Introduction
In high conflict childcare and contact disputes, lawyers sometimes align so closely with their clients’ positions that they become virtual proxies for parental animosity. This “over-identification” with clients, even when the client’s stance is objectively unreasonable or harmful can have far-reaching ethical, relational, and professional consequences. Nowhere are these consequences more profound than in matters involving children, where the best interests of the child are supposed to be paramount (Children’s Act 38 of 2005, section 9).
This article examines the impact of zealous, client-aligned advocacy in South African children’s matters. It explores how such advocacy can escalate inter-parental conflict, skew the best-interests-of-the-child inquiry under section 7 of the Children’s Act, and damage co-parenting relationships. It also evaluates the tension between traditional zealous representation and the emerging imperative for child-centred legal practice. Case law will illustrate judicial disapproval of counsel’s conduct that exacerbates conflict.
The discussion integrates relevant South African law (the Children’s Act 38 of 2005, the Legal Practice Act 28 of 2014, and Legal Practice Council rules) and draws comparative insight from the United Kingdom and Australia, where ethical frameworks and systemic safeguards aim to temper adversarial excess in family litigation. Psychological and mediation literature further illuminate how lawyers’ over-alignment with combative clients can derail dispute resolution. Finally, the article proposes reforms and professional development interventions to reorient family-law advocacy toward constructive, child-focused representation.
South African Legal Framework: Best Interests and Lawyers’ Duties
South African law establishes the child’s best interests as “of paramount importance in every matter concerning the child”. Section 7 of the Children’s Act 38 of 2005 provides a detailed list of factors to guide courts in determining a child’s best interests. These factors include, inter alia, the nature of the child’s relationships with parents and caregivers; the attitude of the parents towards the child and to their parental responsibilities; the effect of any change in the child’s circumstances (such as separation from a parent or sibling); the need for stability; and the need to protect the child from harm. Notably, section 7 also directs courts to consider “which action or decision would avoid or minimise further legal or administrative proceedings” in relation to the child – effectively encouraging the resolution of disputes with finality and minimal conflict. When lawyers aggressively align with a hostile client to perpetuate litigation or tactical gamesmanship, they risk undermining this statutory injunction to minimise protracted proceedings. Prolonged courtroom battles driven by parental vendettas violate the spirit of section 7 by subjecting children to ongoing uncertainty and inter-parental strife.
In addition to the best-interests factors, the Children’s Act explicitly calls for a less adversarial approach in matters involving children. Section 6(4) provides that “in every matter in which the interests of a child are at stake an approach which is conducive to conciliation and problem-solving is advocated and a confrontational approach and delays in any action or decision should be avoided as far as possible”. This statutory mandate reflects an understanding that adversarial litigation can be harmful to children. For legal practitioners, this means that zealous advocacy must be tempered by a duty to seek amicable, child-centric solutions where possible. When a lawyer simply mirrors a difficult client’s aggression, fighting every point and resisting compromise even when the client is plainly in the wrong, that lawyer not only violates the spirit of section 6(4) but may also contribute to avoidable delay and confrontation, contrary to the law’s prescriptions.
The Legal Practice Act 28 of 2014 transformed the regulation of the legal profession in South Africa, establishing a unified Legal Practice Council (LPC) and a binding Code of Conduct for attorneys and advocates. This Code of Conduct reinforces that lawyers must balance client advocacy with broader professional and ethical obligations. Several provisions are especially relevant to conduct in family matters:
The LPC Code requires practitioners to “not abuse or permit abuse of the process of court” and to act in a manner that advances the efficacy of legal proceedings. Deliberately inflaming disputes or proliferating applications with the aim of pressuring the other side (a tactic some over-aligned lawyers might employ at a client’s behest) contravenes this duty. Rule 60.1 unequivocally forbids using court processes for ulterior purposes or needlessly protracting a case.
Uniquely, when it comes to family disputes, the Code of Conduct imposes an affirmative duty on lawyers to consider the fairness of outcomes for all parties and the best interests of any children involved. The Code provides that in any matter involving a settlement of a matrimonial dispute or care arrangements for children, a legal practitioner “shall take active steps to ensure that all aspects of any contemplated settlement [are] equitable to all parties and in the best interests of the children.”. This rule envisions the lawyer not as a blind champion of one parent’s desires, but as a facilitator of agreements that meet the child’s needs. Aligning unquestioningly with a client’s unreasonable demands for example, assisting a parent’s campaign to exclude the other parent without justification would violate this professional directive to safeguard the child’s welfare in settlement discussions. Lawyers are expected to counsel clients against outcomes that, while satisfying a parent’s vindictiveness, would harm the child or unfairly prejudice the other parent.
The LPC Code also addresses the manner in which lawyers conduct disputes. It directs that legal practitioners “shall not allow any ill-feeling between litigants … to interfere with the civil and professional conduct of the matter.” In other words, attorneys must remain objective and civil, regardless of their clients’ animosities. They must not become the vehicle for personal attacks or emotional vendettas. Similarly, lawyers are prohibited from using inflammatory or belittling language about any party or witness. These rules underscore that a lawyer’s role is not to weaponise a client’s anger. Ethically, an attorney should act as a buffer to moderate conflict, rather than an amplifier of discord. When a lawyer aligns too closely with a bitter client trading insults with opposing counsel, peppering court papers with vitriol, or pursuing every petty point they breach these standards of professional decorum.
