Introduction
The appointment of a curator ad litem in legal matters involving the care and well-being of children has become increasingly important in ensuring that the best interests of the child are protected. The role of the curator ad litem has evolved over time, with its origins in common law and further developed through international law instruments and domestic legislation.
Under common law, the appointment of a curator ad litem was limited to cases where a parent was unable to assist or act on behalf of their child. This included situations where the child’s interests were in conflict with those of the parent or guardian, or when the parent or guardian unreasonably refused to assist the child (Boezaart, “The Role of a Curator Ad Litem and Children’s Access to the Courts,” De Jure, 2013).
International law instruments, such as the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), have further emphasised the importance of child participation in legal proceedings affecting them. Article 12 of the CRC and Article 4(2) of the ACRWC guarantee a child’s right to express their views and to be heard in judicial and administrative proceedings, either directly or through an impartial representative.
In South Africa, the Constitution and the Children’s Act 38 of 2005 have further entrenched the rights of children and the importance of considering their best interests in legal proceedings. Section 28(2) of the Constitution states that “a child’s best interests are of paramount importance in every matter concerning the child,” while section 10 of the Children’s Act provides for the child’s right to participate in any matter affecting them.
The role of the curator ad litem in giving effect to these rights has been recognised and developed by South African courts. In the case of Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC), the Constitutional Court acknowledged that the appointment of a curator ad litem is necessary to ensure that the interests of children are properly protected, particularly in cases where there is a risk of substantial injustice.
Furthermore, the courts have emphasised the importance of the curator ad litem’s role in providing insight into the wishes and views of the children involved, as well as applying their legal knowledge to the child’s perspective (S v J 2011 (3) SA 126 (SCA)). The curator ad litem is expected to conduct thorough investigations, engage with the children, and present arguments that promote the best interests of the child (Centre for Child Law v Minister of Justice and Constitutional Development 2009 (6) SA 632 (CC)).
The development of the curator ad litem’s role in South Africa can be attributed to several factors, including the country’s international obligations, the constitutional imperative to prioritise the best interests of the child, the provisions of the Children’s Act, and the increasing prominence of public interest litigation involving children’s rights (Boezaart, 2013).
The case of AR v BMR (060704/2023; 001200/2023) [2023] ZAGPPHC 2035 (8 December 2023) highlights the critical role played by the curator ad litem in safeguarding the interests of children in civil matters, particularly in divorce proceedings. The judgment in this case underscores the court’s duty to ensure that the best interests of the child are of paramount importance, as enshrined in section 28(2) of the Constitution of the Republic of South Africa, 1996, and further elaborated in the Children’s Act 38 of 2005.
The Evolving Landscape of Child Representation: The Curator Ad Litem and Children’s Access to Justice
The role of the curator ad litem in facilitating children’s access to the courts and ensuring their participation in legal matters affecting them has undergone significant development in recent years. South African courts have interpreted the common law, in light of the Constitution, the Children’s Act 38 of 2005, and international law, to expand the curator ad litem’s responsibilities in a wide range of cases. These include determining the welfare of children in same-sex adoption matters (Du Toit v Minister of Welfare and Population Development 2003 (2) SA 198 (CC)), investigating the circumstances of children whose primary caregiver is facing sentencing (S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) and S v S (Centre for Child Law as Amicus Curiae) 2011 (7) BCLR 740 (CC)), assessing the welfare of children in inter-country adoption cases (AD v DW (Centre for Child Law as Amicus Curiae and Department of Social Development as intervening party) 2008 (3) SA 148 (CC)), and representing children in parental responsibilities and rights disputes (S v J 2011 (3) SA 126 (SCA)).
The Constitutional Court, in Du Toit v Minister of Welfare and Population Development, recognised that the appointment of a curator ad litem falls within the scope of section 28(1)(h) of the Constitution, which guarantees a child’s right to legal representation in civil proceedings, particularly when there is a risk of substantial injustice. This interpretation has solidified the curator ad litem’s role in enabling children’s voices to be heard and their best interests to be protected (Boezaart, 2013).
The Children’s Act further entrenches the right of children to participate in matters affecting them. Section 10 of the Act states that every child who is of an age, maturity, and stage of development to participate in any matter concerning them has the right to do so, and their views must be given due consideration. This provision, along with the constitutional rights and international law obligations, has contributed to the growing recognition of the importance of the curator ad litem in ensuring children’s access to justice (Du Toit, 2017).
