Legal Representation for children Constitution, 1996

1. Legal Representation for childrenConstitution, 1996 2010

2. Aim of Discussion Constitution 108 of 1996 • Provisions of section 28 of RSA Constitution (civil matters) • Provisions of section 35 of Constitution. (criminal matters) • 5 High Court decisions – facts relevant to discussion

3. Civil proceedings – section 28 “28(1)Every child has the right – (h) 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 28(1)(h) provides :

4. Soller NO v G 2003(5)SA 430 (W) Application: Variation of a custody order Facts: The court awarded custody of minor to mother when it granted a decree of divorce. The minor, aged 15, wanted to reside with father, hence application for variation.

5. Legal practitioner appointed • Court found section 28 applicable • Court appointed a practitioner with: • 20 years experience as attorney • expertise in Family Law • prior involvement in associations and organisations concerned with familylife, divorcecounselling and mediation.

6. Role of practitioner “The practitioner stands squarely in the corner of the child and has the task of presenting and arguing the wishes and desires of that child. This task is not without certain inbuilt limitation. The legal practitioner does not only represent the perspective of the child concerned...”

7. Role of the practitioner cont. “The legal practitioner should also provide adult insight into those wishes and desires which have been confided and entrusted to him/her as well as apply legal knowledge and expertise to the child’s perspective. ...” “The legal practitioner may provide the child with a voice but is not merely a mouthpiece.”

8. Blackmore v Smit: 19660/08 • Application: Appointment of curator ad litem in proceedings, in terms of Rule 49(11) and (12) of Uniform Rules • Facts: • Minor concerned was 5 years old and by order of court in temporary custody of maternal aunt. Mother was deceased. • When court ordered return of minor to father, the aunt appealed. • Father applied for implementation of custody order pending outcome of appeal.

9. Legal practitioner for 5 year old • Court in appointing practitioner found: • Relationship between father and aunt was acrimonious • Minor needed ‘a voice’ else substantial injustice may result. • The minor had expressed clear views to 3 independent psychologists despite tender age.

10. Choice of practitioner • Court appointed practising advocate (Senior Counsel from Cape Bar). • The advocate: • had experience in Family Law litigation • had experience with young children • was willing to accept appointment

11. City of Cape Town v C van derPoel: 11522/08 • Application: Eviction from residential property • Facts: • City applied for eviction of occupants of property on basis that drugs were being sold from premises. • Some of occupants were young children.

12. Legal practitioner appointed • Court found interest of minors required protection and therefore appointed: • Centre for Child Law, as amicus, to assist children. • (matter still pending)

13. State v Rashaad Meyer • Regional Court convicted accused on various sexual offences involving 4 minors. That court referred matter for sentence to High Court. • During process, 2 minors recanted • Court directed Legal Aid Board to appoint counsel for minors: • Having recanted, they ran risk of criminal prosecution • (Matter is still pending)

14. Legal Aid Board v R 2009(2)SA 262 (D) • Application: Legal Aid Board brought application “for an order declaring that a certain attorney had been duly assigned by the applicant as legal practitioner” to a minor in respect of whom custody litigation was pending • Facts: • The minor’s parents were engaged in acrimonious divorce proceedings. The minor, 12 years old, had approached Childline for assistance

15. Legal Aid board entitled to appoint practitioner • Court said: • Legal Aid Board, in deciding to render assistance was not constrained a need to obtain consent of child’s guardian or any other person exercising parental responsibilities in relation to child • Legal Aid Board did not require a court order –board had a discretion • In terms of the Legal Aid Act, board had power to render legal assistance in discharge of State’s obligation under section 28(1)(h) of Constitution.

16. Legal Aid Board entitled to appoint cont. • “It is,... conceivable that the ... Board will be influenced by the reaction of the presiding judge ... Where the appointment is sought to be made in the middle of litigation that is ...part-heard, the view of the presiding judge as to the appropriateness of such appointment ...will...be important.” However, the court found that an initial consultation, in appropriate circumstances, with the child’s guardian would assist the Legal Aid Board determine the need to appoint a practitioner to represent the minor.

17. Choice of practitioner • “The whole point of appointing a legal representative for the child is for that legal representative to exercise her / his independent judgment as to the best interests of the child ...as he/she deems appropriate, to assist the court in reaching the best possible decision...” • The practitioner: • senior practising attorney • experienced in Family Law • Role of practitioner:

18. Conclusion • Courts have taken liberal view to implementation of section 28(1)(h) • Practitioners and Legal Aid Board have shown willing to give meaningful effect to 28(1)(h) • Role of practitioner – squarely in corner of child – to apply legal knowledge and expertise to child’s perspective. • Senior family practitioners appear most appropriate for appointment.

19. Representation in criminal matters • “Everyone who is detained, including every sentenced prisoner, has the right – • (c) to have a legal practitioner assigned to the detained person by the State and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” Section 35(2)(c) of Constitution provides that:

20. Practice in Criminal Proceedings • Effect is given to section 35(2)(c) in that at first appearance in criminal proceedings, the accused is informed of his rights and makes an election • Legal Aid Board personnel appear to be on hand at relatively short notice. • This appears from records of proceedings in the Lower Court that I have seen on automatic review.

21. S v M 1982 (1) SA 240 (N) • “Accused persons sometimes plead guilty to charges, experience shows without understanding fully what these encompass. The danger of doing so is obvious in a society like ours, which sees many who are illiterate and unsophisticated coming before the courts with no legal assistance. The danger is greater still, it goes without saying, when such a one is young with limited grasp of the proceedings.” Court stressed importance of legal representation as follows:

22. Conclusion Although the presiding officers appear to explain, at the first appearance, to accused persons their rights in terms of section 35, special care is required in the case of young offenders.