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Considering views of the minor child

Our law provides that due consideration must be given to the views and wishes of the child or children in the development of any parental responsibilities and rights agreement, bearing in mind the child or children’s age, maturity and stage of development.

Our courts have however failed to provide guidelines on what age and what maturity level a child can be regarded as capable of giving a view as to what is in his/her best interests.  They deal with each case based on the facts of that case.

Views of the child are well dealt with in McCall v McCall 1994(3) SA 201.  This case involved the application by a non-custodian parent for variation of a consent paper (made an order of court) granting custody of the minor child to the other parent.

The dispute arose over one of the two children born of the marriage, the son of the parties, Rowan, born on 18 February 1982.  On request of the father of Rowan, Judge King had a talk with Rowan.  Respondent didn’t object to this.

King found Rowan to be an “intelligent, articulate, persuasive, sincere and candid child” who displayed “a degree of maturity and intellectual development that satisfied me (King) that he is capable of forming and expressing an intelligent and informed judgment on what he subjectively perceives to be in his best interests”.

Rowan expressed a wish to be placed in his father’s custody.  He mentioned that he was under strain in his mother’s home.  He had an easy relationship with his father however.  Judge King found that Rowan’s expressed statements and views came across as his own genuine and accurate reflection of his feelings towards his relationship with each of his parents.

King in the end found that Rowan’s best interests would be served by placing him in the custody of his father, and because this arrangement was “new and unchartered”, it would be appropriate if it was to be monitored by the Family Advocate.

King furthermore found that “both parents have, in contesting this case, acted in what they believe to be the best interests of this child”.  He stated that “there is no winner and no loser.  There are two concerned parents.  I intend to make no order as to costs.”

In the McCall case the boy was clearly able to give a quality opinion on what he believed to be in his best interests.  Not all minor children would be able to.

The courts should look at the statements of a social worker and the report of the family advocate and then do its own interview with the minor child in order to determine what is in the child’s best interests.  Judge King adopted the correct approach in the McCall case by doing his own interview.

This article was written by Cape Town divorce lawyer, Peter M Baker

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