D, TE v G, B (015642/2022) [2023] ZAGPJHC — (13 July 2023)
SUMMARY
This case pertains to family law and involves an urgent application. The child’s best interests are the primary consideration in all matters concerning the child. The case also deals with the Parental Alienation Syndrome (PAS), and the court’s approach towards allegations of PAS. More often than not, PAS negatively impacts a child’s psychological and mental health. The court made it clear in this judgement that a court should not hesitate to intervene for the welfare of the minor child. The parent causing the alienation may be denied contact until therapy is completed. The applicant was granted the relief sought.
JUDGEMENT
In accordance with our Constitution and the Children’s Act, a child’s best interests are the overriding consideration in every matter concerning the child. The case at hand, which was presented as an urgent application in the Family Court on May 9, 2023, revolves around the welfare of an eight-year-old boy, who will be referred to as ‘M’ or ‘the minor child’. M was born on February 22, 2015, and since his birth, he has been the subject of a contentious struggle between the applicant (his mother) and the respondent (his father). The parents, who were never married, had mutually agreed to have a child together, resulting in the conception of M.
The mother and father had been engaged in continuous litigation since the birth of M. Notably, on 22 November 2022, the High Court (per Wilson AJ), upon the father’s application, issued an order as follows:
Advocate Mark Leonard Haskins SC, a High Court advocate of South Africa, was appointed as the curator ad litem for the minor child, M. The curator was granted the following powers:
1.1) To legally represent and/or act on behalf of M in the ongoing court proceedings between the parties.
1.2) To investigate M’s living conditions concerning his current and/or future care, residency, and/or contact arrangements.
1.3) To interview M, the father, the mother, and/or any other person who possesses relevant information about M’s care, residency, and/or contact arrangements.
1.4) To have unrestricted access to M for the purpose of fulfilling the mandate given to the curator ad litem by this order.
1.5) To access any documents or reports that directly or indirectly relate to M’s present care, residency, and contact arrangements.
1.6) To ensure that M’s voice, views, and wishes, as appropriately expressed under Section 10 of the Children’s Act, No. 38 of 2005, are made known to the Court and the parties. A suitably qualified psychologist or social worker with no less than ten years’ standing should conduct the Voice of the Child interview.
1.7) To approach the Court, notifying both the father and the mother, for an order clarifying, expanding upon, or restricting any power necessary to promote and/or protect M’s best interests.
1.8) To compile a report for the Court regarding M’s care, residency, and contact arrangements within 60 days of the Court order’s issuance.
The parties had to bear the costs incurred by the appointment of the curator ad litem and/or his attendances as per prayer 1 above, in accordance with their pro rata means, or as agreed.
Leonard Carr (“Carr”), a clinical psychologist, was appointed to urgently conduct a comprehensive investigation into the minor child’s circumstances. This included, but was not limited to, how the parental rights and responsibilities of the applicant and respondent should be structured and/or exercised. Carr was tasked with providing a report to the Court on this matter.
The applicant was responsible for the costs associated with Carr’s appointment and/or attendances.
Upon receiving Carr’s report, the mother was given the right, but not the obligation, to appoint a clinical psychologist of her choice. This psychologist was to urgently conduct a full investigation into the minor child’s circumstances, similar to Carr’s investigation, and provide a report to the Court.
Both the father and the mother were ordered to cooperate with Carr’s investigation as well as the investigation conducted by the other experts.
Before the order of 22 November 2022, the High Court (per Moosa AJ) had granted an extensive eleven-page order on June 5, 2020. This order regulated the parental responsibilities and rights of the mother and father concerning M from that date forward. By the time Moosa AJ issued this latter order, the High Court had granted eight other orders, each addressing various disputes between the parties regarding their parental responsibilities and rights. Several experts had been engaged to help resolve some of the contentious issues between the parents, and up to that point, three parenting coordinators had been appointed, none of whom remained in the role for the long term.
