The voice of the child was one of the key topics of discussion at the 12th Annual Family Law Conference hosted by Clarks Attorneys. The conference was held in Johannesburg from 30 to 31 October 2025. The conference was attended by judges, legal practitioners, social workers and psychologists.
Welcome address
In her welcome address, Director of Clarks Attorneys, Beverley Clark, welcomed delegates to the conference, and said that there was an important topic of discussion at the conference, namely, the voice of the child. ‘I am strongly of the view that in adversarial family law matters, as opposed to public interest or welfare matters, children’s voices are more often than not weaponised by one or the other parent in order for that parent to win their case, rather than in a sincere attempt to ensure child participation,’ Ms Clark said.
Ms Clark added that it was obvious that the conference delegates cared deeply about children, and how the law can protect and empower and give children a voice, but Ms Clark went on to ask if the profession had gone too far in turning the child’s rights to be he
Director of Clarks Attorneys, Beverley Clark, welcomed delegates to the 12th Annual Family Law Conference hosted by Clarks Attorneys.
ard into a right, or even a duty. ‘The idea of affording children their own legal representation may be to ensure that children’s voices are heard, but in practice, it can thrust children directly into the arena of adulthood conflict, the very thing from which the law should shield them,’ she said.
Ms Clark went on to say that adults were abdicating their adult responsibilities, which places an intolerable burden on the shoulders of children who do not, in fact, have the maturity to deal with them and who should not have to. ‘I think we often confuse a child’s ability to articulate their views and wishes with the concept of maturity, which is more about their capacity to appreciate the ramifications and consequences of their views and wishes. In other words, children often know what they want, but do they know what they need?’ Ms Clark asked.
Ms Clark said that developmental science tells us that the prefrontal cortex – the part of the brain responsible for judgment and foresight – continues to mature well into a young adult’s 20s. ‘So, a 12-, 13- or 14-year-old can clearly tell us what they want, but they rarely understand what that choice will mean for them,’ she said.
Ms Clark referred to Article 4.2 of the African Charter on the Rights and Welfare of the Child, wherein it states: ‘In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law’ (my italics). In s 10 of the Children’s Act 38 of 2005 it states: ‘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’ (my italics). Ms Clark referred to the term ‘impartial representative’ adding that the charter did not refer to legal representative. Regarding the ‘appropriate way’, Ms Clark went on to say ‘For me, the question of what the appropriate way is, is the most key consideration, and a mental health professional would be far better placed to elicit and convey a child’s needs than a lawyer. If it is to be a lawyer, then in my view, it should be someone acting in a role of a curator and not on the child’s instructions,’ Ms Clark said.
Ms Clark said in England, Australia, New Zealand, and Canada, children’s views are brought to court through best interest representatives or guardians, or by a voice of the child report. These systems show that children can be heard without being harmed.
Ms Clark added that in her view, a misinterpretation or misreading of s 28(1)(h) of the Constitution is a fundamental problem in South Africa.
Section 28(1) states: ‘Every child has the right –
…
(h) to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result.’
Ms Clark went on to say ‘read grammatically and purposively, this section is about funding, not about the right to legal representation. It means that when a child needs a lawyer, this being a separate inquiry, they should not have to go without one because they cannot afford one. It is about state duty, not child entitlement. Read in the context of the rest of s 28(1), the prevention of substantial injustice is most likely to be referring to circumstances in which the child’s basic and fundamental rights are being infringed, not when the parents cannot agree on where the child should live’.
‘I think the pendulum has swung too far and I think it is time for it to swing back to a more balanced and child centred position, which I believe means a “child protective position”. When we give a child their own lawyer in a care and contact or relocation dispute, we risk burdening that child with participation in adversarial litigation from which we should be shielding and protecting them,’ Ms Clark added.
Ms Clark concluded by saying that it is ‘our job to bring the child’s voice into it, diligently and faithfully but safely, and then to take adult responsibility for the decisions that have to be made. Let us keep hearing children but stop making litigants. We must remember that the most child centred act an adult can perform in the kinds of cases we generally deal with, is to carry the weight of decision making, so the child does not have to.’
Navigating family law
In the keynote address, Judge of the Gauteng Division of the High Court in Pretoria, Judge Brenda Neukircher, said it seemed that she and Ms Clark were of like mind regarding the voice of the child without even knowing it.
