‘’A person’s a person, no matter how small.’’ – Dr Seuss 

Disputes are becoming an increasing part of everyday life. Often an offended party thinks that the only way to obtain ‘’justice’’ would be duke it out in court until an order is made in their favour. However, the application of our laws is not always black and white. This may be the case in a majority of criminal offences but not so when it comes to civil matters, especially when that dispute involves a child.

Take a common example where the parents of a child have decided to end their relationship and obtain a divorce. The parents are able to reasonably and easily split their respective assets and debts between them. However, when it comes to deciding what will happen to the children they have together, i.e. which parent will be the main caretaker, it becomes a tug of war. 

Either parent may want to keep the children living with them as both are capable of looking after their children, with each parent believing they are better suited to provide the care, love and support needed. However, it’s up to the Court as the upper guardian of all minors to decide what’s best. 

Each parent may bring applications to either enforce their rights to their children or restrict the other parent from seeing the children. As is more often the case than not, these applications tend to contain a number of averments denigrating the role of the parent during the marriage as a result, the children become objects in an emotional tug of war.

To prove why a parent would be a better suited caretaker, a parent may appoint their own expert(s) (usually child psychologist or play therapist) to interview and assess the child in order to render a report for the court. This will also likely be in addition to the court appointing the Office of the Family Advocate, an independent government body, to conduct an interview with the parents and child and prepare a report on their findings. So not only will a child in an acrimonious divorce be subjected to trying to deal with the ‘’emotional death’’ of the family structure but will be the subject of repeated assessments by similarly qualified individuals. 

In a 2018 Johannesburg High Court decision in M v M, no less than 6 expert witnesses were called to testify as to the primary residence and contact of the two minor children aged 6 and 3. This included the Office of the Family Advocate who was appointed by the presiding officer. 

Interestingly enough, all the experts had arrived at the same points of view in respect of the children:

‘’[23] The post-divorce contact and care regime needs to be considered against the backdrop of all the evidence led in the case. The perspective provided by the expert witnesses’ shared opinion, as contained in the joint minute and supplemented by oral evidence, is that:

• Both children view the plaintiff and the defendant as being an integral part of their lives – they recognize that both connect with them, love them, and provide for them. This emotional bond developed between the parents and children as a result of a shared daily life;
• It could not be determined whether the children are more attached to the plaintiff than to the defendant;
• Both parties have the capacity to provide for the children’s needs;
• The children need both parents to provide for their emotional, intellectual and physical needs;
• The children should not be separated from each other;
• Both the plaintiff and the defendant are equally contributing to the upholding of the dysfunctional dynamics;
• T. (the eldest child) is emotionally distressed, and he struggles to adapt to new circumstances;
• The children will experience tremendous loss and possibly, unconscious guilt, being separated from either parent.’’

Regardless of being in agreement on the above-mentioned points, the experts acting for the mother and father were not in agreement when it came to giving their professional opinion as to who the minor children should reside with. 

The court, acting as the upper guardian, listened to all evidence presented by both parties, including expert testimony and relied upon the “Best Interest of the Child” standard in Section 7 of the Children’s Act 38 of 2005, which stipulates that:

‘’7.  Best interests of child standard.—

(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely—

(a)  the nature of the personal relationship between—

(i) the child and the parents, or any specific parent; and

(ii) the child and any other care-giver or person relevant in those circumstances;

(b)  the attitude of the parents, or any specific parent, towards—

(i) the child; and

(ii) the exercise of parental responsibilities and rights in respect of the child;

(c)  the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;

(d)  the likely effect on the child of any change in the child’s circumstances, including the likely effect on the child of any separation from—

(i) both or either of the parents; or

(ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;

(e)  the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;

(f)  the need for the child—

(i) to remain in the care of his or her parent, family and extended family; and

(ii) to maintain a connection with his or her family, extended family, culture or tradition;

(g)  the child’s—

(i) age, maturity and stage of development;

(ii) gender;

(iii) background; and

(iv) any other relevant characteristics of the child;

(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;

(i) any disability that a child may have;

(j) any chronic illness from which a child may suffer;

(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;

(l) the need to protect the child from any physical or psychological harm that may be caused by—

(i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or

(ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;

(m) any family violence involving the child or a family member of the child; and

(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.

After applying this standard and realizing that regardless of what order was made, the children would still be deprived of having both parents. The Court ultimately found that given that the children are bi-national (having a South African father and German mother), the mother’s immigration status in South Africa could possibly prohibit employment and given the father’s means so travel to Germany to visit the children, that the children should be allowed to relocate to Germany with their mother, where they would have the mother’s family to support them.  

While the role of attorneys during a divorce or family dispute that involves children is to address the legal aspects only, it would be remiss of any legal advisor not to inform their client of the potentially devasting effects on the minor children. Sometimes it may be better to seek a mediation resolution, rather than litigating as ultimately, there are no real ‘’winners’’ in a contested divorce or family dispute. 

As Acting Judge Van der Schyff pointed out in paragraph 26 of the above judgment, ‘’ …the question arises as to whom are the beneficiaries of this litigation. It is definitely not the children.’’

A link to the judgment handed down to M v M can be found here: http://www.saflii.org/za/cases/ZAGPJHC/2018/4.html

A link to the Children’s Act, 38 of 2005 can be found here:

https://www.gov.za/sites/default/files/gcis_document/201409/a38-053.pdf