Facilitation
With the introduction of the Children's Act 38 of 2005 greater focus was placed on the benefit of both parents' participation in their children's day-to-day lives. Sections 30(2) and 31(2)(a) of the Act, for example, imposes an obligation on the co-holders of parental responsibilities and rights to consult each other prior to making major decisions concerning their children. In terms of section 33(1) and (2) these co-parents are further supposed to agree on and submit into a parenting plan which is to manage their respective responsibilities and rights in respect of their children, including where and with whom the child is to live, the maintenance of the child, contact between the child and either of the parties or third persons, and the schooling and religious upbringing of the child.
Nevertheless, even before the coming into operation of the Children's Act it was anticipated that section 30(2) would probably lead to many disputes between co-parents when one parent views a decision in respect of a child to be unimportant, which can be made without consultation with the other co-parent, and the other sees it as a major decision on which he or she should have been consulted. Moreover, although parenting plans are intended to identify in detail the terms regulating the post-divorce parenting arrangements, these plans are often not sufficiently specific, thus resulting in constant disputes between co-parents. It is also a fact that no parenting plan, no matter how comprehensive it may be, can foresee every situation that will arise. For instance, a parenting plan that appeared to contemplate and deal with every opportunity for disagreement when the children were 3 and 5 years old will not necessarily contemplate and resolve every opportunity for conflict when those children are 13 and 15.
As the adversarial system of litigation tends to elevate conflict, lessen the possibility of civility between parents and aggravate the win-lose atmosphere that promotes resentment and parental irresponsibility, many of these co-parents became consistent litigants who waste a disproportional amount of the court's time and resources. Besides creating heavy workloads for the courts, high-conflict separated, and divorced parents also irritate attorneys with their persistent and untimely disputes about issues such as week-end pick-up times, vacation schedules and phone access to children at the other parent's home. But worst of all, the continuous co-parenting conflict has had a very damaging impact on children. It is said that the most dominating factor in a child's psychological and social adjustment after a divorce is not necessarily the divorce itself but rather the frequency and intensity of the parental conflict prior to, during and after the divorce. A child's exposure to parental conflict can lead to issues such as continuous emotional turmoil, depression, substance abuse, and educational failure. Children also suffer when their parents can't make prompt, child-focused decisions on concerns that affect them. It has consequently become important to reduce the damaging effects of high-conflict co-parenting cases on our court system and the children of divorce.
Although mediation has gone some way towards remedying the damaging consequence of high-conflict co-parenting issues, it seems to be inadequate for the most persistently conflicted co-parents, who are resistant to compromise and inclined to triangulate their children into their conflict. As a result, a new alternative dispute resolution process, namely parenting coordination or facilitation, was introduced as a solution for these chronically high-conflict cases. The new procedure was not at first titled as such, but became known as facilitation in the Western Cape and case management in Gauteng.
Facilitation is derived from the practice of the courts. Although it has its beginnings in the areas of parent education and coaching, mediation, arbitration, co-parent counselling and case management, it should not be seen as any of these more familiar alternative dispute resolution processes, but rather as a legal-psychological hybrid. Facilitation can be defined as a child-centred process in which a mental health or legal professional with mediation training and experience assists high-conflict co-parents in creating or implementing parenting plans, complying with court orders and resolving pre- and post-divorce parenting disputes in an immediate, non-adversarial, court-sanctioned, private forum.
A parenting coordinator or facilitator (PC) will first endeavour to facilitate resolution of the parenting disputes by agreement of the parties, and if this attempt fails, the PC will have the power to make decisions or directives regarding the disputes, which will be binding on the parties until a court directs otherwise or the parties jointly agree otherwise. It is evident that a facilitator's role includes the several functions of assessment, parent education, coaching, facilitation, intensive case management, mediation and decision-making. Facilitator’s must consequently be able to use interdisciplinary interventions rather than concentrating solely on techniques from their own area of professional practice. They have to assess the circumstances; tutor the parents concerning child development, family characteristics and the harm their continual conflict is doing to their children; enhance communication between the parties and with others involved with their children; keep track of and oversee the case inter alia by directing the parties to other professionals; mediate the disputes; and issue decisions or directives where the parties cannot reach an agreement. Nonetheless, it is a key principle of the facilitation process that facilitator’s remain as impartial as possible in the eyes of the parties.
