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The concepts of ‘custody’ and ‘access’, which are foundational to the law governing post-separation parenting in South Africa’s (SA’s) Divorce Act 70 of 1979, are unhelpful relics of the last century, focusing as they do, on the protection of the rights of parents rather than the promotion of the ‘best interests’ of children. The provisions in the Divorce Act dealing with post-separation parenting are inconsistent with practices. The provisions do not reflect current social science research, especially with regard to the effects that separation and domestic violence have on children and are contrary to the requirements of the United Nations Convention on the Rights of the Child.

Section 6(3) of the Divorce Act reads: ‘A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit’. Section 4(2) of the Mediation in Certain Divorce Matters Act 24 of 1987 uses the concepts of custody insofar as children are concerned. These words denote that there are winners and losers when it comes to children. They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles must be recognised. The concepts of ‘custody’ and ‘access’, are widely viewed as placing too great a focus on the notions of control and parental rights concerning parenting matters and created a sense of exclusion and marginalisation for the parent who was not granted custody. ‘The interests of children, parents and the justice system require the reform of the parenting provisions of [both] Acts. The reforms need to focus on parental responsibilities and children’s relationships, rather than on parental rights. Divorce means the end of the spousal relationship, but it does not mean the end of the parent/child relationship, and there needs to be supports in place to allow for effective “co-parenting” relationship to develop’ (Nicholas Bala ‘Bringing Canada’s Divorce Act into the new millennium: Enacting a child-focused parenting law’ (2015) 40 Queen’s Law Journal 425).

The legislature, which is intent on reform, must recognise the importance of ‘hearing the voices of children’, not only to protect the children’s rights but also to improve their outcomes. Courts should impose a plan on parents, or even stop the involvement of a violent or abusive parent in a child’s life. These plans should allow for significant involvement of both parents in the lives of their children, as the children will evolve and mature and their circumstances will change. The law must recognise that, in most cases, children benefit from a significant ongoing relationship with both parents, yet, at the same time, offer a way to adequately deal with issues of domestic violence and the protection of children.

Section 18 of the Children’s Act 38 of 2005 defines parental responsibilities as a person who has either full or specific parental responsibilities and rights in respect of a child. This terminology respects parenting matters and is more child-focused and represents a fresh start by eliminating the negative connotations that have been often associated with the terms ‘custody’ and ‘access’. The legislative provisions relating to parenting issues now focus on parental responsibilities for children rather than rights, and the key legal terms relating to parenting issues are now parenting orders, ‘decision-making responsibility’, parenting time, and contact orders.

Section 1 of the Children’s Act refers to ‘contact’, in relation to a child, means –

‘(a)       maintaining a personal relationship with the child; and

(b)        if the child lives with someone else –

(i)         communication on a regular basis with the child in person, including –

(aa)      visiting the child; or

(bb)      being visited by the child; or

(ii)        communication on a regular basis with the child in any other manner, including –

(aa)      through the post; or

(bb)      by telephone or any other form of electronic communication’.

The term ‘co-parenting’ has more connotation than the words ‘custody’, which is something that parents will do rather than have. Co-parenting is thus related to the concepts of being involved in a child’s life, providing care, and exercising parental responsibilities. Furthermore, co-parenting is related to the promotion of parents developing their own co-parenting plans. While guides and precedents can help separated parents develop their individualised parenting plans, the expectation is clear that these will be living documents to be reviewed and to evolve as the children’s needs and parental circumstances change. Co-parenting will usually involve consultative decision-making.

The problems in this area are easier to identify than finding solutions. One of the difficulties in this area is the high level of emotion and rhetoric, which is unfortunately not accompanied by the clarity of an argument. It begs the question: Do those who argue for co-parenting mean that each parent should have the child with him or her for equal periods or do they want to share the legal responsibilities that are attached to parenthood? ‘The family law system, in my view, still takes a somewhat paternalistic approach to children when it comes to considering their involvement in proceedings that are explicitly concerned with their welfare and care. Such children are rarely seen, yet they are the prime rationale for many mediation sessions’ (Justice Alastair Nicholson ‘Children and children’s rights in the context of family law’ LawAsia Conference, 2003). ‘Children are rarely seen by [the court], regardless of their age or circumstances’ (Nicholson (op cit)).

I believe s 18 of the Children’s Act should be amended to ensure that the views of the children are considered when orders are made in terms of the Act. These are:

‘… except when it is or would be contrary to a child’s best interests:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married, or have never lived together; and

(b) children have a right of contact, regularly, with both their parents and with other people significant to their care, welfare, and development;

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children’.