Once appointed, the curator ad litem is tasked with conducting investigations, engaging with the child, and preparing a report for the court that highlights pertinent facts and circumstances relevant to the application (Boezaart, 2013). The report should represent the best interests of the child by advancing arguments that can reasonably be made in the child’s favour. This role is crucial in assisting the court to make informed decisions that prioritise the child’s well-being and take into account their unique perspectives and needs.
The increasing prevalence of public interest litigation dealing with children’s rights and welfare has further contributed to the development of the curator ad litem’s role. Organizations such as the Centre for Child Law have been instrumental in bringing cases before the courts that have helped to define and expand the responsibilities of the curator ad litem in promoting children’s access to justice (Boezaart, 2013).
Moreover, Legal Aid South Africa has played a significant role in ensuring that children have access to legal representation in civil matters, thereby supporting the work of curators ad litem. This has been particularly important in cases where children’s interests may be at risk of being overlooked or where there is a potential conflict between the child’s interests and those of their parents or guardians.
In DKD v BDK & VAN ASWEGEN N.O. (Case number: 2022/6381) [2023] ZAGPJHC 382 (26 April 2023), Sarita Liebenberg AJ clarified the distinct role of the curator ad litem compared to that of the Family Advocate. Unlike the Family Advocate, the curator ad litem’s role is not neutral. The curator’s primary responsibility is to represent and advance the interests of the child concerned, ensuring that the child’s voice is heard directly, rather than merely speaking on their behalf.
A curator ad litem is not mandated to follow a child’s instructions, which sets them apart from a legal representative. This distinction can be a significant source of disappointment for older children and their parents, who may expect the curator to act on the child’s explicit wishes.
Court orders appointing a curator ad litem are typically broad, instructing the curator to investigate the matter and report their findings. This investigation usually involves interviews with the child (when possible), parents, family members, experts, teachers, and other relevant sources. The curator’s report, which may or may not include recommendations depending on the mandate, is considered by the court, and the curator may make submissions during the hearing.
A curator ad litem is appointed to protect the best interests of the child, especially when the child lacks parents or a guardian, the parent or guardian cannot be found, there is a conflict of interest between the child and the parent or guardian, or the parent or guardian unreasonably refuses or is unavailable to assist the child. The curator ad litem’s ultimate duty is to assist the court and the child during legal proceedings, ensuring the child’s interests are safeguarded. In fulfilling this court-ordered mandate, it is likely that the curator ad litem may cause frustration to one or both parents.
In summary, the role of the curator ad litem in facilitating children’s access to the courts and promoting their participation in legal matters has evolved considerably in recent years. Driven by the constitutional imperatives, international law obligations, the provisions of the Children’s Act, and the growing recognition of children’s rights, the curator ad litem has become an essential figure in ensuring that the best interests of children are protected and their voices are heard in judicial proceedings. As the legal landscape continues to evolve, it is likely that the curator ad litem will play an increasingly crucial role in advancing children’s access to justice and safeguarding their welfare in a wide range of legal contexts.
The Guardian of Children’s Interests: The Curator Ad Litem in Care and Contact Disputes
In civil matters involving the care of children, the appointment of a curator ad litem has become increasingly important to ensure that the best interests of the child are properly considered and protected. This is particularly true in cases where parents are engaged in highly contested disputes over care and contact arrangements, as the curator ad litem serves as an independent voice to represent the child’s needs and wishes.
The case of M v M, unreported judgment of the High Court of South Africa, Gauteng Division, Pretoria, Case No 57215/2017 (delivered on 13 March 2019), illustrates the critical role played by the curator ad litem in such matters. In this case, the court was tasked with determining the care and contact arrangements for the parties’ children amidst a contentious dispute involving multiple interim orders and expert opinions. The court emphasised that litigation involving the interests of children is not of the ordinary civil kind, but rather involves the exercise of the court’s inherent jurisdiction as the upper guardian of all minors.
Central to the court’s decision-making process was the role of the curator ad litem, who was appointed to facilitate adherence to the recommendations made by a clinical psychologist and to represent the children’s interests in all related applications and actions. The curator’s duties also included overseeing the process with the respective therapists, issuing directives in the best interests of the children, referring the parties and/or children to other experts or assessments as necessary, and reporting to the court on the progress of the process.
