Parenting Coordination and Facilitation
TC V SC - Case no: 20286/2017 – Cape Town High Court
Judgment delivered on 18 April 2018
Case Summary - Facilitation in Child Disputes
Introduction
In an application in terms of Rule 43 for interim relief pending a matrimonial action the core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents. The applicant ("father") and the respondent ("mother") were in the midst of an acrimonious divorce. They had two young boys, "C", age 9, and "M", age 7.
In this case, Acting Judge Diane Davis who presided over the matter observed:
“…. sadly often the case in divorce situations, the conflict generated by the breakdown of the marital relationship spilled over into the parenting relationship. The children became an arena of struggle where spousal conflict played out in the form of disputes about care and contact and other parenting issues”.
As commonly in many divorce cases where children are involved the family dynamics in the case were complex. The mother and the father had been characterized by their experts as "high conflict", ie, a type of person who manifests all or-nothing thinking, inflexibility, unwillingness to compromise, and a tendency to accuse and blame. Both parents accused each other of alcohol abuse, the allegations against the father implying a significant risk for the children. And then there was the fact that C was a "high needs child": he suffered from insulin dependent diabetes mellitus - a chronic, potentially life-threatening disease which required round the clock management - as well as autism spectrum disorder ("ASD"), and possibly also from attention deficit hyperactivity disorder ("ADHD"). (The suspected diagnosis of ADHD had yet to be confirmed following an evaluation.) C's issues presented a particular challenge for co-parenting in the family, as the potential for different approaches to the proper treatment of C provided fertile ground for frequent and ongoing conflict between the parents.
The father was aggrieved since he claimed that his contact with the children was unfairly restricted by the mother since they separated in 2016, based on what he regarded as spurious or exaggerated allegations of alcohol abuse and poor diabetic management on his part.
The father instituted action for divorce on 22 June 2016 ("the action"). In the action he sought inter alia an order regulating shared parental responsibilities and rights in respect of the children. However, the mother in her counterclaim sought an order that the father's contact with the children had to be supervised because of his history of alcohol abuse.
The Expert Report
After their separation, the father and mother were unable to agree on what was in the children's best interests. Each one appointed an expert to conduct an assessment and made recommendations regarding appropriate care and contact arrangements and other parenting matters. The experts so appointed, Ms Leigh Pettigrew ("Pettigrew") for the father and Ms Pam Tudin (''Tudin") for the mother ("the experts"), were mandated in terms of a Court order dated 13 June 2017 to file a joint report containing such recommendations.
Pettigrew and Tudin mentioned that they had developed a modus operandi where they were able to collaborate on the same case, despite having been appointed by opposing parties, on the basis that they both attended all consultations and interviews with children, parents and collaterals, had sight of all correspondence received from the parties, shared all pertinent information and wrote up a joint report reflecting areas of agreement and disagreement.
The reason for this novel and commendable approach was set out in a joint minute of interim care and contact arrangements, dated 3 April 2017, in which the experts stated that:
"The writers felt that given the high levels of conflict in this matter, given the fact this matter has been ongoing for a significant period of time, given that there is no obvious indication that the matter will settle any time shortly, and finally, given that the children have been exposed to a great deal of acrimony, the writers are strongly of the opinion that this model of assessment will serve to reduce the potential for setting the experts up to sustain conflict. Rather the model aims to calm the situation by virtue of its capacity to hold both party's [sic] views without it offering them a chance to use the same to perpetuate unnecessary differences at the children's expense. Both parties expressed their agreement with this assessment model to Ms Pettigrew and Ms Tudin."
The experts performed an in-depth assessment of the family, working separately prior to March 2017 and together thereafter 2017. Their joint report was eventually completed on 15 September 2017 ("the PT report"). The investigation was a Herculean effort which took 73% hours (excluding report writing) over a period of almost 13 months. The PT report recorded that the experts spent almost 30 hours interviewing and observing the parties and the children, and 17% hours interviewing 22 collateral sources which included 7 experts, notably Dr Carrihill, a Paediatric Endocrinologist and Jana Forrester, an Educational Psychologist and specialist on ASD, both of whom had been involved in treating C. Significantly however, no mention was made in the PT report of the experts having consulted with Dr Lesley Carew, the child psychiatrist who has been involved in treating C for anxiety since 2012 ("Dr Carew").
The PT report contained a comprehensive set of recommendations for care and contact in respect of C and M, which included:
In the latter regard, the PT report contained the following paragraph which according to the Judge was significant:
"It has been strongly recommended by Dr Carrihill that C needs to be on the Medtronic Enlite system sooner rather than later, in C's best interests, in order that more accurate monitoring, amongst other reasons, can take place so that 'safety and control of diabetes management' is better. In this regard both parties are to ensure that C is on this system by no later than November 2017." [Emphasis added.]
Soon after the release of the PT report on 15 September 2017, and as is usually the case in divorce cases conflict arose between the mother and the father regarding the status and implementation of the recommendations. The father evidently wanted to see that all the recommendations had to be implemented immediately, while the mother was apparently in no hurry to do so. Her attitude was that the recommendations were subject to negotiation between the parties and would only become binding if and when sanctioned by an order of Court following the trial.
The father's attorney wrote to the mother's attorney in October 2017, demanding confirmation that the mother agreed to abide by the recommendations of the experts - particularly those in regard to extended contact - failing which an urgent application would be made to court for the immediate implementation of the experts' recommendations pendente lite (in the interim pending the divorce). No mention was made in the October 2017 letter regarding C's diabetes and the need to use the Medtronic Enlite sensor.
The mother's position at that stage, as conveyed in her attorney's response in October 2017, was that she was prepared to agree to the extended weekend contact, but not to the mid-week sleepover contact, which she felt would be too disruptive for the children. She also objected to being forced to have a carer present at all times while the children were with her, as she felt that there was no basis for this requirement in her case as opposed to that of the father. Another bone of contention was where the children were going to spend Christmas 2017.
In November 2017 the father's attorney wrote to the mother's attorney suggesting a round table meeting the next day for the purpose of reaching agreement on the issues in dispute regarding the experts' recommendations and resolving the regulation of the parties' parental rights and responsibilities. It was stated in the letter that:
"If, however, agreement is not reached pursuant to the meeting, our instructions are to proceed with an urgent application as the current situation is untenable and not in the children's best interests. Of particular concern to our client is the implementation of the contact arrangements, including holiday contact, the management of C's diabetes in accordance with Dr Carrihi/J's recommendations, including C's use of the Medtronic Enlite sensor in accordance with paragraph 116. 2 of the recommendations, which ought to have been implemented from today and the appointment of a facilitator team (paragraph 112 of the recommendations). In respect of this last issue and to the extent that your client is raising issues, as is my client, regarding the best interests of the children, the immediate appointment of the facilitators will allow for the resolution of the disputes within that forum." [Emphasis added.]
The proposed settlement conference unfortunately did not take place in November 2017 as the parties could not agree on what was to be dealt with at the meeting. The mother was vehemently opposed to a piecemeal settlement of the divorce, while the father was equally adamant that discussion would only be entertained regarding the parental rights and obligations of the parties and would not extend to financial issues.
On 1 November 2017, evidently in expectation that the proposed settlement meeting would not happen, and that litigation was imminent, the mother's attorney wrote to the father's attorney and conveyed that the mother was amenable to the extended weekend contact proposed by the experts, but not the mid-week sleepovers. She did however tender midweek contact every alternate Wednesday afternoon after school until 19h00. It was pointed out that the remaining dispute in regard to contact concerning 1 night in a 14-day cycle hardly warranted an urgent approach to court, especially when the allocation of a trial date was imminent. It was recorded that any application to enforce additional contact would be strenuously opposed.
The Court Application
Notwithstanding this warning, the father on 6 November 2017 launched an application for urgent relief in terms of Rule 43, with an urgent hearing sought on 21 November 2017. In terms of the notice of motion urgent interim orders were sought:
Annexure "X" to the notice of motion was a 21-page document which was not signed by the parties, but which, in every other respect, resembled a parenting plan envisaged in sections 33 and 34 of the Children's Act 38 of 2005 ("the Act"). It also contained detailed provisions pertaining to the care and contact of C and M, based on the recommendations in the PT report. The contents of annexure "X" were not couched as interim measures pendent lite, but as a long-term provisions regulating the parties' parental rights and responsibilities in respect of C and M. As Annexure "A" was essentially a draft parenting plan.
