Resolving Disputes with Regards to Child Participation in Divorce Mediation
Amanda E. Boniface*
Advocate of the High Court of South Africa and Divorce and Family Mediator; Post-doctoral Research Fellow: Institute for Dispute Resolution in Africa, UNISA 
1. INTRODUCTION
Mediation has become increasingly important in Family law, to an extent that the Children’s Act1 makes mediation compulsory in certain instances. A child has the right to be heard2 in matters that affect him or her. The Act prescribes that the opportunity to exercise this right needs to be provided for during the divorce mediation3 process. The question arises as to how this right is protected and enforced in South African law as well as by divorce mediators in practice. Moreover, the question that needs to be addressed is whether only children of a certain age may participate in mediation or whether the maturity of the child has to be considered. Therefore this article explores the provisions of International documents on children’s rigths and participation in matters that concern them, namely the Convention on the Rights of the Child4 and the African Charter on the Rights and Welfare of the Child5, the Constitution of the republic of South Africa and the Children’s Act.
The first part of this article will contextualise the child’ rights in divorce matters6. Part two will examsthe child’s right to be heard in divorce matters, as provided for in International documents and South African legislation. Part three studies the participation a child in divorce mediation and deals with the advantages and disadvantages of such participation. The last part of this article explores future prospects.
2. PARTICIPATION AND THE BEST INTERESTS OF THE CHILD
The word “participation” means to become involved in or take part in an activity.7 “Participation” can “refer to taking part in an activity and is often used to refer specifically to taking part in decision-making.8 In relation to a child, the “participation principle” looks at creating space for a child to think and act on their own and for adults to place more value a child’s input.9 Importantly participation helps decisions to be accepted, even if everyone’s concern cannot be included in the decision10
Divorce is generally defined as “an adult issue that requires solutions to be found by and for adults”11 and a child is often treated more as a “victim” who requires protection than an “actor” in the process of divorce.12 Thus, the decision as to whether to involve a child in mediation may depend more upon the parents’ and the mediator’s view and not on the rights of the child.13
The best interests of the child14 play a role during family disputes and divorce proceedings in which the child has a right to participate by means of making their views known. Prior to the provisions of the Constitution regarding the best interests of the child, the best interest’s standard was encapsulated in case law, in cases such as Fletcher v Fletcher.15 The courts stated that when determining the best interests of a child16 one of the factors that must be taken into account is the child’s wishes17. Often the court stipulated that weight should be given to the child’s preference if the court is satisfied that the child has the necessary intellectual and emotional maturity to give a genuine and accurate reflection of his or her feelings towards a relationship with both parties.18

However, there are also instances where the wishes of the children are not mentioned at all19, despite the children being either teenagers or pre-teens. Additionally, there is case law where the court ignores the wishes of the children for various reasons, such as that the children’s preference is regarded as immature or unwise,20 or the child’s views are said to be affected by undue parental influence.21 In some of these cases it is clear that the court could not have said that the children were too young to express their opinion.22 Even if the child concerned is very young every effort should still be made to hear the child’s views23.

The Constitution states that the best interests of the child are of paramount importance in every matter concerning the child.24 The Children’s Act also provides for the best interests of the child: “[i]n all matters concerning the care, protection and well-being of a child the standard that the child’s best interest is of paramount importance must be applied”.25
3. CHILD’S RIGHT TO BE HEARD
3.1 The United Nations Convention on the Rights of the Child26
The Convention on the Rights of the Child (CRC) has a heightened status in South African law.27 The Convention recognises the rights of the parents as well as the rights of the child. It also imposes duties on parents, protects children from their parents and offers support to parents.28 Moreover, the Convention29 affirms that the best interests of the child is the primary consideration in all actions concerning children.30 Article 12(1) of the Convention states that:
State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
This Article ensures that the child is given a voice in all decisions that affect them, and this would apply to all actions that concern a child.31 The fact that no specific age was specified has been criticised as leading to a lack of clarity or legal uncertainty; however there is great individual variability in how a child’s abilities develop.32 Specific age barriers to participation by a child are not supported by the CRC, instead, in order to assess maturity, factors that must be taken into account include character; the level of understanding; the decision that must be taken and the specific context within which the decision is taken.33   Article 12 does not use the term “child participation” but the Committees general comment 12 indicates that the objective of the article is to advance child participation.34 In terms of Article 12(2):
[f]or this purpose the child shall in particular be provided with the opportunity in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural laws of national law.