In summary, South African statutes and professional rules push lawyers towards a non-adversarial, child-centric paradigm in children’s cases. The law exhorts practitioners to help contain conflict and seek solutions in the child’s best interests, even as they fulfill their duty to represent clients. Against this framework, the next sections explore how deviation from these ideals in the form of excessive lawyer–client alignment and adversarial zeal can harm all involved.
Consequences of Excessive Lawyer–Client Alignment
When lawyers adopt their clients’ positions uncritically and “fight the case as if it were their own battle,” multiple negative consequences emerge. These span the ethical domain (lawyers straying from their duties to the court and justice), the relational domain (destruction of co-parenting relationships and harm to the parent–child bond), and the professional domain (courts’ loss of trust in counsel, and potential disciplinary or costs consequences). Below we unpack these consequences, drawing on case examples and judicial commentary.
Unrestrained alignment often escalates a legal dispute into a protracted “war of attrition” between parents, a war in which children are the collateral damage. Each parent, egged on by loyal counsel, may become entrenched in extreme positions. A striking illustration appears in the case of V v V [2004] EWHC 1215 (Fam) (England and Wales High Court, Family Division), a UK case that devolved into four years of constant litigation involving no fewer than 17 court orders and 16 different judges. One parent (the mother) persistently and unreasonably denied the other (the father) access to the children, and each skirmish returned to court. Ultimately, the exasperated court concluded that “litigation should end for the sake of the children,” and it transferred primary residence to the father as a last resort. While V v V is often cited in other jurisdictions regarding the primacy of the child’s interests, it is also a cautionary tale about how adversarial excess can entrench parents in intractable conflict. The case implicitly raises questions about the role of the attorneys: How did a simple contact dispute spiral into dozens of hearings? Did counsel fuel the conflict, either by pursuing every available legal maneuver or by failing to quell their clients’ unreasonable demands? A confrontational attorney who treats a child-care case like scorched-earth commercial litigation may inadvertently encourage this battleground mentality.
In S.L v A.C (8030/2021) [2025] ZAWCHC 565 , the Western Cape High Court dealt robustly with a pattern of procedural default and abuse of process in a divorce action. The court exercised its discretion under Rule 35(7) of the Uniform Rules to strike out the respondent’s defence where there had been repeated non-compliance with discovery and other court orders, describing the conduct as willful and obstructive. The judgment contains a pointed exposition of the ethical duties resting on legal practitioners under the Legal Practice Council Code of Conduct not to abuse or permit abuse of court process, and to promote the efficacy of the legal process. Davis AJ emphasised that a practitioner’s duty to the court and the interests of justice trumps the duty to the client, and that attorneys must not be complicit in enabling delay or abuse of process. The order to strike out the defence and the accompanying attorney-and-client costs order underscores the court’s intolerance for procedural gamesmanship that subverts the fair administration of justice. In H v H (44450/22) [2022] ZAGPJHC 904; [2023] 1 All SA the High Court repeatedly urged the parties to abandon acrimonious conduct, noting that toxicity and poor communication had entrenched the dispute. While the criticisms were directed principally at the parties, the judgment conveys judicial impatience with litigation that serves hostility rather than the child’s welfare a dynamic family lawyers are expected to moderate rather than amplify. In D v D (2021/23816) [2024] ZAGPJHC 1688, the judge criticised the emotive tone and unnecessary expansion of issues in the legal documents and correspondence before the court, emphasising that advocates should confine their submissions strictly to relevant matters and avoid inflaming disputes. This judicial guidance is a clear reminder that family law advocacy must be disciplined, professional, and centred on substance rather than acrimony.
In Van den Berg v Le Roux [2003] 3 All SA 599 (NC), the Northern Cape Division directed the parties to participate in private mediation for all future disputes regarding their minor child and ordered that only after the mediation process could either party approach a court.
The adversarial system relies on each party’s lawyer to present their client’s case vigorously. However, in children’s matters the ultimate question is not which parent wins, but what outcome serves the child. When lawyers focus exclusively on proving their client “right” and the other parent “wrong,” the court’s inquiry into the child’s best interests can be skewed or obscured by irrelevant issues. For example, a parent might instruct their lawyer to raise every minor failing of the other parent to paint them as “unfit,” even when those issues have little bearing on the child’s welfare. An over-aligned lawyer may oblige by inundating the court with trivial or exaggerated allegations, thus diverting attention from the core question of the child’s needs. Judges have expressed frustration with this tendency.
Van den Berg v Le Roux, concerned the variation of a custody order, the court lamented that adversarial litigation is often “inimical to the interests of children” – a comparative study cited in the judgment showed clearly that families who mediated had far better satisfaction and outcomes than those who “left it up to the court to adjudicate their differences”, underscoring that an adversarial approach often leaves everyone worse off. In extreme instances, relentless advocacy for a combative parent can even lead the court to make orders it otherwise might not, such as switching custody to the other parent (as in V v V) or ordering supervised contact simply to break the cycle of conflict.
