By Shereen Volks, Head of Divorce & Family Law, STBB | Smith Tabata Buchanan Boyes
Modern families turn gender stereotypes on their heads. Parents share the care and upbringing of their children in radically different ways to that of even one generation ago. Relationships between parents also break down more readily. People no longer stay together “for the sake of the children”. Divorce is more accessible and breakups no longer carry the social stigma they used to. Gone are the days when a pregnancy meant marriage or marriage was tradition.
Although the Children’s Act is dated 2005, it was another few years before the Act was implemented. It has now been a decade since the age of majority was lowered by three years, from 21 to 18 and parents became the holder of shared parenting rights and jointly responsible for their children.
Prior to these changes, conventional wisdom dictated that one parent should have primary responsibility for the children. The idea of “custody” embraced where a child would live for most of the time, and it included a primary authority over that child’s life. The custodian parent made all sorts of decisions about that child on his/her own. The custodian parent was usually the mother, who took domestic responsibility for the child’s arrangements. Most fathers took the primary financial responsibility for the children, seeing them on alternate weekends. It was unusual for a child to sleep over at the non-custodial parent’s house during the week.
With more mothers becoming breadwinners and more fathers becoming nurturers, parents formed new partnerships in the home. Parenting became trickier to negotiate, particularly when the parents were no longer involved in a relationship together, or perhaps were never in a permanent relationship in the first place. The legal landscape that has emerged around and as a consequence of these changes is sometimes tricky to navigate.
Even when parents have a similar approach to raising their children, conflict can arise and parents can struggle to overcome their differences. The concept of shared parental rights and responsibilities (introduced by the Children’s Act) focuses on the benefit to the children of having both parents participate in their everyday lives. Shared parental rights and responsibilities also imposes an obligation on the parents to consult with each other when making major decisions about their children.
Usually parents agree to a Parenting Plan in terms of the Children’s Act. The Parenting Plan determines how their respective responsibilities and rights over the child will be exercised. While Parenting Plans usually set out living arrangements, contact times and sometimes matters such as religious upbringing, they cannot cast in stone or necessarily predict what the changing needs of the children and the parents will involve in the future. New relationships, geographical proximity, changes to parental working circumstances and the changing needs and preferences which the children develop over time and all require some parenting flexibility.
Sometimes a child wants to spend more time in one parent’s home or wants to change schools. All is well when parents agree with these changes. If the parents do not agree on a decision, mediation is often helpful. Mediation involves sitting down with a skilled professional – usually a lawyer, psychologist or social worker, and working through the possibilities and ventilating each parent’s perspective. The beauty of mediation is having the skilled third party assist the parents in gaining a more objective perspective and seeing things from the child’s point of view. Parents often convince themselves that something is good for the child when, in fact, they are expressing an individual preference. Mediation is not adversarial and its success depends on the ability of both parents to come to an agreement. The mediator cannot and does not impose a decision on the parents. Instead, the mediator works with the parents to assist them in coming to a joint agreement on the issue.
What happens when mediation fails and the parents cannot agree? Litigation is expensive and is time-consuming. Our Courts will not take decisions without allowing both sides an equal opportunity to explain their position. In practice, fairness requires an equal opportunity for each side to state their case, which in turn can mean long delays waiting for Court dates. Disputes become more intractable once the litigation practice commences. Parents feel that they have so much invested in the process that they often lose perspective altogether. Children then have to live in circumstances of hearing acrimony for months or even years at a time. Parents can also become financially and emotionally drained to the point of drastically reducing their parental capacity.
In an endeavour to address this problem, a practice was developed a number of years ago in an attempt to keep parenting disputes out of Court by enhancing the powers of a mediator and elevating the position to what was called (in the Western Cape) “facilitation”. A facilitator was appointed by agreement between the parties in their Parenting Plan. A facilitator’s job involved first trying to mediate the dispute between parents but, if after making every effort to assist the parents in reaching agreement and finding that they were still in dispute, a facilitator was authorised in the Parenting Plan to make a binding directive or ruling. The parties undertook to be bound by this ruling. Thus, a facilitator’s directive was thought to determine many things which the parents could not agree on, from changes to contact arrangements to other big and small parenting decisions.
