The 11th Annual Family Law Conference hosted by Clarks Attorneys was held in Johannesburg on 31 October to 1 November 2024. The well-attended conference touched on several topics and cases of interest in the practice of family law.
In her welcome address, Director of Clarks Attorneys, Beverley Clark, welcomed delegates to the conference. She encouraged delegates to engage with the speakers and topics. She asked delegates to give some thought on the following: By practising family law, lawyers see the emotional toll that prolonged divorce proceedings take on individuals eager to dissolve their marriages, which are for all intents and purposes already over.
Director at Clarks Attorneys, Beverley Clark, welcomed delegates to the 11th Annual Family Law Conference hosted by Clarks Attorneys.
Ms Clark addressed the key issue that often arises in such situations, which is the right of the person to obtain a divorce promptly without having to wait until every financial and child-related matter is fully resolved. ‘It raises important legal and ethical questions about whether and under what circumstances the process can be streamlined to allow for a legal end to the marriage, even with ancillary issues that remain outstanding. … Why then, do we force couples to stay legally married for years, until the financial aspects of the divorce are resolved? Indeed, why do we have to stay married until the issues of our children are resolved? Do people not have a fundamental right? Is it not a matter of dignity, to be married or divorced as and when they choose?’
Ms Clark said that many legal practitioners play games and use delays to their client’s advantage. ‘I’m advocating for a complete mind shift. I am asking that we examine the issue and debate whether we should not be moving rapidly towards a system, followed by many other jurisdictions, where the decree of divorce is granted entirely separately from the financial and even child-related orders,’ she said.
Ms Clark added that she fundamentally did not like it when one party held the other party at ‘ransom’ for years on end, just for the sake of money. ‘It is a simple matter to craft an order, and in time I hope [for] new rules, to honour a party’s dignity and autonomy, while simultaneously safeguarding their rights,’ Ms Clark said.
A discussion on the Hague Convention
Supreme Court of Appeal Justice, Constance Mocumie, gave an address at the conference, titled ‘Reconsidering final judgments – to reaffirm the constitutionality of the Hague Convention on the civil aspects of child abduction of 1980 in the application of article 13 vis-à-vis “the best interests of the child”’.
Supreme Court of Appeal Justice, Constance Mocumie, gave an address at the conference.
Justice Mocumie said that she drafted a topic, which was pertinent to what was happening in South Africa. Adding that one of the most difficult and heartrending tasks of a judge is deciding whether to return an abducted child to their habitual residence in term of the Hague Convention when one party (usually the abducting parent) raises an art 13 defence.
Article 13 of the Hague Convention reads:
‘Notwithstanding the provisions of the preceding article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
- the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
- there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.’
According to Justice Mocumie, these defences are sometimes raised together, but the third objection, which is not expressly recognised as a standalone objection, has been raised successfully in a few cases in South Africa.
Justice Mocumie explained that South Africa ratified the Hague Convention in 1996, and it came into operation in 1997. It has, in turn, been domesticated to the Children’s Act 38 of 2005, which places more emphasis on the need for a strict conclusion of child abduction matters. A general principle of the Children’s Act is that in any matter concerning the child, delays must be avoided as far as possible, in any action or decision which should be taken. In this regard, the promulgated Regulations Relating to Children’s Courts and International Child Abduction, 2010, include strict timelines. Regulation 23(1) takes this a bit further as it reads ‘except where exceptional circumstances make this impossible’.
Justice Mocumie said that as a general principle, art 1 provides for the scope of the Hague Convention. The objects of the Convention are placed to secure the prompt return of children who are wrongfully removed to or retained in a contracting state. ‘The contracting states under the Hague Convention, under which South Africa falls, designate a Central Authority to discharge the duties imposed by the Convention. These Central Authorities cooperate with one another to secure prompt return of the child’ she said.
Justice Mocumie added that the Hague Convention was ratified to protect children internationally from the harmful effects of their wrongful removal and to establish procedures to ensure that they are promptly returned to their state of their habitual residence. Even though, it recognises and safeguards the best interests of the child, signatory states declare themselves to be firmly convinced that the interests of children are paramount in matters relating to their custody.
Justice Mocumie said there are some instances where the court does not have a choice and must return the child to their country of their habitual residence. The constitutional principle of the best interest of the child is decisive in relation to all decisions made concerning a child and is firmly entrenched in s 28(2) of the Constitution.
According to Justice Mocumie, the best interest of the child principle, forms one of the foundational stones for the Hague Convention. The principle provided for in s 28(2) of the Constitution has received much attention from the courts. The standard of the best interest of the child is set down in ss 7 and 9 of the Children’s Act, and as a principle, it is firmly established in international law.
