A teenager’s desire to live with his father in South Africa and not with his mom in Australia was found to be more important to a South African court than the Hague Convention.
In a kidnapping case before the Johannesburg High Court earlier this month, a court order found that a child, if mature enough, has the right to choose where he wants to live.
The teen said he did not want to live with his mother, despite the fact that she had custody, because they had an acrimonious relationship and she did not make him home-cooked meals, support his love of sport or take him on holiday.
The identities of the parents and child cannot be revealed.
The mother, an Australian citizen, approached the court to order the immediate return to Australia of her 13-year-old son after he refused to return to her after visiting his father, who lives in Joburg.
The boy’s parents were married in 1997, but they divorced. As part of a settlement agreement, they decided that their son would live with his mother, but he would have regular contact with his father.
The father moved to South Africa in 2004, but he visited his son regularly and the child came to South Africa twice.
The boy came back to visit his dad in November 2010, but instead of flying back to his mom in January this year, he sent her an SMS saying he wanted to live with his father.
The mother applied to the courts, saying her son was being held in South Africa wrongfully in terms of the Hague Convention. Judge PA Meyer weighed up the Hague Convention versus the child’s objection to being returned to his mother. The judge asked whether the teenager objected to being sent to live with his mother and whether he had the maturity level to have his views taken into account.
The court found there was no doubt the child objected to the move. A social worker, N Khanyile, assessed the boy and concluded he was at a stage of development where his wishes needed to be considered.
The teen’s legal representative, referred to in court papers as Mr Baer, told the court that if he had to return to Australia, he would prefer to live with his paternal grandmother.
The judge interviewed the 13-year-old and found that “he was nervous, but confident, and he addressed me appropriately. He is articulate. He answered my questions appropriately and directly… His views are firm and cogent.”
From these interviews, Judge Meyer decided he would take the child’s views and strength of feeling into account, and he would give them “considerable weight”.
The mother’s submission was that her son’s views were the result of his father’s influence, but the teen said he had planned to stay with his father before he left Australia.
The son said he was unhappy with his mom and at school in Australia.
The counsellor concluded that: “K (the son) loves both his parents very much and is missing his mother. However, he expressed his unhappiness about the kind of life that he and his mother were leading in Australia and does not want to live in that environment again. He threatened to run away if he is forced to return to Australia.”
The teen said he had struggled to adjust to school in SA as it was more disciplined and of a higher academic standard. But he had improved academically and was taking part in cricket, soccer and rugby.
He said that in Australia he could only play rugby because of his mom’s lack of involvement in his sporting activities.
His father helped him with school work, supported him at sport and participated in outdoor activities like jet-skiing, hiking and fishing. The teen said he feels more secure there.
These observations led the judge to conclude that the boy’s desires should be at the forefront of this case and he would not be returned to Australia. - The Star