CHAPTER 13 THE PROTECTION OF CHILDREN CAUGHT UP IN THE DIVORCE / SEPARATION OF THEIR PARENTS 13.1 Introduction This Chapter focuses on the care and protection of children who are, or who have been, caught up in the conflict surrounding the divorce or separation of their parents, as a category of children in need of special protection. 1 As these children do have parents who sometimes do go to extreme measures to maintain a relationship with a child, this is one area where the Commission feel a little effort can go a long way to diffuse tension in the family home and improve the well-being of the children involved. 13.2 Improving outcomes for children 13.2.1 Hearing children s voices Section 6(4) of the Divorce Act 2 empowers a court to appoint a legal practitioner to represent a child at divorce proceedings and to order the parties or one of them to pay the costs of such representation. The Commission stated that it would like to see this provision being used more often. The Commission also recommended that section 6 of the Divorce Act be amended to give a court the authority to appoint an interested third party, such as a member of the child's (extended) family, to support a child experiencing difficulties during parental separation or divorce in a manner determined by the court. Such support can involve a person being allocated temporary parental rights and responsibilities in respect of the child concerned. 3 While it is one of the key functions of the Family Advocate to canvass and ascertain the genuine wishes of the child and to communicate these to the court, the Mediation in 1 2 3 The White Paper for Social Welfare (p.41, para 38 and 39) identifies children of divorced and divorcing parents as a vulnerable group that require special attention. 70 of 1979. Par. 14.5 p. 650 of the discussion paper.
193 Certain Divorce Matters Act 4 does not require the Family Advocate or the Family Counselor to hear the views of the child. The Commission stated that a simple amendment to the regulations to the Act to provide for the canvassing and recording of the child s views, where appropriate and if the child so wishes, would go a long way towards solving this problem. However, special care must be taken to ensure that children are not forced to choose between their parents. 5 The respondents who commented on this section supported the Commission s recommendations. Some of the respondents also made additional recommendations. Responding to the Commission s recommendation that the court should be empowered to appoint an interested third party, such as a member of the child's (extended) family, to support a child experiencing difficulties during parental separation or divorce, the Law Society of the Cape of Good Hope recommended that the appointment of an interested third party should not be restricted to family members, but should include other persons such as psychologists. The Children s Rights Project and Local Government Project (Community Law Centre, UWC) supported the latter recommendation and added that the third party must be chosen with careful consideration and must be someone to whom the child is close. Such a person should also be made aware of the functions and duties of the staff members in both the Department of Social Development and the children s court, so that should a situation arise which might merit the intervention of a social worker or the children s court, such person would know whom to approach. The Commission agrees that the proposed interested third party to support a child experiencing difficulties during parental separation or divorce should not be restricted to family members. However, the appointment of professionals such as psychologists as interested third parties may have cost implications. An option would be to empower the court to order both or one of the parents to pay the fees of an interested third party appointed in his or her professional capacity. The Children s Rights Project and Local Government Project (Community Law Centre, UWC) pointed out that the courts, probably because of the expense that would result to the parties, seldom make use of section 6(4) of the Divorce Act which provides that the court may appoint a legal practitioner to represent a child at the proceedings. 4 5 24 of 1987. Par. 14.5. p.651 of the discussion paper.
194 Section 6(4) further stipulates that the court may order one or both of the parents to pay the costs of the legal representative appointed for the child. Thus, only children of the wealthy might be able to afford separate legal representation in divorce proceedings. The respondent proposed that in order to ensure that all children are given a voice in divorce proceedings or are represented by a legal representative; the State must appoint, at state expense, a legal representative. This, in the respondent s view, will be in accordance with the constitutional right of children in section 28(1)(h) of the Constitution, 6 and section 8A of the Child Care Act. 7 Furthermore, guidelines need to be drafted in order to inform the court as to when a child might need separate legal representation. The Commission has given due consideration to the issue of whether children in divorce proceedings should be provided with legal representation at state expense. In light of the comments made by the Children s Rights Project and Local Government Project, the Commission is of the view that the decision whether to appoint a legal representative for a child at divorce proceedings should not be based on whether both or one of the parents can afford to pay for such legal representation, but should be based on whether the court considers the appointment of a legal representative to be in the best interests of the child and whether the lack of legal representation would result in substantial injustice to the child. The Commission accordingly recommends that section 6(4) of the Divorce Act be amended to stipulate that the court may appoint a legal representative for a child at divorce proceedings and may order the parties or any one of them to pay the costs of the representation. However, if the court is satisfied that neither of the parties can afford to pay for such legal representation, the court must appoint a legal representative, at state expense, if substantial injustice would otherwise result. Furthermore, the Commission is of the view that Regulation 4A(1) to the Child Care Act provides adequate guidelines as to when separate legal representation might be needed for a child. The Commission has stated that the need for legal representation does not end with divorce. Changed circumstances may require changes in the original custody and access arrangements. Without someone to help give the children an opportunity to speak about their needs and voice their concerns, these sometimes dangerous situations are allowed to continue, and children are put at risk. Responding to this, the Children s Rights Project and Local Government Project (Community Law Centre, UWC) 6 7 Constitution of the Republic of South Africa, Act 108 of 1996. 74 of 1983.
