Presenters: Charles Mendelow and Sheetal Vallabh
Ursula Georgiadis – Advocate
Charl Albasini – Boela van der Merwe Attorneys
Reginald Joubert – Reg Joubert Attorneys
Elsa Wloschowsky – E Wise Attorneys
Bianca Waskow – Houghton Harper
Carien Els –
Elsabe Steenhuisen – Advocate
Louise Bick – Werksmans
Naledi Motsiri – Werksmans
Charles Mendelow introduced Sheetal, attorney, now a clinical psychologist, who plays a role in dispute resolution.
1. The Children’s Act
The Children’s Act talks about a multi-disciplinary approach, which is child-centric (arrange the parents around the children rather than vice versa). Section 28 of the Constitution states that if any harm would happen to a child in any process, a child has the right to legal representation at state expense. There is mention of this provision in the Children’s Act.
2. The difference between a child representative and the family advocate
Mendelow talked about where the role of a child’s representative would be different from the family advocate. The family advocate remains neutral in all cases, – investigating and making recommendations as most of the cases are settled by way of mediation.
The representative of the child is the child’s attorney, putting the child’s case across and saying what the child wants. The attorney acts as the child’s mouthpiece, amplifying the child’s voice and not a neutral party.
However, our role as attorneys is somewhat limited due to the child’s legal capacity and the nature of our profession. We may have to play a dual role, as the child is not always capable of expressing clear instructions, while relying on other professionals and assessments. The question then arises, when is it necessary and when can you represent?
In the case of a baby, for example, the court should appoint a curator ad litem, (who is not a child representative) and would be appointed to act for someone who cannot speak for themselves or does not have full legal capacity.
The LASA does a lot of child representation in terms of their mandate. However, they do not have the sole mandate to do this and there is no statutory provision prohibiting others to fulfil this role. They cannot meet demand as is clear from the number of referrals ProBono get. ProBono.Org can also fulfil this function and we need to investigate this possibility.
Does the curator get appointed by court? This seems to be best practice. Authority is needed to make enquiries, ask for documents, and assist the child throughout the entire process, which begs some kind of formal appointment.
The deciding factor should always be the child’s best interest. The question should be would severe prejudice or a substantive injustice occur if this minor were not represented? As said, the best interest of the child prevails in all matters affecting children, which could mean due cognisance of the child’s cultural heritage, background and community.
3. Mediation as process
From a mediation point of view, it is important to get agreement on a process, if not an outcome. An important change in child law is that residency cases and contact with children’s cases is now being dealt with in children’s courts, which is often a better system than the high court; no pleadings; specialised attorneys and competent magistrates.
Minors have to be represented when in court, but court is a last resort. Efforts should be made first to resolve parenting plans either through mediation or assisted therewith (by a psychologist, social worker or family advocate). However, in most cases mediation is not an option due to the nature of the cases referred to ProBono.Org.
4. ProBono.Org’s role
ProBono appoints volunteer private attorneys to represent children referred by the children’s court. The attorney can be the child’s representative in the court or have a watching brief (many referrals involve a criminal court component). Problems arise with accessing the services of social workers and other professionals, who say they only take cases on direct instruction from a court. That is why the role of the curator should be explored and our appointment formalised.
It was suggested ProBono link up with the Family Life Centre (Pam), Joburg Parent and Child (JCAF), FAMSA (Claire), Teddy Bear Clinic and others to create partnerships, MOUs and an extended resource base. ProBono’s law clinic status should give it the necessary authority to approach the children’s court and to be a curator (as we know legal aid cannot meet the demand) and there should be a tariff applied to this? The Mediation Panel could get the rules changed. Mendelow is willing to help formulate this, should we want to pursue this angle. The Rules Board? (Adv. Georgiadis is willing to provide us with an opinion on this issue).
Another option is to talk to LASA as well so that our work still remains pro bono but the attorneys we use can be paid.
The question is what is our mandate? What do we need our volunteers to do in these cases? We need to better circumscribe our memos or briefs to attorneys and advocates, clarifying our instructions, and see if some cases could be mediated.
5. In conclusion
Annelie mentioned that ProBono is asked by the Children’s courts in Randburg and Germiston to secure pro bono attorneys for children. This is due to the huge need in these courts as children in poorer communities often fall through the cracks in the system. We are presently appointed as the child representative until such time as we can secure another attorney from a private firm. The child is not therefore not always giving direct instruction (although our offices consult with children and parents in some cases).
Mendelow considers this to be a curator ad litem function and that attorney should be able to be paid at state expense. We need to talk to the LASA as well so that our work would be pro bono but the attorneys we use can be paid.
Thanks and close.