Authored By: Lillian Nxhalati Mbhiza
University of South Africa
A South African Legal Perspective
Children are among the most vulnerable members of society and often depend on adults to make decisions affecting their welfare. For many years, legal systems treated children as passive recipients of protection rather than active participants in decisions concerning their lives. Their opinions were frequently ignored because they were presumed to lack the maturity necessary to contribute meaningfully to legal proceedings.
The adoption of the Constitution of the Republic of South Africa, 1996, marked a significant shift in the recognition of children’s rights. The Constitution acknowledges that children possess independent constitutional rights and that their best interests are of paramount importance in every matter concerning them. One important aspect of this constitutional protection is the child’s right to express views and have those views considered in judicial proceedings.
The right to be heard promotes dignity, equality, and participation. It ensures that courts consider children’s experiences, wishes, and concerns before making decisions that may significantly affect their lives. This right applies in various legal proceedings, including child custody disputes, adoption applications, child protection matters, divorce proceedings, and criminal cases involving child witnesses or offenders.
Despite the strong legal framework protecting children’s participation, practical challenges continue to limit the effective implementation of this right. Factors such as inadequate child-friendly court procedures, insufficient training for judicial officers, language barriers, and children’s fear of participating in court proceedings often prevent meaningful participation.
This article examines the legal framework protecting a child’s right to be heard in court, analyses significant Constitutional Court decisions, explores the challenges affecting the implementation of this right, and proposes recommendations for improving child participation within the South African justice system.
South Africa’s Constitution provides one of the strongest protections for children’s rights in the world.
Section 28 of the Constitution: [1]
Section 28 recognises several rights specifically applicable to children. Most importantly, section 28(2) provides:
“A child’s best interests are of paramount importance in every matter concerning the child.”
This principle requires courts to place the child’s welfare at the centre of every decision. Although section 28 does not expressly state that children have the right to participate in court proceedings, meaningful consideration of a child’s best interests cannot occur unless courts understand the child’s views wherever appropriate.
The Constitutional Court also confirmed that children are independent rights holders rather than merely extensions of their parents. Nevertheless courts must ensure that children are afforded an opportunity to express their opinions whenever decisions directly affect them.
Constitutional Values
Several constitutional rights reinforce the child’s right to be heard.
Section 10 protects every person’s right to human dignity. Respecting a child’s views acknowledges that children possess inherent dignity and deserve to participate in decisions affecting their lives.
Section 9, which guarantees equality before the law, supports equal recognition of children’s voices regardless of age, gender, disability, or social background.
Furthermore, section 34, which guarantees access to courts, contributes to ensuring that children receive fair treatment during judicial proceedings.
Collectively, these constitutional provisions establish a child-centred approach to justice that recognises children as active participants rather than passive observers.
International Legal Framework: [2]
South Africa’s protection of children’s rights is strongly influenced by international law. Section 39(1)(b) of the Constitution requires courts to consider international law when interpreting the Bill of Rights. Consequently, international instruments play an important role in shaping the legal principles governing a child’s right to be heard.
The United Nations Convention on the Rights of the Child
South Africa ratified the United Nations Convention on the Rights of the Child in 1995. The Convention is regarded as the leading international treaty protecting children’s rights.
Article 12 of the United Nations Convention on the Rights of the Child provides that every child who is capable of forming their own views has the right to express those views freely in all matters affecting them. It further requires that the child’s views be given due weight according to the child’s age and maturity.
The Convention also states that children should be given the opportunity to be heard in judicial and administrative proceedings, either directly or through a representative or an appropriate body. This provision recognises that participation does not always require children to testify personally in court. Instead, their views may be communicated through legal representatives, family advocates, social workers, psychologists, or other qualified professionals.
The United Nations Convention on the Rights of the Child rejects the outdated assumption that children are incapable of making meaningful contributions to decisions affecting their lives. Instead, it recognises children as rights holders with evolving capacities that should be respected.
The African Charter on the Rights and Welfare of the Child (ACRWC)
South Africa is also a party to the African Charter on the Rights and Welfare of the Child (ACRWC). The Charter reinforces children’s participation rights within the African context.
Article 4 of the Charter provides that in all judicial or administrative proceedings affecting a child who is capable of communicating their own views, an opportunity must be provided for those views to be heard either directly or through an impartial representative.
The Charter therefore complements the UNCRC by emphasising that children’s participation should always serve their best interests while recognising the unique social and cultural circumstances within African states.
