Senior Family Advocate from the Department of Justice and Constitutional Development, Chris Maree, gave a presentation about the importance of a proper parenting plan and giving effect to the ‘voice of the child’ at the Parental Alienation Workshop on 16 June.

By Kathleen Kriel

Family Assist and the Collaborative Network held a Parental Alienation Workshop on 16 June in Centurion.

Family and divorce mediator at Family Assist, Marici Corneli, welcomed delegates to the workshop and said that Family Assist was a corporation that was formed for the purposes of creating a multi-disciplinary membership association to develop the skills of mediators and other practitioners who work with families. ‘Family Assist believes in a holistic mediation processes that involves the full scope of assistance to families in times of transition or restructuring, which includes, but is not limited to mediators, attorneys, parent coordinators, life coaches, counsellors, social workers and other mental health professionals,’ she said.

Ms Corneli gave a quick summary about what parental alienation is. ‘Parental alienation happens where one parent tries to stop the other parent from having a healthy relationship with their child. It is one of the most unfortunate and devastating consequences of family conflict, especially in divorce,’ she said.

Giving effect to the ‘voice of the child’

The opening address was given by the Senior Family Advocate from the Department of Justice and Constitutional Development, Chris Maree. Mr Maree spoke on the importance of a proper parenting plan and giving effect to the ‘voice of the child’, which is provisioned in the Children’s Act 38 of 2005 (the Act). He said that since the Act was promulgated, the Office of the Family Advocate has seen many different ways parenting plans had been compiled. He added that he decided to write a definition for a parenting plan, which was from a uniquely South African perspective. He said he came up with the following: ‘A parenting plan is a unique document, which is compiled for a specific family and represents the best possible solutions to avoid future litigation and to ensure the optimal participation of both parents and their minor child. Developed by means of a mediated process prescribed by legislation to address the ever-changing needs of the minor child involved, obviously taking into account, the inputs made by the minor children given their age, maturity and developmental stage and always complying to the best interest of the minor child standard.’

Mr Maree said that at the Office of the Family Advocate, he always detects nervousness when a parenting plan is submitted to him. There is always the anticipation of whether the plan will be endorsed or not. Mr Maree said he understood that a great deal of work and time is put into the preparation of a parenting plan and once submitted, he just sends the document back to the practitioner, which is unfair. However, he explained that he was the safety net between the child and the court.  ‘I have to see to it that I am upholding and protecting the best interest of the child before sending the parenting plan to the judge. It is not only my duty as a family advocate, but my duty as an officer of the court, I have to see to it that I inform the court properly’.

Mr Maree said that there were certain guidelines to consider when compiling a parenting plan. He mentioned four points, namely:

• It must comply with the prescript of the Act. Mr Maree added that many times a parenting plan was not in the prescribed format and did not fit the family or child involved.
• It must act as a roadmap to establish guiding principles that will assist the court in reaching the eventual goal of acting in the best interest of the minor child involved. Mr Maree said the parenting plan that is created and successfully submitted would hopefully guide the family over the years until the child reaches the age of majority. ‘It will prevent litigation and in doing that we will assist the courts. We have to get these matters out of court and we need to get our children out of court. … You are going to help me and the better your parenting plan the better and faster I will be able to peruse and endorse your parenting plan,’ he said.
• It must give clear indication of the voice and needs of the minor child.
• It must serve the best interests of the minor children to avoid the risk of further litigation (s 7 (n)) or exposure to further chronic parental conflict based on the inability or unwillingness of the parents to co-parent peacefully. ‘A parenting plan should not be a stepping stone for future or further litigation,’ Mr Maree said.

Mr Maree further highlighted important sections of the Act to remember when compiling a parenting plan. He compiled a list and asked delegates to read the following sections of the Act, which consisted of –

• general principles (s 6(5));
• the best interest of the child standard (s 7);
• the best interest of the child is of paramount importance (voice of the child)
  (s 9);
• child participation (voice of the child) (s 10);
• parental responsibilities and rights
  (s 18);
• parental responsibilities and rights of mothers (s19);
• parental responsibilities and rights of married fathers (s 20);
• parental responsibilities and rights of unmarried fathers (s 21);
• contents of parenting plans and who may assist when compiling a parenting plan (s 33(5));
• formalities (s 34); and
• regulations 9 to 11 of the Act need to be complied with.

Common mistakes in parenting plans

Mr Maree highlighted common mistakes that are made by practitioners when parenting plans are handed in at the Office of the Family Advocate. He reminded delegates that each parenting plan had to have a Form 8 at the beginning of the plan and a Form 9 or 10 at the end of the plan, whichever was applicable to the case. He said: ‘I get these works of art, wonderful looking parenting plans … but the practitioners forget who is involved in the matter, they forget about the parents and most importantly the child.’

Mr Maree gave an example of a parenting plan that he received, which was approximately 35 to 40 pages long, however, at the end of the plan, there was no Form 9 or 10, he added that when he queried it with the practitioners, they said that they had compiled the parenting plan, however, they did not speak to the child, because the parents agreed to it. ‘I can never sign off on that parenting plan, even if you resubmit it, I will always have it at the back of my mind … be very careful when you draw [up] your parenting plan,’ he warned.

