In South Africa, the relationship dynamics between a social worker and a parent being investigated in a children’s court matter should adhere to professional ethics, neutrality, and respect while ensuring the best interests of the child, as mandated by the Children’s Act, 2005 (Act No. 38 of 2005).
Focus on the Best Interest of the Child.
Section 7 of the Children’s Act, 2005 outlines the principles to consider in determining the best interests of the child. The social worker must prioritize the child’s safety, well-being, and development over all other concerns while engaging with the parent. Investigations should aim to gather objective evidence regarding the child’s circumstances.
Section 7 reads as follows –
(1) Whenever a provision of this Act requires the best interests of the child standard to be applied, the following factors must be taken into consideration where relevant, namely-
(a) the nature of the personal relationship between-
- (i) the child and the parents, or any specific parent; and
- (ii) the child and any other care-giver or person relevant in those circumstances;
(b) the attitude of the parents, or any specific parent, towards-
- (i) the child; and
- (ii) the exercise of parental responsibilities and rights in respect of the child;
(c) the capacity of the parents, or any specific parent, or of any other care-giver or person, to provide for the needs of the child, including emotional and intellectual needs;
(d) the likely effect on the child of any change in the child’s circumstances,
including the likely effect on the child of any separation from-
- (i) both or either of the parents; or
- (ii) any brother or sister or other child, or any other care-giver or person, with whom the child has been living;
(e) the practical difficulty and expense of a child having contact with the parents, or any specific parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with the parents, or any specific parent, on a regular basis;
(f) the need for the child-
(i) to remain in the care of his or her parent, family and extended family; and
(ii) to maintain a connection with his or her family, extended family, culture or tradition;
(g) the child’s-
- (i) age, maturity and stage of development;
- (ii) gender;
- (iii) background; and
- (iv) any other relevant characteristics;
(h) the child’s physical and emotional security and his or her intellectual, emotional, social and cultural development;
(i) any disability that a child may have;
(j) any chronic illness from which a child may suffer;
(k) the need for a child to be brought up within a stable family environment and, where this is not possible, in an environment resembling as closely as possible a caring family environment;
(l) the need to protect the child &om any physical or psychological harm that may be caused by
- (i) subjecting the child to maltreatment, abuse, neglect, exploitation or degradation or exposing the child to violence or exploitation or other harmful behaviour; or
- (ii) exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or harmful behaviour towards another person;
(m) any family violence involving the child or a family member of the child; and
(n) which action or decision would avoid or minimise further legal or administrative proceedings in relation to the child.
(2) In this section “parent” includes any person who has parental responsibilities and rights in respect of a child.
Neutrality and Objectivity.
Social workers must remain impartial during investigations to avoid bias. Their role is to assess facts and present findings to the court. Section 110 of the Children’s Act requires mandatory reporting of child abuse or neglect, but the process must be fair and evidence based.
Avoiding Conflict or Overstepping Boundaries.
The relationship must remain professional and task oriented. Any emotional involvement or personal judgment can compromise the investigation. Section 42 of the Children’s Act specifies the roles and functions of professionals in children’s court, ensuring checks and balances. Social workers need to rely on established practices and frameworks to guide their actions, ensuring fairness and consistency.
In conclusion, the social worker-parent relationship should be characterised by professionalism, respect, and adherence to legal and ethical standards, all while focusing on the child’s best interests. Deviations from this framework could lead to challenges in the credibility of the investigation and potential harm to the child’s welfare.
PROCEDURAL CORRECTNESS
A social worker’s investigation must follow proper procedures to ensure fairness, accuracy, and compliance with legal and ethical standards.
The social worker’s report in a children’s court matter, must show investigations into allegations of child neglect, child alienation and the overall well-being of the child, including their emotional and mental state, in a manner that is thorough, unbiased and evidence-based. The framework for such an investigation is provided by the Children’s Act, 2005, South African case law and professional social work standards. Investigations should respect the rights of all parties involved, ensuring due process.
Investigations should be conducted methodically, including gathering evidence, interviewing relevant parties, and documenting findings. A clear and structured process helps maintain objectivity and reduces the risk of bias.
