Divorce is normally a traumatic experience for all parties involved, more so if minor children are involved.
The most recent Stats SA data on marriages and divorces released during 2021 indicate that there were 23 710 divorces finalised in 2019. The results show that four in ten divorces came from marriages that did not even last for ten years. Also, 13 264 (55,9%) of the divorces involved children younger than 18 years old.
Although parents often try and resolve divorce cases amicably and attempt to mitigate the negative impact it may have on their minor children, this is not always the case. Unfortunately, some cases are marred by disputes and conflict which not only have a direct bearing on the welfare and best interest of the minor children but also play themselves out in disputes relating to contact and care of the minor children.
Minor children are often used as negotiation tools as part of the greater divorce action. This misuse of parental rights and responsibilities often results in minor children being alienated from one parent, in order to strengthen the other parent’s case. This is because contact and care of the minor children have a direct impact on other matrimonial disputes like maintenance payable.
What is parental alienation
Clinical psychologist, Dr Marilé Viljoen defines parental alienation as “a set of processes and behaviours conducted and enacted by a parent to deliberately and knowingly damage or sever the relationship between a child and another parent with whom the child enjoyed a prior loving relationship. A child will express disapproval and even hatred toward a parent they loved and respected before the separation or divorce.”
Elsabé Bosch-Brits, Cornelia Wessels and Adri Roux in their paper on Fathers’ experience and perceptions of parent alienation in high-conflict divorce, contend that the child is almost always caught up in the middle of the conflict. They believe that the “high divorce rate in South Arica leads to a larger number of contact and care disputes, which in turn leads to a higher occurrence of parent alienation.”
Viljoen says the symptoms of parental alienation can include the following:
- The child is consumed with hatred for the targeted parent and denies any positive past experiences. The child rejects all contact and communication.
- When a child is questioned about the reason for their intense hostility, the explanation offered is not of the magnitude that would lead to a child rejecting a parent.
- The alienated child exhibits a lack of ambivalence about the alienating parent, the one parent is perceived as perfect, while the other parent is perceived as flawed.
- Although the alienated children appear to be unduly influenced, they will adamantly insist that the decision to reject the target parent is theirs alone.
- Alienated children will appear to be rude, ungrateful, spiteful and cold toward the alienated parent.
- Children with parental alienation syndrome will have no interest in hearing the targeted parent’s point of view.
- Alienated children often make accusations toward the targeted parent. The child does not appear to understand the situation, speaks in a scripted fashion, and makes accusations that cannot be supported in detail.
- The hatred of the targeted parent spreads to their extended family.
More often than not it is found that the allegations made by one parent against the other, or the belief that the minor child who does not wish to exercise contact with the absent parent, is based on false allegations or twisted truths. This is often used to promote the one parent’s standing in the divorce action.
To reveal these untruths is a time-consuming and expensive exercise, which can be very traumatic for the minor child if not facilitated by professionals. The minor child’s age is also relevant when evaluating parental alienation. For instance, babies are bound to the parent who has the minor child in his / her care and more often the interpretation of the minor child’s behaviour is determined by the parent in whose care the minor child is.
It is important to note that toddlers are often not able to express themselves verbally and younger children are also more easily influenced. It is also an interesting phenomenon that most older (son’s especially) children, will follow the biological mother’s directions.
Our legal system, unfortunately, does not hold a safeguard for minor children in these cases and there is no real way of preventing it. Mostly, parental alienation is only identified once the relationship between the minor children and the alienated parent has broken down completely.
Furthermore, to identify parental alienation is a costly exercise. It involves experts in the Medical or Social Services fields, which comes at a great expense, and is not always affordable for all litigants.
Once parental alienation has been identified an entire therapeutic process must be followed to again strengthen the bond between the minor child and the absent parent, a process which the guilty parent will also have to buy into and co-operate with.
Section 35 of the Children’s Act, Act 38 of 2005 does provide the following way of recourse for the alienated parent:
Refusal of access or refusal to exercise parental responsibilities and Rights
(1) Any person having care or custody of a child who, contrary to an order of any court or to a parental responsibilities and rights agreement that has taken effect as contemplated in section 22 (4), refuses another person who has access to that child or who holds parental responsibilities and rights in respect of that child in terms of that order or agreement to exercise such access or such responsibilities or rights or who prevents that person from exercising such access or such responsibilities or rights is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding one year.
In the unreported case of T v D (GP) Judge Mabuse J, a contempt of Court Application was brought before Mabuse J, which concerned disputes about a contact the respondent was withholding from the applicant, after a final divorce. The Respondent was accordingly refusing the Applicant his rights of contact and care, as taken up in the Decree of Divorce, on the basis that the minor children did not want to be in the Applicant’s care.
Mabuse J confirmed in his judgment : ”The respondent’s aforementioned disobedience must, in the circumstances of this particular case, be regarded as wilful or intentional and should be treated as a contempt.”
The order for committal was for a period of 30 days suspended for five years, on condition that the respondent complied during the period of suspension with the terms of the Decree of Divorce. The respondent was ordered to pay the costs of the application.
In a further unreported case of R v R (GJ) (unreported case no 2016/00404, 4-2-2016) the issue of parental alienation was directly raised and the following was included in the judgment: ”I have already expressed my disapproval of the respondent’s contemptuous conduct, lack of respect for the rule of law, and complete disregard for the applicant’s rights and standing as a parent.”
Suggestions have been made by the South African Law Reform Commission to underwrite some fundamental reform of the family law system.
In ’Suggestions for a divorce process truly in the best interests of the children (1)‘ 2018 81.1 THRHR 48, Professor De Jong, writes that a new process must be conducive to conciliation and problem-solving and less confrontational. It specifically needs to address the heightened risk factors and the other problems inherent in the current court process and incorporate the ’voice of the child in a child-friendly manner.’
In this regard, there have been calls for a simplified, briefer low-cost process for making decisions in difficult cases, and high-conflict family cases which cannot be resolved through pre-court processes.
For more information, contact Marelize Meintjes from Faure & Faure Inc. Phone: 021 871 1200 or 071 480 1846. Email email@example.com.
Article by Faure & Faure Inc. Director, Marelize Meintjes and Candidate Attoreny, Demi-Lee Hendrikse.