Thus, by “chasing every rabbit down every hole” at the client’s behest, lawyers risk distorting the factual landscape and consuming court time with peripheral fights, to the detriment of a fair, child-focused decision. This is antithetical to the Children’s Act’s injunction that proceedings should be conducive to problem-solving, not point-scoring.
Perhaps the most lasting consequence of lawyer-fuelled conflict is the destruction of any workable co-parenting relationship between the adults after the court case. Unlike a civil commercial dispute, parenting is not a one-off transaction, it is an ongoing relationship that must continue in some form until the child reaches adulthood (and often beyond). Lawyers who encourage a “win at all costs, concede nothing” strategy may help a client achieve a temporary legal victory, but they often do so at the expense of the long-term parental alliance that the child desperately needs. A pyrrhic victory can leave the parents unable to communicate or cooperate in the simplest matters of the child’s life, sowing seeds for future disputes. South African courts recognise that facilitating a functional co-parenting relationship is part of serving the child’s best interests.
For instance, section 7 of the Children’s Act includes consideration of “the probability of maintaining a sound relationship between the child and each parent” and the capacity of parents to cooperate in caring for the child (this is implicit in factors like the attitude of the parents towards the child and towards their responsibilities). An overly partisan approach by counsel can poison the well of mutual respect needed for co-parenting. This is vividly seen in cases of parental alienation, where one parent (sometimes counselled by an over-aligned lawyer) engages in a campaign to sever the child’s bond with the other parent. The longer such litigation persists, the more entrenched the hostility becomes until eventually one or both parents are “scorched earth” and unable to attend the same school event or exchange a civil word about the child. The ultimate losers are the children, who suffer emotional harm when forced to live with parents at war. Constant litigation is destabilising for parents and children, leading to entrenched attitudes as if engaged in a war of attrition, with serious emotional damage to the children. Lawyers must therefore weigh the relational toll of their litigation tactics. Vigorous advocacy cannot cross into fomenting needless acrimony that renders the family unworkable post-judgment.
Lawyers who over-identify with a malicious or unreasonable client also put their own professional standing at risk. South African judges have not hesitated to rebuke and even sanction legal practitioners whose conduct exacerbates conflict.
In South Africa, judges have tools to rein in recalcitrant or irresponsible advocacy, including punitive cost orders or referrals for disciplinary action in extreme cases. For example, if an attorney persistently files inflammatory, meritless motions solely to harass the other parent, a court could order costs de bonis propriis (paid by the attorney personally) to penalize the abuse of process. The LPC Code’s rules on not protracting cases and not abusing court process provide a basis for professional discipline if breached.
In Simic & Norton [2017] FamCA 1007 (Family Court of Australia), Justice Robert Benjamin delivered a striking judicial critique of the way legal practitioners had conducted the proceedings, which involved substantial parenting and property disputes. His Honour observed that the parties had incurred “eye-watering” legal costs of around $860 000 and expressed concern that this reflected a broader culture of bitter, adversarial and highly aggressive family law litigation in the Sydney Registry of the Family Court. The court read extensive solicitor correspondence exchanged between the parties and noted that many of the letters were inflammatory, accusatory, verbose and served little or no forensic purpose, adding nothing substantive to the resolution of the issues before the court. Justice Benjamin stated that solicitors are not employed to act as “postman” for their clients’ anger and vitriol, and emphasised that legal practitioners must ensure that communication is necessary, balanced, considered and relevant, and that the overall conduct of the case is competent and proportional to the issues in dispute. Concerned that the practitioners’ conduct may have contributed to excessive costs and delay, the judge referred the solicitors to the Legal Services Commissioner of New South Wales to consider whether their approach might amount to professional misconduct or unsatisfactory professional conduct.
In Van den Berg v Le Roux, Kgomo JP signalled judicial impatience with adversarial excess by ordering the parties to mandatory mediation for any future disputes over their child. Implicitly, this was a comment on the inability (or unwillingness) of the parents and their lawyers to resolve issues in a less damaging way; the court effectively forced a more collaborative process upon them. Such interventions hint that if lawyers do not take up the mantle of peacemaker when appropriate, the courts will impose solutions to protect children. The professional upshot is clear: attorneys who ignore their higher duties in family matters becoming ciphers for a difficult client rather than officers of the court risk damaged reputations, court sanctions, and even disciplinary proceedings.
Zealous Advocacy vs. Child-Centred Advocacy: A Tension
These issues highlight a fundamental tension in family law practice: How does a lawyer reconcile the duty of zealous representation (the traditional common-law duty to pursue a client’s legitimate interests with dedication) with the need for child-centred advocacy that may require reining in a client’s baser instincts? This tension is nuanced and worth unpacking.