Mr Maree added that a common mistake also made by practitioners was to incorporate a parenting plan and a settlement agreement into one document. He pointed out that practitioners tend to cut and paste parenting plans, which does not move with the times and ignores the best interests and the voice of the minor child. Mr Maree said that technical shortcomings in the regulations were also ignored, for example, the failure to speak to the minor child to determine their needs and wishes.

Mr Maree added that in many parenting plans there was non-compliance with legislative requirements, for example, in s 33(5) practitioners must state who was instrumental in compiling or assisting with the mediation for the parenting plan.

Mr Maree said another mistake that he came across was the blatant siding with one parent and/or over emphasising the shortcomings of the other parent by relying only on the information received from the parent, again, with no input from the minor child. ‘This is often found when there are allegations of alcohol abuse or [when] medical conditions or health problems are diagnosed’ he said. Mr Maree referred to the judgment of TC v SC [2018] JOL 39810 (WCC), where in high-conflict matters, fathers cannot see their children or vice versa, because of certain allegations made.

Mr Maree said that the last common mistake was that practitioners very often fail to read their own parenting plans after it has been finalised. ‘This leads to contradictory paragraphs in the parenting plan or to the regurgitation of paragraphs and issues addressed within the parenting plan,’ he said.

Mr Maree concluded that parenting plans had to be user friendly, easy to apply and it had to address the ever-changing needs of the minor child. He added that parenting plans are not a ‘one size fits all’ concept, as every family is different.

Family Assist and the Collaborative Network held a Parental Alienation Workshop on 16 June. From left: Department of Private Law at the University of South Africa, Professor Madeleine de Jong; family and divorce mediator at the Collaborative Network, Marissa Galloway-Bailey; clinical psychologist and National Accreditation Board for Family Mediators Chairperson, Dr Lynette Roux; family and divorce mediator at Family Assist, Marici Corneli; South African Association of Mediators Chairperson, Beverley Loubser; Head of the University of the Witwatersrand School of Law, Professor Wesahl Domingo; and clinical psychologist, Dr Marilé Viljoen.

The dynamics of parental alienation

Clinical psychologist, Dr Marilé Viljoen, said that statistics released by Statistics South Africa on 30 May showed that the number of divorces increased from 25 260 in 2015 to 25 326 in 2016. She added that 51,1% of divorces in 2016 were filed by women and that 44,4% of 2016 divorces were marriages that lasted for less than ten years. Dr Viljoen added that 55% of the divorces cases, included children under the age of 18.

Dr Viljoen then discussed the difference between ‘estrangement’ and ‘alienation’ and said that estrangement spoke to the breakdown of the relationship between a parent and a child due to –

• poor treatment of the child;
• abuse or neglect by the parent;
• poor parenting behaviour;
• low insight into parenting behaviour;
• lacking the ability to understand the child’s world or the ability to place themselves in the child’s shoes; and
• the struggle to take responsibility for their own emotions and behaviour.

Dr Viljoen said: ‘Parental alienation is a set of processes and behaviours conducted and enacted by a parent to deliberately and knowingly damage or sever the relationship between a child and another parent with whom the child enjoyed a prior loving relationship.’ She added that a child will express ‘disapproval and even hatred toward a parent they loved and respected before the separation or divorce’.

Clinical psychologist, Dr Marilé Viljoen, told delegates at the Parental Alienation Workshop that 55% of the divorces cases included children under the age of 18.

Dr Viljoen added that it was important to understand the symptoms of parental alienation syndrome, as ‘the voice of the child can influence the parenting plan … and if we do not understand the dynamics of parental alienation, it is very easy to buy in or to even become part of that “alienation process”’.

She discussed the symptoms of parental alienation, which include:

• ‘A campaign of denigration’: The child is consumed with hatred of the targeted parent and denies any positive past experiences. The child rejects all contact and communication. Dr Viljoen said ‘the parent who was once loved and valued seemingly becomes hated or feared overnight.’
• ‘Weak, frivolous and absurd rationalisations’: When a child is questioned about the reason for their intense hostility, the explanation offered is not of the magnitude that would lead to a child rejecting a parent.
• ‘Lack of ambivalence about the alienating parent’: Dr Viljoen stated that an alienated child exhibits a lack of ambivalence about the alienating parent, the one parent is perceived as perfect, while the other parent is perceived as flawed.
• ‘The “independent thinker” phenomenon’: Dr Viljoen said: ‘Even though alienated children appear to be unduly influenced … they will adamantly insist that the decision to reject the target parent is theirs alone.’
• ‘Absence of guilt about the treatment of the targeted person’: Alienated children will appear to be rude, ungrateful, spiteful and cold toward the alienated parent. ‘A child will try to get whatever they can from that parent, declaring it is owed to them,’ Dr Viljoen said.
• ‘Reflexive support for the alienation parent in parental conflict’: Dr Viljoen pointed out that intact families, as well as recently separated or long-divorced couples will on occasion have a disagreement and conflict within the household. ‘Children with parental alienation syndrome will have no interest in hearing the targeted parent’s point of view. Nothing the parent could do or say would make any difference to the child,’ Dr Viljoen said.
• ‘The presences of borrowed scenarios’: alienated children often make accusations toward the targeted parent. According to Dr Viljoen, the child does not appear to understand the situation and speaks in a scripted fashion and makes accusations that cannot be supported in detail.
• ‘Rejection of extended family’: the hatred of the targeted parent spreads to their extended family. Dr Viljoen said former family members are completely avoided and rejected.

