A.K v M.C.K and Another (2256/2008) [2009] ZAECPEHC 35 (30 July 2009)

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[2009] ZAECPEHC 35
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A.K v M.C.K and Another (2256/2008) [2009] ZAECPEHC 35 (30 July 2009)

FORM A
FILING SHEET FOR EASTERN CAPE
HIGH COURT, PORT ELIZABETH JUDGMENT
PARTIES
:
A K VS M C K & ELIZABETH CROUSE N.O - CASE NO: 2256/08
Registrar:
Magistrate:
High
Court:
EASTERN
CAPE HIGH COURT, PORT ELIZABETH
DATE
HEARD: 25/06/09
DATE
DELIVERED: 30/07/09
JUDGE(S):
PILLAY J.
LEGAL
REPRESENTATIVES –
Appearances:
for
the Appellant(s): ADV. GOOSEN, ADV. JOOSTE
for
the Respondent(s): ADV. P.SCOTT
Instructing
attorneys:
Appellant(s):
ANTHONY
DELPORT & UNWIN
Respondent(s):JANKELOWITZ
& SCHARGES
CASE
INFORMATION -
Nature
of proceedings
:
DIVORCE PROCEEDINGS
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
CASE
NO:
2256/2008
In
the matter between:
A
K
Applicant
And
M
C K
1
st
Respondent
ELIZABETH
CROUSE N.O
2
nd
Respondent
(
IN
HER CAPACITY AS CURATOR AD LITEM ON BEHALF OF THE MINOR CHILDREN
C
AND K K)
JUDGEMENT
Pillay J
This
is an application in terms of Rule 6(5)(g) of the Uniform Rules of
Court for the referral of the matter for the hearing of
oral evidence
on two very specific interrelated issues viz:
Whether the refusal by
the minor children to have any contact with the applicant is in any
manner caused by and/or a manifestation
of parental alienation
syndrome; and
Whether and to what
extent the existence of parental alienation syndrome or any symptoms
thereof is as a result of any conduct,
whether in the form of an act
or omission, on the part of the first respondent.
The applicants also seek
authority, pending the granting of such an order, to subpoena any
person in relation to these specific
issues.
The application is
essentially based on difference of opinion of a number of
psychologists who were asked to deal with the matter
in so far as
their expertise allowed.
Background
The applicant and first
respondent were married to each other and two children, C (born 1
March) and K (born 4 March ) were born
out of it. This marriage
relationship was ended by an order of divorce in May 2004,
incorporating a settlement agreement. This
agreement made provision
for custody of the aforesaid minor children (“the children”)
being awarded to the first respondent
and subject to the applicant’s
right of reasonable and structured access.
It appears that the
applicant has been unable to exercise his rights to access to the
minor children whether intermittently or at
all. He blames his
former wife, the first respondent, for the situation.
He took legal advice and
as a result instituted proceedings in this Court seeking, in effect,
the restoration and rehabilitation
of the relationship with the minor
children and/or specifically seeking first respondent to be required
to be actively involved
in this process.
On the 16 October 2007
Part ‘A’ of the main application was dealt with and, based on an
agreement between the parties, it was
ordered inter alia, that the
applicant and first respondent, together with the said minor children
engage in therapy sessions with
two clinical psychologists with the
aim of ‘normalising’ the arrangement of access to the children in
accordance with the terms
of the order of divorce.
In terms of Part ‘B’
of the main application, applicant seeks the following relief:
“
1. That the two minor
children, C K and K K, be placed in foster care as recommended by Mrs
C.Watson, the director of the MTR Smit
Children’s Home;
2. That the minor
children remain in such foster care until such time as Dr. Gillian
Smale reports to the Family Advocate’s office
that the family
reintegration process has been finalised.
3. That the Family
advocate so reports to the above Honourable Court and recommend to
the above Honourable Court a parental plan
for implementation by way
of Order of the above Honourable Court;
4. That an appropriate
cost order be issued, taking into consideration all relevant
circumstances”.
Furthermore, provision
was made in the order for dealing with any deadlock which might arise
during the therapeutic process by way
of arbitration.
It is common cause that
these ‘therapeutic sessions’ with the parties and the children on
the one hand and the psychologist
on the other hardly got off the
ground when it came to a halt because of reservations on the part of
the children to participate
any further. It is further alleged that
the first respondent also did not see any use in attending further
sessions.
This brought into play
the prospects the matter being arbitrated by Advocate Gajjar.
According to his report he could not embark
on such process for lack
of co-operation between the parties as well as the children.
