The first definitive judgment on the issue of separate legal representation for a child in a civil matter and the application of s 28(1) (h) of the Constitution was Soller v G 2003 (5) SA 430 (W)  However, in Soller a separate legal representative was appointed by the court and the court made valuable contributions by distinguishing between the role of the Family Advocate and a separate legal representative for a child, but it did not deal specifically with the practicalities of how a child would obtain separate legal representation. The case of Legal Aid Board v R 2009 (2) SA 262 (D) for the first time dealt with the authority of the Legal Aid Board (hereafter ‘LAB’) to appoint a separate legal representative when approached by a child for such assistance and not as a consequence of an order by a presiding judge.

The court delivered a groundbreaking judgment setting out that when the LAB is appointing a legal representative for a child, it is discharging the state’s duty in terms of s 28(1) (h) of the Constitution and that the LAB is not constrained to obtain permission from a parent of guardian when making such appointments.

The matter concerned a 12-year-old girl who had been the subject of an acrimonious battle between her parents since she was 5 years old. At a previous hearing the presiding judge directed that the Minister for Justice and Constitutional Development must make arrangements for a legal representative to be appointed for the child. This order was, for several reasons, impractical and could not be carried out. The child thereafter contacted Childline with a request for help as she felt her views and wishes were not being respected by her parents. Through the assistance of Childline and the Centre for Child Law, a legal representative was appointed for her by the Legal Aid Board in Durban.

The mother of the child, who had custody of her, contested the appointment of a legal representative for the child on the ground that she was the child’s guardian and that she should have been approached in the first instance. The mother further stated in a letter from her attorney that she would not allow contact and consultations between the child and her attorney. The LAB approached the court on an urgent basis for a declarator that it had the authority, and indeed a duty, to appoint a legal representative for the child; that such legal representative had been duly appointed; and that he should be allowed to consult with the child and represent her in all litigation between her parents concerning her.

During argument, counsel for the mother contended that such appointment was unnecessary as the mother is the guardian of the child and as such is acting in the best interest of the child. She further argued that the LAB was not empowered to appoint a legal representative for a child and that it must be the guardian of the child or the court who appoints a legal representative for the child. The court surmised that the mother’s objections were based on the fact that she was not consulted on whether an attorney should be appointed for the child and if so, who should be appointed. She also demanded that a legal representative be subject to conditions that would limit his powers to act on behalf of the child, including that the mother be consulted at every turn.

The reasoning of the judgment starts with an examination of s 28(1) (h) of the Constitution and finds that the key test is whether ‘substantial injustice’ would result if a separate legal representative is not appointed for the child. Willis AJ finds that questions about where a child is to live and which parent will be making the most important decisions in the child’s life, are of crucial importance for a child. It is the child who will be the subject of the decision and who must live with the consequences; it is therefore vitally important that her views are taken into consideration when making these decisions. When it is evident that the child’s views are being drowned out by the warring parents, there will likely be a substantial injustice if a separate legal representative is not appointed for the child.

In particular in this case, the appointment of a legal representative for a child will not only be helpful, it will allow the child to participate in the proceedings. The child has indicated to experts and the attorney appointed for her by the LAB that she wishes to express her own opinions and a previous judge had already pronounced on the need to appoint a separate legal representative for this child due to the level of acrimony in the litigation between the parents. It is therefore clear that in this matter there is a need to hear the child independently from her parents.

Section 10 of the Children’s Act 38 of 2005 creates a valuable general principle that entrenches children’s right to participate in proceedings that will affect them.

This general principle entrenches the child’s right to participation as set out in the African Charter on the Rights and Welfare of the Child and the United Nations Convention on the Rights of the Child. Although Wallis AJ does not specifically mention s 10 of the Children’s Act, it does create a precedent that will assist in the implementation of s 10 in the future.

In respect of the mother’s objections the court noted that it is an inherent risk of separate legal representation for a child that one of the parents may disagree with such an appointment.