The aforementioned details provide some insight into the animosity that was prevalent throughout the litigation history between the parties. Against this backdrop, Moosa AJ, as the upper guardian of all children within the Court’s jurisdiction, chose to formulate an order regarding access and contact that, as the court stated, ‘would endure from the present, until the age of majority’. The application that came before Moosa AJ was actually an application brought by the father to have the mother declared in contempt of a previous court order. The father’s requested relief was not granted. However, Moosa AJ, hoping to end the animosity between the parents, issued the aforementioned order, which definitively and in detail regulated the parties’ parental responsibilities and rights concerning M. This order did not achieve the desired effect.
In essence, the order by Moosa AJ, which explicitly superseded and replaced all previous court orders, stipulated that both the mother and the father would retain full parental responsibilities and rights. The primary care and residency of M would alternate in a shared residency scheme, implemented in a fortnightly cycle from one Friday to the next. This arrangement was to continue until M reached the age of majority. The shared residency arrangement took effect from 22 May 2020. As per the order, Dr. Lynette Roux, a clinical psychologist, was appointed as the parenting coordinator. However, Dr. Roux resigned in March 2021, and Advocate Vicky Olivier succeeded her from 18 March 2021, to 17 August 2021. After Olivier’s resignation, there was no need for a replacement, as confirmed by a court order on 17 August 2021.
Returning to Wilson AJ’s order of 22 November 2022, Advocate Haskins SC was appointed as the curator ad litem for the minor child, and psychologist Leonard Carr was tasked with conducting a full investigation into the minor child’s circumstances. By 22 February 2023, Carr had completed his investigation and produced his final report, as directed by the court order.
Despite numerous professional reports and interventions, the situation had worsened to the point where M was more at risk than ever, with his psychological functioning in a state of rapid and alarming decline.
Past interventions failed to resolve the conflict. Instead, they created conditions that allowed the conflict between the mother and father to persist and escalate, with no resolution in sight. As a result, it was recommended that drastic measures were needed to decisively end this conflict.
M was living in a psychologically chaotic and emotionally dysregulated family environment, which was undoubtedly frightening and confusing for him. This situation made him susceptible to adopting the belief system of the most influential and persuasive parent to help him navigate and make sense of his chaotic world.
M, who should have been the focus of the matter, was reduced to a mere object in the ongoing conflict and intense power struggle between his parents. Both parents claimed to be acting in his best interests, but their behavior resembled that of two rivalrous small children trying to convince authority figures that they were the victims and should be favored.
The presence of ‘parental alienation’ made M’s upbringing treacherous and emotionally dangerous. To survive in this environment, M had to learn to become, at best, a tactical liar and a remorseless politician, or at worst, so entangled in the alienating parent’s delusional belief system that his attachment bonds were disrupted, and he himself became delusional.
Most notably, Mr. Carr concluded that M was suffering from a moderate level of Parental Alienation Syndrome. This condition was characterized by M’s pronounced negative feelings or attitude towards his mother, the targeted parent, which were interfering with his ability to maintain a relationship with her. M was also showing early signs of this alienation affecting his relationship with his mother and her relatives. Furthermore, Mr. Carr found that M exhibited a significant lack of empathy when influenced by his father’s agenda, putting him at risk of losing the ability to see his mother as a person with valid emotions and experiences.
Mr. Carr concluded that these factors resulted in M showing early signs of a shared psychotic disorder, also known as folie à deux. In this condition, M had adopted his father’s delusional beliefs, despite the lack of evidence to support them. This led to M becoming seemingly convinced that his mother and her parents were harmful or dangerous, which is the very definition of ‘Parental Alienation Syndrome’.
Due to these reasons, Mr. Carr believed that M needed a period of protective separation from his father’s influence. He recommended that M should have no contact with his father for three months while undergoing therapy as outlined in the final report. During this time, the father would need guidance on how to be a healthy co-parent and help M accept and be happy in his mother’s care and control. After this period, the recommendation was for M to have supervised contact with his father for two hours twice a week and two hours on the weekend.