This in turn lead to the
application being resurrected for consideration of the relief in Part
B because if the therapeutic sessions
and / or arbitration achieved
the aims of the application, it would hardly serve any purpose in
resorting to Part ‘B’.
In the meantime, the
second respondent, Advocate Elizabeth Course, was appointed curator
ad litem to represent the two minor children
and to take care of
their interests in this matter.
It seems that the first
respondent has placed a few factual allegations made by the applicant
in dispute. Furthermore, the second
respondent has contested the
legal competency of the relief sought and/or the wisdom thereof.
In addition, the first
respondent has placed in dispute the opinions of Dr Gillian Smale by
filing contrary expert opinions authored
by Dr Stigent and Miss
Cawood respectively.
Because I was informed of
the nature of the specific disputes and in view of the manner in
which this application to refer issues
to oral evidence was argued on
behalf of the applicant, it is clear that it is based purely on the
dispute(s) which arise from
the written opinions of the experts
primarily in regard to the existence of a parental alienation
syndrome.
It seems that the
applicant is satisfied that the other disputes can be dealt with on
the papers. I will therefore confine myself
the issue(s) material to
the application for referral. This application is merely a small
cog in the history of this matter which
clearly demonstrates a
conflict between the applicant and first respondent. It is clear
that the conflict between them, either
verbal or otherwise, is now
manifesting and playing itself out. While there may be other issues
involved, it touches the minor
children.
It is trite that in this
type of application (and any other relevant or related procedure) the
interests of the minor children surges
above all else. While there
might be other issues including the rights of the parties, the
interests of the children need to be
protected and are likely to be
preferred against any other interest especially if, in upholding a
contesting interest, the interests
of the children would be
negatively affected.
In order to determine
this application it is necessary for me to consider the history of
the matter and indeed the facts material
thereto especially those
which would assist in deciding this application. It must not be
construed that in doing so, I am making
findings on the main issues
and perhaps making a determination in regard to Part ‘B’. It
must be understood any such findings
I do make, is essentially for
the purposes of this specific application.
As will be seen in this
judgement, I have deliberately dealt with the specific reports of all
the experts as briefly as circumstances
would allow so as to avoid
any impression that I have made findings which touch the main
application.
Dr Stigent has had
contact with the said minor children for a few years now and it seems
that he came into contact with them precisely
because of their
refusal to visit with their father. His dealings with them, as far
as I can gauge, stretch as far back as December
2004. He reports
that the children’s attitude was initially somewhat puzzling
especially as there was no specific reason(s)
offered by either of
them for adopting a negative attitude towards their father. During
the course of his dealings with them,
he made certain proposals and
recommendations in order to promote access and therefore improvement
of their relationship with their
father.
By September 2007 it
clear to Dr Stigent that their attitude was based on their witnessing
the problematic relationship between
their parents prior and during
the divorce proceedings. Certain behavioural patterns about the
applicant emanated from their experiences
in this regard.
It also became clear to
Dr Stigent that they viewed their father as over-controlling their
lives during the time they spent with
him in terms of the agreed
access arrangements eg. He did not keep his promises, prevented them
from seeing their friends during
that time, he displayed
unpredictable moods. As Dr Stigent refers to it, the applicant’s
parenting style is at the heart of
the problem. He lastly reports
that the children themselves indicated that the resolution lies with
their father and if he were
‘to be cool’ things would improve.
In regard to the
recommendation that they be placed in interim foster care, Dr Stigent
stated that this would be regarded by the
children as punitive and
would result in antagonising them rather than contribute to improving
the situation. As I understand
him, such steps would defeat the
purpose for which the applicant embarked on the main process to
restore his relationship with
them.
He also indicated that
his investigation did not disclose any evidence that the children’s
attitude emanated from first respondent’s
instigation (of parental
alienation syndrome).
He took the trouble of
explaining that this phenomenon of parental manipulation was at first
scientifically seen as perhaps the
only explanation for incidents of
parental alienation. He explained however, that later investigation
showed that it is not the
only inference that can be drawn in such
circumstances. In many cases it is the alienated parent who is the
cause of the alienation
and not the other party.
This coincides with this
finding that the first respondent was not the cause of the alienation
but rather it seemed that conduct
of the applicant especially as seen
by the children themselves, which is the cause thereof.
Dr Stigent’s views are
largely supported by that of Anne Cawood a qualified social worker
practicing in Cape Town. She paid particular
attention to the
interests of the minor children. Having viewed the conditions at the
home of the first respondent and the minor
children, she was able to
form an opinion on whether the children are in need of care and
protection as envisaged in
section 150
of the
Childrens Act No 38 of
2005
.