Under the adversarial ethos, lawyers are often taught to “leave no stone unturned” for their client. In ordinary civil litigation, that might mean exploiting every advantage, speaking only to facts favourable to one’s client, and pressing every procedural point if it helps one’s case. In a custody dispute, however, the client’s “win” cannot come at the expense of the child. Zealous advocacy does not mean and ethically cannot mean doing anything the client asks. The Legal Practice Council’s rules and the broader ideals of the profession make clear that an attorney is not a hired gun free from moral responsibility. As noted, the LPC Code expects lawyers to act with integrity, not to mislead the court, and not to pursue frivolous or vexatious tactics. Furthermore, rule 61.9 of the Code (cited above) pointedly separates personal feelings from professional conduct. In practice, this means a lawyer must sometimes tell a family-law client what they need to hear rather than what they want to hear.
For example, if a mother insists on barring the father from seeing the child out of spite, her lawyer’s role (consistent with both ethics and the child’s interest) is to counsel her about the child’s need for both parents and perhaps negotiate safe contact not to immediately file an urgent application to cut off contact without cause. Zealous representation is not synonymous with acceding to unreasonable or malicious instructions. In fact, the South African courts have long held that an advocate or attorney, as an officer of the court, must decline to participate in an abuse of process. There is an implicit ethical line: a lawyer may be forceful and creative in advancing a client’s legitimate interests but must stop short of strategies that serve only to attack or punish the other side at the child’s expense. The child’s welfare must come first, even before the wishes of either parent. This is not just a moral sentiment; it is effectively the law (Children’s Act, section 7 and 9) and emerging professional norm.
Nonetheless, implementing child-centred advocacy is challenging. Clients in divorces and custody fights are often emotionally overwrought, fearful, and vengeful. They may pressure their lawyers to be as aggressive as possible, or even to pursue dubious tactics (such as hiding assets to reduce support, coaching the child to say negative things about the other parent, or filing baseless accusations to gain leverage). A lawyer who resists these instructions risks losing the client’s trust or business. This dynamic can tempt some attorneys to over-identify with their client’s perspective to “prove” their loyalty. It takes professional maturity and courage to push back against a client’s harmful demands. However, doing so is part of the lawyer’s duty of care both to the client (who may not realise that a scorched-earth approach often backfires legally) and to the child (who cannot speak for themselves in the legal tussle). A child-centred lawyer will reframe “winning” not as destroying the other parent, but as achieving a stable, livable arrangement for the child.
This may involve educating the client about the long-term consequences of parental conflict on children’s mental health and development, pointing to research that children exposed to high conflict are more likely to suffer anxiety, depression, and behavioural problems. Often, once parents understand that their legal feud is causing their child harm, it can recalibrate their approach. Lawyers, therefore, should leverage their unique position to inject reality and empathy into their client’s decision-making. That is a core aspect of child-centred practice: being not just a legal technician, but also a counsellor and peacemaker when needed.
South African jurisprudence and academic commentary are increasingly supportive of this evolved role. Our courts now encourage mediation and collaborative resolution in family matters precisely to pivot lawyers and parties away from adversarial mindsets. Several cases (e.g., Brownlee v Brownlee: 2008/25274 and Townsend-Turner and Another v Morrow (524/2003, 6055/2003) [2003] ZAWCHC 53; [2004] 1 All SA 235 (C); 2004 (2) SA 32 (C) (8 October 2003)) have emphasised the obligation of attorneys to advise and encourage clients to mediate rather than rush to trial.
The legal profession’s own regulatory instruments, like the LPC Code, bolster this interpretation by obligating fairness and best-interests considerations in settlements. In summary, the tension between zealous client advocacy and child-centred practice can be resolved by recognising that in children’s matters, the child’s interest is integral to the client’s interest. A client’s long-term interest even viewed selfishly is not served by an outcome that harms their child or leaves a toxic co-parenting situation. By guiding clients toward that understanding, lawyers align zealous representation with the broader aims of family justice.
Comparative Perspectives: Restraining Adversarial Excess
South Africa is not alone in grappling with adversarial excesses in family litigation. Other common-law jurisdictions have instituted ethical frameworks and systemic measures to mitigate the harm of combative lawyering in children’s cases. A brief look at the United Kingdom and Australia provides instructive contrasts and ideas for reform.
The English family justice system, much like South Africa’s, enshrines the principle that a child’s welfare is paramount (Children Act 1989). Culturally, there has been a strong movement over the past few decades toward non-adversarial resolution of family disputes. One notable initiative is the Resolution Code of Practice (developed by Resolution, formerly the Solicitors Family Law Association), which many family solicitors voluntarily follow. This professional code explicitly commits lawyers to “promote a constructive approach to family issues” and to reduce or manage conflict in dealings with both clients and other parties. For example, Resolution members pledge not to use inflammatory language in correspondence or court documents and to “encourage families to put the best interests of any children first.”.
The existence of this Code – and the fact that it is widely adhered to – reflects a consensus in the UK family bar that adversarial posturing must be tamed by professionalism. Additionally, the UK has procedural mechanisms to curb needless fights: before issuing a court application regarding children (or finances on divorce), parties are generally required to attend a Mediation Information and Assessment Meeting (MIAM) to explore alternative dispute resolution. While mediation is not compulsory, the very requirement of a MIAM, introduced by the Children and Families Act 2014, reinforces the expectation that court litigation is a last resort, especially where children are involved. Lawyers who too readily stoke litigation without considering mediation could face judicial disapproval or even cost penalties for acting unreasonably.