Mr. Carr also recommended that M continue therapy with his current psychologist, who would need to help him avoid developing personality pathology. This would include reconstruction therapy to help M overcome the grief, anxiety, and possible guilt he might experience due to this intervention. The next step in his healing would be the recovery of his natural true self, as opposed to the adaptive false self he developed to accommodate his father’s pathogenic parenting. Following this, Mr. Carr recommended that M would need assistance in repairing the damage done to his attachment bond with his mother and his maternal grandparents.
According to Mr. Carr’s recommendations, the final phase, when a treating psychologist confirms that M is ready, would involve reintroducing the father into M’s life under controlled and monitored conditions, with safeguards in place to prevent a repeat of the past years of conflict and alienation.
The question considered in this application was whether Mr. Carr’s recommendations should be implemented as being in the best interest of the minor child.
The father opposed the application and launched a counter-application. He sought an order appointing two other clinical psychologists to review and analyze Mr. Leonard Carr’s report dated 22 February 2023, and to report to the Court on the validity of Carr’s investigative process, findings, and/or recommendations. Essentially, the father was seeking an order to restart the entire process initiated by the order of Wilson AJ. More details about this were discussed later in the judgment.
The aforementioned issues were to be decided considering Mr. Carr’s expert report and the opinions of other experts. Mr. Carr’s report was to be evaluated in light of the criticisms raised by the father.
Counsel who represented the mother, correctly submitted, the role of an expert was crucial in this situation as the child’s expressed views could not be deemed credible under these abusive circumstances. An expert could identify factors suggesting parental alienation and advise the Court on future prognosis, such as assessing the short- and long-term effects of persistent alienation on the child and the alienating parent’s ability to change. In my view, Mr. Carr effectively accomplished this.
Furthermore, another expert in the matter, Dr. De Wit, found that the father’s behaviour was primarily driven by a pathological sense of envy, as evidenced by the protracted litigation where he used the court system and a protective attorney to fight. Pathological envy was described as ‘spoiling hostility,’ with the primary goal being to devastate the other parent, and the desire to retaliate against the other parent providing the means to ‘take back what is felt to be stolen.’
The mother argued that this mode of thinking allowed the father to indulge his rage and aggression towards her and her mother. He viewed them as the source of despair and perpetual turmoil and continued to engage in litigation to direct his aggressive wishes against her and her family. This essentially resulted in the psychological and emotional ‘killing off’ of the other parent, making that parent emotionally unavailable to the child.
The judge recounted that the mother argued the father’s actions were driven by an unhealthy sense of entitlement and extreme narcissism, a point supported by Dr De Wit. The father saw himself as intellectually and morally superior, using this belief to exert control. For instance, he once belittled the mother’s educational background in an email, while praising their son, M’s, intelligence and capabilities.
The evidence suggested that M felt his mother and maternal grandparents were more supportive of his relationship with his father than the father was of his relationship with them. M was also aware of the hostility between his father and grandparents, often saying his father disliked them.
M believed he was the source of his parents’ conflict and pain. He mentioned twice that his parents had been arguing since before his birth and predicted they would continue to do so even when he was an adult with his own family. When asked about his three wishes, M wished for his father to stop berating his mother, for his parents to stop fighting over him in court, and for them to communicate respectfully with each other and his relatives.
The judge stated that due to various reasons, Mr Carr, in his final report dated 22nd February 2023, determined that M was experiencing a moderate level of parental alienation syndrome. This syndrome was manifesting as an enhanced negative attitude towards his mother, which was hindering his relationship with her. Mr Carr recommended a period of protective separation from M’s father to counteract this influence.
In his final report on 10th March 2023, the curator ad litem, Mr Haskins SC, concurred with Mr Carr’s findings and supported his recommendations. Mr Haskins based his conclusions on his consultations with M, during which he noticed that M was not open to any discussion. Instead, he mechanically reiterated his desire to live with his father and avoid contact with his mother and maternal grandparents. Mr Haskins noted that M’s behaviour was almost robotic, accusing his mother and grandparents in a way that suggested he had been programmed to do so. Therefore, Mr Haskins argued that no weight should be given to M’s expressed views, as they were clearly unreliable due to the circumstances detailed by Mr Carr.
