Article by listed attorney Fawzia Khan
In this article we take a brief look at the rights of children and how it’s entrenched both in the Children’s Act as well as in the Bill of Rights as contained in the Constitution. Our courts are obliged to look at both these pieces of legislation in all matters which affect children. This extends to all cases when there are minor children in any divorce proceeding, or when the rights of children come under the spotlight. The rights of children, generally, can be found in the Bill of Rights in the Constitution.
See more on Children's Rights in SA.
Children’s rights must be protected and respected at all times. Children must be allowed “to be children” to play and engage in children’s activities, which is age appropriate. All children must be treated with dignity and cannot be discriminated against, or treated differently, unless it’s in their favour. An example of this would be any special concession such as a reduced pricing that a child may be entitled to by virtue of his age. Child labour in South Africa is prohibited, except under very defined and specific instances. A child with special needs or who has any disabilities has the right to be supported and encouraged.
The Children’s Act refers to the principle of parental rights and responsibilities, which is owed by, and to parents. This principle forms a crucial part of the divorce proceedings. A parental responsibilities and rights Agreement can be concluded between divorcing couple, which sets out all matters relating to the children. If a divorcing couple enters into such a settlement agreement, it’s imperative that the children be made aware of the terms of that agreement insofar as it relates to them. Children, whose parents are about to divorce, have the right to be fully involved and participate in all matters which concern them. Obviously in order for this to be practical and workable, one would need to take into account the child’s level of maturity, age and stage of development.
The views of a child, such as deciding which of the parent he would live with after the divorce, i.e. who would provide the child with primary residency, must be taken into account. Due consideration must be given to the wishes of the child. If it is in the ‘best interests of the child’ then the family will be also given a chance to express their points of view, even in times of conflict. In this scenario, the role of grandparents (whose rights were often ignored or marginalized in the ensuing battle between the divorcing parents), can now have a say, when asking the Court to consider what is in the child’s best