Child participation in family group conferences in care and protection cases: a comparative analysis of South Africa, New Zealand and Australia.
Kitching, Maria Elizabeth.
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The United Nations Convention on the Rights of the Child 1989 awarded children the right to be heard and to express their views in all matters that affect them. This includes the right of the child to participate in decision-making processes that affect their lives and shape their futures. Although progress has been made in many countries by changing their legislation, policy and practice to include children in decision-making, it remains the case that the right to be heard is unrealised for many children across the world. Many children, exposed to abuse and neglect, do not have access to welfare and justice services and it is often the view in certain cultures that children should be “seen and not heard”. These children are then excluded from expressing their views and feelings and do not have the opportunity to participate in decision-making processes. Even if children are provided with the opportunity to express their views, it is imperative that these views are taken seriously and are considered when decisions are made about their lives, especially in instances where children are in need of care and protection. One of the ways in which children’s voices can be heard in care and protection matters is by using alternative dispute resolution methods. One of these alternative dispute resolution methods, family group conferences, was initiated in New Zealand and was adopted in countries across the world, including Australia. This has been found to be cheaper than statutory court processes and also less intimidating to children and their families. In South Africa the Children’s Act 38 of 2005 was adopted to strengthen the statutory child protection system to give effect to the right of the child to be heard in care and protection matters, and to participate in decisions that affect their lives. The overall aim of this study is to critically examine the current South African, New Zealand and Australian legislation which governs the implementation of FGC and the factors that influence the child’s right to be heard and to participate in decisions that affect his/her life. This study is exploratory and has two primary aims. First, to explore child participation in FGC, pertaining to care and protection matters as contained in South Africa’s legislation as well as in other countries ie New Zealand and Australia. Secondly, to formulate recommendations based on the relevant international materials and experiences of New Zealand and Australia for improvement of the South African law and practice. The dissertation further aims to demonstrate that the shortcomings in the South African legislation can be overcome by means of appropriate solutions such as legislative amendments, supplementary provisions or guidelines. The research identified gaps that exist in the current South African legislation, and sections were identified where improvements could be made and instances where guidelines need to be developed to improve the legislation and guide the implementation of FGC in care and protection cases in South Africa. There is a lack of clarity and direction in respect of child participation in FGC in child care and protection matters in South Africa and the researcher is therefore of the opinion that this study and the application of the recommendations could make a valuable contribution to South Africa’s implementation of FGC and the child’s participation in this decision-making process.