As an attorney in South Africa, I deal with a vast array of matters on a daily basis. There is, however, one specific field of law that is exceptionally important, and, even though it is emotionally draining, I cannot seem to turn away from it. Family Law is something that chooses you, you don’t choose it…
As much as I have tried to stay away from it (for personal reasons) throughout my career, it kept coming up, and the clients keep rolling in. Now, after eleven years in the legal industry, I am still involved in these matters. Unfortunately these matters are becoming progressively more complicated. With the high rate of immigration, cross-border custody and maintenance matters have become the order of the day.
Families are re-constituted at an accelerated rate – some are fortunate and are able to make it work in the best interest of the children, others are not so lucky, and end up spending funds that could have and should have been saved in the kids’ college fund, on acrimonious litigation over extended periods of time and more often than not, the children are the ones that end up suffering the most, with long-term emotional scars.
I am so sad to say that the South African justice system is, and has been failing minor children and parents.
As attorneys, we work so hard at acting in our clients’ best interests, but above all, we act in the best interests of the minor children. The fact is that the minor children never asked to be brought into this world, and they are merely victims caught up in the breaking down of family units, prolonged litigation, and, simply put, these children do not have a voice. They are trapped in an endless rope-tugging competition between their parents, and more often than not, they are used as weapons by one or both of the parents.
While the justice system and government departments are supposed to be there for these children, it has become clear that these departments often do not possess sufficiently qualified, objective staff members, that are willing and able to actively engage and investigate, in order to make age-appropriate, relevant and sufficiently objective recommendations in relation to care, guardianship, contact and primary residence of the children.
Over the last decade or so, it has been a regular occurrence where these departments consult with the parents and children for an hour or less, if at all, and then recommendations are made, which ultimately become enforceable court orders, while these recommendations effectively enable and/or cause and/or perpetuate Parental Alienation Syndrome.
The courts in South Africa have also been unable and/or unwilling to fully recognise Parental Alienation Syndrome. Judges rely heavily on recommendations made by the respective Family Advocates, without making their own assertions in respect of the true state of affairs.
It has become evident to me, over the last decade, that the relevant government departments have made multiple errors in their recommendations, leaving alienated parents and children with little or no recourse.
It has become a consistent trend that mothers are generally favoured over fathers when these recommendations are made, often even reducing contact of fathers, despite Settlement Agreements having been reached between parents regarding contact. These reductions in contact have even been made without any reason, or simply motivated by these departments as ‘contact not age appropriate“. This type of recommendation should never be allowed, however a failure by the parents to adjust the Settlement Agreement accordingly, would most likely prevent the parties from obtaining a divorce decree, as the requirement is generally that any such agreement is to be endorsed by these departments. This ultimately places parents in an untenable situation, in that they are effectively doomed if they do, doomed if they don’t…
The difficulty is that these departments have such immense power when it comes to their recommendations, and the staff members responsible for these recommendations and investigations are either not qualified enough, or they are simply unable and/or unwilling to fully assess each situation. Studies have shown that, if an adult person was a victim of parental alienation as a child, such person will not be able to recognise, diagnose or even consider the possibility of parental alienation in any situation, even as an outsider. This is a dangerous situation, in that there are potentially dozens of professional staff members in these various government departments, that are, or have been victims of parental alienation. Therefore, all they will potentially see, is a happy child, not a child that is possibly being abused at the hands of an alienating parent.
The courts have consistently shown greater favour to female litigants in contact, guardianship, parental responsibilities and rights and related litigation. I am female. I feel strongly about equality, and have kept quiet about this unfair trend for too long. There are too many children out there being deprived of contact with their fathers, with the help of the South African justice system and government departments. I have seen a number of so-called “professional” reports where there are clear underlying cries for help from the minor children, that are casually overlooked by the professionals, and clearly misinterpreted by these professionals. As a result, these professionals make recommendations that are based on incorrect, misconstrued information, and these children are left to fend for themselves. The damage that is done to these children and their ability to form meaningful relationships, is immeasurable, not to mention the damage to the children’s relationship with the alienated parent.
I believe that every child has an absolute right to have a relationship with both his/her parents, irrespective of whether the parents are and/or were married, and irrespective of the child’s age.
I also believe that all children should have a voice, and that parents should be educated and informed about Parental Alienation Syndrome, and they should be taught about this reality before they bring a child into this world.
To me, Parental Alienation is the worst form of abuse, because it can cause irreparable harm to people, families, children, their children, their children and their children. This is a real form of abuse and often the abuser/alienating parent might not even be aware of the damage that he/she is causing to the children, and the extent thereof.
In my opnion, each and every social worker, family advocate, attorney, advocate, judge, magistrate and other individuals that work with minor children or families in general, should be assessed by a professional, qualified psychologist, in order to determine whether or not such person is or was the victim of parental alienation at some point in his/her life.
There should be regular training of all professionals and other individuals, irrespective of their qualifications, regarding parental alienation, the symptoms and reunification techniques, throughout these individuals’ dealings with minor children and families in general.
Every time I consult with a client, when taking instructions to institute divorce proceedings, I make it clear to him/her that the children’s best interests are always paramount. Like it or not, the moment when a person or a couple decided to bring a child into this world, that person or couple’s interests automatically became secondary. That child is entrusted to his/her parents, and the parents owe it to that child to ensure that his/her rights are regarded as absolute and paramount, irrespective of the relationship between the parents. Every parent must realise this, and act accordingly.
Authored by Roelien Watson, LLB (UP), Cert. (Internal Auditing – UP), Cert. (Banking and Risk Management – UNISA), RE1, Admitted Attorney (South Africa)