The draft parenting plan inter alia made provision for:
The application was opposed by the mother, who delivered an answering affidavit on 20 November 2017 wherein she disputed the alleged urgency of the matter and the attempt to impose on her the terms of a parenting plan to which she had not agreed. In particular the mother objected to the appointment of facilitators without her consent, the forced change of C's insulin pump-sensor by 30 November 2017, the imposition of a mid-week sleepover every alternative week and the insistence that the mother have a carer present from 19h00 until 07h00 at all times when the children are with her.
Adv Pincus SC, who appeared with Adv Reilly for the mother, argued that the Court did not have jurisdiction to grant an order in the terms sought in prayer 2 of the Notice of Motion on the grounds that:
Adv Dicker SC, who appeared for the father, contended that the document in annexure "X" was not a parenting plan but a draft order containing detailed measures for regulating care and contact arrangements in respect of C and M pendente lite. She argued that the Court, as the upper guardian of minor children, can make any such order as may be required, and in such detail as may be necessary, in order to regulate care and contact arrangements in the best interests of minor children. She contended that the appointment of a facilitator in this case was necessary to avoid ongoing conflict and litigation between the parties about parenting issues, which was detrimental to the well-being of C and M, and that the Court had the power to make such an order in terms of its inherent jurisdiction as upper guardian.
Judge Davis was of the view that if annexure "X" was regarded as an unsigned parenting plan, then Mr Pincus was clearly correct that it cannot be made an order of court. On the other hand, if annexure "X" was regarded in substance as a draft order containing provisions regulating care and contact arrangements, then it would be highly pedantic to refuse to grant any relief in terms thereof merely because the "prayers" were contained in a document annexed to the notice of motion as opposed to being set out individually in the notice of motion. And when Courts are dealing with children care must be taken that the interests of minors were not "held to ransom for the sake of legal niceties" or "mechanically sacrificed on the altar of jurisdictional formalism”.
As regards the appointment of a facilitator, Judge Davis indicated to Counsel during the hearing on 21 November 2017 that the question whether or not the Court has jurisdiction to appoint a facilitator to non-consenting parents was one of importance which required time for further research and consideration.
Does the court have the power to impose a facilitator on parents in the absence of consent by both parents?
The alternative dispute resolution process referred to as facilitation in the Western Cape, and as case management in Gauteng, is known internationally as parenting co-ordination. Judge Davis used the term parenting coordination and parenting coordinator ("PC") respectively.
Parenting coordination is a non-adversarial dispute resolution service provided by mental health professionals or family law lawyers who assist high conflict parents in divorce situations to resolve child-related disputes in an expeditious and child-focused manner, in order to minimise parental conflict with its associated risks for children. According to Judge Davis it was a sui generis process which required legal, psychological and conflict resolution skills, and combines assessment, education, case management, conflict management and decision-making functions.
Parenting coordination evolved in response to the widespread recognition that the level and intensity of the parental conflict prior, during, and after divorce proceedings, rather than the divorce itself, is thought to be the most dominant factor in a child's psychological and social development post- divorce. Exposure to conflict can result in problems such as perpetual emotional turmoil, depression, substance abuse, and educational failure.
The Association of Family and Conciliation Courts ("AFCC"), an international, interdisciplinary association of professionals which has published guidelines for parent coordination, described it as "a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with the prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
Thirteen states in the United States of America had adopted statues or court rules permitting parenting coordination, some with and some without decision-making authority, and that at least ten states were using parenting coordination without specific authority. That number has doubtless since increased.
In South African there is presently no statute or court rule governing the appointment of parenting coordinators. The practice which has developed in the Western Cape was that divorcing parents, acting on the recommendations of their legal and mental health advisers, consent to the appointment of a PC who is assigned with mediating parenting disputes between the parties and, where mediation has not been successful, empowered to make directives which are binding until set aside by the Court on review. The agreement to appoint a PC is usually embodied in a consent paper or parenting plan which is made an order of Court when the parties divorced. An agreement to appoint a PC may also be embodied in an interim parenting arrangement which is made an order of Court during Rule 43 proceedings for interim relief pendente lite.
The Western Cape Courts had over the years appointed PC's by agreement between the parties, or at least in circumstances where its power to appoint a PC was not pertinently challenged by one of the parties, the question of whether or not the appointment of a PC constituted an unlawful delegation of judicial authority was the issue before Judge Davis. The mother opposed the appointment of a PC, and the point raised by Adv Pincus was that the appointment of a PC with decision-making power to break deadlocks between parents is an impermissible delegation of the Court's judicial authority.
Adv Pincus relied on the decision of the South Gauteng High Court in Hummel v Hummel in which the Court refused an opposed application for the appointment of a PC empowered to make decisions binding on both parents. Sutherland J in that case held that no court has the jurisdictional competence to appoint a third party to make decisions on behalf of parents in relation to their children.
Adv Pincus also referred the court to the decision in Wright v Wright, in which Van Staden AJ, in the face of opposition by the mother to the appointment of a new PC to replace one which had resigned, declined the father's request for the appointment of a replacement PC. Van Staden AJ referred to the decision in Hummel, with apparent approval, and went on to hold that in the particular case before him parenting coordination was not a practical alternative since the mother was opposed to it and the father had been unhappy with the rulings made by the previous PC. He was of the view that in these circumstances the parties would have to agree to accept the reasonable determinations of a PC as final before parenting coordination would be a practical option. Although the decision in Wright might, at first blush, be construed as support for the statement of principle laid down in Hummel, it seemed to Judge Davis that a closer examination of Van Staden AJ's reasoning in Wright showed that the decision was based not on principle but on expedience in that the Court declined to appoint a PC because the resistant attitude of the parties meant that parenting coordination was unlikely to work.
Adv Dicker argued that the Court had the power to appoint a PC notwithstanding the opposition of a parent where it would be in the best interests of the minor child involved. She relied in this regard on section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution"), sections 6(4) 16 and 7(1)(n) of the Act, and the Court's inherent jurisdiction at common law as the upper guardian of all minors.
Adv Dicker referred the court to the decision of Hay v B and Others in which Jajbhay J had to balance a child's right to life against the parent's religious beliefs, which prohibited blood transfusions. The learned Judge held, with reference to the Constitutional principle that the child's best interests were of paramount importance, that:
"The High Court is the upper guardian of all minors and, where it is in the best interests of such minor to receive medical treatment, an order that the minor receive such treatment is appropriate notwithstanding the refusal by the minor's parents to consent to such treatment." [Emphasis added]
Judge Davis was of the opinion that Jajbhay J's approach in Hay demonstrated that a High Court may permissibly resort to its inherent jurisdiction as the upper guardian of minor children in order to fulfil its duty to protect the Constitutional rights of children. And, stated that where necessary, a Court may, in terms of section 173 read with section 39(2) of the Constitution, develop and extend the common law relating to its inherent jurisdiction as upper guardian in order to respect, protect, promote and fulfil the fundamental rights of children.
Adv Dicker also referred Judge Davis to an article by Professor Madelene de Jong in which the learned author argued that there was authority, inter alia on the basis of section 28(2) of the Constitution and the inherent jurisdiction of the Court as upper guardian of minors, to sustain a Court appointment of a PC in the best interests of the child where the parents would otherwise be engaged in frequent conflict and re-litigation. She further suggested appropriate limitations on the appointment of a PC with a view to countering the objection that the appointment of a PC is an improper delegation of judicial authority.
Judge Davis was of the view that the opinion of the judgment in Hummel was prone to the criticism that the Court didn't have an understanding of the proper function of parent coordination. Judge Davis had drawn this conclusion because the court in the Hummel matter regarded the case manager as "a creature of statute invented to facilitate the achievement of the aims of section 33; ie the formulation of a plan and to promote agreement on the provisions of such plan." This conflated the role of the person referred to in section 33(5) of the Act, whose task is to assist the parents to reach agreement on the terms of a parenting plan, with that of the PC, whose proper task is to assist the parents to implement the terms of an agreed parenting plan.
In Hummel the Court held, with reference to section 33(5) and section 34 of the Childrens Act, that there was no hint that a Court could impose a parenting plan on a pair of parents in the absence of agreement. This approach was correct according to Judge Davis. But the Court in the Hummel matter went on to say, with reference to section 33(5) of the Act, that "the role [of] any other 'suitable person' (by any other name, including 'case manager) is to facilitate decision making rather than be the decision-maker." This statement, in the Judge Davis’ view, indicated an erroneous equation of the function contemplated in section 33(5) with that of parenting coordination. According to Judge Davis it was understandable how this confusion of functions arose in Hummel: since in that matter there was no agreed parenting plan and the case manager appointed to monitor contact arrangements had attempted unsuccessfully to assist the parties to agree on a parenting plan, and because parenting disputes were ongoing the court was asked to authorise the case manager to make wide-ranging decisions for the parents absent the framework of an agreed parenting plan.
