A child's right to legal representation in divorce matters

Abstract

Section 28(1)(h) of the Constitution guarantees every child the right to legal representation in civil matters at state expense provided that the denial of the right will result in substantial injustice. This discussion focuses on the nature and ambit of a child’s right to be heard and to legal representation in divorce matters in South Africa. The views and best interests of a child are often neglected when dealing with a divorce. Because divorce litigation in South Africa is of an adverse nature, the process often results in substantive differences within the family. This investigation commences with a discussion of relevant international as well as regional law. The relevant sections in the CRC and ACRWC are analysed to determine whether those documents may assist in the interpretation of section 28(1)(h) and relevant provisions in the Children’s Act. This is followed by a critical analysis of the nature and extent of section 28(1)(h) of the Constitution of the Republic of South Africa, 1996 and the relevant sections of the Children’s Act; the Divorce Act and the Legal Aid Act pertaining to the right of the child to legal representation in divorce matters. Finally a conclusion is reached and recommendations are made.