Judgment was reserved in the Western Cape High Court on Monday in 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 to move with the children to Alaska.
The application was granted in March this year.
The children’s mother appealed the ruling, 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 South Africa 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.
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”.
Judge 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 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 Judge 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, and agreeing with Judge Bozalek, the children could not offer any meaningful contribution to their father not having followed a court order.