She was also of the view
that the proposed displacement of the children into interim foster
care would be extremely detrimental
to the minor children. It
follows therefore that the first respondent was not an unfit mother
and/or a danger to the minor children
such that they needed to be
moved away from her and into foster care.
Though having consulted
the children only, it is significant that she found that the
children’s attitude towards the applicant
was based on the conduct
of the applicant himself and not on that of the first respondent.
She furthermore makes the
important point that ongoing litigation has exacerbated the minor
children’s insecurity and/or anxiety
and that the sooner this ends
the better for them.
Both Dr Stigent and Miss
Cawood refer to comments of K that he wished this would all ‘go
away’.
Gillian Smale and Gillian
van der Riet were appointed as clinical psychologists to deal with
the attempts to pave the way to restore
the relationship between the
applicant and the minor children. They dealt with Advocate Marisa du
Toit, who represented the family
advocate in the area. They were
guided by the court order of 16 October 2007 in terms of which
certain formulated procedures were
to be followed in order to attain
this restoration of the relationship in question.
In examining the letter
dated 15 January 2008, which was referred to as a report by clinical
psychologists Smale and Van der Riet,
it appears that the children
attended three individual sessions with Van der Riet alone during
which they dealt with their current
feelings for their father. They
seemed to have discussed their reservations and frustrations with
their relationship with their
father and the report alludes to how
this could possibly be restored.
The report does not give
any details on either the reservations and frustrations or the
proposed steps to be embarked upon to restore
the relationship. They
attended two more sessions, one with their mother, the first
respondent and another without her. Again
their fears about the
applicant were aired.
They report that the
applicant attended three separate sessions alone during which he was
alerted to some of his mistakes in this
regard and how he may have
himself contributed to being alienated. Again no details in this
regard appear in the report.
The applicant and first
respondent then for some reason entered into a written contract
arranged by the psychologists, undertaking
to limit question about
the children and to answer the same respectively. This communication
would occur electronically through
what is commonly known as e-mails.
The ‘contract’ also included details of the applicant making
enquiries about the children’s
scholastic progress from their
school and the first respondent undertook not to obstruct this.
The psychologists then
felt that it was necessary to enhance a ‘togetherness’ with the
parties and children by bringing them
together and work out a way
forward.
This did not work and
lead the psychologists to believe that the continuation of this
process would only worsen matters. The new
regime caused further
problems and the psychologists concede that they were unable to
attain the aims of the process and that they
had reached a stalemate.
They then go on to
describe the willingness or otherwise of or the parties to contribute
to the unsuccessful process. By and large
they report the total
co-operation in the process by the applicant. They go on to describe
the first respondent as having failed
to ensure the success of the
process in many respects.
Their statement that, ‘it
has become apparent that the coalition between the first respondent
and the children puts their father
in an impossible no-win situation’
and results in the frustration of his attempts to do the right thing.
Amidst their various
assertions in this regard the only one which
could be regarded as having some substance is first respondent’s
‘irrational
fear’ by stating in front of the boys that ‘she
would not dare to sit in the same room as Andrè’ (the
applicant).
This together with other factors seem to be the basis
for their “conclusion that the ‘boys disrespect’ their father
and
the erroneous belief that Andrè does not have a right to
be part of ‘their lives’ is reinforced by her conduct”.
I
might point out that in this regard, their report that first
respondent stated her fears for the applicant
while
in the presence of the minor children
,
(my underlining) is the only possible contribution by her to the
children’s attitude towards the applicant.
All the other examples
which the psychologists rely on for their conclusion are matters
which they could only have sourced from
the applicant and is void of
any independent substantiation or obvious corroboration. That the
first respondent has given the bare
minimum of a response to enquiry
and sometimes been faecious appears to be judgmental and absent
detail thereof, begs the question
as to the standards by which such
conclusions are made. Eg. Whether her ‘fear’ is ‘irrational’
or not, that the minor children
‘disrespect’ the applicant and
the ‘erroneous’ belief that the applicant has no right to be part
of their lives.
Similarly, that she
states in the presence of the children that she would not dare be in
the same room with the applicant does not
necessarily mean that this
resulted in the boy’s disrespect for the applicant. Indeed
throughout all the reports there is no
evidence that the boys
disrespect the applicant.
It seems to me that all
this report signifies is that the process they were involved in has
come to an end. All the other assertions
therein are either baseless
or of no moment.
Dr Gillian Smale
submitted a further letter in the form of a report suggesting further
therapeutic processes in the matter. In
brief it suggests a removal
of the children from the first respondent and to place them in a
position of ‘neutrality’ with
interim custodial parents in order
that they be ‘released’ from being influenced.