However, the court in M v M found that the curator ad litem had failed to properly discharge her duties, particularly in relation to an ex parte application for the removal and separation of the children from their mother’s care. The curator’s application was based on reports by social workers who had not considered alternative options or the potential trauma that such action would inflict on the children, especially given one child’s special needs and the youngest child’s reliance on the mother’s care. The court criticized the curator for failing to disclose all necessary information and for relying on hearsay evidence without applying basic evidentiary principles.
In light of these shortcomings, the court took the opportunity to clarify the role and responsibilities of the curator ad litem in such matters. The curator, as an officer of the court, must keep an open mind, remain neutral, and consider all arguments and inputs made by experts in the interests of the children involved. The curator’s role is to provide insight into the wishes and views of the children and to apply legal knowledge and perspective to advance their best interests, even if those arguments do not align with the curator’s personal preferences.
Furthermore, the court emphasised that the curator ad litem must not allow themselves to be drawn into the litigation arena or become a litigant themselves, as this could create a conflict of interest between their duty to protect the children’s interests and their own interests as an officer of the court. Instead, the curator should file reports to the court to exercise their functions, express views, and make recommendations.
The judgment in M v M serves as a reminder of the vital role that curators ad litem play in safeguarding the interests of children in care and contact disputes. It highlights the need for curators to maintain their independence, thoroughly investigate all relevant factors, and provide unbiased recommendations to the court. By doing so, curators ad litem can help ensure that the best interests of the child remain the paramount consideration in such matters, even in the face of acrimonious parental conflict.
Moreover, the case underscores the importance of curators ad litem being properly trained and equipped to handle the complex emotional and legal dynamics often present in care and contact disputes. Curators must be able to navigate the delicate balance between the rights and responsibilities of parents, the needs and wishes of the children, and the overarching goal of promoting the child’s well-being.
The role of the curator ad litem in care and contact disputes is not limited to providing recommendations to the court. Curators also play a crucial role in facilitating communication between parties, helping to de-escalate conflicts, and promoting the development of parenting plans that prioritise the child’s best interests. By working collaboratively with parents, legal representatives, and other professionals involved in the case, curators ad litem can help to create a more child-centered approach to resolving care and contact disputes.
In conclusion, the appointment of a curator ad litem in civil matters involving the care of children is an essential safeguard to ensure that the child’s best interests are properly represented and protected. As the judgment in M v M demonstrates, curators ad litem must be diligent, impartial, and focused on advancing the child’s welfare, even in the face of challenging and emotionally charged circumstances. By fulfilling this vital role, curators ad litem contribute to the proper administration of justice and help to secure the well-being of children caught in the midst of parental conflict.
Case Law
J v J 2008 (6) SA 30 (C): This case dealt with the relocation of a minor child and emphasised the importance of considering the child’s views and wishes in such matters. The court noted that while the child’s views are not determinative, they should be given due consideration in light of the child’s age and maturity.
F v F 2006 (3) SA 42 (SCA): In this case, the Supreme Court of Appeal stressed the need for a comprehensive investigation into the best interests of the child in relocation matters. The court highlighted the role of the curator ad litem in gathering and presenting relevant information to assist the court in making a determination.
LB v YD 2009 (5) SA 463 (T): This case involved a dispute over the primary residence of a minor child. The court emphasised the importance of the curator ad litem in providing an independent assessment of the child’s best interests and presenting recommendations to the court.
Ex parte Van Niekerk: In re Van Niekerk v Van Niekerk 2005 JOL 14218 (T): In this matter, the court appointed a curator ad litem to represent the interests of the minor children in a divorce proceeding. The case highlighted the role of the curator in ensuring that the children’s voices are heard and their needs are properly considered in the decision-making process.
Soller NO v G 2003 (5) SA 430 (W): This case dealt with the constitutionality of a provision in the Child Care Act 74 of 1983 that allowed for the removal of a child from their parent’s custody without judicial oversight. The court emphasised the importance of independent legal representation for children in such matters, including the appointment of a curator ad litem.
