The Practice of Judges Interviewing Children in Chambers | CDN v MDN (093505/2023) [2023] ZAGPPHC 1885

In matters involving children, judgments must often be made by Judges without a full picture of all relevant facts. These judgments have far-reaching effects on the children and their future.

I have been fascinated of late by the concept of child participation in litigation matters (often referred to colloquially as the "voice of the child"). Pertinently, I have been engaging with professionals in various different spheres of practice regarding their views on child participation and its various forms.

Several examples exist of instances where presiding officers have interviewed children in their chambers. The example dealt with below in this article is no different, save for the judge's approach in not conducting the interview but rather only sitting in as an observer whilst a social worker conducts the interview.

We know that Section 10 of the Children's Act, 2005 affords children the right to participate in matters concerning them; the section reads:

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.

A few important considerations to point out in respect of section 10, based simply on a plain reading of the section itself:

1. The section makes it clear that not all children are of an age, maturity and stage of development so as to participate in matters concerning that child.
2. The child must be afforded the right to participate "in an appropriate way". This is very broad, and what is appropriate may well be a highly fact-specific question.
3. The views of the child must be given due consideration. It is clearly not the intention of the Legislator that the child's views must be binding in any way, though they must receive due consideration.

Interestingly, Section 10 only requires the views of the child to be given due consideration. Section 31(1) of the Children's Act broadens the onus, however, requiring that the views AND wishes of the child be given due consideration under certain circumstances, namely:

(1) (a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b) involving the child, that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child's age, maturity and stage of development.

(b) A decision referred to in paragraph (a) is any decision

(i) in connection with a matter listed in section 18 (3) (c);

(ii) affecting contact between the child and a coholder of parental responsibilities and rights;

(iii) regarding the assignment of guardianship or care in respect of the child to another person in terms of section 27; or

(iv) which is likely to significantly change, or to have an adverse effect on, the child's living conditions, education, health, personal relations with a parent or family member or, generally, the child's wellbeing.

The extent to which children's views and wishes must be adhered to is often a controversial question.

Anecdotally, the two main objections I have heard from professionals regarding Judges interviewing children in chambers are as follows:

1. The Judge is not always suited to make sound conclusions from what the child tells them due to their skillset - judges are, after all, lawyers and not mental health professionals; and
2. The interview may devolve into a Judge simply posing the question, "With which parent do you want to stay?", which is obviously a devastating question for a child to have to answer.

In the very recent North Gauteng High Court decision of CDN v MDN (093505/2023) [2023] ZAGPPHC 1885 , the Court seems to have taken a novel approach to interviewing children in chambers, namely by having the interview facilitated by a social worker, and the judge simply sitting in as an observer.

This judgment emanates from the Urgent Court, in a matter where there was an urgent application, an urgent counter-application, and seemingly many allegations of fact on the papers.

A High Court faced with an urgent application involving children usually does not have the benefit of comprehensive expert reports. Furthermore, the information placed before it on affidavit is often cobbled together on an urgent basis. Thus, the Court is in a highly invidious position where it has to make life-changing decisions with scant information and opinions to guide it.

The Court in CDN v MDN decided to embark on the journey of conducting an interview with the child, and a thorough discussion on the principles regarding interviews with minor children appears in the judgment from paragraphs 43 - 62.

At paragraph 47, the Judge poignantly states:

"While judicial interviews are not necessarily common in South Africa, there are courts that have utilized them to assist them in better understanding child-related disputes before them. By allowing children to participate through the expression of their views in disputes that concern them, such children are not providing evidence that should be evaluated. Rather, they are provided an opportunity to express their feelings, wishes, and desires. They are not providing testimony but are invited to provide the court with a sense of how they view the dispute between their parents and indicate how such dispute impacts them."

The Court then goes on to state at paragraph 62 the reasons why it attaches significant weight to the views of the children.

Whilst the Court took serious cognizance of the children's views and wishes expressed in chambers, it was made exceedingly clear in the judgment that:

1. There are significant risks and drawbacks to overly relying on the views and wishes of children in the context of a judicial interview;
2. The order made in this instance was solely an interim measure while the matter received further investigation and intervention;
3. Further measures would be implemented to ensure that the children could participate appropriately, such as the appointment of a curator/curatrix ad litem

The Court, in this case, made it clear that the child interview in chambers is by no means a panacea, but if utilised appropriately it can be a very useful tool for judges in urgent court to piece together complex matters to set in place a workable interim status quo in instances where more thorough investigative measures have not yet been undertaken.