Although the court does not pronounce on this, it is the nature of high conflict litigation between parents that there is a difference of opinion on what is in the best interest of the child. The child’s opinion will invariably incur the disapproval of one of the parents and it is precisely for this reason that a child has separate legal representation, independent from either parent. It is essential to ensure that the child’s views are respected as being their own and not influenced by either parent. The fact that one parent disagrees with the decisions of the attorney does not necessarily mean that the decision is wrong. The decisions of the legal representative will be based on the instructions and views of the child client and will invariably meet with disapproval from one or both of the parents.

In terms of s 3 of the Legal Aid Act 22 of 1969 the LAB is charged with the duty to provide legal representation for the indigent and as contemplated in the Constitution. Section 28(1) (h) requires the provision of legal representation for children at ‘state expense’. Willis AJ finds that s 3 of the Legal Aid Act is broad enough to include all situations where the Constitution requires the appointment of legal representation by the state. Indeed the LAB is ideally suited to provide such representation. Furthermore, the LAB placed evidence before the court that it has legal practitioners who specialise in representing children, that they have budgeted for such representation and that they see it as their duty in terms of the Constitution. The LAB is therefore best placed and is in fact discharging the state’s duty in terms of section 28(1) (h).

The court also addresses the mother’s objection that it is the court as upper guardian of the child who should request that a legal representative be appointed for the child and that the LAB is not empowered to do so on request from an outside party or the child herself. The question is, how are children to practically accomplish obtaining legal representation through a court if they require legal representation to approach a court? Can the LAB assist children for the limited purpose of obtaining consent from the court that a legal representative may be appointed for them? The court finds that this approach will not be in the best interests of children. It is a cumbersome procedure that may result in delays and requires extraordinary actions on the part of the child. In this matter the child reached out to a reputable organisation, Childline, and repeatedly indicated that she wished to have her own legal representative. The LAB is a suitable agency specialising in assisting children and is therefore empowered to appoint a legal representative for a child.

It must be noted that it will only be in the most difficult and high conflict cases, where a child has strongly held wishes and opinions which he or she wishes to bring to the attention of the court and which have thus far been ignored or made subsidiary to the conflict between the parents, that separate legal representation for a child will be required. The court recognises this. It will only be in the most unusual cases that one will go on to appoint a legal representative for a child against the wishes of a parent or guardian. In most cases there will be a need to consult with the parents and it will mostly be appropriate to discuss such an appointment with parents before appointing the legal representative. However, there are cases in which it may be inappropriate to consult with a parent because the action the child wishes will be against that parent.

The court does not go into such practicalities but one can easily imagine that a parent may wish to get a second bite at the cherry by trying to obtain separate legal representation for the child. It is therefore imperative that the assessment of whether a child needs separate representation and the appointment of such representative, be made by an independent party. Counsel for the mother argued that a child is subject to guardianship . The guardian acts on behalf of the child and should therefore be the person who appoints the legal representative. Again, this would raise the question of which parent may appoint a legal representative in a matter where the parents are warring with each other. This will result in parents not only using their children as pawns but involving their children in litigation as a way to support their own case. It is absolutely crucial that a child’s legal representative is only appointed when the child has views and opinions which are his or her own deeply held wishes and when he or she wishes to participate in the litigation.

The matter of Legal Aid Board v R is a landmark decision in child law and in particular children’s right to participate in decisions about their lives. There is a dearth of case law on s 28(1) (h)precisely because children are so disempowered in litigation between their parents. Section 14 of the Children’s Act states that a child may bring and may be assisted in bringing a matter before court while other sections throughout the Children’s Act empower children to bring matters to court.

This judgment makes it possible for children on a practical level to approach the LAB and obtain legal representation. There is still, however, a myriad of outstanding questions and issues to be determined in respect of s 28(1) (h) , such as whether a legal representative for a child must always be appointed by the LAB because s 28(1) (h) says ‘at state expense’, or whether an independent organisation such as an non-governmental organisation may appoint a legal representative. Furthermore, the section refers to ‘in civil proceedings’ which seems to indicate only cases where litigation is already in progress. Would a child be able to obtain separate legal representation to institute civil proceedings, e.g., against a parent? The latter question seems to be answered by s 14 of the Children’s Act which empowers a child to bring and to be assisted in bringing a matter to court. Future case law will be necessary to elucidate these points.