Fitschen v Fitschen [1997] JOL 1612 (C): In this divorce matter, the court appointed a curator ad litem to represent the interests of the minor children. The case highlighted the role of the curator in conducting investigations, interviewing relevant parties, and presenting recommendations to the court regarding the children’s best interests.
Kleynhans v Kleynhans (1995) 3 All SA 605 (O): This case involved a dispute over the custody and access arrangements for minor children. The court emphasised the importance of the curator ad litem in providing an objective assessment of the children’s needs and presenting recommendations to the court.
Terblanche v Terblanche 1992 (1) SA 501 (W): In this divorce matter, the court appointed a curator ad litem to represent the interests of the minor child. The case highlighted the role of the curator in investigating the child’s circumstances, interviewing relevant parties, and presenting recommendations to the court regarding the child’s best interests.
Ex parte Ramos 1996 (1) SA 19 (W): This case involved a dispute over the custody of a minor child. The court emphasised the importance of the curator ad litem in providing an independent assessment of the child’s best interests and presenting recommendations to the court.
Ogunbanjo v Ogunbanjo 2007 (2) SA 194 (N): In this divorce matter, the court appointed a curator ad litem to represent the interests of the minor children. The case highlighted the role of the curator in investigating the children’s circumstances, interviewing relevant parties, and presenting recommendations to the court regarding the best interests of the children.
Challenges and Best Practices for Curators ad Litem in South Africa
Curators ad litem play a vital role in safeguarding the interests of children in legal proceedings, but they also face several challenges in fulfilling their duties effectively. Some of these challenges include:
Balancing the child’s best interests with the views of the parents: Curators ad litem must navigate the often-conflicting perspectives of the parents while maintaining a focus on the child’s best interests. This can be particularly difficult in high-conflict cases where parental animosity may overshadow the child’s needs.
Best Practice: Curators should maintain a child-centered approach and prioritise the child’s well-being above all else. They should gather information from all relevant sources, including the child, parents, and professionals, to form an objective assessment of the child’s needs.
Ensuring the child’s meaningful participation: Curators ad litem are responsible for representing the child’s views and wishes to the court, but engaging with children and eliciting their genuine perspectives can be challenging, particularly with younger children or those with developmental difficulties.
Best Practice: Curators should receive specialised training in child development, communication, and interviewing techniques to facilitate effective engagement with children. They should create a safe, comfortable environment for the child to express their views and ensure that the child’s participation is voluntary and age-appropriate.
Managing the expectations of the parties: Parents may have unrealistic expectations about the curator ad litem’s role and may attempt to influence the curator’s recommendations to the court.
Best Practice: Curators should clearly explain their role and responsibilities to the parties from the outset, emphasizing their duty to the court and the child’s best interests. They should maintain professional boundaries and resist any pressure to align with a particular party’s interests.
Dealing with complex family dynamics: Curators ad litem often work with families experiencing high levels of conflict, dysfunction, or even abuse. These complex dynamics can make it difficult to discern the child’s true needs and interests.
Best Practice: Curators should collaborate with mental health professionals, social workers, and other experts to gain a comprehensive understanding of the family’s dynamics and the child’s experiences. They should also be familiar with the signs of abuse, neglect, and parental alienation and take appropriate action to protect the child’s safety and well-being.
Ensuring timely and thorough investigations: Curators ad litem are expected to conduct comprehensive investigations and provide recommendations to the court promptly. However, heavy caseloads and limited resources can make it challenging to complete these tasks within the required timeframes.
Best Practice: Curators should be proactive in their investigations and use their time efficiently. They should prioritise the most critical aspects of the case and seek the court’s guidance if they require additional time or resources to complete their duties effectively.
Maintaining objectivity and independence: Curators ad litem must remain objective and independent in their assessments and recommendations, even in the face of pressure from the parties or their legal representatives.
Best Practice: Curators should adhere to a strict code of ethics and maintain a professional distance from the parties. They should base their recommendations on a thorough, unbiased analysis of the evidence and resist any attempts to influence their judgment.
To overcome these challenges and promote best practices, curators ad litem in South Africa would benefit from:
Specialised training and professional development opportunities focused on child development, family dynamics, and the legal framework governing their role.
Clear guidelines and standards for the appointment, qualifications, and performance of curators ad litem to ensure consistency and quality across the profession.