Section 33(5) of the Children's Act states that:
"In preparing a parenting plan as contemplated in subsection (2) the parties must seek - (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person."
Section 34 of the Children's Act deals with the requirements for having a parenting plan registered with the family advocate or made an order of court. In essence the parenting plan must be in writing and signed by the parties, i.e. agreed, and the application to have the parenting plan registered or made an order of court must be brought by both parents.
It just so occurred in Hummel that there was a co-incidence of the functions of the person contemplated in section 33(5) and that of the PC. But the roles were conceptually separate, and Judge Davis warned that care should be taken to treat them as such. In his view it did not follow that because the contents of a parenting plan had to be agreed and could not be imposed on parents, that necessarily meant that the Court could not, in appropriate cases, appoint a PC with limited decision-making powers to assist the parties in implementing the terms of an agreed parenting plan which had been made an order of court.
In Judge Davis’ view the appointment of and powers conferred on a PC should be limited in a number of essential respects in order to avoid an impermissible delegation of judicial authority.
Judge Davis was of the view that parenting coordinators could fulfil a useful purpose in the administration of justice by conserving judicial resources which would otherwise be taken up by high-conflict parents who were frequent litigators regarding post-divorce disputes.
The factors highlighted by Judge Davis
Judge Davis emphasized three factors that provided a useful starting point for a consideration of the limitations which should be imposed on a PC's powers:
According to the court these three considerations provided a roadmap for the limitations which needed to be imposed on the functions and powers of a PC.
Limitations imposed by Judge Davis on PC’s
Limitation 1
In the Judge’s view the first and foremost limitation on the appointment of a PC should be that the parties must have already reached agreement on the terms of a parenting plan, whether interim or final, which has been made an order of court, and the PC's role must be limited to addressing implementation of or compliance with an existing court order.
The judge stressed that this requirement, as an agreed parenting plan which had been made an order of court was necessary to provide the framework which delineates the PC's proper function and authority. Without it one ran the risk, of an improper delegation of judicial decision-making power of the type which the Court was being asked to authorise.
The judge made the point that the High Court in South Africa by virtue of the provisions of section 173 of the Constitution enjoys inherent authority to ensure that its orders are carried out and it was well-established that the High Court has inherent jurisdiction to enforce its orders by committal to prison for contempt of court. The judge therefore saw no difficulty, with the notion that the High Court could, in the exercise of its inherent power to protect and regulate its own process, appoint a PC tasked with supervising compliance with the court's order to ensure that its terms were carried out.
Limitation 2
The second limitation which Judge Davis proposed on a PC's power was related to and flows from the first, namely that the PC's decision-making power must be confined to ancillary rulings which were necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order, so that the PC does not trespass on the Court's exclusive jurisdiction in terms of the Act.
In this regard the decision of the District of Columbia Court of Appeals in Jordan v Jordan provided a useful example. In that case the trial court, which decided the issues of custody and visitation, appointed a PC over the objection of the mother with permission to "make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine . . . fundamental issues of custody and visitation" and the trial court's order specifically stated that "[n]othing in this order shall be construed to be or confer on the special master [PC] the right or obligation to make a custody evaluation . . . [or] to make decisions that conflict with the parties' right to make decisions regarding the children's religion or the children's observation of religious requirements."
On appeal the court in Jordan rejected the argument that the trial court lacked authority to appoint a PC over the objection of the mother. It held that the trial court enjoyed authority under a rule which empowered it to appoint and delegate powers and functions to a "special master". While there is no equivalent rule in South Africa, the inherent jurisdiction of the High Court as upper guardian in Judge Davis’ view created a legal basis for a similar appointment. The appeal court in Jordan went on to say:
"Of course, the court's ability to delegate authority to a special master or parenting coordinator has limits. Most clearly, in this context, a trial court may not abdicate its responsibility to decide the core issues of custody and visitation. By statute, when custody of a child is disputed, the trial court must decide what type of custody arrangement is appropriate. In addition, we have held that it is improper for a trial court to delegate decisions regarding a party's right to visitation. In keeping with these limitations, the Special Master Order specified that the parenting coordinator may 'make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine fundamental issues of custody and visitation.' The Special Master Order further stated, 'In the event of a dispute between the parties as to issues significantly affecting their children, the Special Master may make decisions regarding the following day to day issues' . . . Thus, the order properly acknowledged and preserved the trial court's responsibility to decide the issues of custody and visitation." (Emphasis in the original].
The reasoning in Jordan was to the effect that a limited delegation to a PC will not amount to an improper delegation of judicial authority if it is confined to decisions about day-to day conflicts which do not trespass on the exclusive jurisdiction of the court to decide the core issues of custody and visitation. By parity of reasoning, an appointment of a PC in South Africa will not constitute an impermissible delegation of judicial power if the PC was not tasked with deciding the various issues referred to in the Act which lie within the exclusive preserve of a court to determine.
In the case of Yates v Yates the Superior Court of Pennsylvania adopted a similar approach to that taken in Jordan. In Yates an appellate court rejected the argument that the decision-making power conferred on a PC was an improper delegation of judicial authority in circumstances where the trial court had already resolved the primary issues relating to legal custody, physical custody and visitation, and had only authorised the PC to resolve "ancillary custody disputes, such as determining temporary variances in the custody schedule, exchanging information and communication, and coordinating [the child's] recreational and extracurricular activities."
A straight forward example helps to illustrate the difference between a decision which is ancillary to the court order and one which operates as an amendment of the court order: the court order stipulates that the child will spend alternate weekends with her parents, and that Mother’s Day will be spent with the mother and Father’s Day with the father. A conflict arises, however, where Mother’s Day falls over the father's weekend and he is unwilling to agree to a change of the weekend schedule. If the PC in these circumstances were to direct that the child should spend the day from 10h00 to 13h00 with the mother on Mother’s Day but the rest of the weekend with the father, 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. But the ruling of the PC would fulfil a vital function in ensuring the fair implementation of the court order in the best interests of the child: acrimony would be kept to a minimum and the undesirable situation prevented where a party is denied justice because of a lack of time or funds to approach the Court for a decision on a relatively trivial matter.
In Idaho, for example, the parenting coordination rule gives examples of what matters a trial court may authorise a PC to decide, which include: time, place and manner of pickup and delivery of children; child care arrangements; minor alterations to parenting schedule in respect of weeknight, weekend or holiday contact which do not substantially alter the basic time share allocation; participation by significant others and relatives in contact; first and last dates of long holiday contact; schedule and conditions of telephone contact; manner and methods of parental communication; and approval of travel plans. The Idaho rule also specifically precludes a PC from making binding decisions on more significant matters such as: which parent may authorise treatment or counselling for a child; which parent may select a school; supervision of contact; submission to a care and contact assessment, and maintenance for the child. Furthermore, the Idaho rule includes a salutary overall limit that the PC make only make decisions insofar as necessary to serve the best interests of the child. It provides that:
"The goal of the Parenting Coordinator should always be to empower the parents in developing and utilizing adaptive parenting skills so that they can resume the parenting and decision-making role in regard to their own children. When it is not possible for the parents to agree, the Parenting Coordinator shall provide only the amount of direction and service required in order to serve the best interest of the child by minimizing the degree of conflict between the parties." [Emphasis added]
Likewise, in British Columbia, Canada, a parenting coordinator may only make determinations in respect of matters such as a child's daily routine, the participation of the child in extracurricular activities and special events, the provision of routine medical care to the child, transportation and exchange of the child, and contact during vacations and special occasions. A parenting coordinator may not, in British Columbia, make determinations in respect of the relocation of a child or changes to guardianship, the allocation of parental responsibilities or parenting time and contact.
