A new client came to see us to assist her as she and her ex-husband have been embroiled in litigation for the last 11 years. After eventually getting divorced during a highly contested divorce battle of 7 years, several further court applications have been issued in respect of various issues, including which schools the children should attend, contact, over-sea’s contact and vacations, contact with grandparents, and the list goes on. All these cases are still pending.
In South African law, the voice of the child is (supposedly) recognized and considered important. The Children’s Act of 2005 emphasizes the child’s right to participate in decisions affecting them, taking into account their age and maturity. Courts may appoint legal representatives or experts to ensure the child’s views are heard, promoting a child-centered approach to family matters.
But… in practice, what we often see is:
1. Children being influenced by the parents
2. Parents being accused of influencing children when the children’s views are not what the other parent wants to hear
3. If the children repeat their wants and wishes verbatim to each of these experts, they are said to have been ‘coached’. If they don’t, it is said they are not consistent
4. The parent with the deepest pockets often being able to “out-litigate” the other parent and any view or voice of the child.
The sad fact is that legal representation, psychologists, therapists, and experts are EXPENSIVE! If a parent does not possess over the funds to longer protect their interest as well as the voice of the child, the voice of the child is lost.
In this particular case, the children are already 12 and 14 years old and have seen numerous experts over the past 11 years, but still feel that they are not being heard because if their voice does not coincide with what the other parent wishes to hear, further court applications are issued and they once again have to be subjected to psychologists, therapists, etc.
We have now at last appointed a curator for the children. Unfortunately, psychologists and therapists must again become involved to ascertain WHAT the voice of the children is and WHY. Hopefully, the curator together with the experts can be successful in pinpointing the wants and needs of the children in such a manner that it provides for all future disputes and possibilities so these children can go on with their lives and be children.
It is unfortunate that such steps need to be taken in order for the children to have a voice, instead of us as grownups merely LISTENING.
We need to do better. Be better.