Yes indeed, as per the South African Children’s Act, children have a right to, information and to participate in a matter that will significantly affect them.
The question is often asked: At what age may a child decide where they want to stay after divorce or separation? Well, there is no specific age. The legislation indicates that the affected children must participate, and that due consideration should be given to their views. There is no mentioning of a specific age when children are allowed to participate. However, for more clarity, let’s have a look at the relevant sections in the Children’s Act:
Sec 6 (5)
A child, having regard to his or her age, maturity and stage of development and a person who has parental responsibilities and rights in respect of that child, where appropriate, must be informed of any action or decision taken in a matter concerning the child which significantly affects the child.
Sec 10
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.
Sec 31(1)(a)
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.
Sec 31(1)(b)
A decision referred to in paragraph (a) is any decision-
- In connection with a matter listed in section 18 (3)(C) (Deals with duties of guardians);
- Affecting contact between the child and a co-holder of parental rights and responsibilities;
- Regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or
- Which is likely to significantly change, or to have an adverse effect on the child’s living conditions, education, health, personal relations with a parent or family member or generally the child’s well-being.
So, Let’s Get Practical.
In my practice I refer all the children involved in a family law dilemma, aged between three -and eighteen years of age to be interviewed by a trained Child Play Therapist. This therapist has extensive knowledge and experience in guiding children and their parents through the emotional roller coaster of divorce and separation.
The voice of the child process is not therapy. It is an opportunity for the children to express their emotions and fears in a safe space. The children are given a voice. The therapist usually spends up to three sessions with the children and will then provide constructive feedback to the parents and me, as the attorney/mediator, during a joint session. This feedback aims to inform the parents where their children are at emotionally and to provide guide lines for the family how to navigate the unique and challenging road ahead.
It is a myth that children are just very easy going and adaptable during times of distress and that they will be just fine. Children, even in their early teens, often do not have the vocabulary or skill to communicate their true feelings during family dilemmas. Children are severely affected by divorce or separation in their family unit and often do not articulate their true emotions due to fear of disappointing or hurting their parents. They may also be fearful that they might be the cause of even more drama.
Thus, often not being afforded a reasonable opportunity to express their views, emotions and wishes, the children are usually forced to adapt to the situation without the opportunity to be heard or considered. This is sure to have a dire effect on the child’s development and family relations in the future.
During times of divorce or separation, parents do not share a lot of common ground, yet their love for their children is often the only common denominator between them. Even though they may be getting divorced, they will still remain tied together as co parents of their children for many years ahead. Therefore, the voice of the child sessions and feedback aims to assist the parents to keep their parenting relationship in tact and to lay the foundation for the path of positive and wise co-parenting, after separation.
The voice of the child process does not propose that children should dictate or dominate the negotiations of the separation process. Instead, it aims to inform the children about important decisions that will affect their lives. Furthermore, it provides the children the opportunity to voice their true feelings and concerns regarding such decisions. Lastly, yet very importantly, it aims to prepare and equip all the members of the family to steer carefully ahead in the unchartered territory of separation.
Make sure to involve a trained and experienced therapist during your divorce journey to assist you, your co-parent and your dear children to navigate this challenging journey.