Judge Davis remarked: “The obvious triviality of the sorts of issues which PC's may be authorised to decide should not cause one to lose sight of the importance of the PC's function. Research has shown that high-conflict parents are more prone to arguing about day-to-day issues than major child-related decisions. And it bears emphasis that ongoing parental conflict over minor - even petty - issues can have a major impact on the well-being of children post-divorce. It is no exaggeration to say that the ravages of incessant parental conflict pose a real threat to a child's Constitutional rights to dignity, parental care, and protection from abuse. Entrenched parental conflict, which can have a devastating impact on a child's feelings of security, well-being and self-worth, constitutes a form of emotional abuse of the child. That being the case, I consider it incumbent upon the High Court, in appropriate cases, to "forge new tools and shape innovative remedies" in order to provide an effective remedy against the threat to a child's fundamental rights posed by ongoing parental conflict post-divorce or separation”.
Limitation 3
The third limitation on a PC's powers, which Judge Davis regarded as crucial to eliminate an impermissible delegation of judicial authority, was that all decisions of the PC must be subject to comprehensive judicial oversight in the form of a full reconsideration of the decision. This meant that the rulings of the PC, even if they operate immediately pending review, are not final in effect because they are susceptible to alteration by the Court. By permitting a PC's rulings to operate immediately, subject to a party's right to apply to Court for a stay of the ruling pending a review, one strikes a necessary balance between the need for expeditious and effective conflict resolution by the PC and the need for judicial scrutiny of the PC's rulings. If the default position is that a PC's rulings are not operative until such time as they have been endorsed by the Court, the essential rationale for parenting coordination, viz. an expeditious and inexpensive form of dispute resolution which reduces the involvement of the Courts, will be undermined.
Limitation 4
The fourth limitation which Judge Davis imposed on the appointment of a parenting coordinator involved a cluster of findings which a Court should, in his view, be a condition precedent to the appointment of a PC in the situation where the parents do not consent both to the appointment of a PC but also to the conferral of limited decision-making powers on the PC.
The necessary determinations or findings are:
Judge Davis made it clear that absent the consent of the parties to the appointment of a PC and the terms of his or her appointment, a Court should not, in his view, impose a PC on parties without conducting the necessary inquiries and making the findings referred to above.
The court in Hummel did admit of the possibility that the High Court's common law power as the upper guardian of minor children may, in exceptional cases, form the basis of a special remedy to achieve an appropriate outcome. Judge Davis shared the view of Sutherland J that circumspection is required when exercising the power conferred by section 38 of the Constitution to craft a remedy for every fundamental right. Judge Davis also agreed that it was not appropriate on the facts in Hummel's case to appoint a PC. But was of the firm view that where there was a court-ordered parenting plan in place, and there was evidence which shows that the child was at risk due to a demonstrated inability or unwillingness of the parents to co-parent peacefully in the best interests of the child, then the circumstances were sufficiently exceptional to warrant the invocation of the court's inherent power both to enforce compliance with its own orders and to ensure protection of fundamental rights.
In summary Judge Davis stated that a High Court may, in the exercise of its inherent jurisdiction as the upper guardian of minor children:
Appoint a PC with the consent of both parties, provided that:
a. there is already an agreed parenting plan in existence, whether interim or final, which has been made an order of court;
b. the role of the PC is expressly limited to supervising the implementation of and compliance with the court order;
c. any decision-making powers conferred on the PC is confined to ancillary rulings which are necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order;
d. all rulings or directives of the PC are subject to judicial oversight in the form of an appeal in the wide sense described in Tickly & Others v Johannes N O & Others 1963 (2) SA 588 (T) at 590G - 591A, ie "complete re-hearing of, and fresh determination of the merits of the matter with or without additional evidence or information."
Appoint a PC without the consent of both parties, provided that Court is satisfied not only that the conditions listed in a. to d. above are met, but also that:
e. the welfare of the child is at risk from exposure to chronic parental conflict based on evidence of the parents' inability or unwillingness to co-parent peacefully;
f. mediation has been attempted and was unsuccessful, or is inappropriate in the particular case;
g. the person proposed for appointment as the PC is suitably qualified and experienced to fulfil the role of PC;
h. the fees charged by the proposed PC are fair and reasonable in the light of his or her qualifications and experience, that the parents can afford to pay for the services of the PC, and that at least one of the parents agrees to pay for the services of the PC.
Judge Davis was of the view that the answer to the question of whether or not the Court should appoint a PC in this case where the mother is opposed to such appointment was “no”.
He based his answer on the fact that the contents of the parenting plan had not yet been agreed and aspects of the parenting plan proposed by the father were still hotly disputed. If those disputes were not resolved by negotiation, they would have to be determined by the trial court. Judge Davis stated: Absent an agreed parenting plan which has been made an order of court, what I consider to be an essential precondition for the appointment of a PC, namely that the PC's role be limited to addressing the implementation of or compliance with an existing court order, is lacking.
Judge Davis held further: “…. while it does appear that the parties in this case fall into the category of "high-conflict" parents, this may have to do with the fact that the divorce litigation is still underway so that emotions are running high and the parties have not yet had an opportunity to settle into their new reality. It may turn out to be the case that the parties are able to resolve ongoing parenting conflicts through mediation once the divorce has been finalised and a court order put in place with regard to residence and contact arrangements. Unless both parents consent to the appointment of a PC, parenting coordination should, in my view, only be imposed as a measure of last resort where mediation has first been attempted and has failed, or is not appropriate because of special circumstances, such as domestic violence”.
Judge Davis was of the view that the request for the appointment of a PC at this interim stage of the matter was premature, and he declined, for the reasons set out above, to make an order appointing a PC as requested by the father.
According to Judge Davis it was regrettable that the father saw fit to persist with his application, which has only served to increase legal costs and escalate hostilities between the parties.
The court concluded that there was no reason in this case why the ordinary rule should not apply that the costs follow the result.
In the result Judge Davis made the following order:
Judgment delivered on 18 April 2018
Case Summary - Facilitation in Child Disputes
Introduction
In an application in terms of Rule 43 for interim relief pending a matrimonial action the core issue was whether the High Court had the power, by virtue of its inherent jurisdiction as the upper guardian of minor children, to make an interim order appointing a facilitator to deal with parenting disputes over the objection of one of the parents. The applicant ("father") and the respondent ("mother") were in the midst of an acrimonious divorce. They had two young boys, "C", age 9, and "M", age 7.
In this case, Acting Judge Diane Davis who presided over the matter observed:
“…. sadly often the case in divorce situations, the conflict generated by the breakdown of the marital relationship spilled over into the parenting relationship. The children became an arena of struggle where spousal conflict played out in the form of disputes about care and contact and other parenting issues”.
As commonly in many divorce cases where children are involved the family dynamics in the case were complex. The mother and the father had been characterized by their experts as "high conflict", ie, a type of person who manifests all or-nothing thinking, inflexibility, unwillingness to compromise, and a tendency to accuse and blame. Both parents accused each other of alcohol abuse, the allegations against the father implying a significant risk for the children. And then there was the fact that C was a "high needs child": he suffered from insulin dependent diabetes mellitus - a chronic, potentially life-threatening disease which required round the clock management - as well as autism spectrum disorder ("ASD"), and possibly also from attention deficit hyperactivity disorder ("ADHD"). (The suspected diagnosis of ADHD had yet to be confirmed following an evaluation.) C's issues presented a particular challenge for co-parenting in the family, as the potential for different approaches to the proper treatment of C provided fertile ground for frequent and ongoing conflict between the parents.
The father was aggrieved since he claimed that his contact with the children was unfairly restricted by the mother since they separated in 2016, based on what he regarded as spurious or exaggerated allegations of alcohol abuse and poor diabetic management on his part.
The father instituted action for divorce on 22 June 2016 ("the action"). In the action he sought inter alia an order regulating shared parental responsibilities and rights in respect of the children. However, the mother in her counterclaim sought an order that the father's contact with the children had to be supervised because of his history of alcohol abuse.
The Expert Report
After their separation, the father and mother were unable to agree on what was in the children's best interests. Each one appointed an expert to conduct an assessment and made recommendations regarding appropriate care and contact arrangements and other parenting matters. The experts so appointed, Ms Leigh Pettigrew ("Pettigrew") for the father and Ms Pam Tudin (''Tudin") for the mother ("the experts"), were mandated in terms of a Court order dated 13 June 2017 to file a joint report containing such recommendations.
Pettigrew and Tudin mentioned that they had developed a modus operandi where they were able to collaborate on the same case, despite having been appointed by opposing parties, on the basis that they both attended all consultations and interviews with children, parents and collaterals, had sight of all correspondence received from the parties, shared all pertinent information and wrote up a joint report reflecting areas of agreement and disagreement.
