Transcript Know your rights:

Suggested safeguards and
limitations for effective
parenting coordination
(facilitation/case management)
in South Africa
Madelene (Leentjie) De Jong
Introduction
• Parenting coordination
has rapidly developed as
an ADR process
• Reasons for development
• Potential benefits
• Current problems
Terminology
Lack of training
Unlawful
delegation of
= Arbitration ? judicial power?
Reasons for development
• Children’s Act: greater emphasis
on both parents’ involvement in
children’s lives
• S 30(2) read with s 31(2)(a)
consult each other on major
decisions
• S 33(1) & (2)
parenting plan
Reasons for development
• Children’s Act: greater emphasis
on both parents’ involvement in
children’s lives
• S 30(2) read with s 31(2)(a)
consult each other on major
decisions
• S 33(1) & (2)
parenting plan
• Courts
Reasons for development
• Negative impact on children
• Mediation
• Parenting
coordination
Reasons for development
• Parenting coordination (PC) /
facilitation / case management
 Definition
Facilitate resolution
 Process
Make directives
 Role includes:
assessment, parent education,
coaching, facilitation, case
management, mediation, and
decision-making
Benefits of parenting
coordination
• Benefits for high-conflict
parents
• Benefits for court system
• Benefits for children
Problems with parenting
coordination
• Difference in terminology
facilitation
case management
• Training and qualifications
of parenting coordinators?
• Improper delegation of
judicial authority?
• Parenting coordination
= arbitration? Hummel v Hummel (SGJ)
Suggested safeguards and
limitations
• Terminology
facilitation
(too narrow)
case management
(too narrow)
parenting coordination
coaching assessment mediation
facilitation
case management
Suggested safeguards and
limitations
• Is parenting coordination
an unlawful delegation
of judicial power?
1. Necessary authority
for parenting coordination
2. Appropriate limitations on
parenting coordinator’s
role
Safeguards and limitations
• Is parenting coordination
an unlawful delegation
of judicial power?
1. Necessary authority
for parenting coordination
Existing laws permitting
mediation
Safeguards and limitations
• Is parenting coordination
an unlawful delegation
of judicial power?
1. Necessary authority
for parenting coordination
Inherent authority of court
to ensure best interests of
children
High Court
Suggested safeguards and
limitations
• Is parenting coordination
an unlawful delegation
of judicial power?
1. Necessary authority
for parenting coordination
divorce & children’s court
statutory obligation to apply
best interests standard
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
i. Conditions under which PC
should be appointed:
• Consent of parties
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
i. Conditions under which PC
should be appointed:
• No consent , but finding that
high conflict in best interests of child
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
i. Conditions under which PC
should be appointed:
• No consent , but finding that
high conflict in best interests of child
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
i. Conditions under which PC
should be appointed:
• No consent , but finding that
high conflict in best interests of child
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
Relevant conditions precedent
to appointment :
• Either consent or finding that:
high conflict
in best interests of child
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
before order/p.plan?
ii. Timing of appointment
after order/ p.plan?
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
before order/p.plan?
Timing of appointment
after order / p.plan
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
iii. Decision-making powers
limited to minor issues
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
iii. Decision-making powers
limited to minor issues
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on parenting coordinator’s role
iii. Decision-making powers
limited to minor issues
co-parents more prone to
argue about day-to-day issues
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on
parenting coordinator’s role
iv. Decision-making subject to
comprehensive judicial review
hearing de novo
Safeguards and limitations
• Is parenting coordination an
unlawful delegation of
judicial power?
2.Appropriate limitations
on
parenting coordinator’s role
iv. Decision-making subject to
comprehensive judicial review
hearing de novo
Directive nonetheless binding
Suggested safeguards and
limitations
• Parenting coordination =
arbitration?
Suggested safeguards and
limitations
Parenting coordination ≠ arbitration
Parenting
coordination
Arbitration
no hearing before
directive
hearing before award
directive only binding
in the meantime
subject to broad
judicial review
award final & binding
s 28 of Arbitration Act
no appeal on a point
of law
Suggested safeguards and
limitations
Parenting coordination ≠ arbitration
Parenting
coordination
Arbitration
no hearing before
directive
hearing before award
directive only binding
in the meantime
subject to broad
judicial review
award final & binding
s 28 of Arbitration Act
no appeal on a point
of law