Notes: Children, autonomy and statements: The need for a bright-line rule

Author: Salona Lutchman

ISSN: 1996-2177
Affiliations: Senior Lecturer, Department of Public Law, University of Cape Town
Source: South African Law Journal, Volume 138 Issue 3, p. 500-508


Currently, a child cannot provide a statement without parental or guardian consent. This limits the child’s right to participate fully in matters which affect the child. Indeed, it also impacts the fact-finding process of an investigation. In terms of international conventions and the Children’s Act 38 of 2005, child participation is a cornerstone of children’s rights. This note proposes that South African law recognise adolescent autonomy — specifically, an adolescent’s competence to provide a statement in matters affecting the child. An adolescent’s stage of growth (physical and mental) makes the child capable of understanding the consequences of such conduct, and the child’s developing agency and cognitive abilities mean that the child may wish to do so. The note proposes that the law recognise the autonomy of a child who is twelve years or older to provide an unassisted statement in legal fora.