Adequate resources and support, including access to multi-disciplinary teams and administrative assistance, to enable curators to manage their caseloads effectively and conduct thorough investigations.
Regular supervision, mentoring, and peer support to help curators navigate complex cases, maintain professional boundaries, and avoid burnout.
Ongoing education and awareness-raising initiatives to help the public, legal professionals, and the judiciary understand the critical role and responsibilities of curators ad litem in protecting children’s interests.
By addressing these challenges and implementing best practices, curators ad litem in South Africa can better serve the children they represent and contribute to a more child-centered, responsive family justice system.
Questions and Answers
What is the legal basis for the appointment of a curator ad litem in matters involving the care of children? The appointment of a curator ad litem is rooted in the court’s inherent jurisdiction as the upper guardian of all minors, as well as the provisions of the Children’s Act 38 of 2005. Section 28(1)(h) of the Constitution of the Republic of South Africa, 1996, also guarantees a child’s right to legal representation in civil proceedings, which may include the appointment of a curator ad litem.
What are the primary legal considerations for a court when appointing a curator ad litem? The primary legal consideration for a court when appointing a curator ad litem is the best interests of the child, as mandated by section 28(2) of the Constitution and section 9 of the Children’s Act. The court must be satisfied that the appointment of a curator ad litem is necessary to protect the child’s interests and ensure their participation in the legal proceedings.
What are the legal duties and responsibilities of a curator ad litem? The legal duties and responsibilities of a curator ad litem include investigating the child’s circumstances, interviewing relevant parties, representing the child’s views and wishes, and presenting recommendations to the court regarding the child’s best interests. The curator ad litem must also ensure that the child’s right to participation, as provided for in section 10 of the Children’s Act, is upheld.
How does the Children’s Act regulate the role of the curator ad litem? The Children’s Act does not specifically mention the term “curator ad litem,” but it does provide for the appointment of a legal representative for a child in various circumstances. Section 29(6)(a) allows for the court to appoint a legal practitioner to represent a child in any matter, while section 55 provides for the appointment of a legal representative in matters involving the abuse or neglect of a child.
What is the legal significance of the curator ad litem’s recommendations to the court? The curator ad litem’s recommendations to the court are legally significant as they provide an independent, objective assessment of the child’s best interests. While the court is not bound by these recommendations, they are given due consideration in light of the curator’s role as a neutral party appointed to protect the child’s interests.
How does the curator ad litem’s role differ from that of a Family Advocate? The curator ad litem and the Family Advocate both play important roles in protecting the interests of children in legal proceedings, but their functions differ. The Family Advocate is a state-appointed official who conducts investigations and provides recommendations to the court in terms of the Mediation in Certain Divorce Matters Act 24 of 1987. In contrast, the curator ad litem is appointed by the court to represent the child’s interests and acts as an independent legal representative for the child.
What is the legal basis for the curator ad litem’s authority to investigate and interview parties? The legal basis for the curator ad litem’s authority to investigate and interview parties stems from their appointment by the court and their duty to protect the best interests of the child. This authority is implied in the curator’s role and is necessary for them to gather relevant information and form an objective assessment of the child’s circumstances.
Can the court terminate the appointment of a curator ad litem, and on what legal grounds? Yes, the court has the power to terminate the appointment of a curator ad litem. The legal grounds for termination may include the completion of the curator’s duties, a conflict of interest, or if the court determines that the curator is not fulfilling their responsibilities in protecting the child’s best interests. The court may also terminate the appointment if it finds that the curator’s continued involvement is no longer necessary.
How does the curator ad litem’s role support the child’s constitutional rights? The curator ad litem’s role supports the child’s constitutional rights by ensuring that their best interests are protected (section 28(2)) and that they have legal representation in civil proceedings (section 28(1)(h)). The curator also facilitates the child’s right to participation (section 10 of the Children’s Act) by presenting their views and wishes to the court.
What is the legal recourse if a party believes the curator ad litem has not fulfilled their duties? If a party believes that the curator ad litem has not fulfilled their duties, they may raise their concerns with the court. The court has the authority to review the curator’s conduct and, if necessary, terminate their appointment or order them to take specific actions to protect the child’s interests. In extreme cases, the court may also refer the matter to the Legal Practice Council for disciplinary action against the curator.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline. A blog, managed by SplashLaw, for more information on Family Law read more here.