Judge Neukircher said that those who find themselves in the arena of family law are aware of the personal dynamics which shape every matter. ‘We litigate as practitioners and must adjudicate as presiding officers. Our jobs have become those in which we not only navigate the sometimes-complex issues relating to equities involved in the patrimonial claims that plague some divorces, but in navigating a difficult terrain, when parties are simply unable to communicate with each other, either at all, or effectively.’
Judge Neukircher said that it is iron
Judge of the Gauteng Division of the High Court in Pretoria, Judge Brenda Neukircher, speaking on the voice of the child at the 12th Annual Family Law Conference hosted by Clarks Attorneys.
ic that in an era dominated by social media, where electronic communication is a click away, the ‘like button’ is used so freely to communicate approval. We seem to be losing the art of face-to-face communication. ‘Parties need mediators to be impartial, and passionate third parties to navigate the disputes and articulate their grievances in a way that will hopefully resolve their issues,’ she said.
Judge Neukircher said that parenting coordinators have to draft agreements pertaining to sensitive issues about parties’ day-to-day lives with their children. In many circumstances, they must issue directives and make decisions that influence the daily living of parents and children with whom they share an ‘arm’s length’ relationship. ‘They continue with this sometimes-arduous task far beyond the bounds of the final decree of divorce, and so, parties are able to abdicate the responsibility of the decision-making process and the sometimes very uncomfortable communication that follows the breakup of the divorce, after the divorce. But this is unfortunately the time in which we live.’
Judge Neukircher said that the people caught in the middle of all the interventions are the ones that the system is designed to protect, and that is the children. ‘It is in all of these potentially hazardous circumstances that the voice of the child must be so carefully communicated so the children are no longer just seen, but that their voices are heard,’ she said.
Judge Neukircher concluded her address by saying that part and parcel of teaching the next generation how to navigate the complex and sometimes socially awkward world in which we live, is to teach them that while you may not agree with somebody else’s opinion, they are entitled to it, as you are to yours.
Voice of the child: Legal considerations
Courtrooms around the world are increasingly insisting that children should be heard in the legal proceedings in which they are involved. Legal practitioner, Louise Buikman SC, questioned whether we are doing a disservice to the children by involving them in litigation, which is more often than not, acrimonious cases between the parents.
Ms Buikman gave a history of child involvement in litigation and said that the first time that children were entitled to participate in civil matters concerning their care and contact was when the Children’s Act came into force.
Speaking at 12th Annual Family Law Conference hosted by Clarks Attorneys, Legal practitioner, Louise Buikman SC, questioned whether we are doing a disservice to the children by involving them in litigation, which is more often than not, acrimonious cases between the parents.
Ms Buikman then discussed the various models by which the voice of the child is expressed. These models include:
- Curator ad litem – this is the oldest model and is also referred to as the ‘the best interest legal representative’. The fundamental characteristic of the model – as pointed out by Ann Skelton and Carina du Toit in Guidelines for legal representatives of children in civil matters (Pretoria: Pretoria University Law Press 2016) – is that a child does not give instructions. Over the years, the courts have appointed a curator for a child to safeguard and report to the court on all issues pertaining to the child’s best interests. The curator ad litem is the preferred appointment as opposed to a child’s legal representative in the instance where the child is very young and will not be able to give instructions. The curator must always act independently and will consider all the evidence when advocating what outcome is best for the child. The recommendations are based on legal considerations. A curator ad litem is not a neutral party, and –
- must provide insight into the views of the children;
- must apply legal knowledge and perspective;
- must not be drawn into the litigation arena; and
- should not depose to affidavits because curators should not put themselves in a position where they may have to be subpoenaed. This will cause conflict of interest between the children on one hand and the curator’s own interests on the other. It is for this reason that curators will file reports as opposed to affidavits.
- The Family Advocate – although this role has been likened to that of a curator ad litem, this is incorrect. The Family Advocate is a creation of statute, and the function of the Family Advocate is defined in the Mediation in Certain Divorce Matters Act 24 of 1987. The office has three main functions, namely –
- to monitor all court documentation and settlement agreements to ensure that the agreements are prima facie in the best interests of the child;
- to mediate between the parties; and
- the office carries out full evaluations in cases where this is required, culminating in a report that sets out its findings and recommendations to the court.
The Family Advocate takes on a neutral role, and the role is, however, similar to that of a curator in that the Family Advocate is not the representative of any of the parties and is charged with investigating the issues in dispute in litigation concerning a child. The Family Advocate then makes recommendations to the court. The Family Advocate will reflect the views of the child in the court, and they are then required to consider what is the best interest of the child, which may not be in line with what the child has expressed or what the child wants.