Family dispute resolution

Head of the University of the Witwatersrand School of Law, Professor Wesahl Domingo spoke on family dispute resolution in the context of current legislation. She said due to the workshop falling on Youth Day the focus of the legislation was about the rights of the child, in the context of their relationships with their parents.

Prof Domingo said that s 39 of the Constitution states one must have due regard to international law, common law and customary law. She added that South Africa is a signatory to many conventions that deal with children and their rights and it was important for delegates to keep that in the back of their mind.

Prof Domingo stated that all legislation in South Africa falls under the Constitution. She referred to s 28(1)(b) of the Constitution and noted that it was important, because there was nothing in the Constitution that said that every person has the right to family, except in s 28(1)(b) where it does say that a child has a right to parental care or family care.

Prof Domingo also referred to s 28(2) of the Constitution, which is the section that most legal practitioners and social workers use, as it was of paramount importance. Section 28(2) states: ‘A child’s best interests are of paramount importance in every matter concerning the child.’ She noted that this was the section that most practitioners manipulated. Prof Domingo then asked what the best interest of the child meant?

Prof Domingo said that practitioners do not refer to s 7 in the Act (the best interest of the child standard). Many practitioners rely on the Constitution and case law, namely McCall v McCall [1994] 2 All SA 212 (C). ‘Section 7 is almost like a guide to what the best interest principle means. … There has been litigation around s 7. … Before there was the best interest principle and the best interest standard, but now the best interest principle has become the right of the child,’ she said.

Head of the University of the Witwatersrand School of Law, Professor Wesahl Domingo spoke on family dispute resolution in the context of current legislation.

Prof Domingo highlighted s 6(4) of the Children’s Act, which states:

‘In any matter concerning a child –

(a) an approach which is conducive to conciliation and problem-solving should be followed and a confrontational approach should be avoided.’

Prof Domingo said that this section touched on family dispute resolution. ‘In my mind, when I make the argument for family dispute resolution to be taken out of that litigious court concept … section 6(4) then becomes compulsory, mandatory. I know that there are a lot of arguments around it, but it says “conducive” to “problem-solving”, you should go to conciliation, and that you should not place the child in a confrontational approach, which is what courts do. When we speak about family dispute resolution, I always refer to this section, as it is fundamental,’ she added.

Prof Domingo pointed out that the dynamics of family life in South Africa is changing, there are no longer only traditional ‘mom and dad’ families, but there are ‘moms and moms’, ‘dads and dads’, grandparents and extended families who assist with looking after children.

Prof Domingo said there are additional Acts in the form of, not only the Marriage Act 25 of 1961, but the Recognition of Customary Marriages Act 120 of 1998, and soon the Muslim Marriages Bill, 2011, and so when you look at family, the whole dynamic has changed.

Prof Domingo said that in the Recognition of Customary Marriages Act, s 8(5) allows for mediation before the dissolution of a customary marriage, however, that is voluntary and not mandatory. In the Muslim Marriages Bill, there is a provision for compulsory mediation before the dissolution of a marriage.

Prof Domingo also referred to other sections in the Children’s Act, namely, ss 6(5), 10, 18, 19, 20, 21, 31, and 33. She also referred to reg 11(2) where a minor child has to be informed about the contents of the parenting plan and are allowed to have a say in the parenting plan.

In concluding the first part of her presentation, Prof Domingo said that training was the most important thing between legislation and working with children. ‘I think that the ability to speak to children, as an attorney or an advocate, you need to be trained. I do not think that we can just think that we can speak to children. Children are bright, clever and can manipulate you as well, so I think more training needs to be done, especially on how to speak to children and how we illicit information from children,’ she said.

The second part of Prof Domingo’s presentation focussed on the South African Law Reform Commission and the work the commission was doing in the context of family dispute resolution and, in particular, Issue Paper 31 ‘Family Dispute Resolution: Care of and Contact with Children’. Prof Domingo said: ‘As an academic, we see it … from another side. … I do see a disconnect between drafting legislation. … [W]e have a wonderful Children’s Act, but … is it just pure paper? Is it implemented properly and how does one do that? Workshops like these are very important, because there is a disconnect in making the law, drafting policy and implementing that cause. Family law is unique in the sense that it is not like a labour law contract, where you can go into arbitration and walk away, here there are relationships that last forever when you have children, and you cannot walk away from that.’

Kathleen Kriel BTech (Journ) (TUT) is the Production Editor at De Rebus.

This article was first published in De Rebus in 2018 (Aug) DR 8.