Parenting coordinators: What is classified as their decision-making powers?

September 1st, 2018
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By Marici Corneli Samuelson

Parenting coordination is a form of alternative dispute resolution processes in which a mental health professional or family law professional assists in on-going high conflict co-parenting matters. These professionals try to resolve pre- and post-divorce disputes, including parenting plan or child related disputes. For the sake of uniformity, the term parenting coordination and parenting coordinator (coordinator) will be used respectively in this article.

In South Africa there is currently no statute nor court rules governing the appointment or authority of parenting coordinators. The basis of a parenting coordinator’s appointment is either by –

  • a court order;
  • a parenting plan; or
  • a settlement agreement between the parties, which has been made an order of court.

The court order or relevant clause of the agreement or plan stipulates the scope of the coordinator’s authority. The practice, which has evolved has given the coordinator’s the power to make decisions or directives regarding disputes, which is binding on the parties until a competent court directs otherwise or the parties jointly agree otherwise.

The first reported case dealing with parenting coordination was in Schneider NO and Others v AA and Another 2010 (5) SA 203 (WCC). This case concerned disputes regarding the schooling, maintenance and other matters affecting the best interests of two children born of unmarried parents. The High Court placed the judicial stamp of approval on facilitation in this judgment and through this order, a great deal of authority was assigned to the facilitator. Not only was the facilitator authorised to facilitate the dispute but they were also entitled to give directives and make rulings that were binding on both parties.

However, in CDH v OASH [2013] JOL 30616 (GSJ) the Gauteng Local Division of the High Court was not prepared to grant a father’s application for the appointment of a case manager to deal with and make decisions about certain post-divorce parenting conflicts in respect of the child. Sutherland J held that no court had the jurisdictional competence to appoint a third party to make decisions about parenting for parents who were the holders of parental responsibilities and rights in terms of ss 30 and 31 of the Children’s Act 38 of 2005. The court went on to say that, with reference to s 33(5) of the Act, ‘the role any “other suitable person” … is to facilitate decision-making rather than be the decision-maker’. Sutherland J was of the view that the appointment of a decision-maker to break deadlocks was a delegation of the court’s power that constituted an impermissible act.

The most recent case dealing with the appointment and decision-making powers of parental coordinators is TC v SC 2018 (4) SA 530 (WCC).

In this case, Davis AJ presided over an application in terms of r 43 for interim relief pending a matrimonial action. The applicant (father) and the respondent (mother) were in the midst of an acrimonious divorce. They had two young boys aged nine and seven.

The core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents.

The court concluded that although the contents of a parenting plan had to be agreed on, and could not be imposed on parents, it did not necessarily follow that the court could not, in appropriate cases, appoint a coordinator with limited decision-making powers to assist the parties in implementing the terms of an agreed parenting plan, which had been made an order of court. Davis AJ, however, warned that the appointment of and powers conferred on a coordinator can and should be limited to avoid an impermissible delegation of judicial authority.

Davis AJ emphasised the following guidelines to limitations on the appointment of a coordinator:

First limitation

‘[P]arties must have already reached agreement on the terms of a parenting plan, whether interim or final, which has been made an order of court, and the coordinator’s role must be limited to addressing implementation of … an existing court order.’

Davis AJ resolved that an agreed parenting plan that had been made an order of court was necessary to provide the framework, which delineates the coordinator’s proper function and authority. Without it, one runs the risk of an improper delegation of judicial decision-making power of the type, which the court was being asked to authorise. Where there is a court order in place, the coordinator may be confined to making decisions consistent with the court order to assist the parties to comply with it, and the coordinator’s role may be conceived as supervision of the implementation of the court’s order.

Davis AJ was of the view that the High Court, by virtue of the provisions of
s 173 of the Constitution, enjoyed inherent authority to ensure that its orders were carried out and it was well-established that the High Court had inherent jurisdiction to enforce its orders by committal to prison for contempt of court. The judge, therefore, saw no difficulty with the notion that the High Court could, in the exercise of its inherent power to protect and regulate its own process, appoint a coordinator tasked with supervising compliance with the court’s order to ensure that its terms were carried out.

Second limitation

Court orders have regard to the standard of the best interests of the child, which includes –

  • care and contact;
  • guardianship;
  • the termination, extension, suspension or restriction of parental responsibilities; and
  • rights, which cannot be changed by a coordinator.

For example, it would be unlawful to confer on a coordinator the power to change the primary residence of a child.

The coordinator’s decision-making power must be confined to ancillary rulings, which are necessary to implement the court order, but do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order, for the coordinator not to trespass on the court’s exclusive jurisdiction in terms of the Act.