The reason for this novel and commendable approach was set out in a joint minute of interim care and contact arrangements, dated 3 April 2017, in which the experts stated that:
"The writers felt that given the high levels of conflict in this matter, given the fact this matter has been ongoing for a significant period of time, given that there is no obvious indication that the matter will settle any time shortly, and finally, given that the children have been exposed to a great deal of acrimony, the writers are strongly of the opinion that this model of assessment will serve to reduce the potential for setting the experts up to sustain conflict. Rather the model aims to calm the situation by virtue of its capacity to hold both party's [sic] views without it offering them a chance to use the same to perpetuate unnecessary differences at the children's expense. Both parties expressed their agreement with this assessment model to Ms Pettigrew and Ms Tudin."
The experts performed an in-depth assessment of the family, working separately prior to March 2017 and together thereafter 2017. Their joint report was eventually completed on 15 September 2017 ("the PT report"). The investigation was a Herculean effort which took 73% hours (excluding report writing) over a period of almost 13 months. The PT report recorded that the experts spent almost 30 hours interviewing and observing the parties and the children, and 17% hours interviewing 22 collateral sources which included 7 experts, notably Dr Carrihill, a Paediatric Endocrinologist and Jana Forrester, an Educational Psychologist and specialist on ASD, both of whom had been involved in treating C. Significantly however, no mention was made in the PT report of the experts having consulted with Dr Lesley Carew, the child psychiatrist who has been involved in treating C for anxiety since 2012 ("Dr Carew").
The PT report contained a comprehensive set of recommendations for care and contact in respect of C and M, which included:
- the appointment of a facilitator team comprised of a lawyer and a psychologist to assist the parents to resolve parenting disputes;
- random breathalyser tests for the father while the children were in his care to monitor for alcohol use;
- that the father and the mother both had to have a carer present from 19h00 to 07h00 during all contact with the children for six months, to ensure the safety of the children in case either the father or the mother became intoxicated while looking after the children;
- that the father had to seek urgent professional assistance to manage his anger, and that the mother continued with therapy to address her tendency to provoke conflict with the father;
- that the children remained primarily resident with the mother and have contact with the father for 5 nights in a 14-day cycle, with the father having the children every second weekend from Thursday afternoon after school until Monday morning before school, and on Thursday nights during alternate weeks, from after school until before school on Friday mornings;
- a protocol for the management of C's diabetes, based on the recommendations of Dr Carrihill.
In the latter regard, the PT report contained the following paragraph which according to the Judge was significant:
"It has been strongly recommended by Dr Carrihill that C needs to be on the Medtronic Enlite system sooner rather than later, in C's best interests, in order that more accurate monitoring, amongst other reasons, can take place so that 'safety and control of diabetes management' is better. In this regard both parties are to ensure that C is on this system by no later than November 2017." [Emphasis added.]
Soon after the release of the PT report on 15 September 2017, and as is usually the case in divorce cases conflict arose between the mother and the father regarding the status and implementation of the recommendations. The father evidently wanted to see that all the recommendations had to be implemented immediately, while the mother was apparently in no hurry to do so. Her attitude was that the recommendations were subject to negotiation between the parties and would only become binding if and when sanctioned by an order of Court following the trial.
The father's attorney wrote to the mother's attorney in October 2017, demanding confirmation that the mother agreed to abide by the recommendations of the experts - particularly those in regard to extended contact - failing which an urgent application would be made to court for the immediate implementation of the experts' recommendations pendente lite (in the interim pending the divorce). No mention was made in the October 2017 letter regarding C's diabetes and the need to use the Medtronic Enlite sensor.
The mother's position at that stage, as conveyed in her attorney's response in October 2017, was that she was prepared to agree to the extended weekend contact, but not to the mid-week sleepover contact, which she felt would be too disruptive for the children. She also objected to being forced to have a carer present at all times while the children were with her, as she felt that there was no basis for this requirement in her case as opposed to that of the father. Another bone of contention was where the children were going to spend Christmas 2017.
In November 2017 the father's attorney wrote to the mother's attorney suggesting a round table meeting the next day for the purpose of reaching agreement on the issues in dispute regarding the experts' recommendations and resolving the regulation of the parties' parental rights and responsibilities. It was stated in the letter that:
"If, however, agreement is not reached pursuant to the meeting, our instructions are to proceed with an urgent application as the current situation is untenable and not in the children's best interests. Of particular concern to our client is the implementation of the contact arrangements, including holiday contact, the management of C's diabetes in accordance with Dr Carrihi/J's recommendations, including C's use of the Medtronic Enlite sensor in accordance with paragraph 116. 2 of the recommendations, which ought to have been implemented from today and the appointment of a facilitator team (paragraph 112 of the recommendations). In respect of this last issue and to the extent that your client is raising issues, as is my client, regarding the best interests of the children, the immediate appointment of the facilitators will allow for the resolution of the disputes within that forum." [Emphasis added.]
The proposed settlement conference unfortunately did not take place in November 2017 as the parties could not agree on what was to be dealt with at the meeting. The mother was vehemently opposed to a piecemeal settlement of the divorce, while the father was equally adamant that discussion would only be entertained regarding the parental rights and obligations of the parties and would not extend to financial issues.
On 1 November 2017, evidently in expectation that the proposed settlement meeting would not happen, and that litigation was imminent, the mother's attorney wrote to the father's attorney and conveyed that the mother was amenable to the extended weekend contact proposed by the experts, but not the mid-week sleepovers. She did however tender midweek contact every alternate Wednesday afternoon after school until 19h00. It was pointed out that the remaining dispute in regard to contact concerning 1 night in a 14-day cycle hardly warranted an urgent approach to court, especially when the allocation of a trial date was imminent. It was recorded that any application to enforce additional contact would be strenuously opposed.
The Court Application
Notwithstanding this warning, the father on 6 November 2017 launched an application for urgent relief in terms of Rule 43, with an urgent hearing sought on 21 November 2017. In terms of the notice of motion urgent interim orders were sought:
- directing that the parties' shared parental responsibilities and rights in respect of the care and contact of C and M be regulated on the basis set out in the document annexed to the notice of motion, marked "X";
- directing that the mother delivers the children's passports and unabridged birth certificates into the custody of a third party, agreed to by the parties or designated by the Court, charged with retaining custody of these documents until directed otherwise by the parties jointly in writing or by Court order.
Annexure "X" to the notice of motion was a 21-page document which was not signed by the parties, but which, in every other respect, resembled a parenting plan envisaged in sections 33 and 34 of the Children's Act 38 of 2005 ("the Act"). It also contained detailed provisions pertaining to the care and contact of C and M, based on the recommendations in the PT report. The contents of annexure "X" were not couched as interim measures pendent lite, but as a long-term provisions regulating the parties' parental rights and responsibilities in respect of C and M. As Annexure "A" was essentially a draft parenting plan.
The draft parenting plan inter alia made provision for:
- residence and contact arrangements as recommended in the PT report;
- the appointment of a team of two facilitators to resolve disputes between the parties where joint decisions are required regarding the children, and to make binding directives if necessary, on matters such as schooling or tertiary education, major medical treatment or therapeutic intervention, changes in the residence and/or contact arrangements, a decision to vary the children's residence from the southern suburbs of Cape Town to any area in South Africa, with the costs of the facilitators to be shared equally between the parties;
- the management of C's diabetes, including a stipulation that the parties co-operate to ensure that C is on the Medtronic Enlite sensor system by 30 November 2017;
- both parties to have a carer present from 19h00 until 07h00 during all periods of contact with the children in order to assist with the children, for a period of six months with effect from 15 September 2017;
- both parties to undergo therapy as well as CDT and GGT tests every three months for a period of 12 months, with the results to be forwarded to the facilitators.
The application was opposed by the mother, who delivered an answering affidavit on 20 November 2017 wherein she disputed the alleged urgency of the matter and the attempt to impose on her the terms of a parenting plan to which she had not agreed. In particular the mother objected to the appointment of facilitators without her consent, the forced change of C's insulin pump-sensor by 30 November 2017, the imposition of a mid-week sleepover every alternative week and the insistence that the mother have a carer present from 19h00 until 07h00 at all times when the children are with her.
Adv Pincus SC, who appeared with Adv Reilly for the mother, argued that the Court did not have jurisdiction to grant an order in the terms sought in prayer 2 of the Notice of Motion on the grounds that:
- first, the document in annexure "X" was essentially a parental responsibilities and rights agreement or parenting plan as contemplated in sections 22(3), 33 and 34 of the Children's Act 38 of 2005 ("the Act"), but since the mother had not agreed the contents of annexure "X" and the document had not been signed by both parties as required in section 34(1)(a) of the Act, it could not be made an order of court; and
- second, inasmuch as annexure "X" made provision for the appointment of a team of facilitators empowered to issue binding directives regarding matters requiring joint decision-making by the parties, this was an improper delegation of judicial authority and the order was therefore legally incompetent.
