Application to have children’s voices heard in court cases dismissed with costs

Western Cape High Court Judge Lee Bozalek has dismissed, with costs, an application to have children’s voices heard in court proceedings in a unique case brought before him last week.

The broad strokes of the case involve a dispute between the parents of the children – aged eight and 11 – after the father won custody following fears that they were not being adequately cared for by their mother.

After their father was granted a relocation application to Alaska on the back of winning custody, the mother was granted leave to appeal. By that point he had already left the country with them.

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.

That order was granted by Judge Judith Cloete, who, according to Judge Bozalek, was “in no way required to rule on the best dispensation for the children in the medium or long term”.

“What [Judge] Cloete’s focus was to a larger extent the question of what dispensation was fairest to all involved pending the outcome of the appeal, while appreciating that the best interests of the children were and are always paramount,” he said.

In keeping with the question of whether the children’s father was in contempt of a court order – a point raised by advocate Brian Pincus arguing on his behalf – Judge Bozalek added the children’s best interest were best served by their father’s compliance with the court order.

“I recognise that, even at this late stage, requiring the children to be returned to South Africa will cause them hardship and is against their present wishes. Nonetheless, such a course is, in my view, by far the lesser of two evils.”

He ended off by slamming the application to hear the children’s voices as “an abuse of process” that “smacks of being a late afterthought … and is essentially a self-serving, if not disingenuous argument”.

Costs were awarded on an attorney and client scale.

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