Prof Madelene (Leentjie) de Jong, Unisa

1. Addressing the risk factors for children upon divorce – brief notes on child-informed mediation, a less adversarial trial and parenting coordination Prof Madelene (Leentjie) de Jong, Unisa

2. 1. Parental conflict • Ongoing conflict has serious developmental impacts on children • Adversarial system creates animosity and increases parental conflict

3. 2.Diminished/incompetent parenting • Parents’ ability to nurture and protect children diminishes markedly • Out of touch with children’s emotional needs and unable to communicate properly • Adversarial negotiation/ litigation pushes parents apart

4. 3.Abrupt departure of father • Paternal absence accompanying divorce correlates with greater risks and problems • Negative state of affairs intensified by adversarial system

5. 3.Abrupt departure of father • Paternal absence accompanying divorce correlates with greater risks and problems • Negative state of affairs intensified by adversarial system

6. 4.Decline in standard of living of mother • Changes of location, new schools and loss of peer support groups

7. Problems with hearing voice of the child • Expert report • Office of the family advocate • Child’s legal representative • Judge

8. Problems with hearing voice of the child • Expert report • Office of the family advocate • Child’s legal representative • Judge

9. Problems with hearing voice of the child • Expert report ? • Office of the family advocate ? • Child’s legal representative ? • Judge ?

10. Other problems with adversarial system • Contested matters take too long to finalise • System not really a search for the truth

11. Interventions that buffer children from risk factors • Child-informed mediation • Less adversarial trial (LAT) • Parenting coordination (facilitation or case management)

12. Child-informed mediation Child-focused Child-inclusive Children’s perspectives

13. Child-informed mediation Child-focused: • children are not interviewed, but parents assisted to focus on children’s developmental needs • where children aren’t of age, maturity and stage of development to participate/ refuse to participate

14. Child-informed mediation Child-inclusive: • children are interviewed by mediator • information from interview shared with parents in mediation process

15. Child-informed mediation Positive results for both children and parents • improves conflict management and keeps children out of conflict

16. Child-informed mediation Positive results for both children and parents • improved communication and higher level of co-operation between separating parents

17. Child-informed mediation Positive results for both children and parents • preserves children’s relationship with both parents and increases chances of father remaining involved in children’s upbringing

18. Child-informed mediation Positive results for both children and parents • Positive effect on standard of living of mother

19. Child-informed mediation Positive results for both children and parents • targets compromised capacity of parents to hear their children • therapeutic for children

20. Court process

21. Less adversarial trial (LAT) • Intention to reduce adversarialism and increase child focus

22. Parenting coordination • Conflict aggravated by: • postponement of patrimonial claims and actual division of assets • both parents continued involvement in children’s day-to-day lives

23. Parenting coordination • Definition: child-centred adr process • First: facilitation of dispute by agreement; if fails: power to make directives, which will be binding on parties until court directs otherwise / parties agree otherwise directive

24. Parenting coordination • Parenting coordinator’s role include multiple functions of assessment, parent education, coaching, facilitation, case management, mediation and decision-making • Timely means of dispute resolution • Parenting coordinator can give parties prompter attention

25. Parenting coordination based on if not properly limited, parenting coordination can be seen as an improper delegation of judicial authority not as an arbitrator directive

26. Parenting coordination • Hummel v Hummel (unreported, SGJ case no 2012/06274, 10/09/2012) Clash of opinion on appropriate nursery school for 4-year-old-boy Appointment of decision maker to break deadlocks Father’s application for parenting coordinator delegation of court’s power dismissed

27. Parenting coordination • TC v SC (2018 (4) SA 530 (WCC)) Father wanted parenting coordinator team Whether it can impose appointment of parenting coordinator in absence of consent by both parents Conditions

28. Parenting coordination • TC v SC (2018 (4) SA 530 (WCC)) Conditions: • welfare of child at risk due to high levels of conflict • mediation was unsuccessful • parenting coordinator is suitably qualified & experienced • fair and reasonable fees

29. Parenting coordination • TC v SC (2018 (4) SA 530 (WCC)) Limitations: • appointment after agreement on parenting plan / court order • confining decision-making power to ancillary rulings • directives must be subject to comprehensive judicial oversight

30. Parenting coordination • TC v SC (2018 (4) SA 530 (WCC)) Limitations: • appointment after agreement on parenting plan / court order • confining decision-making power to ancillary rulings • directives must be subject to comprehensive judicial oversight

31. Parenting coordination • Van der Merwe v Bruwer & Van der Merwe (unreported, case no 2018/12624, 21/12/2018) Application by mother to have directive reviewed and set aside by court Parenting coordinator appointed in divorce order with power to regulate, facilitate and review maintenance directive

32. Parenting coordination • Van der Merwe v Bruwer & Van der Merwe (unreported, case no 2018/12624, 21/12/2018) Court found that: • parenting coordinator did not exceed powers set out in order upon divorce • original order constituted an impermissible delegation of judicial authority directive

33. Parenting coordination • Van der Merwe v Bruwer & Van der Merwe (unreported, case no 2018/12624, 21/12/2018) Court found that: • parenting coordinator did not exceed powers set out in order upon divorce • original order constituted an impermissible delegation of judicial authority directive provision for appointement of new parenting coordinator

34. Parenting coordination • 3 cases underline importance of limiting parenting coordinator’s role • Guidelines on the Practice of Parenting Coordination in South Africa – available at http://www.famac.co.za/parenting-coordination and http://www.saam.org.za/wp-content/uploads/2017/01/PC-guidelines-Final-Doc-28-June-16.pdf

35. Parenting coordination • If parenting coordination is appropriately limited: • implement court orders and/or parenting plans • make directives on only minor day-to-day parenting issues

36. Parenting coordination • Process endaevours to move parents into parallel co-parenting Protect & sustain safe, healthy and meaningful parent-child relationships

37. Parenting coordination • Parenting coordinators should consult children directly • Information from child interview should be made available to parents so that it may inform agreements by parents and directives by parenting coordinators

38. Parenting coordination • Valuable intervention to improve children’s adjustment in the post-divorce process • Co-parents are typically more prone to argue about day-to-day issues than major child-related decisions