The Children’s Act 38 of 2005 [3]
The Children’s Act gives practical effect to the constitutional and international protection of children’s rights.
One of its most significant provisions is section 10, which expressly recognises a child’s right to participate in decisions affecting them.
Section 10 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.”
This provision establishes three important principles.
First, children have a legal right to participate in matters affecting them.
Secondly, participation depends on the child’s maturity and developmental stage rather than age alone. A younger child may be sufficiently mature to express meaningful views, while an older child may require additional assistance.
Thirdly, courts and decision-makers are required to consider the child’s views seriously. This does not mean that the child’s wishes automatically determine the outcome. Rather, their opinions form an important factor that must be balanced with other relevant considerations, particularly the child’s best interests.
The Children’s Act therefore shifts South African law away from an adult-centred approach towards one that actively recognises children as participants in legal processes.
Judicial Interpretation and the Role of the Courts:
S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC) [4]
One of the most influential Constitutional Court decisions concerning children’s rights is S v M. The case involved a mother who was sentenced to imprisonment, raising concerns about the impact of her sentence on her young children.
Justice Albie Sachs held that section 28(2) of the Constitution requires courts to give paramount consideration to the best interests of children whenever a decision is likely to affect them. The Court stressed that children should not suffer unnecessarily because of decisions made about their parents. Judicial officers must therefore consider the circumstances and needs of affected children before imposing a sentence.
Although the children did not testify directly, the Court relied on reports prepared by experts that reflected their circumstances and interests. The judgment demonstrates that children can be heard either directly or indirectly through appropriate representatives. It also reinforced the principle that children’s rights deserve independent consideration in legal proceedings.
ADand Another v DW an d Others 2008 (3) SA 183 (CC) [5]
This Constitutional Court case concerned the adoption of a child. The Court considered whether the legal process adequately protected the child’s welfare and participation rights.
The Court held that adoption proceedings must always promote the child’s best interests. It recognised that, where appropriate, children should be given an opportunity to express their views regarding decisions that will permanently affect their family relationships.
The judgment reaffirmed that children are not merely passive subjects of legal proceedings but individuals whose voices should be considered when determining what outcome best serves their welfare.
Challenges in Implementing the Right to Be Heard:
One major challenge is the lack of child-friendly court environments. Courtrooms are often intimidating, formal, and unfamiliar, making it difficult for children to communicate openly.
Another challenge is the shortage of trained professionals who specialise in interviewing children. Family advocates, psychologists, social workers, and legal representatives play an essential role in helping children express their views accurately and comfortably. However, these services are not always available, particularly in rural areas.
Recommendations:
Although South Africa has one of the most progressive legal frameworks for protecting children’s rights, greater efforts are required to ensure that every child can effectively exercise the right to be heard in court.
- Create More Child-Friendly Courts
Courtrooms should be designed to reduce fear and anxiety for children. Separate waiting areas, child-friendly interview rooms, and the use of technology such as closed-circuit television can help children participate without unnecessary trauma.
- Improve Training for Judicial Officers
Judges, magistrates, prosecutors, legal practitioners, family advocates, and court officials should receive specialised training on children’s rights and child psychology. This will enable them to communicate effectively with children and better assess the weight to be given to children’s views.
- Strengthen the Role of Family Advocates and Social Workers
Family advocates, psychologists, and social workers play an important role in ensuring that children’s views are accurately presented to the court. Government should invest in recruiting and training more professionals, particularly in rural and under-resourced communities.
The child’s right to be heard is a fundamental component of South Africa’s constitutional democracy and reflects the country’s commitment to protecting children’s dignity, [6]equality, and best interests. The Constitution, the Children’s Act 38 of 2005, and international instruments such as the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child recognise children as independent rights holders whose opinions deserve respect and consideration.
Reference(S):
Legislation
Constitution Of the Republic of South Africa,1996.
Children’s Act of 2005
Child Justice Act 75 of 2008
Cases
AD and Another v DW and Others 2008 (3) SA 183 (CC).
S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC).
[1] South Africa’s constitution
[2] International law
[3] Children’s Act 38 of 2005
[4] S v M (Centre for Child Law as Amicus Curiae) 2007 (2) SACR 539 (CC)
[5] AD and Another v DW an d Others 2008 (3) SA 183 (CC)
[6] Fundamental rights