Article 12 thus places an obligation on State Parties to ensure that a child can express his or her opinion freely and that his or her opinion will be taken into account in any judicial or administrative proceedings affecting the child.35
According to the Convention, a child can express his or her views through participation, where a child is heard directly and consulted about their opinion or through representation, where child has an attorney and seeks legal advice.36 Although Article 12 does not give a child the right to a say that outweighs that of their parents or their families, it does give a child the opportunity to express their opinion when matters affecting them are discussed.37 In certain circumstances a child may need to be protected from their parent’s views38 and be allowed to state their own views.39 This can be accomplished by giving a child the opportunity to make their views known in juridical and other proceedings. 40
The question that arises is under which circumstances the State is obliged to respect the parent’s right to direct a child’s intellectual freedom and when the child’s view must enjoy preference.41 Article 13 of the Convention deals with the child’s right to freedom of expression. The Convention lists aspects of this right, “the freedom to seek, receive and impart information and ideas of all kinds” and specifies that this may take place by means of oral, written, printed or artistic means42
A child’s right to participate means that children can, in a supported way, actively participate in matters affecting them.43 Their ability to actively participate and to make decisions will differ from case to case;44 an older child’s ability to make decisions can be similar to the ability of adults.45 The Convention is dualistic in that it sees a child as an independent bearer of rights but also acknowledges the importance of the family and the difficulties that exist due to a child’s temporary inability to exercise many of the rights themselves.46 The Convention recognises that the primary responsibility for the child is within the family47. There may be a conflict between the interests of the adult members of the family and the best interests of the child, thus the Convention states that the primary responsibility for the raising of the child lies with the family but that the best interests of the child shall be their primary consideration.48
3.2 The African Charter on the Rights and Welfare of the Child49
The preamble to the African Charter states that “for the full and harmonious development of his personality, the child should grow up in a family environment in an atmosphere of happiness, love and understanding”. The special care needed by a child is also emphasised in the preamble.50
Article 2 of the Charter defines a child as being every human being below the age of eighteen years. Compared to the CRC this allows for the protection51 of and provision to the widest group of young people.52
The African Charter on the Rights and Welfare of the Child also provides for the best interests of the child to be the primary consideration, “[i]n all actions concerning the child undertaken by any person or authority”.53 Article 4(2) states that:
[i]n all judicial and 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 authorities with the provisions of appropriate laws.
Article 7 of the Charter governs the right to freedom of expression. The Charter refers to the child’s ability to communicate his or her view and is a general provision.54 According to Gose55 this is:
[a]n important aspect of the freedom of expression is neglected by the Charter – there can be no freedom of expression if the individual cannot receive the information necessary to form his or her opinion. Without this the whole guarantee of freedom of expression is empty.
