The impact of the views of the child in family disputes where the child's wishes are contrary to the perceived best interests of the child

Abstract

It is evident from the legislation of South Africa and Australia that the best interest of the child is paramount in all matters concerning the child. However, article 12 of the United Nations Convention on the Rights of the Child, 1989 states that the views of the child should be given due weight. The conflict arises on how to represent the best interest of the child pertaining to the child's views in legal proceedings. This is problematic because there are no clear or specific guidelines to resolve these conflicts and which concepts are best? Both South Africa and Australia has questionable results in procedures pertaining to the views of the child. In South Africa, the courts favour the use of separate child representations for the best interest of the child to be protected whereas in Australia family reports are relied upon for the same purpose. It is clear from this that there rarely is a place for the child's direct voice in these proceedings and that representatives who are representing the child are more willing to protect the best interest rather than the views of the child. The current application of the best interest principle can only be successful when the child's views are "silenced". The child's representation in legal proceedings ascertain what they believe is in the best interest of the child, which mostly strains the child's voice in legal proceedings. To fully respect, promote and recognise the rights of the child to participate, the best interest principle must be used in conjunction with the child's right to participate in legal proceedings. This requires further development to improve the interpretation of their views and the weight thereof when the child is involved.