The suggested benefits
thereof are: (a) the children would be removed from a situation which
demands demonstration of loyalty or
solidarity with one parent; (b)
have an opportunity to experience emotional containment, appropriate
limits and discipline while
developing a level of respect and
responsibility - all qualities that the first respondent was not able
to provide; (c) first respondent
could then work through her own
crisis which emerge from her divorce.
A family re-integration
plan is then suggested. I do not purpose to repeat all of the ten
suggestions save to say that they put
extremely huge responsibilities
on the young shoulders of these children to do certain things which
are clearly intended to counteract
their present attitude towards the
applicant. This would entail mechanisms which, to say the least,
strain their constitutional
rights to, inter alia, dignity
(section
10)
, and their
section 27
and
section 28
rights as embodied in
Chapter 2 of the Constitution of the Republic of South Africa, Act
108 of 1996 (‘the Constitution’).
Furthermore section 150
of the Children’s Act No 38 of 2005 (‘the Act’) allows for
children to be removed to foster care (I
assume either interim and
permanently) under very stringent conditions prescribed in this act.
In my view the minor childrens’
conditions do not comply with the
conditions envisaged in the act so as to justify their removal.
A substantial part of
this programme was suggested by the applicant’s legal
representative to the first respondent’s representative
in a letter
dated 31 July 2008. The suggested programme is prefaced by an
assertion that application will be made for the minor
children to be
placed in interim foster care as envisaged in Part B of the relief
set out in the notice of motion.
The second respondent has
submitted her well prepared report. She consulted separately with
the children, applicant and first respondent.
These consultations
were in depth and directed at the issues relevant to the main
application.
It is not necessary, for
the purposes of this particular application, to repeat the content of
her consultation and accumulation
of information. I will return to
her opinion and recommendation presently.
The family advocate,
Marisa du Toit, also submitted a short report. Attached thereto is a
report by social worker, Helena Elizabeth
Retief. The reason for the
Retief report was occasioned by the fact that the family advocate (du
Toit) had previously dealt with
the matter and was involved in a
court order emanating from her involvement. She did not think it
proper to be personally involved
on this occasion.
The Retief report also
refers to a consultations with the minor children and explained that
she had telephonic discussions about
the matter with both applicant
and first respondent. She confirms the fragile relationship between
the applicant and first respondent.
She also confirms the extremely
negative relationship between the applicant and the minor children.
The opinion of the
curator-ad-litem is that the root of the problem is the ‘problem
filled’ relationship between the applicant
and first respondent.
It is this that is affecting the relationship between the applicant
and the children. She also considered
the
Children’s Act No 38 of
2005
in assessing the position. I will deal therewith presently.
In her view the children
are comfortable with the first respondent and does not recommend
uprooting the children from their stable
existence. She
categorically states that it is in the best interests of the minor
children that this does not happen.
Social worker Retief,
from whom Smale and Van der Riet obtained information or took
instructions in regard to their investigation
also found the
suggested intervention of removing the children to foster care,
inappropriate and significantly rejected the idea.
Mr Goosen, who appeared
for the applicant conceded that the ultimate relief sought is
unusual. He informed me that so unusual is
that relief sought that
he has been unable to find authority to support it.
The suggested process
which is the primary relief sought entails the removal of the minor
children from their mother, the first
respondent, so as to ‘cleanse’
the minds of the children from her alleged influences.
I would prefer not to
comment on the suggested procedure to be adopted if they are so
removed save to say that it would seem to
me that this would strain
the minor children’s’ constitutional rights.
It might be prudent to
mention that Dr Smale contends that the procedure is not
intended
to be punitive. (my underlining) Dr Stigent and Cawood argue that
this would be harmful and would be seen as punitive by the minor

children. While this controversial procedure forms the basis of
disputed views as between the experts, it is significantly not
an
issue that is sought to be referred for evidence.
Chapter 9 of the
Children’s Act No 38 of 2005 (“the Act”) prescribe procedures
under which children in need of care and protection
may be removed
from their prevailing circumstances and placed appropriately. The
second respondent has argued that the case of
the minor children in
question is not one which invokes the Act. This is supported by
Cawood and Retief.
Without wanting to
explore the application of the act or otherwise there is no
allegation that the first respondent is causing any
danger to the
children so that they need to be protected from her.
In my view, the
applicant’s claim is based, on the notion that the minor children
is in need of fatherly guidance or presumably,
that this is essential
for their well being. He claims that it is therefore important that
his relationship with them is restored
and that this is being
frustrated by the first respondent.
