental

responsibilities and rights agreement have been concluded are not in agreement with the content

of the agreement, this should be recorded on the agreement and then the matter must be referred

to mediation by a Family Advocate, social worker, social service professional or other suitably

qualified person.

The General Regulations74

further state that “[b]earing in mind the child’s age, maturity and

stage of development, such a child must be consulted during the development of a parenting

plan, and granted an opportunity to express his or her views, which must be accorded due

consideration”. Once the parenting plan has been concluded the child must be informed of the

69

S6(4)(a) of the Children’s Act 70

S 10 of the Children’s Act. This section contains a general participation clause and mediation is a way in which

children could participate: De Jong in Boezaart 125. 71

The Charter refers to a child who is capable of forming his or her own views but does not refer to age. De Jong,

“in Boezaart 125, submits that the legislature should determine the age of 7 as the age when children should

participate and that children aged 5-6 “generally abide by the joint decisions [of their parents] and seldom need to be

included in the mediation”, whereas adolescents must be interviewed. I submit that there should be no age stipulated

as children have the right to be heard, as long as they are able to make their views known. 72

Part 1 (8)(3)(a) of the General Regulations Concerning Children of the Children’s Act

http://www.justice.gov.za/legislation/notices/2010/20100401_GG33076_NoticeR261-childrensact-reg.pdf (accessed

9-09-2012) 73

Part 1 (8)(4) of the General Regulations Concerning Children of the Children’s Act 74

In Part 1 (11)(1) of the General Regulations Concerning Children of the Children’s Act.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

contents of the parenting plan by a Family Advocate, a social worker, social service professional,

psychologist, suitably qualified person or the child’s legal representative, as the case may be.

4 PARTICIPATION OF CHILDREN IN DIVORCE MEDIATION

4.1 General

The participation of a child in matters affecting them is mandatory in South Africa. When

parties reach a settlement in a divorce matter and there is a child involved then the settlement

agreement must first be approved by the Family Advocate, before proceeding to have it made an

order of court.75

The High Court remains the upper guardian of all minor children and any

decisions made during mediation may be reviewed and approved by an appropriate court.76

This

process ensures that the best interests of the child are considered. It is an objective of mediation

to keep the child themselves out of court.77

Evans and Havercamp 78

suggest that the degree to which a child should be involved in the

mediation depends on factors such as the age of the child.79

They also state that a premediation

session should be held in order to determine the level of the child’s involvement, this is done by

75

“The Family Advocate… advises that settlement agreements should contain a clause indicating who will advise

the children of the agreement regarding parental responsibilities and rights. The … parents themselves [should]

inform the child”, this is so that S6(5) of the Children’s Act can be complied with: O’Gorman New Procedures

Introduced by the Children’s Act 38 of 2005 that Impact on the Office of the Family Advocate”

www.millerdutoitcloeteinc.co.za/Paper%20-%20Ogorman.doc (accessed 18-08-2012). 76

De Jong 2008 THRHR 631. Parenting plans may also be registered at the Family Advocate’s office and not made

an order of court. 77

De Jong 2008 THRHR 631. See further Mills “Direct From the Witness Box: The Voice of the Child in Family

Proceedings in England and Wales”

http://www.iaml.orglcms_media/files/the_voice_of_the_child_in_family_proceedings_in_England_and_Wales_revi

sed_.pdf?Static=1, with regards to children’s direct involvement in court in England and Wales. 78

Evans and Havercamp An Analysis of Mediation Assumptions: Strategies to Help Mediators in Child Custody

Disputes” 2007 CRQ 229 239. 79

In Norway, S 31 of the Children Act states that “[a]s and when the child becomes able to form its own point of

view on matters that concern it, the parents shall listen to the child’s opinion before making a decision on the child’s

personal situation. Attention shall be paid to the opinion of the child, depending on the age and maturity of the

child”, a child of age 7 (previously this was 12) and up has an absolute right to be heard in matters affecting them

and when the child reaches the age of 12 the “child’s opinion shall carry significant weight”:James et al 324.

Flekkøy and Kaufman 67, specify the need to take into consideration; maturity and experience of the child; the

situation; consequences of the decisions to be made and the benefits of increasing experience and autonomy.