- A s 28(1)(h) legal representative – the section clearly envisages an independent legal representative for the child. Satchwell J clarified that the role of the Family Advocate provides a professional and neutral channel of communication between the conflicting parents (and perhaps the child) and the court, while a legal representative for the child is ‘squarely in the corner of the child’ and has the task of arguing the child’s wishes in court (Soller NO v G and Another 2003 (5) SA 430 (W)). The legal representative must advocate the child’s position and will take instructions from the child and the parents’ involvement is limited. A client-attorney relationship is created between the child and the legal representative, allowing the child to become directly involved in the proceedings. Consideration must be given by the legal representative to the fact that the child has the capacity to give instructions, namely that the child is of sufficient age, and has sufficient emotional and intellectual maturity (see McCall v McCall 1994 (3) SA 201 (C)). In terms of s 279 of the Children’s Act, every child involved in proceedings under the Hague Convention on International Child Abduction must be provided with a legal representative to safeguard the child’s best interests.
Ms Buikman gave summaries on the following cases where the courts appointed a legal representative or curator –
- Soller NO v G and Another 2003 (5) SA 430 (W);
- Ex parte Van Niekerk and Another: In re Van Niekerk v Van Niekerk [2005] JOL 14218 (T);
- Centre for Child Law and Another v Minister of Home Affairs and Others 2005 (6) SA 50 (T);
- R v H and Another 2005 (6) SA 535 (C);
- Legal Aid Board v R and Another 2009 (2) SA 262 (D);
- B and Others v G 2012 (2) SA 329 (GSJ);
- FB and Another v MB 2012 (2) SA 394 (GSJ);
- Centre for Child Law v Hoërskool Fochville and Another 2016 (2) SA 121 (SCA);
- IG v JV 2023 JDR 3120 (GP); and
- TCE v EE (GP) (unreported case no 113234/2023, 6-2-2025) (Neukircher J).
Ms Buikman said that in family law cases, the courts have over time promoted child participation. ‘Children’s perspectives are not only relevant but vital to fair and just proceedings. This trend recognises that children possess unique insights, feelings and preferences that deserve serious consideration and acknowledgment,’ she said.
Ms Buikman said that drawing a child into the fray is often unhelpful, as frequently, children to not want to be drawn into the disputes between their parents, as they do not wish to risk their relationship with their parents. She went on to say that: ‘Children who are alienated from the other parent will have views that will be unhelpful and will not assist a court in determining what is in their best interests.’
Ms Buikman then discussed the challenges and ethical considerations to ensure that the real, authentic voice of the child is heard. Challenges and ethical dilemmas include –
- assessing capacity and maturity;
- stress and emotional impact;
- risk of manipulation;
- cultural and language issues; and
In conclusion, Ms Buikman said that children’s participation in proceedings, although necessary, must be approached with a measure of caution. ‘Their “voice” must be heard, not their “choice”. … A court must be slow to merely accept a child’s views and should be guided by a psychological opinion as to the weight that should be attributed to the child’s voice so that their best interests can be served.’
Voice of the child: Psychological considerations
Clinical psychologist, Dr Anthony Townsend said that he was impressed by the fact that there was so much interest in the topic of the voice of the child.
Clinical psychologist, Dr Anthony Townsend said that he was impressed by the fact that there was so much interest in the topic of the voice of the child, and it was in the spirit of the conference that mental health professionals and legal professionals are coming together to try make sense around the ideas and judgments of these sorts of issues. ‘It is important that we recognise the voice of the child … and a lot of what I am going to echo is exactly understanding the importance of it,’ Dr Townsend said.
Dr Townsend said that the greatest issue that is faced is lack of context and when you take words outside of context it becomes incredibly complicated to be able to make sense of it. He added that his job was to provide both the psychological and neuroscientific context within which such assessments should be couched. He went on to say that he hoped to answer four fundamental questions, namely –
- How independent can a child’s voice be?
The independence of a child’s voice involves both an internal and an external context. The internal context is to look at the psychological factors of life. Children and adolescents function at their developmental period and this stage is referred to as identity moratorium. Dr Townsend explained that they have no stable sense of who they are. Their preferences, their emotions, their ideas, their wants, and their desires fluctuate quite capriciously, and this flux creates instability, which undermines reliability upon which we would base any statements. The context becomes important, because what is said on some occasions may not necessarily be consistent with others.