Justice Mocumie referred to S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) where the Constitutional Court said the best interest requires –
- first, the consideration of the interest of the child;
- the second is the attention of the inquiry on any competing interest;
- third, the apportionment of appropriate weight to the interest of the child; and
- fourth, the rights and interests of children must be considered independently of those of their primary caregiver.
She added that s 28 of the Constitution then mandates courts, in a particular way, to play a very active role in raising and securing children’s best interests. In S v M at para 22, it states: ‘It will be noted that he [Goldstone J] spoke about a right, and not just a guiding principle. It was with this in mind that this court in Sonderup [Sonderup v Tondelli and Another 2001 (1) SA 1171 (CC)] referred to s 28(2) as “an expansive guarantee” that a child’s best interests will be paramount in every matter concerning the child.’ Justice Mocumie continued: ‘From the relevant case law, in South Africa, we can safely state, without any fear or contradiction that the best interests of the child, in any matter, concerning the child are of paramount importance.’
Justice Mocumie said the Hague Convention aims to deter international child abduction through the principle of peremptory return and by preventing abducting parents from benefiting from their misconduct by obtaining a more favourable custody hearing in another country. Article 12 of the Hague Convention requires the peremptory return. This means that once the requirement of the abduction convention has been proven, the court hearing the matter must return the child. The court does not have a discretion but must return the child and is bound by the Convention not to enter any debate relating to the best interest of the child insofar as custody issues. Justice Mocumie said that is where the problem in South Africa lies, adding that that proviso that must be kept in mind is: The Convention does not seek to serve the best interest of the adult parent.
Justice Mocumie cited art 1 of the Convention, which makes it pre-emptive for state parties to return an abducted child from their state to the state of habitual residence. This approach underscored the importance of international cooperation in resolving child abduction cases, and it reinforces the principle that custody disputes should generally be resolved in the child’s country of habitual residence.
She added that art 13(b) is very specific, and it allows for an exception to the general rule that a child who has been wrongfully removed or retained across international borders should be promptly returned to their country of habitual residence.
Justice Mocumie told delegates that in 2023, the Constitutional Court in Ad Hoc Central Authority, South Africa and Another v Koch NO and Another 2024 (3) SA 249 (CC), had the opportunity to reflect on the best interests of the child and art 13(b) and the interplay between the two. The judgment must be understood on the following key aspects:
- It highlighted and extrapolated the ‘grave risk’ threshold clearly.
- It emphasised that the threshold for invoking art 13(b) is very high.
- It is not sufficient to demonstrate that the child would face some level of harm or discomfort upon the return, but rather the risk must be grave (meaning serious or severe).
- The court critically examined whether the evidence presented met this high threshold.
- It considered the term ‘nature of the harm’ that the child may face by the return to their country of habitual residence, which included a psychological aspect report if the child was separated from its primary attachment and the environment in which the child was settled in South Africa.
- It looked at the source of harm. Under art 13(b) the course of the risk of harm is irrelevant. What matters is that the existence of the risk to the child regardless of the whether the risk arises from the circumstances in the country to which the child is returned or from the process of the removal itself.
- The court balanced the grave risk of harm against the objectives of the Convention. It recognised that while protecting children from harm is paramount, this must be balanced against the Convention’s objectives of deterring child abduction and ensuring the prompt return of abducted children to their habitual residence or custody dispute to be resolved.
- The court’s interpretation and application of art 13(b) amounted to tailoring the interpretation of the application to the specific circumstance of each case. It acknowledged that one can never say ‘one size fits all’ as each case has to be determined on its specific context.
Justice Mocumie said that she wanted to reflect on how South Africa has dealt with art 13(b) when invoked by the abducting parent who fails to discharge the onus on them. She added that the Supreme Court of Appeal dealt with this in Pennello v Pennello (Chief Family Advocate as Amicus Curiae) 2004 (3) SA 117 (SCA) where the court stated: ‘That the approach to the art 13(b) defence always remains focused on the child in question and the risk of harm to which a return order may expose the child,’ in other words, it is not about the abducting parent.
Justice Mocumie also referred to CAR v Central Authority, South Africa and Another 2024 (6) SA 351 (SCA) and referred to para 37, and said the problem started in the approach to the application of art 13(b). She added that the Hague Convention requires the court of the child’s habitual residence to conduct those sorts of investigations. The court is under no obligation to examine aspects of the child’s best interest when determining the intolerability question for the purposes of art 13(b).
Justice Mocumie added that the Constitutional Court, and subsequently, the Supreme Court of Appeal deliberately hesitated to define the ambit of ‘intolerable situation’, because in the matter of Sonderup the court held that each situation will be decided on a case-to-case basis, but the court needs to see the analysis that Sonderup refers to, the balancing and the interplay. If it is not there, you have not done what Sonderup says you must do.