Additionally, what children are able to do is often dependant on the culture in which they grow up: Flekkøy and

Kaufman 90-107.

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143

interviewing the adults and discussing this separately with the child.80

Lansky et al suggest that

there are factors that contraindicate the inclusion of the child, these include cases where both

parents agree on what is best for the child or if the child is aged three or younger, or if one parent

does not want custody after divorce and that the mediators used must be properly trained to work

with children.81

4.2 Advantages of participation

Mediation has long-term benefits for children when they participate in the proceedings.82

The

benefits include a reduction of anxiety83

; a better understanding of the process and an easier

adjustment by the child to post-divorce conditions.84

Child inclusive mediation takes care of a

child’s emotional well being85

after parental separation and parental relationships and

responsiveness also improve as a result thereof.86

The inclusion of children fulfills the rights of

the child but also repairs the parental relationship to a large degree and improves the emotional

availability of parents to children and results in agreements with which the parents and children

are still happy with a year later.87

When a child contributes to the mediation process it helps

ensure that the agreements reflect what is best for the child. A child’s perception can also be

used to confirm whether the adult parties are telling the truth and can help contribute to “an

atmosphere of mutual co-operation”.88

There are also advantages for the judicial system.89

Including that a child’s participation may increase the parents’ and the mediator’s understanding

80

The authors suggest that if limited involvement is required that children can be asked to draw a picture that sets

out their fears and hopes about the possible care arrangements. Verbal expression alone is not sufficient and we need

to “decode” children’s words: Ang et al 45. 81

Lansky; Swift; Manley; Elmore and Gerety “The Role of Children in Mediation” 1996 MQ 147 148. I submit that

the views of the children must still be heard in the instances mentioned here. 82

“Of an average of five hours of mediation twelve years earlier”: Emery “Easing the Pain of Divorce for Children:

Children’s Voices, causes of conflict, and mediation: comments on Kelly’s “Resolving Custody Disputes” 2002-

2003 Virginia Journal for Social Policy and Law 164 172, see 175-177 for figures illustrating this. 83

Children feel less afraid and upset: Lansky et al 1996 MQ 149. 84

Because they know why certain decisions were made: Lansky et al 1996 MQ 148, based on a survey done. 85

Ehlers and Frank in Sloth-Nielsen 113, suggest that child participation also contributes to children’s development

of individual identity, competence and responsibility and gives access to essential information. There are advantages

for children’s sense of self-esteem and confidence: Flekkøy and Kaufman 63-64. 86

McIntosh; Wells; Smyth and Long “Child-Focused and Child-Inclusive Divorce Mediation: Comparative

Outcomes From a Prospective Study of Postseparation Adjustment” January 2008 Family Court Review 105. 87

McIntosh et al Family Court Review 105, see also McIntosh, Wells and Long “Child-focused and child-inclusive

Family Law Dispute Resolution: One Year Findings from a Prospective Study of Outcomes” May-June 2007

Journal of Family Studies 8. 88

Evans and Havercamp 2007 CRQ 238. 89

Including decreasing the number of court applications: De Jong in Boezaart 128.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

of the child’s needs, it can also be helpful to include a child when an impasse has been reached

during the mediation process and that a child can also add valuable information and remind

parents of why it is important to find “satisfying solutions” to the issues concerning the child.90

4.3 Concerns regarding participation

There are assumptions91

about mediation92

that reflect the ideals rather than the expedience of

mediation. Evans and Havercamp93

propose that beliefs influence the process and the outcome of

the mediation as they can become obstacles to fair and equitable agreements. They propose

various strategies that can be used to address assumptions that are made in mediation, in order to

address these concerns. Emery94

cautions that we must be careful not “to cross the line from

giving children the right to be heard and enter the territory where we give children the

responsibility for making adult decisions”.95

There is also the concern that a child could be “put

in the middle” of their parents’ disagreements96

and that a child may be afraid97

when they are

interviewed and may feel that they are been asked “to choose between their parents”.98

The

mediator must make certain that the parties do not hear a distorted version of what the child is

saying.99

If the child is allowed to feel that they have decision-making power then this could

develop into a potentially dangerous situation as the child could feel guilty or develop a sense of

