The Voice of the Child: Legal Framework and Practical Application in South Africa

From the Chairman / By / / Child Custody Battles, Family Court Issues, Family law advice, fifty-fifty

Introduction

The Voice of the Child (VOC) concept is essential in child and family law, ensuring children’s views are considered in decisions affecting their lives. The Children’s Amendment Act 17 of 2022 in South Africa reinforces this principle. This report explores the legal framework, practical implications, and processes related to the VOC in South Africa, referencing relevant acts and guidelines.

Best Interest of the Child in Law and Practice

Legal Framework

The principle of the best interest of the child is enshrined in Section 28(2) of the South African Constitution, stating that “a child’s best interests are of paramount importance in every matter concerning the child.” This principle is further detailed in the Children’s Act 38 of 2005 and the Children’s Amendment Act 17 of 2022.

Practical Application

In practice, the best interest of the child includes ensuring their safety, emotional well-being, and development. Decisions must consider the child’s needs, relationships with parents and caregivers, and the child’s voice.

The Voice of the Child in Law and Practice

Legal Framework

The VOC is highlighted in Section 10 of the Children’s Act 38 of 2005, which states, “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.”

Practical Application

The VOC ensures that children’s views are considered in all decisions affecting them, including custody, care, and contact arrangements.

Understanding the Voice of the Child

Definition

The VOC refers to the inclusion and consideration of a child’s perspective in legal and administrative processes impacting them. It emphasizes the child’s right to be heard and have their views respected.

Who Can Call for the VOC?

Any party involved in a child’s care and custody arrangements, including parents, guardians, legal representatives, and social workers, can call for the VOC.

Must the VOC Be Court Ordered?

While the VOC can be part of court proceedings, it is not mandatory for it to be court-ordered. It can be requested by any involved party and conducted informally or formally. However, it is STRONGLY advised that this is court-ordered, with specific dates as to when it must commence and by which date it must be concluded and the results returned to the court.

Who Conducts the VOC?

The VOC is typically conducted by qualified practitioners such as social workers, psychologists, or legal professionals trained in child participation.

Objectives of the VOC

The primary objectives are to:

  • Ensure the child’s views are considered in decisions affecting them.
  • Promote the child’s best interests.
  • Enhance the child’s participation in legal and administrative processes.

Process of the VOC

  1. Initiation: The process can be initiated by any party involved in the child’s care or custody.
  2. Preparation: The practitioner prepares the child, explaining the process and ensuring the child’s comfort and understanding.
  3. Interview: The child is interviewed in a child-friendly manner, ensuring their views are accurately captured.
  4. Documentation: The child’s views are documented in a report.

Protocol of the VOC

The protocol involves:

  • Ensuring the child’s participation is voluntary and informed.
  • Respecting the child’s views and providing feedback on how their views will be used.
  • Maintaining confidentiality and child protection standards.

Conducting the VOC

Practitioners use age-appropriate techniques to ensure the child feels safe and understood. Methods may include interviews, drawings, and storytelling.

Post-Interview Process

After the interview, the child’s views are included in reports and considered in decision-making processes. Practitioners may provide recommendations based on the child’s input.

Age and Responsibility for Determining VOC

The Children’s Act 38 of 2005 does not specify a fixed age for when a VOC can be conducted. Instead, it considers the child’s age, maturity, and stage of development. Generally, children aged 7 and above are considered capable of expressing their views, but younger children may also participate depending on their maturity.

The responsibility for determining whether a VOC is appropriate lies with the practitioner conducting the process. They assess the child’s ability to understand and express their views based on their professional judgment and relevant guidelines.

Difference Between VOC and Forensic Psychological Evaluation

Forensic Psychological Evaluation: This involves a comprehensive assessment of the child’s psychological state, often for legal purposes, and may include clinical interviews, psychological testing, and collateral information.

VOC: Focuses on the child’s views and participation in decisions affecting them.

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