The primary purpose of facilitation is to minimize the damaging impact of high-conflict parenting disputes on children and to shield and sustain safe, healthy and meaningful parent-child relationships. It appears that the best way to accomplish this objective is to move conflicted co-parents into parallel co-parenting, which is characterised by low engagement between co-parents. As conflict is dependent on engagement, lowering co-parents' engagement with each other also lowers the opportunity for conflict. For this reason, facilitators are more likely to interact with clients by telephone and e-mail, which do not require the face-to-face sessions used in dispute resolution.
Since its inception a few years ago, facilitation has steadily grown in recognition as an alternative dispute resolution tool in South Africa. In some divisions of the High Court a facilitator is appointed as a matter of course during the finalisation of all divorce matters where children are involved, while in other divisions a facilitator is appointed only in matters that are chronically litigious and difficult to manage.
Presently, the basis of a facilitator's appointment is either a court order (either with or without the consent of the parties), or a parenting plan or settlement agreement between the parties that has been made an order of court. There is not yet agreement in the courts in respect of this issue. In certain divisions of the High Court, a facilitator is appointed as a matter of course in divorce matters in which children are involved. In other divisions, a facilitator is appointed only in matters that are chronically litigious and complicated to manage. It has been reasoned that facilitation (parenting coordination) should not be overused. A facilitator should be appointed only where the parties have clearly proven a long-term lack or unwillingness to make parenting decisions on their own; to comply with parenting agreements and orders; to reduce their child related conflicts; and to protect their children from the effect of that conflict.
A facilitator is appointed by the parties jointly to facilitate mutual decision making where joint decisions are necessary. In the event of the facilitator being not able to continue as facilitator, he or she must appoint a new facilitator to take over the role. As an alternative, a replacement facilitator is usually appointed by the chairperson of a dispute resolution body such as FAMAC (in the Western Cape). The facilitator is entitled, in his or her sole discretion, to appoint such other person as may be necessary to make a decision in respect of the issue in dispute. This includes the right to co-opt a facilitator if he or she deems it appropriate or necessary.
It is argued by sceptics that facilitation is impermissible and is considered an improper delegation of judicial authority in circumstances where the facilitator is appointed in a court order and not in terms of an Act or court rule or by agreement between the parties. This opinion was expressed by Sutherland J in the unreported South Gauteng High Court case, Hummel v Hummel, where a father's application for the appointment of a case manager to deal with and make decisions about certain post-divorce parenting conflicts between him and his former wife was denied. The judge found that in his view no court has the jurisdictional competence to appoint a third party to make decisions about parenting for a pair of parents who are holders of parental responsibilities and rights as contemplated in sections 30 and 31 of the Children's Act. He also felt that the appointment of a decision-maker to break deadlocks is a delegation of the court's power which constitutes an impermissible act and amounts to an arbitration of sorts. These observations are probably based on section 165(1) of the Constitution of the Republic of South Africa, 1996, which provides that the judicial authority of the Republic is vested in the courts, and section 2 of the Arbitration Act 42 of 1965, which currently prohibits the use of arbitration in respect of matrimonial and related matters.
Lastly, the cost of facilitation is indicated as an area of contention. Facilitator’s charge professional fees for the (rather intense) services they render, and the question is what is to be done where high-conflict co-parents, who clearly need parenting coordination, cannot afford this intervention. As regards facilitators' fees, it is suggested that the court appointing a facilitator should determine the allocation of fees and costs for facilitation between the parties. Courts should further first ascertain whether parties can afford the private services of a facilitator before ordering them to go for parenting coordination.
The concern of affordability also ought to be addressed to offer fair access to this new intervention. It would be optimal if the opportunity to participate in facilitation were more accessible at lower rates or on a no-fee basis for low-income families, rather than having the process limited to the wealthy. Consequently, there is a need for facilitation services to be extended from the private fee-for-service model to the public sector. In this regard, the development of court-based facilitation services would be welcomed so that facilitation could also be offered to those who are likely to benefit but who cannot afford to obtain the service privately.
In a judgement of the Cape High Court delivered on 18 April 2018 in the case of TC v SC - Case no: 20286/2017 Acting Judge Diane Davis brought finality to the appointment of a facilitator / parenting coordinator (PC) in child disputes.
