resolution resolution Client directed legal representatives should consider Best interests legal representatives should consider whether it is appropriate to use alternative forms of whether it is appropriate to use alternative forms of dispute resolution, including negotiation, to seek dispute resolution, including negotiation, to seek expeditious resolution of the case; expeditious resolution of the case; Consider the different developing models of mediation Consider the different developing models of mediation. including child-directed mediation. Consider the mandatory mediation provisions included Consider the mandatory mediation provisions included in the Act 38 of 2005. Children’s in the Act 38 of 2005. Explain mediation or alternative forms of dispute Children’s Explain mediation or alternative forms of dispute resolution to the child; resolution to the child; Try to speak with the parents in matters that are not Discuss the involvement and instructions for yet highly acrimonious and are not high conflict child’s mediation. matters. The problem may be resolved without going to Advise child on options available for mediation and court in some cases. take instructions. Settlement Settlement The instructions on any possible settlement Consideration should be given as to whether it is child’s should be thoroughly canvassed during consultation appropriate for a best interests representative to with the child. accept a settlement proposal on behalf of the child. If a settlement is offered on terms not discussed with Court proceedings any settlements have In Children’s the child, the representative must first obtain to be approved by the Court and will only be confirmed instructions from the child. if they are in the best interests of the child. All agreements should be confirmed by a court and The best interests legal representative for a child made an order or confirmed by the Family Advocate concerned in a High Court matter should be cautious when there are already legal proceedings pending when agreeing to a settlement that he or she is not Must confirm the content of the agreement with the usurping the role of the Judge to determine the best child once a settlement has been reached, before it is interests of the child. made an order of court. Preferably, all settlements should be confirmed by the court or the Family Advocate. Participation Participation In care and protection proceedings the child is always In care and protection proceedings the child is always a party to the proceedings; a party to the proceedings; The presiding officer is obliged to speak with the child According to s61 of the Act the presiding Children’s and encourage the participation. officer must encourage the participation if the child’s child’s child is of sufficient age and maturity to participate, and
resolution Client directed legal representatives should consider whether it is appropriate to use alternative forms of dispute resolution, including negotiation, to seek expeditious resolution of the case; Consider the different developing models of mediation including child-directed mediation. Consider the mandatory mediation provisions included in the Children’s Act 38 of 2005. Explain mediation or alternative forms of dispute resolution to the child; Discuss the child’s involvement and instructions for mediation. Advise child on options available for mediation and take instructions. Settlement The child’s instructions on any possible settlement should be thoroughly canvassed during consultation with the child. If a settlement is offered on terms not discussed with the child, the representative must first obtain instructions from the child. All agreements should be confirmed by a court and made an order or confirmed by the Family Advocate when there are already legal proceedings pending Must confirm the content of the agreement with the child once a settlement has been reached, before it is made an order of court. Participation In care and protection proceedings the child is always a party to the proceedings; The presiding officer is obliged to speak with the child and encourage the child’s participation. resolution Best interests legal representatives should consider whether it is appropriate to use alternative forms of dispute resolution, including negotiation, to seek expeditious resolution of the case; Consider the different developing models of mediation. Consider the mandatory mediation provisions included in the Children’s Act 38 of 2005. Explain mediation or alternative forms of dispute resolution to the child; Try to speak with the parents in matters that are not yet highly acrimonious and are not high conflict matters. The problem may be resolved without going to court in some cases. Settlement Consideration should be given as to whether it is appropriate for a best interests representative to accept a settlement proposal on behalf of the child. In Children’s Court proceedings any settlements have to be approved by the Court and will only be confirmed if they are in the best interests of the child. The best interests legal representative for a child concerned in a High Court matter should be cautious when agreeing to a settlement that he or she is not usurping the role of the Judge to determine the best interests of the child. Preferably, all settlements should be confirmed by the court or the Family Advocate. Participation In care and protection proceedings the child is always a party to the proceedings; According to s61 of the Children’s Act the presiding officer must encourage the child’s participation if the child is of sufficient age and maturity to participate, and
Guidelines-for-legal-representation-of-children-2015.docx