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Durban - A seven-year-old girl will spend the Easter holidays with her mother for the first time in two years after a Durban High Court judge ruled that it was important for them to bond, even though the mother’s former boyfriend had allegedly raped her.
Acting Judge Stephen Mullins granted the order this week, following an urgent application brought by her Cape Town-based mother - which was strongly resisted by her father, who lives in Durban, who said it would be “sending her into the lion’s den”.
According to papers before the judge, the child has lived with her father and grandmother in Durban since 2011 when the allegations of sexual abuse first arose and, the mother said, since then it had been extremely difficult, if not impossible, to have contact with her. This was in spite of recommendations by the Family Advocate that she be allowed contact, be it supervised, and on condition that there be no contact with her former partner.
The mother, in her affidavit, said she still had contact with her ex-boyfriend because she had borne a child with him and they worked together. But, other than making arrangements about the child, outside work she had nothing to do with him.
She said she had previously tried to get a court order for access, but it had been refused because her daughter had not yet finished giving evidence in the criminal trial against her former boyfriend and it was feared she might influence her future evidence.
But the child had now finished giving evidence.
In a letter handed to the court, the prosecutor in the criminal trial advised against allowing the child to go to her mother for the holidays, saying the child needed protection “as her mother is not supporting her in the criminal trial” and there was no guarantee that she would not be exposed to her alleged rapist.
However, the mother produced proof that he would be away in Port Elizabeth over the Easter holidays and, she said, she had deliberately made him a respondent in the application so that he could be interdicted from having any contact with her daughter while she was with her.
The father, in his affidavit opposing the application, said using Google, he had established that the mother and her ex-boyfriend lived within 1.5km of each other.
“It leaves me cold at the thought” of his daughter “being placed in such close proximity to the lion’s den”, he said. He was of the view that there should be supervised access and only in Durban until at least the end of the trial.
After hearing arguments in the matter - including being presented with evidence that the man would be away - Judge Mullins said it was important for a mother to bond with her child and granted the order.