Listening to the child's objection

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.