Courts have demonstrated clear willingness to rebuke legal practitioners whose conduct fuels adversarial excess in litigation. In English law, the leading authority on lawyer conduct, Myers v Elman [1940] AC 282 confirms that a lawyer who knowingly permits misleading affidavits or documentation must either correct the misstatement or withdraw from the case, recognising that the duty to the court trumps partisan zeal. This principle underscores that the courts will hold lawyers personally responsible for actions that mislead the judiciary rather than illuminate the real issues. In Linwood v Andrews (1888) 58 LT 612, an English court convicted a lawyer of contempt of court for allowing a false affidavit to be submitted, demonstrating that judicial rebukes extend beyond criticism to serious sanctions where a lawyer’s conduct actively undermines the integrity of litigation. In Re L v M (Milton Keynes Family Court, 28 January 2025), the court ordered a law firm to pay a proportion of the father’s costs because its conduct including failure to comply with directions, late filings, excessive statements and obstructive responses — was judged “improper, unreasonable and negligent”. The recorder criticised the firm’s approach as having caused unnecessary expenditure and obstructed the fair administration of justice. Such cases, though historical, form part of the enduring judicial insistence that lawyers must not become instruments of deceit or obstruction within the adversarial process. In Mahmoud v Glanville & Anor (2025), the High Court emphasised that litigants’ unreasonable and repeated conduct designed to frustrate and delay proceedings — conduct often facilitated by their advisers — could justify departing from the usual no-costs rule in children’s cases and attract a substantial costs order, reflecting the court’s disapproval of abusive litigation tactics. In T v T & Ors [2025] EWFC 14, the court expressed strong displeasure at serious procedural failings by practitioners in financial remedy proceedings — including excessive bundle size, missing core documents, and late filings. The case was widely publicised as a wake-up call from the judiciary that procedural indiscipline by lawyers will no longer be tolerated and may attract adverse costs or other judicial consequences. In the litigation surrounding Evans & Anor v Alder Hey Children’s NHS Foundation Trust & Ors [2018] EWCA Civ 805, the Court of Appeal sharply criticised third-party legal adviser conduct as “littered with vituperation and bile” and inconsistent with the parents’ real interests, illustrating that courts will censure professional behaviour that inflames conflictThe underlying message to lawyers is that facilitating a client’s unreasonable intransigence will not ultimately succeed and will draw judicial ire.
Australia’s family law system has undergone reforms directly aimed at reducing adversarial harm. The Family Law Act 1975 (as substantially amended in 2006 and afterward) places paramount weight on the child’s best interests and, like South Africa’s law, stresses the benefit of children having meaningful relationships with both parents, as long as it’s safe. To curb the adversarial spiral, Australia introduced the concept of mandatory family dispute resolution (mediation): except in certain urgent or abuse cases, parties must attempt mediation and obtain a certificate of genuine effort before they can bring a parenting matter to court. This requirement means lawyers must, at the outset, pivot to problem-solving mode. If a lawyer encourages a client to skip mediation or to sabotage it so they can “play it out” in court, that lawyer would be flouting the system’s design and could expect a poor reception from the court.
Notably, the Australian Family Courts also experimented with the Less Adversarial Trial (LAT) process for children’s matters (also known as the Children’s Cases Program). Under this model, the judge takes a more inquisitorial role, the usual rules of evidence are relaxed, and the focus is on identifying key issues rather than allowing adversarial free-for-all. Lawyers in an LAT are expected to cooperate and assist the court, not simply advocate in a partisan way. While the LAT approach has not completely displaced traditional trials, it demonstrated a systemic effort to de-lawyer and de-combat the handling of children’s disputes. In addition, Australia appoints Independent Children’s Lawyers (ICLs) in cases where the child’s interests need separate representation – a lawyer who is not aligned with either parent but rather advocates solely for the child’s best interests. The presence of an ICL can help counterbalance overly partisan parent-lawyering by refocusing the court on the child’s welfare.
Australian judges, like their UK counterparts, have occasionally lambasted the culture of adversarial excess. The earlier reference to Justice Benjamin’s remarks in Norton v. Simic is a prime example. His judgment, which was widely reported, decried the “bitter, adversarial and highly aggressive” conduct in some family cases and declared it “must stop”. He was alarmed by how a “win at all costs” mentality whether coming from litigants or lawyers or both was destroying families financially and emotionally. By referring the attorneys for investigation, the judge sent a message that professional misconduct may encompass not only dishonesty or incompetence, but also needlessly adversarial conduct contrary to a child’s best interests. The Australian family law system also emphasises costs consequences: while in general each side bears their own costs in children’s matters, courts may order costs against a party (or rarely against a lawyer personally) for egregious conduct, like knowingly making false allegations or deliberately prolonging proceedings. This deters lawyers from pursuing their client’s scorched-earth agenda where it lacks merit.