A matter of concern is that as the Charter is silent on this point, this could hamper the effectiveness of the right.56
Article 4(2) provides that the child has a right to be heard either directly or by means of a representative.57 The right to be heard that is provided for in the Charter is more restrictive than the right in the Convention on the Rights of the Child.58

A key aspect of the African Charter on the Rights and Welfare of the Child is that the document represents a regional contribution59 to the development of international human rights law that is applicable to children.60 The Charter has been described as a document which shows the priorities of Africa but does not affect the status and relevance of the global Convention on the Rights of the Child.61
3.3 The Children’s Act
Mediation applies directly and indirectly. Mediation is mandatory where there is a dispute between the child’s unmarried biological parents about whether the father has fulfilled the requirements in terms of section 21(1)(a) in order to obtain full parental responsibilities and rights.62 Mandatory mediation must also take place with regard to parenting plans63. However, in certain instances it could be said that although mediation is not mandatory, the implication is that mediation should take place64, particularly where the child’s mother enters into an agreement with the unmarried father who does not have parental responsibilities and rights or another person who has an interest in the child’s care, well-being and development in order to confer parental responsibilities and rights65 and where a co-holder of parental responsibilities and rights enters into an agreement with the other co-holder to allow that co-holder, or another person, to exercise parental responsibilities and rights on the parent’s behalf66. Other instances include where there is a post-adoption agreement67 or surrogate motherhood agreement68.
In any matter concerning a child an approach which is conducive to conciliation and problem- solving should be followed and a confrontational approach should be avoided.69 Moreover this principle should apply because “[e]very child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning the child has the right to participate in an appropriate way and the views expressed by the child must be given due consideration”.70 This is different to the provisions of the African Charter on the Rights of the Child in that the Charter does not place focus on age but on the ability to participate.71
The General Regulations Concerning Children72 state that “due consideration must be given to the views and wishes of the child or children in the development of any parental responsibility and rights agreement, bearing in mind the child’s or children’s age, maturity and stage of development”. The Regulations73 stipulate that where a child in respect of whom parental responsibilities and rights agreement have been concluded are not in agreement with the content of the agreement, this should be recorded on the agreement and then the matter must be referred to mediation by a Family Advocate, social worker, social service professional or other suitably qualified person.
The General Regulations74 further state that “[b]earing in mind the child’s age, maturity and stage of development, such a child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration”. Once the parenting plan has been concluded the child must be informed of the contents of the parenting plan by a Family Advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative, as the case may be.
4 PARTICIPATION OF CHILDREN IN DIVORCE MEDIATION
4.1 General
The participation of a child in matters affecting them is mandatory in South Africa. When parties reach a settlement in a divorce matter and there is a child involved then the settlement agreement must first be approved by the Family Advocate, before proceeding to have it made an order of court.75 The High Court remains the upper guardian of all minor children and any decisions made during mediation may be reviewed and approved by an appropriate court.76 This process ensures that the best interests of the child are considered. It is an objective of mediation to keep the child themselves out of court.77
Evans and Havercamp78 suggest that the degree to which a child should be involved in the mediation depends on factors such as the age of the child.79 They also state that a premediation session should be held in order to determine the level of the child’s involvement, this is done by interviewing the adults and discussing this separately with the child.80 Lansky et al suggest that there are factors that contraindicate the inclusion of the child, these include cases where both parents agree on what is best for the child or if the child is aged three or younger, or if one parent does not want custody after divorce and that the mediators used must be properly trained to work with children.81
4.2 Advantages of participation
Mediation has long-term benefits for children when they participate in the proceedings.82 The benefits include a reduction of anxiety83; a better understanding of the process and an easier adjustment by the child to post-divorce conditions.84 Child inclusive mediation takes care of a child’s emotional well being85 after parental separation and parental relationships and responsiveness also improve as a result thereof.86 The inclusion of children fulfills the rights of the child but also repairs the parental relationship to a large degree and improves the emotional availability of parents to children and results in agreements with which the parents and children are still happy with a year later.87 When a child contributes to the mediation process it helps ensure that the agreements reflect what is best for the child. A child’s perception can also be used to confirm whether the adult parties are telling the truth and can help contribute to “an atmosphere of mutual co-operation”.88 There are also advantages for the judicial system.89 Including that a child’s participation may increase the parents’ and the mediator’s understanding of the child’s needs, it can also be helpful to include a child when an impasse has been reached during the mediation process and that a child can also add valuable information and remind parents of why it is important to find “satisfying solutions” to the issues concerning the child.90