Over time, the term “parenting co-ordinator” replaced the term “facilitator”, but the powers and the role of the professional concerned was the same, therefore, the terms are used interchangeably in this article.
Over the last decade, a large number of divorces and Parent Plans have been ordered by Courts in the Western Cape containing facilitation or parenting co-ordination clauses. Frequently, the name of a particular professional is not included and these Parenting Plans state that if the parents in dispute cannot agree upon which facilitator to appoint, the Chairperson/s (for the time being) of the Family Mediators Association of the Western Cape (FAMAC) would appoint the facilitator. FAMAC developed facilitation training and a system of accreditation over time but there was and is no legal obligation to appoint a facilitator with any particular training or accreditation. Without regulation or standardisation of facilitation training or qualifications, appointing a facilitator could become a somewhat random process without any assurance that your facilitator or parenting co-ordinator would necessarily be qualified or competent to attend to such an important role.
In the past, in practice, a good facilitator could make a positive difference in constructively resolving post-breakup parenting disputes, but this relied upon acceptance and co-operation of the parties, and the good judgement of the facilitator. The professional concerned needed to know when to call in other professionals where an assessment was necessary, and to stop short of usurping the Court’s authority in certain decisions where only a Court has the right to make decisions.
Facilitators were sometimes making drastic decisions without fair processes. There are rules that bind Judges when determining disputes that affect the lives of children, but not facilitators, and this impacted badly on the integrity of parenting dispute resolutions. The question of the extent to which a facilitator could or should make decisions about a child’s life has been crying out for formal and clear guidance.
Facilitators are not appointed in terms of any particular provision of the Children’s Act and are not currently regulated by law, and in the absence of statutory law, it was inevitable that appropriate cases would come before the Court for clarification. The recent Western Cape High Court case of TC vs SC (case no. 20286/2017- judgement delivered on 18 April 2018) has shone much light on this issue, through the detailed judgement of Acting Judge Diane Davis. Jude Davis’s decision makes it clear that parenting co-ordinators do not have an unlimited discretion to make decisions about parental conflict. The Judge emphasises that there are some decisions which only a Court can determine and which cannot be delegated to other professionals. The judgement distinguishes between decisions which are ancillary to the original Court Order and those which operated as an amendment of the Court Order. A Court Order may stipulate that a child will spend alternate weekends with her parents but that Mother’s Day will be spent with the mother and Father’s Day with the father. Should Mother’s Day fall on the father’s weekend and he will not agree to a change of schedule, the parenting co-ordinator, in those circumstances, can direct that the child spends the day with the mother, but the rest of the weekend with the father. In the words of the Judge, “such a decision would not amount to a permanent variation of the terms of the Consent Order since the default position of alternating weekends remains the same” (at paragraph 62 of the judgement).
The judgement makes it clear that facilitators can make minor changes aimed at implementing, rather than changing, the rights set out in the Parenting Plan. A parenting co-ordinator cannot change primary residence of a child, or permanently alter the contact arrangements with both parents as to how time is allocated between them, or impose material conditions on the contact, such as the condition of supervision. In order for a parenting co-ordinator to be appointed, there must be a Parenting Plan in which the parenting rights have been agreed to by the parties or the parenting rights must be contained in an Order of Court. A parenting co-ordinator cannot make a valid directive which changes a court-ordered Parenting Plan. Judge Davis’s judgement stresses that parenting decisions are still subject to judicial oversight and their decisions are subject to appeal by a competent court.
The effect of Judge Davis’ judgement is to put the responsibility for making decisions about children squarely back into the hands of their parents who are enjoined to make greater effort to focus independently on the interests of their children. Disputes regarding major decisions about the child will need to be determined by a competent Court and parents will need to carefully weigh up the financial and the human cost of embarking on litigation of this nature.
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