Judge asked to hear children's voices in custody case
Judgment was reserved in the Western Cape High Court yesterday in what a News24 report describes as a potential landmark case involving the voices of children being heard in court cases.
The case relates to a custody battle between the parents of the children – aged eight and 11. They initially lived with their mother but later moved in with their father. This was because the man believed they were not receiving adequate care.
He then filed a relocation application – granted in March – to move with the children to Alaska.
The children's mother was granted leave to appeal, but by then, the father had already left the country with the children. In April, she won an application, which is at the heart of the current dispute, to have the children returned to SA by June.
Arguing before Judge Lee Bozalek, Advocate Brian Pincus said when the leave to appeal ruling was handed down, the judge in the matter failed to take into account expert reports that found the children would be best placed in their father's care, notes the News24 report.
Furthermore, the children's opinions were not requested. Pincus argued that ‘the minute a matter involves a child, the child's voice must be heard. You don't have to follow what they say, but you need to hear it’.
Bozalek, however, was interested in how much weight would be attached to children being given a say in the matter.
‘There are a lot of things children don't want to do and it's not up to them to decide, otherwise they wouldn't have parents,’ he said.
Pincus responded: ‘With due respect, you are doing what judges in the old days did (not taking children's voices into account). You can't do that anymore,’ he said, referring Bozalek to section 28 of the Constitution and section 279 of the Children's Act.
Arguing on behalf of the respondent, Advocate Adam Pitman said the case should be struck off the roll because the children could not offer any meaningful contribution to their father not having followed a court order.
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