Justice Mocumie said the Constitutional Court and the Supreme Court of Appeal have spoken clearly on the matter and no one who is a family lawyer and works with the Hague Convention, cannot say they do not know of the Sonderup and Pennello cases.
Justice Mocumie referred to the article by Zenobia du Toit and Bia van Heerden ‘International Child Abduction in South Africa’ (2023) 12 Laws 74 (www.doi.org) where the authors have tabulated and listed cases, which have drawn attention and interest. The authors are of the view that some orders refusing the return of the abducted child, although at first blush, seemed to be in the best interest of the child, contradict the best interest of the child principle. In the cited judgments, their view is that the courts have applied their discretion, regarding the best interest principle, in a manner which is contradictory to the precedents of both the Constitutional Court and the Supreme Court of Appeal. This means there are deviations from the courts and the objective of the Hague Convention. The judgments referred to are –
- Central Authority for the Republic of South Africa and Another v LC 2021 (2) SA 471 (GJ);
- LD v Central Authority (South Africa) and Another 2022 (3) SA 96 (SCA);
- Central Authority, Republic of South Africa and Another v YR (GP) (unreported case no 061066/2022, 29-5-2023) (Neukircher J); and
- Central Authority of the Republic of South Africa v JW 2013 JDR 1117 (GNP).
Justice Mocumie asked, ‘What have we learned today?’ The enquiry into the best interest of the child remains set out in Sonderup and Koch. The Hague Convention envisions two different processes. The evaluation of the best interests of the child determining custody matters, which primarily concerns long term interest and the interplay between long term and short term.
‘You should not encourage us [the court] to hold a full-blown best interest inquiry. The reason is very simple. The court best place to do it is that of the country of habitual residence for all the family background.’ Justice Mocumie referred to para 164 in the Koch judgment, where it states:
‘Courts vigilantly ensure that the parent who has removed the child should not be able to rely on the consequences of that removal to create a risk of harm or an intolerable situation on return.’
Justice Mocumie added that South Africa must discourage abduction by not repaying the abducting parent by allowing them to benefit from their own misdeed.
Justice Mocumie said to demand a list of experts to investigate the best interest of the child, not only delays the proceedings under reg 23 read with art 11, it also looks over the best interest of the child, whose best interest is to be returned promptly to their country of habitual residence, where a proper inquiry will be conducted.
Justice Mocumie said: ‘Precedents set out by the apex court are very clear and must be followed. Legal practitioners and candidate legal practitioners must do their homework and have the expertise in their toolbox to address judges with all the confidence needed on the issue.’
Justice Mocumie reminded delegates that the Constitutional Court and Supreme Court of Appeal have researchers to assist them, however, High Courts, do not have researchers, so if a practitioner gets the impression or sense that the judge is not familiar with certain information, they should provide and cite case law.
Parenting coordination
Advocate of the Cape Bar, Diane Davis SC spoke on tackling the difficulties with parenting coordination.
Advocate of the Cape Bar, Diane Davis SC spoke on tackling the difficulties with parenting coordination. She referred to the decision in TC v SC 2018 (4) SA 530 (WCC), which brought about changes in the practice of parenting coordination.
Ms Davis said that ‘it was not uncommon to see clauses in parenting plans, which stipulated that the parenting coordinator (PC) could make a binding directive in the event of a deadlock between the parents on any matter requiring a joint decision, including major decisions such as the alteration of a child’s primary place of residence or the amount of contact allocated to a parent’.
Ms Davis said that it was held in TC v SC that in terms of the Children’s Act, a court has the sole power to decide the matters of care and contact, guardianship and the termination, extension, suspension or restriction of parental responsibilities and rights.
Ms Davis added that the matter of TC v SC brought about two crucial changes to the lawful scope of the PC’s functions –
- the role of the PC is limited to supervising the implementation of and compliance with an existing court order; and
- the decision-making conferred on a PC were required to be confined to ancillary rulings, which are necessary to implement the court order, but which do not alter the substance of the court order or involve a permanent change to any of the rights and obligations defined in the court order.
Ms Davis considered the implications of the TC v SC decision, which explores the practical solutions of –
- parenting plans dealing with young children, where the contact arrangements need to change as the child gets older; and
- high conflict cases where the parties are unable to make joint decisions in the best interests of the child.
Ms Davis said the answer to the problem regarding parenting plans for young children, lies in the careful drafting of an agreed framework within the parenting plan. The parenting plan should at least, in broad terms, state how the parties envisage how the contact arrangements will change in the future and when the changes will occur. This will ensure that the PC’s role is confined to implementing the terms which have been previously agreed to by the parties.
