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Article by listed attorney: Fawzia Khan

Minor children caught in the cross fire of heavy artillery between ‘warring’ parents. Is the appointment of a curator ad litem the answer?

One of the biggest casualties following the breakdown of a relationship is the negative impact it has on the minor children. These children could carry psychological scars well into adulthood. The reality is that during the initial phase of the break-up, most ex-couples will go through some difficulty in communicating with each other, however most are able to find a path where, on the face of it at least, the exes are able to remain civil with each other. This is especially so if they have to engage with each other on all matters affecting their children. They eventually come to recognize and accept that adjustments have to be made regarding how they interact with each other.

More importantly that there will always be the tie that binds them together, namely their children. This tie would in all probability extend throughout their lives as parents and those of their children. This link will remain even when the children are no longer minors. There will always some event or milestone in the lives of the children that will need both parents to participate in, or at the very least, to be present at. These could include events celebrating the achievements of the children, be it sports, academic, or any personal accolades, university or college graduations, engagements, weddings, birth of the grandchildren. In fact even during the children’s difficult or challenging times, both parents are expected to ‘be there’ and offer support to their children.

What of those parents who for whatever reason, are unable to function in a civil manner with each other without the interaction denigrating into a war of words and ugly spats or worse threats of physical harm? When parents are that angry at each other, there’s always the danger that the children end up being used as pawns between the warring parents. This can often result in Parental Alienation. Of course this can never be in the child’s best interest. That parent who is unable to get past the hurt and anger with the ex and who is unable to control their anger in the presence of the ex? The constant feuding between parents undoubtedly fuels even greater insecurity on the children. Oftentimes these can have disastrous consequences where the child could end up displaying aberrant behaviour.

 In May 2016 in the case of LP v JP, the Gauteng High Court dealt with a case where a mother approached the court requesting the court to appoint a curator ad litem for her 8 year-old son, who lived with his father. The facts of this case briefly were the following: The parties began a relationship, which culminated in them having a son in 2007. They never married. By 2010 the relationship ended. In terms of a settlement agreement between the couple which agreement was then made into a court order, primary residency of the child was awarded to the father. In 2015 the mother sought to change the court order where she would be granted primary residency of the child. However before bringing that variation application for a change of primary residency, the mother asked the court to appoint a curator ad litem for the child to report and make recommendation to the court about all matter affecting the child.

 A curator ad litem is someone whom the court will appoint for a person who is unable to handle or manage his or her personal affairs. This includes minors and people who are mentally incapacitated. Both the Children’s Act 2005 as well as our Constitution states   that due consideration given to a minor child’s needs and the minor’s voice should be heard in all litigation involving a minor. A curator ad litem is required to assess, interview the person involved and to thereafter make a report and recommendation to the court regarding his or her findings.

The oft-used expression the “best interests of the minor child” is of paramount importance when a minor’s rights are affected. In terms of our Constitution, if a child would otherwise suffer substantial prejudice, that child has the right to his or her own legal representation in all civil matters affecting the child.  In fact if the parents can’t afford to get the child legal representation, the State is required to provide one at its expense.

The mother’s complaint was that the 8 year-old exhibited certain inappropriate and disturbing behaviour. She blamed the father, saying it was because of the father’s lack of proper parental guidance and discipline over the child and the father in turn blamed the mother, for the son’s bad behaviour.

 In deciding whether or not to grant an order allowing the child to have a curator ad litem, the presiding judge, Ratshibvumo AJ, said it’s necessary to draw a distinction between the child having his own legal representative as opposed to the child having a curator ad litem appointed over him. The judge said that whilst a legal representative would receive his or her instructions from the child, who is the client, the curator ad litem would assist the court as well as the child by looking at what is in the best interests of the child.

The court agreed that given the circumstances of that particular case, coupled with the extent of intense discord between the biological parents, the appointment of a curator ad litem for the child was necessary.

On 13 May 2016, the court ruled that a curator ad litem be appointed who would inter alia, be empowered and authorised to act in all matters where there is litigation involving the minor child, as well as to make a recommendation as to what is in the child’s best interest regarding any application for a variation to the care and contact arrangements of the child. The curator ad litem was ordered to have full and unrestricted access to the child and to act as the child’s legal representative in any legal proceedings, relating to the child’s care contact and primary residence. The court also ruled that both parents jointly pay for the costs associated with the appointment of the curator ad litem.

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