- Prayer 2 of the Notice of Motion asked for an order "directing that, pendent lite, the parties' shared parental responsibilities and rights in respect of the care and contact of the minor children born of the marriage [C and MJ be regulated on the basis as determined in annexure "X" hereto."
Adv Dicker SC, who appeared for the father, contended that the document in annexure "X" was not a parenting plan but a draft order containing detailed measures for regulating care and contact arrangements in respect of C and M pendente lite. She argued that the Court, as the upper guardian of minor children, can make any such order as may be required, and in such detail as may be necessary, in order to regulate care and contact arrangements in the best interests of minor children. She contended that the appointment of a facilitator in this case was necessary to avoid ongoing conflict and litigation between the parties about parenting issues, which was detrimental to the well-being of C and M, and that the Court had the power to make such an order in terms of its inherent jurisdiction as upper guardian.
Judge Davis was of the view that if annexure "X" was regarded as an unsigned parenting plan, then Mr Pincus was clearly correct that it cannot be made an order of court. On the other hand, if annexure "X" was regarded in substance as a draft order containing provisions regulating care and contact arrangements, then it would be highly pedantic to refuse to grant any relief in terms thereof merely because the "prayers" were contained in a document annexed to the notice of motion as opposed to being set out individually in the notice of motion. And when Courts are dealing with children care must be taken that the interests of minors were not "held to ransom for the sake of legal niceties" or "mechanically sacrificed on the altar of jurisdictional formalism”.
As regards the appointment of a facilitator, Judge Davis indicated to Counsel during the hearing on 21 November 2017 that the question whether or not the Court has jurisdiction to appoint a facilitator to non-consenting parents was one of importance which required time for further research and consideration.
Does the court have the power to impose a facilitator on parents in the absence of consent by both parents?
The alternative dispute resolution process referred to as facilitation in the Western Cape, and as case management in Gauteng, is known internationally as parenting co-ordination. Judge Davis used the term parenting coordination and parenting coordinator ("PC") respectively.
Parenting coordination is a non-adversarial dispute resolution service provided by mental health professionals or family law lawyers who assist high conflict parents in divorce situations to resolve child-related disputes in an expeditious and child-focused manner, in order to minimise parental conflict with its associated risks for children. According to Judge Davis it was a sui generis process which required legal, psychological and conflict resolution skills, and combines assessment, education, case management, conflict management and decision-making functions.
Parenting coordination evolved in response to the widespread recognition that the level and intensity of the parental conflict prior, during, and after divorce proceedings, rather than the divorce itself, is thought to be the most dominant factor in a child's psychological and social development post- divorce. Exposure to conflict can result in problems such as perpetual emotional turmoil, depression, substance abuse, and educational failure.
The Association of Family and Conciliation Courts ("AFCC"), an international, interdisciplinary association of professionals which has published guidelines for parent coordination, described it as "a child-focused alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children's needs, and with the prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract."
Thirteen states in the United States of America had adopted statues or court rules permitting parenting coordination, some with and some without decision-making authority, and that at least ten states were using parenting coordination without specific authority. That number has doubtless since increased.
In South African there is presently no statute or court rule governing the appointment of parenting coordinators. The practice which has developed in the Western Cape was that divorcing parents, acting on the recommendations of their legal and mental health advisers, consent to the appointment of a PC who is assigned with mediating parenting disputes between the parties and, where mediation has not been successful, empowered to make directives which are binding until set aside by the Court on review. The agreement to appoint a PC is usually embodied in a consent paper or parenting plan which is made an order of Court when the parties divorced. An agreement to appoint a PC may also be embodied in an interim parenting arrangement which is made an order of Court during Rule 43 proceedings for interim relief pendente lite.
The Western Cape Courts had over the years appointed PC's by agreement between the parties, or at least in circumstances where its power to appoint a PC was not pertinently challenged by one of the parties, the question of whether or not the appointment of a PC constituted an unlawful delegation of judicial authority was the issue before Judge Davis. The mother opposed the appointment of a PC, and the point raised by Adv Pincus was that the appointment of a PC with decision-making power to break deadlocks between parents is an impermissible delegation of the Court's judicial authority.
Adv Pincus relied on the decision of the South Gauteng High Court in Hummel v Hummel in which the Court refused an opposed application for the appointment of a PC empowered to make decisions binding on both parents. Sutherland J in that case held that no court has the jurisdictional competence to appoint a third party to make decisions on behalf of parents in relation to their children.
Adv Pincus also referred the court to the decision in Wright v Wright, in which Van Staden AJ, in the face of opposition by the mother to the appointment of a new PC to replace one which had resigned, declined the father's request for the appointment of a replacement PC. Van Staden AJ referred to the decision in Hummel, with apparent approval, and went on to hold that in the particular case before him parenting coordination was not a practical alternative since the mother was opposed to it and the father had been unhappy with the rulings made by the previous PC. He was of the view that in these circumstances the parties would have to agree to accept the reasonable determinations of a PC as final before parenting coordination would be a practical option. Although the decision in Wright might, at first blush, be construed as support for the statement of principle laid down in Hummel, it seemed to Judge Davis that a closer examination of Van Staden AJ's reasoning in Wright showed that the decision was based not on principle but on expedience in that the Court declined to appoint a PC because the resistant attitude of the parties meant that parenting coordination was unlikely to work.
Adv Dicker argued that the Court had the power to appoint a PC notwithstanding the opposition of a parent where it would be in the best interests of the minor child involved. She relied in this regard on section 28(2) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution"), sections 6(4) 16 and 7(1)(n) of the Act, and the Court's inherent jurisdiction at common law as the upper guardian of all minors.
Adv Dicker referred the court to the decision of Hay v B and Others in which Jajbhay J had to balance a child's right to life against the parent's religious beliefs, which prohibited blood transfusions. The learned Judge held, with reference to the Constitutional principle that the child's best interests were of paramount importance, that:
"The High Court is the upper guardian of all minors and, where it is in the best interests of such minor to receive medical treatment, an order that the minor receive such treatment is appropriate notwithstanding the refusal by the minor's parents to consent to such treatment." [Emphasis added]
Judge Davis was of the opinion that Jajbhay J's approach in Hay demonstrated that a High Court may permissibly resort to its inherent jurisdiction as the upper guardian of minor children in order to fulfil its duty to protect the Constitutional rights of children. And, stated that where necessary, a Court may, in terms of section 173 read with section 39(2) of the Constitution, develop and extend the common law relating to its inherent jurisdiction as upper guardian in order to respect, protect, promote and fulfil the fundamental rights of children.
Adv Dicker also referred Judge Davis to an article by Professor Madelene de Jong in which the learned author argued that there was authority, inter alia on the basis of section 28(2) of the Constitution and the inherent jurisdiction of the Court as upper guardian of minors, to sustain a Court appointment of a PC in the best interests of the child where the parents would otherwise be engaged in frequent conflict and re-litigation. She further suggested appropriate limitations on the appointment of a PC with a view to countering the objection that the appointment of a PC is an improper delegation of judicial authority.
Judge Davis was of the view that the opinion of the judgment in Hummel was prone to the criticism that the Court didn't have an understanding of the proper function of parent coordination. Judge Davis had drawn this conclusion because the court in the Hummel matter regarded the case manager as "a creature of statute invented to facilitate the achievement of the aims of section 33; ie the formulation of a plan and to promote agreement on the provisions of such plan." This conflated the role of the person referred to in section 33(5) of the Act, whose task is to assist the parents to reach agreement on the terms of a parenting plan, with that of the PC, whose proper task is to assist the parents to implement the terms of an agreed parenting plan.
In Hummel the Court held, with reference to section 33(5) and section 34 of the Childrens Act, that there was no hint that a Court could impose a parenting plan on a pair of parents in the absence of agreement. This approach was correct according to Judge Davis. But the Court in the Hummel matter went on to say, with reference to section 33(5) of the Act, that "the role [of] any other 'suitable person' (by any other name, including 'case manager) is to facilitate decision making rather than be the decision-maker." This statement, in the Judge Davis’ view, indicated an erroneous equation of the function contemplated in section 33(5) with that of parenting coordination. According to Judge Davis it was understandable how this confusion of functions arose in Hummel: since in that matter there was no agreed parenting plan and the case manager appointed to monitor contact arrangements had attempted unsuccessfully to assist the parties to agree on a parenting plan, and because parenting disputes were ongoing the court was asked to authorise the case manager to make wide-ranging decisions for the parents absent the framework of an agreed parenting plan.