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, Judge 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”.
The Judge gave the following guidelines in this important judgement:
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 fulfill 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.
As it stands now and where there is no agreed parenting plan in existence, which has been made an order of court, whether interim or final a parent can not be forced into accepting the appointment of a parenting coordinator or facilitator.
Nevertheless, even before the coming into operation of the Children's Act it was anticipated that section 30(2) would probably lead to many disputes between co-parents when one parent views a decision in respect of a child to be unimportant, which can be made without consultation with the other co-parent, and the other sees it as a major decision on which he or she should have been consulted. Moreover, although parenting plans are intended to identify in detail the terms regulating the post-divorce parenting arrangements, these plans are often not sufficiently specific, thus resulting in constant disputes between co-parents. It is also a fact that no parenting plan, no matter how comprehensive it may be, can foresee every situation that will arise. For instance, a parenting plan that appeared to contemplate and deal with every opportunity for disagreement when the children were 3 and 5 years old will not necessarily contemplate and resolve every opportunity for conflict when those children are 13 and 15.
As the adversarial system of litigation tends to elevate conflict, lessen the possibility of civility between parents and aggravate the win-lose atmosphere that promotes resentment and parental irresponsibility, many of these co-parents became consistent litigants who waste a disproportional amount of the court's time and resources. Besides creating heavy workloads for the courts, high-conflict separated, and divorced parents also irritate attorneys with their persistent and untimely disputes about issues such as week-end pick-up times, vacation schedules and phone access to children at the other parent's home. But worst of all, the continuous co-parenting conflict has had a very damaging impact on children. It is said that the most dominating factor in a child's psychological and social adjustment after a divorce is not necessarily the divorce itself but rather the frequency and intensity of the parental conflict prior to, during and after the divorce. A child's exposure to parental conflict can lead to issues such as continuous emotional turmoil, depression, substance abuse, and educational failure. Children also suffer when their parents can't make prompt, child-focused decisions on concerns that affect them. It has consequently become important to reduce the damaging effects of high-conflict co-parenting cases on our court system and the children of divorce.
Although mediation has gone some way towards remedying the damaging consequence of high-conflict co-parenting issues, it seems to be inadequate for the most persistently conflicted co-parents, who are resistant to compromise and inclined to triangulate their children into their conflict. As a result, a new alternative dispute resolution process, namely parenting coordination or facilitation, was introduced as a solution for these chronically high-conflict cases. The new procedure was not at first titled as such, but became known as facilitation in the Western Cape and case management in Gauteng.
Facilitation is derived from the practice of the courts. Although it has its beginnings in the areas of parent education and coaching, mediation, arbitration, co-parent counselling and case management, it should not be seen as any of these more familiar alternative dispute resolution processes, but rather as a legal-psychological hybrid. Facilitation can be defined as a child-centred process in which a mental health or legal professional with mediation training and experience assists high-conflict co-parents in creating or implementing parenting plans, complying with court orders and resolving pre- and post-divorce parenting disputes in an immediate, non-adversarial, court-sanctioned, private forum.
A parenting coordinator or facilitator (PC) will first endeavour to facilitate resolution of the parenting disputes by agreement of the parties, and if this attempt fails, the PC will have the power to make decisions or directives regarding the disputes, which will be binding on the parties until a court directs otherwise or the parties jointly agree otherwise. It is evident that a facilitator's role includes the several functions of assessment, parent education, coaching, facilitation, intensive case management, mediation and decision-making. Facilitator’s must consequently be able to use interdisciplinary interventions rather than concentrating solely on techniques from their own area of professional practice. They have to assess the circumstances; tutor the parents concerning child development, family characteristics and the harm their continual conflict is doing to their children; enhance communication between the parties and with others involved with their children; keep track of and oversee the case inter alia by directing the parties to other professionals; mediate the disputes; and issue decisions or directives where the parties cannot reach an agreement. Nonetheless, it is a key principle of the facilitation process that facilitator’s remain as impartial as possible in the eyes of the parties.
The primary purpose of facilitation is to minimize the damaging impact of high-conflict parenting disputes on children and to shield and sustain safe, healthy and meaningful parent-child relationships. It appears that the best way to accomplish this objective is to move conflicted co-parents into parallel co-parenting, which is characterised by low engagement between co-parents. As conflict is dependent on engagement, lowering co-parents' engagement with each other also lowers the opportunity for conflict. For this reason, facilitators are more likely to interact with clients by telephone and e-mail, which do not require the face-to-face sessions used in dispute resolution.
