Abstract:
The ratification of the United Nations Convention on the Rights of the Child
(hereafter referred to as CRC),1 heralded a new dispensation for children in South
Africa. This Convention had its footprints imbedded in the Constitution of the
Republic of South Africa, 1996 and in the framework thus provided; the law pertaining
to children was revised, consolidated and rewritten. In South Africa, child participation
has been called the soul of the CRC.2 The Hague Convention on the Civil Aspects of
International Child Abduction (hereafter referred to as the Abduction Convention),3
has also been ratified by South Africa and incorporated into the Children‟s Act 38 of
2005. While the Abduction Convention has been and is still being hotly debated all
over the world,4 South African legislation and case law have not acquired its rightful
place in the international discourse.5
The first objective of this paper is to establish whether there is tension between
the CRC and the Abduction Convention on the matter of hearing the child‟s voice. The second objective is to put forward what has been achieved in South Africa in
terms of research and judicial precedent on the child‟s objection exception. Finally,
the question remains if and how the scales of justice should be balanced when child
participation is at stake.