Section 33(5) of the Children's Act states that:
"In preparing a parenting plan as contemplated in subsection (2) the parties must seek - (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person."
Section 34 of the Children's Act deals with the requirements for having a parenting plan registered with the family advocate or made an order of court. In essence the parenting plan must be in writing and signed by the parties, i.e. agreed, and the application to have the parenting plan registered or made an order of court must be brought by both parents.
It just so occurred in Hummel that there was a co-incidence of the functions of the person contemplated in section 33(5) and that of the PC. But the roles were conceptually separate, and Judge Davis warned that care should be taken to treat them as such. In his view it did not follow that because the contents of a parenting plan had to be agreed and could not be imposed on parents, that necessarily meant that the Court could not, in appropriate cases, appoint a PC with limited decision-making powers to assist the parties in implementing the terms of an agreed parenting plan which had been made an order of court.
In Judge Davis’ view the appointment of and powers conferred on a PC should be limited in a number of essential respects in order to avoid an impermissible delegation of judicial authority.
Judge Davis was of the view that parenting coordinators could fulfil a useful purpose in the administration of justice by conserving judicial resources which would otherwise be taken up by high-conflict parents who were frequent litigators regarding post-divorce disputes.
The factors highlighted by Judge Davis
Judge Davis emphasized three factors that provided a useful starting point for a consideration of the limitations which should be imposed on a PC's powers:
- First, the AFCC definition of parenting coordination envisions the role of the PC as assisting high-conflict parents to implement their parenting plans and, to that end, with the consent of the parties or the authority of the court, making decisions within the scope of the court order or appointment contract. This definition of parenting coordination, which Judge Davis endorsed, contemplated the existence of a parenting plan in which the parties' parental rights and obligations have already been agreed or fixed by an order of court.
- Second, the Act sets out the substantive matters which lie within the exclusive preserve of a court to decide, having regard to the standard of the best interests of the child. These matters include care and contact, guardianship, and the termination, extension, suspension or restriction of parental responsibilities and rights. Any purported delegation to a PC of the power to decide these matters would be unlawful. Thus, for example, it would be unlawful and invalid to confer on a PC the power to change the primary residence of a child, or to alter the allocation of contact between the parents, or to determine whether or not a parent's contact with a child should be supervised.
- Third, section 34(5) of the Act prescribes that parenting plans which have been made an order of court may only be amended or terminated by an order of court on application, while section 22(7) provides that only the High Court may confirm, amend or terminate a parental responsibilities and rights agreement which relates to guardianship of a child. These provisions make it clear that a PC cannot make a valid directive which has the effect of amending a court ordered parenting plan.
According to the court these three considerations provided a roadmap for the limitations which needed to be imposed on the functions and powers of a PC.
Limitations imposed by Judge Davis on PC’s
Limitation 1
In the Judge’s view the first and foremost limitation on the appointment of a PC should be that the parties must have already reached agreement on the terms of a parenting plan, whether interim or final, which has been made an order of court, and the PC's role must be limited to addressing implementation of or compliance with an existing court order.
The judge stressed that this requirement, as an agreed parenting plan which had been made an order of court was necessary to provide the framework which delineates the PC's proper function and authority. Without it one ran the risk, of an improper delegation of judicial decision-making power of the type which the Court was being asked to authorise.
The judge made the point that the High Court in South Africa by virtue of the provisions of section 173 of the Constitution enjoys inherent authority to ensure that its orders are carried out and it was well-established that the High Court has inherent jurisdiction to enforce its orders by committal to prison for contempt of court. The judge therefore saw no difficulty, with the notion that the High Court could, in the exercise of its inherent power to protect and regulate its own process, appoint a PC tasked with supervising compliance with the court's order to ensure that its terms were carried out.
Limitation 2
The second limitation which Judge Davis proposed on a PC's power was related to and flows from the first, namely that the PC's decision-making power must be confined to ancillary rulings which were necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order, so that the PC does not trespass on the Court's exclusive jurisdiction in terms of the Act.
In this regard the decision of the District of Columbia Court of Appeals in Jordan v Jordan provided a useful example. In that case the trial court, which decided the issues of custody and visitation, appointed a PC over the objection of the mother with permission to "make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine . . . fundamental issues of custody and visitation" and the trial court's order specifically stated that "[n]othing in this order shall be construed to be or confer on the special master [PC] the right or obligation to make a custody evaluation . . . [or] to make decisions that conflict with the parties' right to make decisions regarding the children's religion or the children's observation of religious requirements."
On appeal the court in Jordan rejected the argument that the trial court lacked authority to appoint a PC over the objection of the mother. It held that the trial court enjoyed authority under a rule which empowered it to appoint and delegate powers and functions to a "special master". While there is no equivalent rule in South Africa, the inherent jurisdiction of the High Court as upper guardian in Judge Davis’ view created a legal basis for a similar appointment. The appeal court in Jordan went on to say:
"Of course, the court's ability to delegate authority to a special master or parenting coordinator has limits. Most clearly, in this context, a trial court may not abdicate its responsibility to decide the core issues of custody and visitation. By statute, when custody of a child is disputed, the trial court must decide what type of custody arrangement is appropriate. In addition, we have held that it is improper for a trial court to delegate decisions regarding a party's right to visitation. In keeping with these limitations, the Special Master Order specified that the parenting coordinator may 'make decisions resolving day-to-day conflicts between the parties that do not affect the court's exclusive jurisdiction to determine fundamental issues of custody and visitation.' The Special Master Order further stated, 'In the event of a dispute between the parties as to issues significantly affecting their children, the Special Master may make decisions regarding the following day to day issues' . . . Thus, the order properly acknowledged and preserved the trial court's responsibility to decide the issues of custody and visitation." (Emphasis in the original].
The reasoning in Jordan was to the effect that a limited delegation to a PC will not amount to an improper delegation of judicial authority if it is confined to decisions about day-to day conflicts which do not trespass on the exclusive jurisdiction of the court to decide the core issues of custody and visitation. By parity of reasoning, an appointment of a PC in South Africa will not constitute an impermissible delegation of judicial power if the PC was not tasked with deciding the various issues referred to in the Act which lie within the exclusive preserve of a court to determine.
In the case of Yates v Yates the Superior Court of Pennsylvania adopted a similar approach to that taken in Jordan. In Yates an appellate court rejected the argument that the decision-making power conferred on a PC was an improper delegation of judicial authority in circumstances where the trial court had already resolved the primary issues relating to legal custody, physical custody and visitation, and had only authorised the PC to resolve "ancillary custody disputes, such as determining temporary variances in the custody schedule, exchanging information and communication, and coordinating [the child's] recreational and extracurricular activities."
A straight forward example helps to illustrate the difference between a decision which is ancillary to the court order and one which operates as an amendment of the court order: the court order stipulates that the child will spend alternate weekends with her parents, and that Mother’s Day will be spent with the mother and Father’s Day with the father. A conflict arises, however, where Mother’s Day falls over the father's weekend and he is unwilling to agree to a change of the weekend schedule. If the PC in these circumstances were to direct that the child should spend the day from 10h00 to 13h00 with the mother on Mother’s Day but the rest of the weekend with the father, 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. But the ruling of the PC would fulfil a vital function in ensuring the fair implementation of the court order in the best interests of the child: acrimony would be kept to a minimum and the undesirable situation prevented where a party is denied justice because of a lack of time or funds to approach the Court for a decision on a relatively trivial matter.
