Suggested Safeguards and Limitations for Effective and Permissible Parenting Coordination (Facilitation or Case Management) in South Africa

Abstract

With the advent of the Children's Act 38 of 2005 greater emphasis was placed on the importance of both parents' involvement in their children's day-to-day lives. An unintended negative consequence of an otherwise laudable shift in social policy which supported a shared parental involvement was that the courts became the forum for co-parents to dispute a lot of day-to-day issues in respect of their children. To alleviate the negative effects of high-conflict co-parenting cases on our court system and the children of divorce, a new alternative dispute resolution process, namely parenting coordination, was introduced. The new process was not labelled as such, but became known as facilitation in the Western Cape, and as case management in Gauteng. Parenting coordination is a legal-psychological hybrid intervention that derives from the practice of the courts. It has the potential to provide substantial benefits for divorcing or separating parties, their children and the court system. Since its inception a few years ago, parenting coordination has steadily grown in popularity as an alternative dispute resolution tool in South Africa. Overhasty implementation of parenting coordination without considering certain concerns could, however, damage the "brand" and lead to confusion about the process. In the first place the difference in nomenclature is a real problem. Secondly, the training and qualifications of parenting coordinators are problematic and even non-existent in most provinces. Thirdly, it is argued by sceptics that parenting coordination is impermissible and constitutes an improper delegation of judicial authority in circumstances where the parenting coordinator is appointed in a court order and not in terms of an Act or court rule or by agreement between the parties. It is further observed that parenting coordination amounts to arbitration in contravention of section 2 of the Arbitration Act 42 of 1965, which currently prohibits the use of arbitration in respect of matrimonial matters. Lastly, the cost of parenting coordination is indicated as an area of contention. To properly address these problems, various safeguards for and limitations on parenting coordination practice are considered. It is proposed that the internationally accepted term "parenting coordination" is also consistently used in South Africa. It is further proposed that adequate qualifications, proper training and sufficient experience for parenting coordinators are set. To counter the argument that parenting coordination is an unlawful delegation of judicial power, the necessary authority for courts to refer parties for parenting coordination is sought, firstly in the inherent power of the High Court as upper guardian to ensure the best interests of children, and secondly in the Children's Act and the Constitution of the Republic of South Africa, 1996 as far as the children's court and divorce courts are concerned. In addition, various limitations regarding the conditions under which and the stage at which a parenting coordinator should be appointed, the scope of a parenting coordinator's decision-making powers and the finality of his or her directives are suggested. Lastly, the issue of the affordability of parenting coordination is addressed and suggestions are made on ways to provide fair access to this new intervention.