In both the UK and Australia, we see an acknowledgement that while conflict in family cases cannot be eliminated, it can be managed and mitigated by responsible lawyering and supportive court procedures. In the UK, the professional culture (through Resolution and similar initiatives) pressures lawyers to be consensus-builders. In Australia, a mixture of mandatory ADR and judicial activism pushes lawyers to prioritise resolution and child welfare over point-scoring. South Africa can draw lessons from these jurisdictions: our law already provides many of the right principles but strengthening our enforcement of those principles whether through sharper judicial management of cases or clearer guidance and training for family lawyers could further reduce the adversarial temperature.
Psychological Dimensions: How Over-Identifying Lawyers Damage Dispute Resolution
Beyond legal rules and procedures, it is important to understand the psychological dynamics at play when a lawyer over-identifies with a client in a high-conflict matter. Family disputes do not occur in a vacuum; they are fueled by intense emotions (anger, betrayal, fear of loss) and sometimes by underlying mental health issues (such as personality disorders). Lawyers untrained in psychology may inadvertently get “swept up” in their client’s subjective narrative, a phenomenon akin to confirmation bias and emotional contagion. This can seriously damage the dispute resolution process.
When an attorney mirrors a client’s hatred or distrust of the ex-partner, the attorney may begin to interpret every development as a zero-sum victory or loss, rather than an opportunity for compromise. The lawyer’s own ego can become entwined with the client’s cause. At that point, rational negotiation often stalls since any concession is seen as betrayal or weakness. Mediators frequently observe that one of the biggest impediments to settlement is not the parties themselves but “biased” attorneys who approach mediation in bad faith. A biased attorney might communicate hostility through tone and proposals, derailing what could have been constructive dialogue. Indeed, psychological research on mediation suggests that attorneys with an adversarial, competitive stance can negatively influence the parties’ perceptions and outcomes of the mediation, see Jean Poitras, Arnaud Stimec, Jean‐François Roberge; The Negative Impact of Attorneys on Mediation Outcomes: A Myth or a Reality? Negotiation Journal 2010; 26 (1): 9–24. The “bane of every mediator,” as one commentary noted, is a lawyer who comes to mediation with a closed-minded, combative approach, effectively sabotaging the chance of agreement, see Attorney bias in mediation. An adversarial, “must win” attitude is a mediation killer and usually results from confirmation bias on the part of the attorney Charles G. “Skip” Rubin (Ret.) 2018 August. Over-identification with a client’s antagonism can thus thwart alternative dispute resolution, pushing the case back into the courtroom (where delays and costs mount).
Moreover, an over-aligned lawyer may fail to objectively assess the evidence and the client’s own shortcomings. A cardinal skill in litigation is case evaluation, recognising the strengths and weaknesses on both sides in order to advise the client realistically. But a lawyer who has “drunk the Kool-Aid” of an angry client might actually start believing one parent is all good and the other all bad, despite evidence to the contrary. This skewed perspective can lead to strategic blunders, like rejecting reasonable settlement offers (because the lawyer shares the client’s overconfidence or vendetta) or neglecting to prepare for legitimate concerns the court will have about the client’s behaviour.
In child matters, such lack of objectivity is perilous. For example, a father’s lawyer who wholly believes the father’s claim that the mother is alienating the child might ignore clear signs that the father himself has been inconsistent or harsh, factors a court will weigh. The result is a poorly prepared case that could collapse, further embittering the parties. In contrast, a lawyer maintaining professional detachment can give the client a reality check for instance, acknowledging where the client needs to improve (perhaps attend parenting classes or therapy) to strengthen their case and, more importantly, to benefit the child. By doing so, the lawyer not only serves the client better but also helps break cycles of dysfunction that fuel conflict.
From the child’s psychological perspective, prolonged legal conflict with overzealous advocates can be devastating. Children are highly sensitive to parental discord. They often experience loyalty binds, feeling that enjoying time with one parent is a betrayal of the other, especially when each parent’s legal team is attacking the other parent’s character. Children’s clinical psychologists note that kids in high-conflict divorce can exhibit symptoms of trauma: nightmares, regression in behaviour, depression, or aggressive acting out. The best-interests-of-the-child standard implicitly demands that the legal process itself not become a source of harm. Lawyers, in their role, should strive to de-escalate rather than escalate. For instance, keeping correspondence between lawyers civil and focused on practical issues (rather than accusatory) might seem like a small courtesy, but it can have ripple effects: it models a measure of cooperation for the clients and reduces stress that often filters down to the child. Conversely, when a lawyer sends five hostile letters in a day (as in the earlier Australian example), it amplifies the climate of acrimony. Parents consumed by ongoing legal combat have less emotional bandwidth to attend to their child’s needs.
There is also the psychological concept of “triangulation” where a child is drawn into the parental conflict, sometimes with the unwitting collusion of professionals. If each parent’s lawyer is fanatically loyal to their client’s version of events, the child can be triangulated when, say, affidavits are drafted containing the child’s alleged statements or preferences that align with one side. The child may feel they are literally a subject of argument between two authoritative adults (the lawyers) in addition to their parents. This can lead to the child feeling responsible for the legal battle, an inappropriate and damaging burden. In some extreme cases noted in family law literature, children have even been called to testify or be interviewed multiple times due to relentless litigation, an ordeal that often leaves the child anxious and guilt-ridden.