195 submitted that although they agree with this statement, the Commission needs to make recommendations as to how children who find themselves in such situations can access a legal representative and the courts, and how the original custody or access arrangements can be varied. The Law Society of the Cape of Good Hope welcomed the recommendation that section 6 of the Divorce Act be used more frequently. The respondent also supported the recommendation that the regulations should provide for the canvassing and recording of the child s views, where appropriate and if the child so wishes. 13.2.2 Reducing conflict In its attempt to find ways to reduce conflict between divorcing or separating parents, for the benefit of the children, the Commission recommended that the court should start with the assumption that, in the absence of issues regarding the child's physical, mental or emotional safety, the continued involvement of both parents in the child's life is the desired goal: this involvement ideally should be of the same quality post-separation as pre-separation. While not excluding the possibility of joint custody, the Commission stated that it is not equating the need of the child for the continued involvement of both his or her parents in his or her upbringing with the call for joint custody as the presumptive starting-point in divorce. 8 The use of the words custody, sole custody, guardianship, sole guardianship and access in the Divorce Act promote a potentially damaging sense of winners and losers. The use of more neutral language would help reduce conflict and let both parents focus on their responsibilities rather than their rights. The Commission therefore recommended that the terms custody and access be replaced with the terms care and contact respectively. Furthermore, that the Divorce Act, the Matrimonial Affairs Act, 9 and the Mediation in Certain Divorce Matters Act be amended to add definitions of care and contact that reflect the meanings ascribed to those terms by the Commission. 10 Responding to the latter recommendation, the Law Society of the Cape 8 9 10 Par 14.5, p. 652 of the discussion paper. Act 37 of 1953. Par 14.5, p. 653-654 of the discussion paper.
196 of Good Hope proposed that the Natural Fathers of Children Born out of Wedlock Act 11 and other ancillary Acts such as the General Law Further Amendment Act 12 and the Maintenance Act 13 be similarly amended. The Commission supports this proposal. 13.2.3 Parenting education The Commission recommended that any parent seeking a divorce should be required to participate in an education programme to help him or her become aware of the post-separation reaction of parents and children, children's developmental needs at different ages, the benefits of co-operative parenting after divorce, parental rights and responsibilities, and the availability and benefits of mediation and other forms of dispute resolution, provided such programmes are available. The Family Advocate is in an ideal position to coordinate such educational programmes. Parents should not be required to attend sessions together. The Commission emphasised that its recommendation in this regard is not aimed at putting hurdles in the way of those who wish to divorce, but to equip parents to be sensitive to the needs of their children during and post the divorce. 14 The Dutch Reformed Church, Pretoria, Ms R van Zyl and Africa Christian Action welcomed the Commission's recommendations. Africa Christian Action recommended that parenting education programmes be operated by family organisations or churches. Some of the respondents who commented on this section were not in favour of the Commission s recommendations. For instance, the Law Society of the Cape of Good Hope pointed out that the Commission s recommendations may create practical problems such as further overloading the Family Advocate. The respondent further highlighted the lack of resources to implement the proposed system. Ms Julie Todd submitted that the high case load of the Family Advocate will not allow it to coordinate parenting education programmes. The Commission notes these concerns. However, given the expertise of the Family Advocate, it is best positioned to coordinate the proposed parenting education programmes. Furthermore, the concern of overloading the Family Advocate could be addressed by requiring that the Department of Justice 11 12 13 14 86 of 1997. 93 of 1962. 99 of 1998. Par 14.5, p. 657 of the discussion paper.
