The Child’s Right to Legal Representation

The case of FB and Another v MB 2012(2) SA 394 (GSJ) dealt with the issue of a minor child’s rights to legal representation (i) bring a matter to Court; and (ii) to be afforded a right to be assisted by his own legal representative.

This matter which involved a 16-year-old boy focused primarily on his right to be independently represented by his own legal counsel in respect of an application which was going to be heard the following week in the High Court for variation of his primary residence to his father and for his subsequent removal to Portugal for purposes of future residence and study.

The High Court in deciding the application applied its mind only to the issue of the right of the minor to appoint his own legal representative for purposes of representing him in the forthcoming application and did not deal with the issue of variation of primary residence or relocation to a foreign country.

In deciding the application, a comparison was made between:

Section 28(1)(h) of the Constitution of the Republic of South Africa which provides that – “every child has the right to have a legal practitioner assigned to the child by the State and at State expense, in civil proceedings affecting the child if substantial injustice would otherwise result”

Section 8(1) of the Children’s Act 38 of 2005 which provides that – “the rights which a child has in terms of this Act supplements the rights which a child has in terms of the Bill of Rights”

Section 14 of the Children’s Act which provides that – ”Every child has a right to bring and to be assisted in bringing a matter to Court, provided the matter falls within the jurisdiction of that Court”

The Court held that while Section 14 of the Children’s Act does not prescribe the manner in which a child is to bring a matter to Court nor in the way in which a child is entitled to be assisted, the paramount consideration in all such matters is the child’s best interests. The Court further held that in the matter at hand such consideration had to by necessity take into account the fact that the child was already a party to the proceedings and that the child would, if not represented, be placed in a worse position than the other parties who enjoyed a right of legal representation. As such the application by the child for the appointment of his own legal counsel was granted.

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