A lawyer mindful of these effects will think twice before putting a child through additional forensic processes solely to score a minor point. When over-identification clouds judgment, however, the lawyer may press on without such considerations, believing any step against the “enemy” parent is justified.
Ultimately, the psychological literature on family conflict consistently shows that the level of inter-parental conflict is a strong predictor of a child’s adjustment post-separation. Children can cope with many family structures, single parent, joint custody, stepfamilies if the adults cooperate or at least coexist peacefully.
It is high conflict, not divorce per se, that wreaks the worst damage. Lawyers, therefore, play a pivotal part in either inflaming or alleviating the conflict that children experience. By maintaining professional independence (not merging emotionally with the client) and by emphasising problem-solving, lawyers can help lower the emotional temperature of a case. This often means the difference between a workable co-parenting arrangement and a post-divorce family permanently shattered by bitterness.
Toward Constructive, Child-Focused Representation: Reforms and Recommendations
The analysis above underlines the need for a paradigm shift in how lawyers approach children’s matters. The question remains: how do we promote that shift through concrete reforms or interventions? Here are several proposals aimed at reorienting family-law advocacy in South Africa towards a more constructive, child-centric model, drawing on both domestic insights and comparative lessons:
Family-law practitioners would benefit from more rigorous training (both in formal legal education and continuing professional development) on the unique ethical challenges of their field. This training should include child psychology, the impact of high conflict on children, and techniques for managing high-conflict clients. Lawyers need tools to deal with clients who may be unreasonable or emotionally volatile, for instance, training in active listening and empathy, which can build trust so that clients heed advice to behave constructively. Modules on mediation advocacy (how to represent a client in mediation as opposed to litigation) can also help lawyers switch out of adversarial gear when appropriate. The goal is to create reflexes in lawyers to always ask: “Is what I am about to do or write likely to help resolve this dispute or will it inflame it? How does this position serve the child’s welfare?” If the answer is that it inflames, another approach should be considered. The LPC, law societies, or universities could partner with mental health professionals to offer certification courses in “Collaborative Family Law Practice” or “Child-Centred Legal Practice”.
Building on existing rules, the LPC could issue specific guidelines or practice directives addressing conduct in matters involving children. This might echo the spirit of the UK’s Resolution Code by explicitly encouraging lawyers to minimise conflict and to consider alternatives to litigation. For example, a guideline might stipulate that attorneys in children’s cases should discuss with their clients, at the earliest opportunity, the availability of mediation, parenting coordination, or other dispute resolution mechanisms, as well as the potential negative impact of adversarial litigation on the family. The guideline could also remind lawyers of their duty to the court and child, perhaps even referencing section 6(4) of the Children’s Act to justify that these are not mere niceties but obligations. While failure to follow guidelines might not be direct misconduct, it can be influential. If a judge knows that the profession’s own standards call for non-hostile conduct, the judge is empowered to call out behaviour that deviates. Indeed, our hypothetical LPC family-law directive could incorporate language similar to Justice Benjamin’s admonition: e.g., “Practitioners must not merely act as the conduit of a client’s anger or vengeance. They are expected to exercise independent judgment and promote solutions in the best interests of the child.” This would put lawyers on notice that over-identifying with a destructive client is a form of unprofessional conduct.
The South African legislature and judiciary have already shown support for mediation in family disputes (for instance, High Court Rule 41A now makes it obligatory for parties to consider mediation at the start of any case). To further embed this, courts could more liberally invoke section 7(o) of the Children’s Act (the factor of avoiding further litigation) in their judgments, and even incorporate it into orders, for example, by ordering feuding parents to attempt co-parenting counseling or mediation before returning to court on a minor issue. The precedent set by Van den Berg v Le Roux, where the court made mediation a prerequisite to future litigation, can be used more widely. Additionally, encouraging the use of parenting coordinators (specially trained neutrals who can make quick decisions in high-conflict cases as an alternative to repeated court motions) could alleviate the burden on courts and reduce protracted fights. Lawyers should be apprised of these options and even incentivised to agree to them in consent orders. If, for instance, a parenting coordination clause in a settlement can break cycles of argument (by having the coordinator decide if the exchange time will be 5 pm or 6 pm, rather than the parents rushing to court), then lawyers should advocate for that it serves the client’s interest in the long run by saving legal fees and emotional stress.
Judges in South Africa can take a stronger hand in managing high-conflict cases to prevent counsel-fueled excess. Early intervention by a judge at a case management conference making it clear that mudslinging affidavits or trivial interlocutory skirmishes will not be tolerated can set the tone. Judges could, where appropriate, issue warnings to parties and counsel that if a pattern of unnecessary litigation emerges, cost orders or other sanctions will follow. Moreover, South African courts could emulate the Australian approach by adopting a more inquisitorial style in appropriate cases – for example, holding a conference in chambers where both lawyers and parties speak informally under the judge’s guidance to resolve a specific impasse, stepping out of their adversarial postures. Some judges already do this, but making it a norm (with consent of parties) could diffuse tension.
