A client asked: At what age can the child legally decide for themselves whether they want to maintain contact with the other parent?
Answer: There is no set age in South African Law where a child under 18 can make a decision. The Children’s Act 38 of 2005 states that if the court is convinced that the child is of sufficient maturity to make his own choice and not, for instance, be influenced by his parents in his choice, the court will take his choice into consideration.
In deciding whether to take the child’s wishes into account, the court looks at age, maturity and stage of development, gender, background and any other relevant characteristics of the child.
Section 10 of the Children’s Act ([a38y2005s10] dealing with child participation) provides that: “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”.
The factors taken into account include (but are not limited to):
In special circumstances, a court may consider a child as young as 10 years old sufficiently mature enough to meaningfully contribute to decisions about her welfare.
The over-riding factor is the best interests of the Child. NOT the child’s decision.
The test is set out in section 9 of the Act (best interests of child paramount): “In 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”.
Here’s a very useful article on participation:
Bregman Moodley Attorneys Inc. 2015/089214/21
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Consultants: Sarah-lynn Tennant