1. Prof Madelene (Leentjie) de Jong, Unisa
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
ting-coordination and 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