In Idaho, for example, the parenting coordination rule gives examples of what matters a trial court may authorise a PC to decide, which include: time, place and manner of pickup and delivery of children; child care arrangements; minor alterations to parenting schedule in respect of weeknight, weekend or holiday contact which do not substantially alter the basic time share allocation; participation by significant others and relatives in contact; first and last dates of long holiday contact; schedule and conditions of telephone contact; manner and methods of parental communication; and approval of travel plans. The Idaho rule also specifically precludes a PC from making binding decisions on more significant matters such as: which parent may authorise treatment or counselling for a child; which parent may select a school; supervision of contact; submission to a care and contact assessment, and maintenance for the child. Furthermore, the Idaho rule includes a salutary overall limit that the PC make only make decisions insofar as necessary to serve the best interests of the child. It provides that:
"The goal of the Parenting Coordinator should always be to empower the parents in developing and utilizing adaptive parenting skills so that they can resume the parenting and decision-making role in regard to their own children. When it is not possible for the parents to agree, the Parenting Coordinator shall provide only the amount of direction and service required in order to serve the best interest of the child by minimizing the degree of conflict between the parties." [Emphasis added]
Likewise, in British Columbia, Canada, a parenting coordinator may only make determinations in respect of matters such as a child's daily routine, the participation of the child in extracurricular activities and special events, the provision of routine medical care to the child, transportation and exchange of the child, and contact during vacations and special occasions. A parenting coordinator may not, in British Columbia, make determinations in respect of the relocation of a child or changes to guardianship, the allocation of parental responsibilities or parenting time and contact.
Judge Davis remarked: “The obvious triviality of the sorts of issues which PC's may be authorised to decide should not cause one to lose sight of the importance of the PC's function. Research has shown that high-conflict parents are more prone to arguing about day-to-day issues than major child-related decisions. And it bears emphasis that ongoing parental conflict over minor - even petty - issues can have a major impact on the well-being of children post-divorce. It is no exaggeration to say that the ravages of incessant parental conflict pose a real threat to a child's Constitutional rights to dignity, parental care, and protection from abuse. Entrenched parental conflict, which can have a devastating impact on a child's feelings of security, well-being and self-worth, constitutes a form of emotional abuse of the child. That being the case, I consider it incumbent upon the High Court, in appropriate cases, to "forge new tools and shape innovative remedies" in order to provide an effective remedy against the threat to a child's fundamental rights posed by ongoing parental conflict post-divorce or separation”.
Limitation 3
The third limitation on a PC's powers, which Judge Davis regarded as crucial to eliminate an impermissible delegation of judicial authority, was that all decisions of the PC must be subject to comprehensive judicial oversight in the form of a full reconsideration of the decision. This meant that the rulings of the PC, even if they operate immediately pending review, are not final in effect because they are susceptible to alteration by the Court. By permitting a PC's rulings to operate immediately, subject to a party's right to apply to Court for a stay of the ruling pending a review, one strikes a necessary balance between the need for expeditious and effective conflict resolution by the PC and the need for judicial scrutiny of the PC's rulings. If the default position is that a PC's rulings are not operative until such time as they have been endorsed by the Court, the essential rationale for parenting coordination, viz. an expeditious and inexpensive form of dispute resolution which reduces the involvement of the Courts, will be undermined.
Limitation 4
The fourth limitation which Judge Davis imposed on the appointment of a parenting coordinator involved a cluster of findings which a Court should, in his view, be a condition precedent to the appointment of a PC in the situation where the parents do not consent both to the appointment of a PC but also to the conferral of limited decision-making powers on the PC.
The necessary determinations or findings are:
- That the welfare of the child or children involved is at risk through exposure to chronic parental conflict because the parties have demonstrated a longer-term inability or unwillingness to make parenting decisions on their own (for instance by resorting to frequent, unnecessary litigation), to comply with parenting agreements or court orders, to reduce their child-related conflicts, and to protect their children from the impact of that conflict.
- That mediation has been attempted and was unsuccessful or is inappropriate in the particular case. (This is a necessary finding to ensure that the appointment of a PC without parental consent is a last resort reserved for the cases of particularly intractable conflict.)
- That the person proposed for appointment as the PC is suitably qualified and experienced to fulfil the role of PC. Parenting coordination is not for the faint-hearted. It demands the patience of Job and the wisdom of Solomon, not to mention training in mediation and an understanding of family law and psychology. As Kelly observed, 'Tilt is a unique hybrid role, and requires excellent developmental, psychological and legal knowledge and skills, a concern for children, objectivity and patience, and comfort with high levels of pressure and conflict.' Before a Court imposes a PC on parties without their consent, it must be sure that the person appointed has the proper skill-set, personal qualities and professional experience to do the job properly. Needless to say, an unskilled or temperamentally unsuitable PC could inflame a volatile conflict situation and do more harm than good.
- That the fees charged by the proposed PC are fair and reasonable in the light of his or her qualifications and experience, that the parents can afford to pay for the services of the PC, and that at least one of the parents agrees to pay for the services of the PC.
Judge Davis made it clear that absent the consent of the parties to the appointment of a PC and the terms of his or her appointment, a Court should not, in his view, impose a PC on parties without conducting the necessary inquiries and making the findings referred to above.
The court in Hummel did admit of the possibility that the High Court's common law power as the upper guardian of minor children may, in exceptional cases, form the basis of a special remedy to achieve an appropriate outcome. Judge Davis shared the view of Sutherland J that circumspection is required when exercising the power conferred by section 38 of the Constitution to craft a remedy for every fundamental right. Judge Davis also agreed that it was not appropriate on the facts in Hummel's case to appoint a PC. But was of the firm view that where there was a court-ordered parenting plan in place, and there was evidence which shows that the child was at risk due to a demonstrated inability or unwillingness of the parents to co-parent peacefully in the best interests of the child, then the circumstances were sufficiently exceptional to warrant the invocation of the court's inherent power both to enforce compliance with its own orders and to ensure protection of fundamental rights.
In summary Judge Davis stated that a High Court may, in the exercise of its inherent jurisdiction as the upper guardian of minor children:
Appoint a PC with the consent of both parties, provided that:
a. there is already an agreed parenting plan in existence, whether interim or final, which has been made an order of court;
b. the role of the PC is expressly limited to supervising the implementation of and compliance with the court order;
c. any decision-making powers conferred on the PC is confined to ancillary rulings which are necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order;
d. all rulings or directives of the PC are subject to judicial oversight in the form of an appeal in the wide sense described in Tickly & Others v Johannes N O & Others 1963 (2) SA 588 (T) at 590G - 591A, ie "complete re-hearing of, and fresh determination of the merits of the matter with or without additional evidence or information."
Appoint a PC without the consent of both parties, provided that Court is satisfied not only that the conditions listed in a. to d. above are met, but also that:
e. the welfare of the child is at risk from exposure to chronic parental conflict based on evidence of the parents' inability or unwillingness to co-parent peacefully;
f. mediation has been attempted and was unsuccessful, or is inappropriate in the particular case;
g. the person proposed for appointment as the PC is suitably qualified and experienced to fulfil the role of PC;
h. the fees charged by the proposed PC are fair and reasonable in the light of his or her qualifications and experience, that the parents can afford to pay for the services of the PC, and that at least one of the parents agrees to pay for the services of the PC.
Judge Davis was of the view that the answer to the question of whether or not the Court should appoint a PC in this case where the mother is opposed to such appointment was “no”.
He based his answer on the fact that the contents of the parenting plan had not yet been agreed and aspects of the parenting plan proposed by the father were still hotly disputed. If those disputes were not resolved by negotiation, they would have to be determined by the trial court. Judge Davis stated: Absent an agreed parenting plan which has been made an order of court, what I consider to be an essential precondition for the appointment of a PC, namely that the PC's role be limited to addressing the implementation of or compliance with an existing court order, is lacking.
Judge Davis held further: “…. while it does appear that the parties in this case fall into the category of "high-conflict" parents, this may have to do with the fact that the divorce litigation is still underway so that emotions are running high and the parties have not yet had an opportunity to settle into their new reality. It may turn out to be the case that the parties are able to resolve ongoing parenting conflicts through mediation once the divorce has been finalised and a court order put in place with regard to residence and contact arrangements. Unless both parents consent to the appointment of a PC, parenting coordination should, in my view, only be imposed as a measure of last resort where mediation has first been attempted and has failed, or is not appropriate because of special circumstances, such as domestic violence”.
Judge Davis was of the view that the request for the appointment of a PC at this interim stage of the matter was premature, and he declined, for the reasons set out above, to make an order appointing a PC as requested by the father.
According to Judge Davis it was regrettable that the father saw fit to persist with his application, which has only served to increase legal costs and escalate hostilities between the parties.
The court concluded that there was no reason in this case why the ordinary rule should not apply that the costs follow the result.
In the result Judge Davis made the following order:
- The application was dismissed, with costs.
- The applicant was directed to pay the respondent's costs of suit on the party and party scale, such costs to include the costs of two counsel as well as the cost of procuring the reports of the experts relied on by the respondent.