90

Lansky et al 1996 MQ 147 148. See also Van Zyl 194-195. 91

For example, that all agreements are equal, that all agreements are good, that all parties are truthful, that mandated

mediation is better than litigation in court, that mediation is fair, that joint custody is beneficial and that mediators

are neutral. 92

The study referred to dealt specifically with “custody mediation”. 93

2007 CRQ 229. 94

2002-2003 Virginia Journal for Social Policy and Law 164. 95

“At no time should a child gain the impression that his or her voice is decisive”: Van Zyl 35. 96

2002-2003 Virginia Journal for Social Policy and Law 166. Children could be upset because they are exposed to

their parents arguments, they could even be used as “weapons” by the parents and the relationship with one parent

may be harmed if they express a preference for the other parent: Lansky et al 1996 MQ 148. 97

“Of saying anything that could be construed as taking sides with one parent and against the other” Emery 2002-

2003 Virginia Journal for Social Policy and Law 167. 98

There is a fine line “that divides hearing children’s voices from shifting the burden onto kids” : Emery 2002-2003

Virginia Journal for Social Policy and Law 167-169. Art 13 of the Hague Convention states that “[t]he judicial or

administrative authority may also refuse to order the return of the child if it finds that the child objects to being

returned and has attained an age and degree of maturity at which it is appropriate to take account of its views”. In

The Central Authority for the Republic of South Africa and J v B 2012 3 All SA 95 (GSJ) the court decided not to

return a thirteen year old child to Australia as “this is a matter in which the child’s objection should prevail”. Here

the court, controversially, interpreted the part of article 13 stating this to be separate from Art 13(b). 99

Lansky et al 1996 MQ 148. Factors affecting children’s participation include their emotional and social

development as well as the “development of perspective-taking ability”, this develops between the age of seven and

twelve: Hart Children’s Participation: From Tokenism to Citizenship (1992).

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145

“unrealistic omnipotence”.100

The concerns of the child may also be overemphasised and this

could lead to parents making poor decisions when they try to do what their child wants.101

If the

child becomes upset102

during mediation, this may also increase the hostility of parents towards

each other or towards the mediator.103

Emery104

proposes that it is the parent’s role to take the

child’s wishes, needs and preferences into account and if the parents cannot make decisions105

then other professionals need to do so.106

5. THE WAY FORWARD

When should a child participate in divorce mediation? What criteria should determine whether

the child participates? Should the age of the child be considerd or only the maturity of the child?

The provisions of the Children’s Act, with regard to the participation of the child, should not be

strictly interpreted and any child who is able to express a view should have the right to be heard

in divorce mediation, even if this means that a specially trained children’s

interpreter/intermediary is required.107

The Ghanaian Children’s Act108

516 of 1998 specifies that

“[n]o person shall deprive a child capable of forming views the right to express an opinion, to be

listened to and participate in decisions which affect his well-being, the opinion of the child being

given due weight in accordance with the age and maturity of the child”. This Act is in line with

the African Charter as it does not refer to the age of a child but to a child who is capable of

100

Lansky et al 1996 MQ 148. 101

Lansky et al 1996 MQ 149. 102

Roberts Mediation in Family Disputes: Principles of Practice (1997) 141 stipulates that direct participation in

mediation is stressful for children. A child should only be included directly in mediation after an evaluation that

shows a concrete reason for the child to participate and that there will be no harmful consequences for the child:

James et al 327. 103

Lansky et al 1996 MQ 149. Another potential problem is that the mediator could take on the role of the children

if interviewing the children separately: Roberts 141. The solution here would be to make use of a third party, such as

a psychologist, to interview the children. See also Van Zyl 195. 104

At 172. 105

Regarding care (the term “custody” is used in the study). 106

Emery 2002-2003 Virginia Journal for Social Policy and Law 172, cautions against this though. 107

Boniface in Sloth-Nielsen (2008) 151. The UN Committee on the Rights of the Child General Comment No. 12

(2009) The Right of the Child to be Heard Par 20 says: “States parties cannot begin with the assumption that a child

is incapable of expressing her or his views.... State parties should presume that a child has the capacity to form his or

her own views and recognize that he or she has the right to express them; it is not up to the child to prove his or her

capacity”. De Jong in Boezaart 126 states that “it would be pointless to include any children in the mediation

process” where there is no evidence of child abuse or molestation or domestic violence and the parents are in

agreement about the children’s needs. I submit that the children’s views still have to be heard in order to comply

with the international conventions. The views do however need to be placed “in an appropriate developmental

context within the particular dynamics of the parents’ relationship”: De Jong in Boezaart 126. 108

S 11.

