It's recommended to involve a child in the decision-making process that affects them from prior to divorce or separation is initiated.
The ‘voice of the child’ concept is used so that an understanding of the child and their capacity can be formed by the court.
Child participation does not mean the child has the right to demand a particular outcome or course of action. The parents, mediator and ‘voice of the child’ professional and attorneys must still mediate and reach an outcome that is in the child’s best interests.
The concept of "the child's best interest" refers to when decisions are made with the ultimate goal of fostering and encouraging the child's happiness, security, mental health, and emotional development into young adulthood.
The focus of the ‘voice of the child’ is to –
understand the child’s world and all their role-playing systems;
understand the child’s socio-emotional functioning within these systems; and
hear the child’s emotional experience of these systems.
The participation of a child in matters affecting them in a divorce or separation is mandatory according to the Children’s Act 38 of 2005 (the Children’s Act).
Sections 6(2)(a), 7(1)(a) – (n), 10 and 31(1)(a) of the Children’s Act addresses the best interest of the child standard and the right of the child to participate and express their views in all matters that affect them, as well as their right to be heard in official proceedings in motion.
Section 10 of the Children’s Act reads:
‘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 31(1)(a) of the Children’s Act reads:
‘Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child’s age, maturity and stage of development.’
The ‘voice of the child’ practitioner’s mandate when performing a ‘voice of the child’ exercise is to:
See the world through the eyes of the child.
Explore and understand all the aspects and factors that influence the child’s world and to understand the current way they experience being in that world.
Convey and inform by ensuring that the child’s needs and/or wishes are communicated and understood by the parents.
Induce change by informing both the parents and the child regarding the decision-making process with creative solutions to challenging situations.
Critical factors that need to be considered when determining the ‘best interest of the child’ and a ‘voice of the child’ report
The child’s:
– age, maturity and stage of development;
– gender;
– background and any other relevant characteristics;
– the child’s physical and emotional security, as well as their intellectual, emotional,
social and cultural development;
– any disability the child may have; and
– any chronic illness from which the child may suffer.
Child participation contributes to a child’s development of individual identity, competence, responsibility and a child’s sense of self-esteem and confidence.
It can also be helpful to remind parents of why it is important to find ‘satisfying solutions’ to the issues concerning the child.
Contact Naude Dawson Incorporated at xander@ndinc.co.za for further details and guidance during the divorce process or separation concerning your minor child.
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