197 must, when preparing its draft budget for a coming financial year, include in the draft budget an amount for the purpose of enabling the Office of the Family Advocate to perform the function of coordinating parenting education programmes. Christian Lawyers Association of Southern Africa submitted that the Commission's recommendations with regard to parenting education may be impractical in that the courts cannot force people to be good parents and to take a sincere interest in their children's well-being. The respondent argued that requiring participation in a parenting education programme may be a burden on a single parent who is often overwhelmed with the responsibility of caring for the children - the parent needs more time with the children and should not be required to be away from the children at certain times. The respondent thus recommended that education programmes (such as an advice bureau where parents can be provided with a wide range of advice and assistance) be made available to those who need it, with special support for those who need practical assistance. The Commission is mindful of the fact that requiring parents to participate in an education programme would not instantly convert them into good parents. However, the Commission is of the view that it is in the best interests of children that, for the reasons stated above, parents be required to participate in a parenting education programme before a decree of divorce is granted. CHILDS submitted that some children and their parents should also be required to attend an education workshop to assist them to deal with the separation and/or divorce. This should be completed on a prescribed form. 13.2.4 Joint custody As stated in the discussion paper, the Commission is of the view that the law should encourage parents to enter into consensual arrangements for shared parenting (joint custody) in the form of parenting plans. The Commission therefore recommended that section 6 of the Divorce Act, section 5 of the Matrimonial Affairs Act and the Mediation in Certain Divorce Matters Act be amended to require that parties applying to a court for a parenting order must file a proposed parenting plan with the court; 15 Christian Lawyers Association of Southern Africa submitted that this 15 The Law Society of the Cape of Good Hope supported this recommendation.
198 recommendation overlooks the fact that neither parents might have had a divorce before and although they may have an idea how they are going to deal with parenting jointly, it is often required that the plan be flexible and subject to review. Furthermore, making a parenting plan a requirement would place a formalism and rigidity on the order that is undesirable. The Commission disagrees with Christian Lawyers Association of Southern Africa that it is undesirable to make a parenting plan a requirement when applying to the court for a parenting order. In fact, a parenting plan has the advantage of reducing unnecessary litigation over child issues and helps parents to continue with a healthy parental relationship after separation. The Commission accordingly endorses its preliminary recommendation. The Commission recommended that divorcing parents should be encouraged to develop, on their own or with the help of a trained mediator or through some form of alternative dispute resolution, a parenting plan setting out details about each parent's responsibilities for residence, care, contact, decision-making and financial security for the children, together with the dispute resolution process to be used by the parties. Parenting plans must also require the sharing between parents of health, educational and other information related to the child's development and social activities. All parenting orders should be in the form of parenting plans. Furthermore, the relationships of grandparents, siblings and other extended family members with the children should be recognised as significant and provisions for maintaining and fostering such relationships, where they are in the best interests of those children, should be included in parenting plans. 16 The Commission further recommended as follows: 17 That where allegations of child abuse surface in divorce cases, whether in the affidavits, in evidence, or as a result of the investigations conducted by the Family Advocate, or otherwise, the Court hearing the divorce matter may, of its own accord or upon application, order that the divorce matter stand down and order a children s court enquiry. This should reduce conflict in divorce proceedings by removing the incentive for making false allegations and should 16 17 Par. 14.5, p.661 of the discussion paper. Par. 14.5, p. 655 656 of the discussion paper.
199 provide those children who are at risk of abuse with the protective framework of the new children s statute. That both parents of a child receive information and records in respect of the child's development and social activities, such as school records, medical records and other relevant information. The obligation to provide such information should lie with the parent who has care ( custody ) of the child, unless ordered otherwise by a court. That the word sole be deleted in the wording of section 1 of the General Law Further Amendment Act. This will have the effect of making it a criminal offence for the parent having care of the child to unreasonably refuse the other parent access to their child. It is further recommended that section 1 of the General Law Further Amendment Act 93 of 1962, as then amended, be repealed after having been incorporated in the new children s statute. Mr Stuard McDonald proposed that joint custody should be the point of departure for all divorcing couples. He suggested that clear and concise guidelines on the content of a parenting plan should be made available to mediators and divorcing parents. Such guidelines could also be gazetted. With regard to information in respect of a child s development, Mr McDonald proposed that the non-custodian parent should be able to obtain such information directly from, e.g. the school, hospital, sports club etc. Thus, the non-custodian parent should not have to wait to be provided with such information by the parent who has the care of the child. The Commission does not agree with Mr McDonald s proposal that joint custody should be the starting point in divorce as joint custody may not always be in the best interests of a child. The Commission agrees with Mr McDonald that guidelines on the content of parenting plans should be readily available to divorcing parents. The Commission also supports Mr McDonald s view that the non-custodian parent s access to information in respect of a child s development should not be dependent on being provided with such information by the custodian parent. Thus, where the custodian parent unreasonably withholds such information from the non custodian parent, the child and family court should be able to order that the noncustodian parent be provided direct access to such information. CHILDS suggested that the term joint custody be replaced with the term shared parental responsibility.