The intention to amend the section is not to introduce any presumptions as to who would parent the children after the separation has taken place. It should be to encourage parental responsibility and exhort both the mother and father to focus on their children’s future well-being rather than their own grief and anger. It is important to ensure the child has a real voice and by listening to the children’s perspectives, parents can make informed decisions that can better serve their children’s interests.

The family law system serves and protects adults’ concerns more than the children’s interests. The inclusion of children’s voices in parenting decisions is justifiable on several grounds, such as –

• increased participation is likely to have positive effects on children;
• children are social actors who construct their knowledge; and
• the principles of equality, dignity, and respect demand that children have the opportunity to express their views.

‘Children must “become players in decisions that concern them, so that decisions are made with them rather than about them”. The legal system must not “muffle” the child’s voice; it must err on the side of inclusion rather than exclusion of the child’s views. This will contribute to their self-esteem and grant children the respect to which they are deserving. It is fundamental to note that the child’s preferences and wishes alone will not determine the outcome of the court decision, but rather will be weighed with other evidence presented to the court.

A further reason for a reassessment of the child’s role in family law proceedings is the relatively new perception that children have independent rights. Central to a child-centred approach is the notion that children are legal subjects as opposed to legal objects. This involves … “a philosophical shift from seeing children as extensions of their parents or in the extreme as property of their parents, to seeing them as legal entities in their rights.” In other words, children are to be considered as “subjects actively involved in the legal process” rather than objects “over which a legal battle is fought”’ (Ronda Bessner ‘The voice of the child in divorce, custody and access proceedings’ presented to Family, Children and Youth Section: Department of Justice Canada, 2002).

Article 12, which asserts the right of children to participate in decisions that affect them, is considered the ‘linchpin’ of the UN document. It reads:

‘1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law’.

Courts have been reluctant to allow children to testify as witnesses in family disputes. Section 22(6)(a) states: ‘A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application –

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(ii) by the child, acting with leave of the court’.

‘There is concern that children will be irrevocably harmed by such an experience. It is argued that the pressure to choose between parents, the fear of hurting a loved adult on whom one is dependent, and the potential for vengeful retribution from a parent can be damaging to children. … The imposing atmosphere of the courtroom, repetition of details of an event to strangers in public, cross-examination, and physical separation from a parent or relative are some of the features of providing evidence that are feared will adversely affect children’ (Bessner (op cit)). Good reasons exist to allow a child to participate in specifically divorce proceedings.

‘First, it ensures that the decision-making process is child-centred. It gives children the opportunity to convey their physical, emotional, and social needs to a [court], which ensures that the decision-making process is not focused exclusively on their parents’ views and preferences. Children will know that their views are being stated as clearly as they can formulate them, in a language they choose, without the danger of being misstated by a well-meaning adult. Second, … for a [court] to ascertain the best interests of a child in a custody dispute, “it seems logical to find out what the child thinks”. … To determine guardianship, custody, or access without seeing or hearing from the child is to fix the future pattern of their life without which may be the most useful evidence.

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The third reason for allowing children to directly convey their wishes and needs to the court is that excluding them may be more damaging to children than permitting young persons to participate in a process that has life-long ramifications for them. … Children whose divorcing parents cannot communicate rationally will usually have seen much more damaging fights than those in a courtroom. But most [courts] prefer to protect the child from the presumed harm.

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The stress which testimony in custody proceedings must place on a child who is both a witness and a party affected is difficult to calculate. But the damage which may be done by leaving the child out of the process may be even greater.

A further argument in support of child participation in custody and access disputes is that the parents of the child will be obliged to listen and consider the wishes and concerns of their children’ (Bessner (op cit)).

Lastly, it was said: ‘If we learn as much as we can about the children of [the] relationship, their needs, their affective ties, their capabilities, their interests, or as much as we can about the abilities of those adults willing to care for them, we will be able to make orders that will best take advantage of the adult abilities available to fulfil the child’s needs. To accomplish this task requires that we hear the voice of the child. … We must not be afraid of the truth; we must allow the child’s voice to be heard. We must have definitions and guidelines from the legislatures as well as clear and consistent rulings from the courts to entrench the child’s rights to be heard if we are to continue the slow march towards integrity in family law’ (Bessner (op cit)).

Desmond Francke BIuris (UWC) is a magistrate in Ladysmith.

This article was first published in De Rebus in 2022 (Jan/Feb) DR 18.