It is this aspect which
forms the cornerstone of this application in terms of Rule 6(5)(g)
and which application is normally granted
when it is found that the
‘clearly defined issues in dispute are comparatively simple’ and
that it would be convenient for
the speedy determination thereof is
desirable. The rule provides for oral evidence to be heard on
certain germaine issues. It
was not designed to determine issues of
fact which give rise to further enquiry into other real and
substantial issues of fact
nor is it to be used to open the door to
enquiry of any other issues. The court hearing the application has a
discretion to grant
it. This discretion, though extensive, is not
unlimited, as the evidence should be confined to the specific issues.
See:
Pressema
Services (Pty) Ltd v Schuttler & Another 1990(2)SA 411(c) at 419
E-G; Trust Bank van Afrika Bpk v Western Bank Bpk
en andere NNO
1978(4)SA 281(A) at 303- G-G.
From the nature of the
proposed enquiry by way of oral evidence, it is clear that the
dispute involves the question as to whether
first respondent has
orchestrated or contributed in any way to the present situation in
which the relationship between applicant
and the minor children can
at best be described as precarious.
I might add that the
assertion that the first respondent might have anything to do with
the situation is clearly based on assumptions
made by the applicant
and carried over to Dr Smale and Van der Riet. There is nothing to
substantiate these assumptions and assertions
even less, evidence to
suggest this.
The only aspect which
could be construed as carrying some weight is her statement that she
would not be in the same room with the
applicant. She said this in
the presence of the children and it is this that is heavily relied
upon for concluding that she contributes
to the children’s
disrespect for the applicant. The report does not describe the
circumstances in which she said so. What
is clear is that she
referred to herself and not the children. She is entitled to choose
her company. It is difficult, from the
report itself, to follow how
this statement leads to or contributes to any disrespect the children
might show towards the applicant.
In addition, the evidence
that both the minor children have stated that they have reservations
about being with the applicant is
undisputed. They even went as far
as to say what possible solution to the impasse would be acceptable
and would lead to a resolution
thereof.
The minor children are
not babies. They both can and indeed clearly do think for
themselves. They would be justified in feeling
insulted if forced
into a situation in which they are treated in the way prescribed by
the recommended regime.
It seems to me that the
purpose of this application is therefore baseless because all that
such oral evidence would establish is
whether the first respondent is
responsible to any extent, for the said impasse in the relationship
between the applicant and the
children.
This brings me to the
impact that such evidence would have on the main application.
Assuming that first
respondent is directly responsible for the situation complained of.
The fact of the matter is that it is the
prevailing situation as
between the children and applicant. The question then remains as to
what happens next. The relief sought
suggest the imposition of the
recommended process.
The suggested process
sought to be put into operation by order of court would, in my view,
be contrary to the act and the constitution.
It would clearly cause
more harm to an already fragile relationship. The details of the
proposed regime would seriously strain
the children’s rights under
sections under chapter 2 of the Constitution. It would also strain
the import of quite a few international
legal instruments and
policies regarding children’s rights.
It is noteworthy that
Smale insisted that the proposed regime was not
intended
(my underlining) to be punitive. While it might not have been
intended to be so, the undisputed findings of both Dr Stigent and

Cawood are that it would be regarded as punitive by the children. In
my view the effect thereof would in the light of the recent
attitude
of the minor children towards the applicant, amount to punitive
measures particularly in view of the nature and detail
of the regime
in which the reward system becomes quite apparent.
The probabilities of such
a regime being approved of by order of court is minimal to say the
least.
Furthermore, referring
these issues for evidence would establish the role of the first
respondent in this impasse in the relationship
between the minor
children and the applicant. At most it would prove that she is
solely responsible for manipulating the minds
of the minor children
in this regard.
In my view that would, in
any event, not justify the imposition of the proposed regime
especially in the light of the solution to
the impasse clearly being
suggested by the children themselves.
Referring the issues to
oral evidence would serve no purpose in the circumstances and would
indeed extend the proceedings instead
of curtailing it as Rule 6(5)g
seeks to do. The application for the referral of these issues to
oral evidence therefore falls
to be dismissed.
As to costs, it would
seem to me that the applicant could not necessarily have foreseen the
result of this application. It is also
one which was launched as a
means to attempt to clear an apparent dispute brought about by the
opinions of the respective experts.
I think it would be fair to say
that the applicant was justified in thinking that the dispute in
question should be clarified
especially in the light of the expert
reports of psychologists appointed by order of court. In the
circumstances it would seem
to me to be fair to order that the costs
hereof be regarded as costs in the cause.
In the result,
The application in terms
of Rule 6(5) (g) is dismissed.
Costs hereof are to be
costs in the cause.
__________________________
PILLAY J.
JUDGE OF THE HIGH
COURT