Cultural change within the family law is crucial. Senior family law attorneys and the organised profession should champion the message that the most effective family lawyers are peacemakers, not provocateurs. Mentorship programs could pair young lawyers with seasoned practitioners known for their ethical, child-friendly approach, thereby transmitting those values. Awards or recognition (like an annual Family Law Practitioner of the Year award weighted towards those who resolve cases amicably or show exemplary child-focused advocacy) could reinforce positive models. The media and public often perceive divorce lawyers as combative by default; the profession must counter that by highlighting stories where lawyers facilitated a good outcome for a family. As an analogy, in medicine the motto is “first, do no harm”, family lawyers could be encouraged to adopt a similar ethos regarding the family relationships involved in their cases.
Another idea, drawn from some Canadian provinces and Australian practice, is to create a mechanism for direct representation of children’s interests in private disputes when conflict reaches extreme levels. South Africa does have provision for the appointment of a curator ad litem or legal representative for the child in appropriate cases (Children’s Act, section 55, and our case law have precedents). Ensuring this is used when needed can help center the child’s voice and welfare in proceedings. A child’s lawyer or curator can sometimes temper the excesses of parents’ counsel by providing the court with an independent viewpoint. The knowledge that a child’s representative is involved might also curb a parent’s or attorney’s tendency to engage in theatrics or unfounded accusations, since there is a third-party in the room focused only on the child. Expanding funding for the Family Advocate’s office to intervene more robustly in high-conflict cases is another related reform, their social workers and lawyers provide invaluable reality-testing by investigating the family situation holistically.
Finally, the profession should consider mechanisms to support lawyers in managing difficult clients and to hold them accountable when they cross the line. On the support side, peer consultation groups or even counseling for family lawyers (who are at risk of burnout and secondary trauma in high-conflict cases) can prevent over-identification. A lawyer who has a safe outlet to discuss how a case is affecting them might be less likely to subconsciously take on their client’s rage. On the accountability side, the LPC’s disciplinary arm could be sensitised to consider extreme patterns of hostile, unprofessional conduct in family cases as worthy of investigation. While clients drive much of the conduct, there have been instances as highlighted earlier where lawyers acted inappropriately independent of client wishes (for example, by sending harassing communications). Ensuring there are consequences for those who give the profession a bad name will, over time, discourage unethical zeal. Even a private admonition or guidance from the LPC in response to a complaint can remind a lawyer of their duties.
Conclusion
In the South African context, the alignment of lawyers with their clients in children’s matters is a double-edged sword. On one side lies the duty of loyalty, the imperative to advocate vigorously for one’s client. On the other side lies the welfare of the child, the higher duty that the law places above all else. Bridging this divide requires a recalibration of family law practice: from adversarial posturing to a more constructive, child-focused representation.
The consequences of failing to achieve this balance are dire. As we have seen, when lawyers become surrogates of their clients’ wrath – “postmen” delivering vitriol conflict escalates, children suffer, and the credibility of the legal system erodes. Judicial criticisms in cases like Van den Berg v Le Roux and others highlight that the adversarial system, unchecked, can devour families’ resources and futures. Encouragingly, both our domestic framework (Children’s Act, Legal Practice Act rules) and comparative models in the UK and Australia provide blueprints for positive change. South African family lawyers must heed the call of section 6(4) of the Children’s Act to seek conciliatory, problem-solving approaches. Zealous advocacy in this field does not mean aggressive advocacy at all costs; it means effective advocacy that achieves a durable, child-beneficial outcome.
Reforms such as enhanced ethical training, strong professional guidelines, mandatory mediation, and active judicial management all serve to align the practice of family law with its ultimate raison d’être: serving the best interests of children. The proposals offered – from promoting a Resolution-like code in South Africa to leveraging multi-disciplinary insights are geared toward empowering lawyers to be agents of peace and resolution. Importantly, this is not a utopian ideal nor a diminution of lawyers’ role; rather, it is a reassertion of what the lawyer’s role in family disputes should be. As one family law code of practice succinctly puts it, “the process of sorting out finances and childcare can and should be done in a way that minimises conflict and keeps the best interests of the child at heart.” See Resolutuon UK. This vision, once internalised by the profession, will go a long way toward reducing the adversarial toxicity that too often permeates children’s matters.
In conclusion, lawyers in children’s cases must remember that every legal strategy and every court submission take place on a stage where a child’s life is the subject. Winning a pyrrhic victory for a client, at the expense of that child’s well-being or family bonds, is a failure of justice. The true measure of professional success in this arena is not how many “wins” a lawyer scores for a parent, but whether the outcome allows the child to thrive and the parents to cooperate in the child’s upbringing. By realigning our practices with that metric through ethical vigilance, empathy, and a willingness to stand up to even our own clients when their directives would harm their children. South African family lawyers can fulfill both the letter and spirit of the law. In doing so, they ensure that the legal system remains, above all, a champion for children’s best interests, and not a battleground for warring adults.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here. For free and useful Family Law tech applications visit Maintenance Calculatorand Accrual Calculator.