Davis AJ stated that: ‘The obvious triviality of the sorts of issues which PCs may be authorised to decide should not cause one to lose sight of the importance of the PC’s function.’

Davis AJ also referred to s 34(5) of the Children’s Act that prescribes that parenting plans, which have been made an order of court may only be amended or terminated by an order of court on application, while s 22(7) provides that only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement, which relates to guardianship of a child. These provisions make it clear that a coordinator cannot make a valid directive, which has the effect of amending a court ordered parenting plan.

Third limitation 

This limitation on a coordinator’s power is to eliminate an impermissible delegation of judicial authority.

All decisions of the coordinator must be subject to comprehensive judicial oversight in the form of a full reconsideration of the court decision. This means that the rulings of the coordinator are not in effect final, even if they operate immediately pending review, because they are susceptible to alteration by the court. By permitting a coordinator’s rulings to operate immediately, subject to a party’s right to apply to court for a stay of the ruling pending a review, one strikes a necessary balance between the need for expeditious and effective conflict resolution by the coordinator and the need for judicial scrutiny of the coordinator’s rulings.

Fourth limitation

Davis AJ made it clear that in the absence of the consent of the parties to the appointment of a coordinator and the terms of their appointment, a court should not impose a coordinator on parties without conducting the necessary inquiries and making the findings regarding the following:

  • The welfare of the child or children involved is at risk through exposure to chronic parental conflict, because the parties have demonstrated a longer-term inability or unwillingness to make parenting decisions on their own (for instance by resorting to frequent, unnecessary litigation), to comply with parenting agreements or court orders, to reduce their child-related conflicts, and to protect their children from the impact of that conflict.
  • Mediation has been attempted and was unsuccessful or is inappropriate in the particular case. (This is a necessary finding to ensure that the appointment of a coordinator without parental consent is a last resort reserved for the cases of particularly intractable conflict.)
  • The person proposed for appointment as the coordinator is suitably qualified and experienced to fulfil the role of a coordinator. Before a court imposes a coordinator on parties without their consent, the court must be sure that the person appointed has the proper skills set, personal qualities and professional experience to do the job properly.
  • The fees charged by the proposed coordinator are fair and reasonable in the light of their qualifications and experience and that the parents can afford to pay the services of the coordinator. One of the parents must agree to pay for the services of the coordinator.

Summary

In summary, Davis AJ stated that a High Court may, in the exercise of its inherent jurisdiction as the upper guardian of minor children:

  • Appoint a coordinator with the consent of both parties, provided that –
  • there is already an agreed parenting plan in existence, whether interim or final, which has been made an order of court;
  • the role of the coordinator is expressly limited to supervising the implementation of and compliance with the court order;
  • any decision-making powers conferred on the coordinator is confined to ancillary rulings, which are necessary to implement the court order, but do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order;
  • all rulings or directives of the coordinator are subject to judicial oversight in the form of an appeal in the wide sense described in Tikly and Others v Johannes NO and Others 1963 (2) SA 588 (T) at 590G – 591A.
  • Appoint a coordinator without the consent of both parties, provided that the court is satisfied with the conditions listed above are met, but also that –
  • the welfare of the child is at risk from exposure to chronic parental conflict based on evidence of the parents’ inability or unwillingness to co-parent peacefully;
  • mediation has been attempted and was unsuccessful, or is inappropriate in the particular case;
  • the person proposed for appointment as the coordinator is suitably qualified and experienced to fulfil the role of coordinator;
  • the fees charged by the proposed coordinator are fair and reasonable in the light of their qualifications and experience, that the parents can afford to pay for the services of the coordinator, and that at least one of the parents agrees to pay for the services of the coordinator.

Conclusion

In light of the TC judgment it is clear that the practice now will have to evolve to include correctly worded clauses in all parenting plans, settlement agreements and court orders dealing with a coordinator’s appointment and their limited authority pertaining to decision making as set out by Davis AJ.

The TC judgment also leaves the practice with uncertainty regarding the
validity/legality of past directives and coordinator clauses in existing parenting plans, which stipulate the scope of the coordinator’s authority to include the power to make decisions or directives, without limitations, that are binding on the parties until a competent court directs otherwise.

South Africa is in need of a statute or court rules to govern the parenting coordination process so that there will be no more uncertainty regarding the position, appointment or authority of parent coordinators.

Marici Corneli Samuelson BIuris (UP) is the Director at Family Assist and a Mediator at Mediationworx in Pretoria.

This article was first published in De Rebus in 2018 (Sept) DR 37.

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