The judge agreed with the curator ad litem’s views and recommendations, which were supported by the clinical psychologist, Mr Carr. The judge found their approach to be faultless, as Mr Carr’s expert opinion was based on solid reasoning and factual evidence. For instance, the curator’s investigations led him to conclude that M was severely suffering due to his parents’ inability to act jointly in his best interests.
The judge also noted a disturbing incident on 30th January 2023, when M told his mother that he would ‘sacrifice his own life’ if he couldn’t live with his father. While such statements were alarming, the judge agreed with the mother’s assertion that these words were likely not M’s own, but rather ones fed to him.
The judge disagreed with Ms Rosenberg SC, the father’s counsel, who argued that Mr Carr’s expert opinion should be dismissed because it contradicted factual reality and showed bias against the father. The judge found this argument to be overly legalistic and artificial, as Mr Carr’s report was based on sound reasoning and facts.
The judge also dismissed the ‘preliminary’ opinion of Ms Christie Els, which the father relied on for his relief claim. The judge found her critique of Mr Carr’s and Dr De Wit’s reports to be without merit.
The judge stated that the respondent’s counterclaim, if approved, would not serve the minor child’s best interests. As argued by the mother’s side, the father’s proposed solution was seen as delaying and ineffective in addressing the child’s trauma. The judge saw little to no value in a ‘critique report’ concerning Mr Carr’s report, as he had already expressed his belief that Mr Carr’s expert opinion was well-reasoned and grounded in sound principles.
Therefore, the judge believed that the relief sought by the applicant should be granted in the minor child’s best interests, and the counter-application should be dismissed.
The remaining issue was the cost of the application and the counter-application. The general rule is that the successful party should be awarded their costs. In this case, the judge saw no reason to deviate from this rule and intended to grant costs in favor of the applicant against the respondent.
The judge issued the following order:
The applicant’s non-compliance with the Uniform Rules of Court, regarding form and/or time periods, was excused. The matter was heard and decided urgently as per Rule 6(12)(a) of the Rules of Court.
Until the finalisation of the case (number: 015642/2022), the following was ordered:
a. Except for paragraphs 37, 37.1, 37.3, 42, 44, 45, 46, 47, 48, and 49, the order given by Moosa J on 5th June 2020 (case number: 28072/2016) was suspended immediately.
b. The applicant was granted full parental responsibilities and rights for the minor child, [M].
c. The primary residence of the minor child was assigned to the applicant.
d. The respondent was granted specific parental responsibilities and rights only.
e. The minor child was not to have any contact with the respondent for three months from the date of the order and during the therapy process.
f. After the three-month period, the minor child could have supervised contact with the respondent for two hours twice a week and two hours on the weekend.
g. The minor child was to continue therapy with his current psychologist, provided they were qualified and experienced in treating parental alienation syndrome. If not, a suitable psychologist would be nominated by the curator ad litem, Adv Mark Haskins SC. The psychologist’s role was to assist the minor child with reconstruction therapy, recovery of his true self, and repairing the damage done to his attachment bond with the applicant and his maternal grandparents.
h. Once the psychologist confirmed the minor child was ready, the respondent could be reintroduced into the minor child’s life under controlled and monitored conditions.
i. The costs of the psychologist were to be shared equally by both parties.
j. The contact was to be supervised by a qualified social worker, nominated by the Chairperson of the Gauteng Family Law Forum. The respondent was to cover all costs associated with the social worker’s appointment and supervision.
k. The parties were to jointly approach the Deputy Judge President of the court’s division within five days from the date of the order to appoint a judicial case manager to expedite the trial action and apply for a preferential trial date with special allocation.
The respondent was ordered to pay the costs of this application and his counter-application.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney at Maurice Phillips Wisenberg in Cape Town. A blog, managed by Lawsplash, for more information on Family Law read more here.