RESOLVING DISPUTES WITH REGARDS TO CHILD PARTICIPATION IN DIVORCE MEDIATION

forming views. It would be preferable for South African legislation not to refer to age but only to

a child that is “capable of forming views”. Mediators should also include a child in mediation

when the child is “capable of forming views”.

In divorce mediation in South Africa the views of the child can either be heard by a

representative taking part in the mediation or the child can be heard by taking his or her views

consideration after the child has discussed this with a third party, such as a psychologist. A child

does not have to be present at the mediation sessions to have their views taken into

consideration.109

Divorce mediators who are especially trained in communicating with children

may interview the child directly in order to ascertain his or her views and let the parents know110

.

A mediator can also help the parents to consider ways that they can talk to their child.111

The

child should also be informed of their parents’ decisions, in particular regarding the parenting

plan, since they need this information in order to form a view, and thus participate by expressing

this view.112

The child can be informed by their parents, the divorce mediator or a third party,

such as a psychologist who explains the contents of the parenting plan to them. Which of these

options is chosen will depend on the circumstances of the particular case. The decision makers in

the mediation remain the adults.113

A child’s participation in divorce mediation should be regulated, by including the ways in which

this may take place in the Children’s Act. Specific participation guidelines for including children

should be put in the rules of court, to bring them in line with the general rights of participate.

109

Roberts 141, 142. 110

McIntosh “Child-Inclusive Divorce Mediation: Report on a Qualitative Research Study” 2000 MQ 55 56

provides an overview of such a model, where a single individual consultation, conducted by a trained child

interviewer, with school-aged children, is held. Children used drawing, playing and discussing to explore their fears

and wishes regarding the separation of their parents. Feedback was then given separately to the parents and the

mediator. The mediator then tried to bring issues from the feedback received from the children into the mediation.

The process of this child-inclusive model involves four stages: “Early Focusing of Parents on Children’s Needs …

Consulting Directly With Children… Feeding the Child’s Needs and Views to the Mediation and Integrating the

Child’s Needs and Views into Negotiation”: McIntosh 2000 MQ 57-59. See also Van Zyl 195. 111

E.g. in their home. See also Van Zyl 192. 112

Children need “information, explanation and reassurance”: Parkinson Family Mediation (1997) 190-191, see also

Flekkøy and Kaufman 128. 113

Roberts 145.

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147

Generally all children should be encouraged to participate but this should be determined on a

case-by-case basis.114

Divorce mediators in South Africa need to be aware of both national and international provisions

allowing for the participation of children, and mediators must receive specific training in this

regard.115

Divorce mediators need to seriously consider whether the rights of children to

participate and in particular to be heard, are being ensured during divorce mediation.116

The

views of the child must be heard and the age of a child alone should not be the deciding criteria

as to whether a child may participate in divorce mediation. Rather, a child who is able to form a

view and make this view known, even if this is done via an interpreter or representative, such as

a psychologist, should participate in the mediation process. However, the paramount

consideration in decisions made by parents during divorce mediation remains the best interests of

the child.

114

This is in line with pars 51-52 of The UN Committee on the Rights of the Child General Comment No. 12 (2009)

The Right of the Child to be Heard. The child has the right to be heard but also the right to freely participate, so must

do so voluntarily: Mahery in Boezaart 309. It is the responsibility of parents to “direct and guide” the exercise of

rights by the child, Flekkøy and Kaufman 58. 115

For example, SAAM accredited course in child participation in mediation. 116

Not only does legislation need to be reformed but “attitudes and practices” must be reconsidered: James et al 313

331.