Parents who are at war with each other, with their 11-year-old twin boys stuck in the middle, led a judge to call the children into his chambers, along with a social worker, to try to find “the voice of the child”.
Gauteng High Court, Pretoria, Acting Judge C Marumoagae said courts could certainly benefit from the participation of children in care and contact cases.
“This need not be in an open court. By ascertaining the views of children who are affected by the dispute that the court is called upon to determine, the court may be in a better position to understand the children’s relationship with their parents,” the judge said.
He said the court may obtain uncensored information relating to the children’s level of comfort or discomfort with each parent, their relationship with other family members, and other aspects of the children’s lives that parents themselves may not be aware of.
Following two separate urgent applications on the same topic – one by the mother and the other by the father – the judge said the matter was a classic example of unnecessary litigation that could easily be avoided in family disputes involving children.
Judge Marumoagae said that could can be done either through negotiation driven by adequate, polite, collegial and non-positional interaction between different legal representatives or child-centred mediation.
While each estranged parent brought their own application for custody over the boys, the judge decided to throw the two applications together as it dealt with the same facts.
On the one hand, the father approached the court on an urgent basis to be awarded interim care and residency for the children who are at the centre of the parties’ dispute.
On the other hand, the mother brought a similar application, also on an urgent basis, wherein she sought, among others, the return of the children to her care and residency.
The only common ground appeared to be that each asked for an interim order, pending an investigation by the office of the family advocate to determine where the children should ultimately live.
The father said the mother abused alcohol. That had emotionally impacted the children, including their academic performance.
It was argued on behalf of the father that the children were experiencing emotional abuse due to their mother and grandmother’s alleged alcohol consumption. The children had also expressed concern over the drinking taking place at their mother’s house.
While not denying that she consumed alcohol, the mother denied that she abused alcohol. She said she had taken alcohol-related blood tests and was willing to take further tests to establish that she did not abuse alcohol.
The judge said there was an urgent need for an investigation to be conducted to assess whether the children were being subjected to any emotional abuse.
“Surely allegations of abuse of alcohol should be taken seriously because this ‘can’ potentially lead to the abuse of children, which cannot be tolerated,” he said.
The mother said the application was urgent, as the father had removed the children from her house and moved them into his own. The mother is living with her mother, the children’s maternal grandmother.
The father said he had removed the children in September, when they had run to a neighbour’s house. They had said their mother and granny had been drunk.
The mother, on the other hand, said she enjoyed alcohol socially, which was not against the law, and that her children were not prejudiced by her consumption of alcohol.
She said that often, when the children return from their father, they were unruly and rude towards her and her family.
She said the father exposed the children to violence, especially against animals at his house. He allowed the children to shoot stray dogs and birds with air rifles at his smallholding. The mother said she was not comfortable with the fact that the children were cruel to animals.
After listening to the children’s views in his chambers, the judge said: “The information I received from the children and the contents of Dr Olivier’s (social worker) report necessitates this court, as the upper guardian of these children, to intervene.”
While ordering that the children remain with the father for now, the judge said the order should not be interpreted as a win or loss for either the mother or the father.
“This is an interim order that is granted based on the evidence that the court evaluated in this matter and the children’s views,” the judge said.