Legal Talk

There can be little doubt that one of the biggest casualty following a breakdown of a relationship, is the negative impact it has on the minor children. Whilst most divorcing or even non married couples will go through some difficulty in the initial phase of the break-up, most are able to find a path, where on the face of it at least, most ex-couples who have children are able to remain civil with each other, post the break-up. What of the parents who are unable for whatever reason to let go of all the hurt and bitterness of the past, even after its been a long since the divorce or break-up. When parents are that angry at each other, there's always the danger that the children end up being used as pawns between the warring parents. This can never be in the child's best interest. The constant feuding between parents undoubtedly fuels even greater insecurity on the children. Often times these can have disastrous consequences where the child will begin to manifest aberrant behaviour. In the case of LP v JCP a mother requested the court to appoint a curator ad litem for her 8 year-old son, who lived with his father. The facts of this case briefly were the following. The parties, who were never married, had a son in 2007. By 2010 the relationship ended and primary residency of the child was awarded by the court to the father. The mother wanted to change the court order to allow her primary residency of the child. However before bringing that application, the mother asked the court to appoint a curator ad litem for the child to report and make recommendation to the court about all matter affecting the child and that would also be used in her variation order for primary residency. Both the Children's Act 2005 as well as our Constitution state that there must be due consideration given to a minor child's needs and the minor's voice should be heard in all litigation involving a minor. The oft-used expression "in the child's best interests " is of paramount importance when a minor's rights are affected. In terms of our Constitution, if a child would otherwise suffer substantial prejudice, that child has the right to his or her own legal representation in all civil matters affecting the child. The State is required to provide one at its expense if the child or parents cannot afford it. A curator ad litem is someone whom the court will appoint for a person who is unable to handle or manage his or her personal affairs. This includes minors and people who are mentally incapacitated. A curator ad litem is required to assess, interview the person involved and to thereafter make a report and recommendation to the court regarding his or her findings. The mother's complaint in this case was that the 8-year child exhibited certain inappropriate and disturbing behaviour. She blamed the father, saying it was because of the father's lack of proper parental guidance and discipline over the child and the father in turn blamed the mother for the son's bad behaviour. In deciding whether or not to grant an order allowing the child to have a curator ad litem, Acting Judge Ratshibvumo, said it's necessary to draw a distinction between the child having his own legal representative as opposed to the child having a curator ad litem appointed over him. The judge said that whilst a legal representative would receive his or her instructions from the child, who is the client, the curator ad litem would assist the court and the child by looking at what is in the best interests of the child. On 13 May 2016, the court ruled that a curator ad litem be appointed, who would inter alia, be authorised to act in all matters where there is litigation involving the minor child, as well as to make a recommendation as to what is in the child's best interest regarding any application for a variation to the care and contact arrangements of the child. The curator was ordered to have full and unrestricted access to the child and to act as the child's legal representative in any legal proceedings, relating to the child's care contact and primary residence. The court also ruled that both parents jointly pay for the costs associated with the appointment of the curator ad litem.

The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031 - 502 5670 for legal assistance at competitive rates.