Since its inception a few years ago, facilitation has steadily grown in recognition as an alternative dispute resolution tool in South Africa. In some divisions of the High Court a facilitator is appointed as a matter of course during the finalisation of all divorce matters where children are involved, while in other divisions a facilitator is appointed only in matters that are chronically litigious and difficult to manage.
Presently, the basis of a facilitator's appointment is either a court order (either with or without the consent of the parties), or a parenting plan or settlement agreement between the parties that has been made an order of court. There is not yet agreement in the courts in respect of this issue. In certain divisions of the High Court, a facilitator is appointed as a matter of course in divorce matters in which children are involved. In other divisions, a facilitator is appointed only in matters that are chronically litigious and complicated to manage. It has been reasoned that facilitation (parenting coordination) should not be overused. A facilitator should be appointed only where the parties have clearly proven a long-term lack or unwillingness to make parenting decisions on their own; to comply with parenting agreements and orders; to reduce their child related conflicts; and to protect their children from the effect of that conflict.
A facilitator is appointed by the parties jointly to facilitate mutual decision making where joint decisions are necessary. In the event of the facilitator being not able to continue as facilitator, he or she must appoint a new facilitator to take over the role. As an alternative, a replacement facilitator is usually appointed by the chairperson of a dispute resolution body such as FAMAC (in the Western Cape). The facilitator is entitled, in his or her sole discretion, to appoint such other person as may be necessary to make a decision in respect of the issue in dispute. This includes the right to co-opt a facilitator if he or she deems it appropriate or necessary.
It is argued by sceptics that facilitation is impermissible and is considered an improper delegation of judicial authority in circumstances where the facilitator is appointed in a court order and not in terms of an Act or court rule or by agreement between the parties. This opinion was expressed by Sutherland J in the unreported South Gauteng High Court case, Hummel v Hummel, where a father's application for the appointment of a case manager to deal with and make decisions about certain post-divorce parenting conflicts between him and his former wife was denied. The judge found that in his view no court has the jurisdictional competence to appoint a third party to make decisions about parenting for a pair of parents who are holders of parental responsibilities and rights as contemplated in sections 30 and 31 of the Children's Act. He also felt that the appointment of a decision-maker to break deadlocks is a delegation of the court's power which constitutes an impermissible act and amounts to an arbitration of sorts. These observations are probably based on section 165(1) of the Constitution of the Republic of South Africa, 1996, which provides that the judicial authority of the Republic is vested in the courts, and section 2 of the Arbitration Act 42 of 1965, which currently prohibits the use of arbitration in respect of matrimonial and related matters.
Lastly, the cost of facilitation is indicated as an area of contention. Facilitator’s charge professional fees for the (rather intense) services they render, and the question is what is to be done where high-conflict co-parents, who clearly need parenting coordination, cannot afford this intervention. As regards facilitators' fees, it is suggested that the court appointing a facilitator should determine the allocation of fees and costs for facilitation between the parties. Courts should further first ascertain whether parties can afford the private services of a facilitator before ordering them to go for parenting coordination.
The concern of affordability also ought to be addressed to offer fair access to this new intervention. It would be optimal if the opportunity to participate in facilitation were more accessible at lower rates or on a no-fee basis for low-income families, rather than having the process limited to the wealthy. Consequently, there is a need for facilitation services to be extended from the private fee-for-service model to the public sector. In this regard, the development of court-based facilitation services would be welcomed so that facilitation could also be offered to those who are likely to benefit but who cannot afford to obtain the service privately.
In a judgement of the Cape High Court delivered on 18 April 2018 in the case of TC v SC - Case no: 20286/2017 Acting Judge Diane Davis brought finality to the appointment of a facilitator / parenting coordinator (PC) in child disputes.
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, Judge 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”.
The Judge gave the following guidelines in this important judgement:
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 fulfill 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.
As it stands now and where there is no agreed parenting plan in existence, which has been made an order of court, whether interim or final a parent can not be forced into accepting the appointment of a parenting coordinator or facilitator.
| TC V SC Case no: 20286/2017 – Cape Town High Court |