Ms Davis said that it is legally competent to empower a PC to make binding rulings regarding the increases in contact in circumstances where the parties expressly agree that there will be an incremental increase in one parent’s contact as the child matures and set the criteria for phasing in the increased contact. The PC’s ruling will not substantially alter the provisions in the parenting plan but will merely serve to implement what was specifically agreed between the parties.
Ms Davis said there is much to be said for the view of joint decision-making on major decisions. In the case of high conflict parents, there should not be joint decision-making, however, it frequently occurs that high conflict parents are co-guardians and co-holders of parental responsibilities and rights. This is when the parties find themselves at loggerheads and are unable to make important decisions regarding the child.
Ms Davis went on to say that it is the provisions of the Children’s Act requiring the consent of both guardians, rather than the decision in TC v SC, which serves to limit the range of decisions which a PC may be authorised to make in the event of a deadlock between the parents on a matter requiring a joint decision. The Children’s Act allows scope for the parties to authorise a PC to make binding decisions regarding a number of significant matters, such as the child’s education and medical care. The position may change, if the draft Family Dispute Resolution Bill is enacted.
Delictual liability in rape cases
International human rights advocate, academic and activist, and founding member of Lawyers against Abuse, Prof Bonita Meyersfeld, focussed on the topic: ‘Damages for damages: Using civil not criminal procedure for gender-based violence and sexual abuse cases’.
International human rights advocate, academic and activist, and founding member of Lawyers against Abuse, Prof Bonita Meyesfeld, at the 11th Annual Family Law Conference in Johannesburg.
Prof Meyersfeld said that the law of delict is an important legal mechanism for those who have suffered harm caused by the actions of another. The rationale for, and elements of, the law of delict are well known, if person A knowingly causes harm to person B, then A is entitled to claim some form of restoration from B. Typically the claim is monetary compensation, and if restoration is not possible, then remedies usually involve monetary compensation and/or an apology.
According to Prof Meyersfeld, delictual claims have not, however, been brought by women who have been raped, against their perpetrators. ‘In the many years that I have worked in the area of gender-based violence, both as an academic and a practitioner, I have been encouraging women who have been sexually assaulted to institute damages claims against the perpetrator. As far as I am aware, this has not been done in South Africa.’
Prof Meyersfeld said that in her experience, there could be several reasons for this. Rape is a crime of such proportion that it demands absolute approbation from the state in the form of prosecution and imprisonment. ‘The idea of suing a perpetrator for money seems sullied and opportunistic. It recalls the practice where fathers and husbands negotiate settlements with the perpetrator and their family, resuscitating the view that rape violates the family’s honour, which can be rectified by monetary compensation,’ she said.
Prof Meyersfeld added that it led her to wonder whether the resistance to delictual claims is also due to the sexism built into the legal system as a whole. While laws have changed, the apparatus of the legal system has not. There are still those who stereotype women as liars and opportunists, ‘who will sully a man’s name for money or who are vindictive and seek revenge for being rejected. Therefore, bringing a claim for damages feels as if one is playing into the stereotypes against which we have fought so hard’, Prof Meyersfeld said.
‘Even the rules of evidence set so many cases up for failure, take for example, the believability of the witness,’ Prof Meyersfeld said. Adding that judges are required to determine the veracity of a witness’s testimony based on, inter alia, their demeanour when giving evidence. The resurrection of harm to the witness is traumatic and it can trigger several physiological responses that are in stark contrast to the notion of a ‘good witness’. Prof Meyersfeld said that ‘there may be shame and a disharmony about one’s role in triggering the harassment. Victims of rape tend to have scattered and delayed recollections of the details of the attack. This is due to the clinical neurological responses to danger, namely, flight, fight or freeze. In the case of rape, it is common for victims to report that they froze, became numb, or shut down during the encounter. This usually entails the suppression of memory, which is neurologically necessary in order to survive the incidents of crime.’
Prof Meyersfeld said that most often victims are reluctant to use civil claims because they do not want money. ‘They want accountability ranging from an apology to imprisonment. They want to ensure the perpetrator does not hurt anyone else. Clients seek community and validation,’ she said.
Prof Meyersfeld said that there are three reasons why victims should pursue damages claims. ‘Rape is in fact a delict. It is the wrongful and knowing act of forcing a person to have sex against their will, which causes both physical and mental harm in the short and long term,’ Prof Meyersfeld said. She added that the fear of being seen as a gold-digging opportunist is the second reason, and the third is there are benefits for clients who may genuinely need the costs of counselling or treatment covered by the perpetrator.
Other topics discussed at the conference included –
- Proprietary settlement during a divorce mediation;
- Developments in law relating to cohabitation;
- The great case law update;
- Contact and residency issues concerning children under the age of three;
- An introduction to collaborative practice; and
- A discussion on the use and abuse of personality disorders in care and contact space.
Kathleen Kriel BTech (Journ) is the Production Editor at De Rebus.