Dr Townsend further stated that before children reach adolescence, and certainly to some degree during it, they experience a fundamental egocentricity. ‘We recognise that part of the difficulty young children have is they think that everything is about them, both good and bad. One of the things you often have to tell children is that something is not their fault. This becomes incredibly important because children put blame on themselves for things they are not involved in. Imagine the significance of the consequences when, in fact, it is their consideration or their decision. Of great importance, of course, is the fact that children do indeed have cognitive limitations and children make decisions in limited ways,’ he said.
Dr Townsend went on to discuss hormonal and decisional instability in adolescents and how an adolescent’s brain is resetting their neural pathways, and how teenagers, for example, have trouble figuring out what they like or do not like.
Dr Townsend then discussed the external context and how children and adolescents are brilliant observers but poor interpreters as they do not have the cognitive mechanisms to interpret information correctly. ‘More often than not, you will hear a child remark on the fact that they do not want to be with a particular parent because they are strict and yell at them all the time. But, when viewed in context, what that child means by strict and yells at them all the time means it is a parent who firmly tells them that they should do their homework when they have been playing with a computer too long. So often children will present a view where they have a preference for a more materially indulgent, more lax parent as opposed to a stricter one, which is not necessarily in their best interests,’ Dr Townsend said.
Dr Townsend went on to say that this spills over to psychological and legal contexts, as there are very carefully curated guidelines on how to interview children, because children are very quick to mirror what they think an authority figure wants. ‘We have to be careful as to the way we ask questions,’ he said.
- How is maturity defined in psychology?
Dr Townsend said that when so defined, ‘maturity is a multifaceted construct that involves sound reasoning, logical decision-making, emotional regulation, interpersonal (or relationship) management and moral consciousness, which are choreographed by an individual to maximise long-term personal gain with a consideration of the wellbeing of others’.
Children can only think in terms of their own immediate self-interest, and not in terms of the broader context, for example, the well-being of everyone involved. Their capacity to understand and manage their own emotions, to empathise with others, to control impulses, to think about right and wrong and the long-term consequences of their decisions, takes much longer to develop.
Dr Townsend explained that metacognition is the ability to think about your own thinking and to question your perspective. This is one of the very last things to develop in your brain, and it usually develops at the age of 25. ‘When metacognition is lacking, children cannot double check themselves. They can only read in the context of what they already feel and what they already know, and by virtue of that fact, they are intrinsically stuck in biases.’
- What are the psychological risks of involving a child as a litigant?
Dr Townsend said that there are several profound and enduring consequences of involving children in litigation, which include:
- Severe emotional distress due to the exposure to ‘inappropriate knowledge’ and conflict. (The ‘inappropriate knowledge’ refers to the information that a child does not know how to emotionally process sufficiently.)
- Damage to the relationship with the rejected parent.
- Damage to the relationship with the favoured parent.
- Severe emotional distress due to cognitive overload.
By involving a child as a litigant, long-term risks are created. The resulting problems can manifest in various ways, ranging from a decline in academic achievement to various forms of psychopathology, including depression, anxiety, substance abuse, and behavioural issues.
- What is the best procedure by which to deal with this issue?
The best way is for a psychologist to render a comprehensive, thorough and balanced report using multifaceted assessments around the child. You can interview the child and listen to their narrative, but it is also crucial to interview other parties, parents included, to understand the broader familial context. Dr Townsend said to make sure that observations of the children interacting with both parents are done to see how those relationship dynamics play out. He added that psychologists use other psychometric measures, so that they can have non-direct ways of asking questions where children cannot alter their responses, and the same is done for both parents as well.
Dr Townsend said relevant collateral resources must be looked at. ‘When we triangulate all of this data from all of these different sources, we find areas of convergence that tell us not only what might be in the best interest of the child, but the degree to which this child can in fact advocate for themselves in a valid and reliable manner,’ Dr Townsend said.
Dr Townsend said that while South African law does emphasise the importance of the best interests of the child and makes an accommodation for the child to be heard, it is important to recognise that direct participation as a litigant might not always be appropriate because of the cognitive limitations and the emotional distress that results from it. As such, a psychologist’s assessment – incorporating a voice of the child report – ensures the child is heard while also providing an objective evaluation of their needs, the potential consequences and the broader context. This serves as a mechanism to unburden the child from the responsibility of participating in such a significant decision.
Kathleen Kriel BTech (Journ) (TUT) is the Production Editor at De Rebus.