4.3 Concerns regarding participation
There are assumptions91 about mediation92 that reflect the ideals rather than the expedience of mediation. Evans and Havercamp93 propose that beliefs influence the process and the outcome of the mediation as they can become obstacles to fair and equitable agreements. They propose various strategies that can be used to address assumptions that are made in mediation, in order to address these concerns. Emery94 cautions that we must be careful not “to cross the line from giving children the right to be heard and enter the territory where we give children the responsibility for making adult decisions”.95 There is also the concern that a child could be “put in the middle” of their parents’ disagreements96 and that a child may be afraid97 when they are interviewed and may feel that they are been asked “to choose between their parents”.98 The mediator must make certain that the parties do not hear a distorted version of what the child is saying.99 If the child is allowed to feel that they have decision-making power then this could develop into a potentially dangerous situation as the child could feel guilty or develop a sense of “unrealistic omnipotence”.100 The concerns of the child may also be overemphasised and this could lead to parents making poor decisions when they try to do what their child wants.101 If the child becomes upset102 during mediation, this may also increase the hostility of parents towards each other or towards the mediator.103 Emery104 proposes that it is the parent’s role to take the child’s wishes, needs and preferences into account and if the parents cannot make decisions105 then other professionals need to do so.106
5. THE WAY FORWARD
When should a child participate in divorce mediation? What criteria should determine whether the child participates? Should the age of the child be considerd or only the maturity of the child? The provisions of the Children’s Act, with regard to the participation of the child, should not be strictly interpreted and any child who is able to express a view should have the right to be heard in divorce mediation, even if this means that a specially trained children’s interpreter/intermediary is required.107 The Ghanaian Children’s Act108 516 of 1998 specifies that
“[n]o person shall deprive a child capable of forming views the right to express an opinion, to be listened to and participate in decisions which affect his well-being, the opinion of the child being given due weight in accordance with the age and maturity of the child”. This Act is in line with the African Charter as it does not refer to the age of a child but to a child who is capable of forming views. It would be preferable for South African legislation not to refer to age but only to a child that is “capable of forming views”. Mediators should also include a child in mediation when the child is “capable of forming views”.
In divorce mediation in South Africa the views of the child can either be heard by a representative taking part in the mediation or the child can be heard by taking his or her views consideration after the child has discussed this with a third party, such as a psychologist. A child does not have to be present at the mediation sessions to have their views taken into consideration.109 Divorce mediators who are especially trained in communicating with children may interview the child directly in order to ascertain his or her views and let the parents know110.
A mediator can also help the parents to consider ways that they can talk to their child.111 The child should also be informed of their parents’ decisions, in particular regarding the parenting plan, since they need this information in order to form a view, and thus participate by expressing this view.112 The child can be informed by their parents, the divorce mediator or a third party, such as a psychologist who explains the contents of the parenting plan to them. Which of these options is chosen will depend on the circumstances of the particular case. The decision makers in the mediation remain the adults.113
A child’s participation in divorce mediation should be regulated, by including the ways in which this may take place in the Children’s Act. Specific participation guidelines for including children should be put in the rules of court, to bring them in line with the general rights of participate.

Generally all children should be encouraged to participate but this should be determined on a case-by-case basis.114
Divorce mediators in South Africa need to be aware of both national and international provisions allowing for the participation of children, and mediators must receive specific training in this regard.115 Divorce mediators need to seriously consider whether the rights of children to participate and in particular to be heard, are being ensured during divorce mediation.116   The views of the child must be heard and the age of a child alone should not be the deciding criteria as to whether a child may participate in divorce mediation. Rather, a child who is able to form a view and make this view known, even if this is done via an interpreter or representative, such as a psychologist, should participate in the mediation process. However, the paramount consideration in decisions made by parents during divorce mediation remains the best interests of the child.