200 13.3 The maternal preference or tender years rule Until fairly recently, South African courts have tended to apply a so-called maternal preference or tender years principle (namely the principle that the custody of young children - and of girls of any age - should normally be given to the mother in preference to the father, 18 unless the mother s character or past conduct renders her unfit, 19 in the court s view, to have such custody, or unless the father s circumstances enable him to make better provision for the needs and well-being of the child). It has been argued that this maternal preference or tender years principle could be seen as violating the equality clause in the Constitution by discriminating between parents on the grounds of gender (although it is submitted that this would in many instances be justified by courts on the basis of the best interests of the child). 20 With the removal of the concepts of custody and access, the outdated and discredited tender years doctrine or maternal preference rule is clearly no longer useful. The Commission accordingly recommended that the common-law tender years doctrine or maternal preference rule be rejected as a guide for decision-making about parenting. 21 Ms R van Zyl welcomed the Commission s recommendation. CHILDS submitted that the problem of gender bias is far more extensive than in these legal doctrines. The respondent thus recommended that every effort should be made to ensure that the decision-making body is free of gender bias. This can be ensured by, inter alia, basing decisions on established psychological research. Furthermore, decisions should be team-based with equitable representation of male and female. 13.4 Other comments received Adv. G J Van Zyl pointed out that the Commission has missed a crucial point, i.e. that our adversarial system of justice bedevils the issue of custody of children. Also, when 18 19 20 21 See, e.g. Tabb v Tabb 1909 TS 1033 at 1034; Dunsterville v Dunsterville 1946 NDP 594 at 597; Napolitano v Commissioner of Child Welfare, Johannesburg 1965 1 SA 742 (A) at 746C-D; Schwartz v Schwartz 1984 4 SA 467 (A) at 480F-G; Fortune v Fortune 1995 3 SA 348 (A). In Mohaud v Mohaud 1964 4 SA 348 (T) Vieyra J awarded custody of three young children (two of whom were girls) to the father rather than the mother (who had committed adultery on several occasions) in the light of his findings that the mother was a person so immature in character, so emotionally unstable, so lacking in discretion, so confused in her moral ideas that despite the youthfulness of the children, it would not be in their interests to entrust their custody to her. See Van der Linde v Van der Linde 1996 3 SA 509 (O). See also V v V 1998 4 SA 169 (C) at 176F-G and 177B. Par. 14.4 of the discussion paper.
201 the custody of children is in issue, a lot of allegations and counter-allegations are made which can traumatise children. He therefore suggested that the custody of children should be adjudicated on an inquisitorial basis separately from the divorce proceedings. Furthermore, in custody proceedings, parents should be able to stake their claims without resort to the traditional manner of allegations and counter-allegations. The Commission does recommend that where issues of possible child abuse surface in divorce proceedings, the court be able to order that the divorce matter stand down and a children s court enquiry be initiated. 22 This, in the Commission s view, will reduce the making of false allegations in divorce proceedings. Adv. Van Zyl submitted that the enforcement of custody orders is notoriously inadequate as parents are reluctant to lay criminal charges against a custodian parent for failure to abide by the terms of a custody order. He suggested that the General Law Further Amendment Act should be amended by deleting the word sole where it appears before the word custody. The Commission agrees with this suggestion. Adv. Van Zyl also referred to a letter published in the De Rebus, 23 in which he suggested a more innovative approach along the lines of the present Domestic Violence Act. He stated that it is not helpful to criminalise refusal of contact by one parent as the child might feel that he or she has been the cause of sending one parent to jail. CHILDS recommended that the following section be added to this chapter: Irretrievable breakdown of marriage when minor children are involved. The respondent suggested that both parents be required to prove the irretrievable breakdown of the marriage. Parents have to undergo some form of marital/spousal/relationship counselling. A competent counsellor recognised by the community should be required to fill in a prescribed form declaring that the marriage has broken down irretrievably. Such a requirement must be met before a divorce can be granted. The Commission is of the view that it is not desirable to force parents with children to stay married by requiring that both parents should prove the irretrievable breakdown of the marriage. In fact, the continuation of a marriage may sometimes not be in the best interests of children as children may be caught between continued marital disputes. Mr Lionel Greenberg, from KID (Kinder In Divorce), submitted that the win-loose 22 23 See par. 13.2.4 above. February 1999, p.8.
202 scenario is a priority on the agenda of the attorney / advocate. He stated that due consideration should be given to children and that children should be provided with an advocate ad litem by default. Mr Greenberg argued that an order granting a divorce should encourage visitation rather than to limit parental involvement in the life of the child. Thus, the order should be a guideline and not be used to obstruct the father s involvement. Further, the order should set a minimum commitment level and not a maximum. 13.5 Conclusion The Commission is of the view that legislative provisions for the protection of children caught in the separation or divorce of their parents should be provided for in divorce legislation. In light of the research undertaken and the submissions received, the Commission is convinced that the legal position of children in divorce or separation proceedings urgently needs reconsideration. The Commission is therefore considering including in its programme an investigation into these aspects. Obviously, such an investigation would have to go beyond the confines of the Divorce Act to also consider the General Law Further Amendment Act, the Matrimonial Affairs Act, and the Mediation in Certain Divorce Matters Act.