SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
family dynamics, and produce a report to the court with their findings and recommendations. In matters relating to parental alienation, the court may make the following orders following the expert’s recommendations: • the appointment of a play therapist or per - sonal therapist for the child; • the appointment of a reunification therapist to assist in remediating the relationship between the parent and alienated child; • the appointment of a parental co-ordinator or facilitator to assist the parents in navigating disputes in a more conciliatory and construc - tive manner; • the appointment of a curator ad litem (who is normally an attorney or advocate) who has specific powers to investigate the matter and furnish a report and recommendations to the court; or • in cases of severe alienation, the court may make a protective separation order and remove the child from the alienating parent for a period pending the above-mentioned therapeutic interventions. Children Giving Evidence in Court The Children’s Act requires that the child con - cerned must, where appropriate, be informed of any action or decision taken in a matter con - cerning them and that affects them – taking into consideration their age, stage of development and level of maturity – and should be afforded an opportunity to participate in an appropriate man - ner and express their views and wishes. Children are given a voice but not a choice. Although it is not unheard of, children are not ordinarily called upon to give evidence at court insofar as possible. Legal practitioners and par - ents are encouraged to shield children from the
acrimony of litigation, and their views and wishes are normally presented by way of a report from an appointed psychologist or social worker pursuant to an investigation, or alternatively by way of a child participation interview. In some instances, a child may have an appointed legal representative to represent them in proceedings or be interviewed by a curator ad litem, who will make submissions to court on the child’s behalf. 3.4 ADR Mechanisms outside the court process that exist to assist parties to resolve financial disputes include mediation, negotiation (facilitated by the legal representatives) and the collaborative law process – which is still relatively unknown to the public and not generally practised. The Children’s Act expressly provides that par - ties should adopt a conciliatory and problem- solving approach in all matters relating to chil - dren, and avoid a confrontational approach wherever possible. Mediation is all but mandatory and, in terms of Uniform Rule 41A, litigants instituting an action or application must, at the outset, con - firm whether or not they agree to the referral of the dispute to mediation, and provide reasons for their position. Adverse costs orders may be considered in circumstances where one party refuses to engage in mediation prior to trial. Arbitration in matrimonial matters is still not per - missible in terms of Section 2 of the Arbitration Act 49 of 1965, but a long-anticipated amend - ment to the Arbitration Act is expected, so that divorce matters may be arbitrated by agreement between the parties.
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