Social workers must protect the confidentiality of the individuals involved, sharing information only when legally required or with consent. Ethical guidelines, such as those set by the South African Council for Social Service Professions (SACSSP), guide their conduct throughout the investigation.
Social workers must be adequately trained and skilled to handle investigations, especially in sensitive cases like child protection or abuse.
THE INVESTIGATION BY THE SOCIAL WORKER
The investigation by the social worker should include investigating child neglect, child alienation, assessment of the overall child well-being, the child’s emotional and mental state and assessing if the child has been coerced by the other parent.
1. Investigating allegations of child neglect
Section 150(1)(a) – (h) of the Children’s Act stipulates that a child is deemed to be in need of care and protection if they have been abandoned, neglected, abused, or are living in harmful circumstances.
Neglect is defined in section 1 of the Children’s Act as the failure of a parent or caregiver to provide for a child’s basic physical, emotional and developmental needs.
It may thus be argued that the failure of a parent to cater for a child’s emotional needs, falls under the definition of neglect as provided for in the Children’s Act.
The steps for the social worker to follow, include –
(a) Assessing the child’s living conditions.
The social worker conducts home visits to examine whether the child’s basic needs (e.g. food, shelter, education, medical care) are being met.
(b) Gathering information.
The social worker requests the file content at the Children’s Court, school attendance records, medical records and any prior reports of neglect.
(c) Determining patterns of neglect.
The social worker looks for chronic issues such as malnutrition, lack of supervision or unsafe living conditions.
The court in S v M (Centre for Child Law as Amicus Curiae)[2007]ZACC18, stressed the importance of protecting children’s rights and ensuring their care and safety.
2. Investigating allegations of child alienation
In terms of section 7(1)(k) of the Children’s Act, the court must consider the nature of the child’s relationships with their parents and other caregivers when determining their best interests, while section 31 specifically mentions that parents must make decisions with due consideration for the child’s views and best interest.
The steps for the social worker to follow, include –
(a) Evaluating the parent-child relationship.
The social worker interviews the child to understand their feelings about both parents, while using child appropriate methods, and observes the parent-child interactions to identify any coercion or manipulation.
(b) Identifying signs of alienation.
The social worker looks for indications that one parent is influencing the child’s perceptions of the other parent (e.g., verbal disparagement or restricting contact).
(c) Corroborating findings.
The social worker collects statements from teachers, counsellors, or family members who may have observed the dynamic.
The court in LB v YD [2009]ZASCA1 emphasised the negative impact of parental alienation on a child’s well-being and the court’s duty to address same.
3. Assessing overall child well-being, emotional and mental state
Section 7(1)(h) – (j) of the Children’s Act states that the emotional security and psychological development of the child must be considered in determining their best interests, while section 6(5) stipulates that investigations and decisions must promote the child’s sense of security and well-being.
The steps for the social worker to follow, include –
(a) Conducting psychological assessments.
The social worker should work with a child psychologist or counsellor to assess the child’s emotional and mental state, and look for signs of anxiety, depression or trauma caused by neglect, alienation or other factors.
(b) Using age-appropriate methods.
The social worker should implement child-friendly techniques such as drawings, storytelling or play therapy to understand the child’s feelings and expressions.
(c) Gathering external observations
The social worker should interview teachers, daycare providers or family members to gather insight into the child’s behaviour and emotional stability.
The court in McCall v McCall 1994(3)SA201(C) established criteria for assessing the best interests of the child, including the child’s emotional well-being and psychological stability.
In AV v DW [2008]ZACC12 the court highlighted the importance of emotional and psychological factors when determining what is best for the child.
In conclusion, the social worker’s report must provide a comprehensive and balanced assessment of the allegations of neglect, alienation, and the child’s overall well-being. It must draw on evidence gathered through interviews, observations, and professional assessments, always guided by the Children’s Act and established case law. This ensures that the report serves as a reliable tool for the court in making decisions that prioritize the best interests of the child.
4. Assessing if the minor has been coerced by the other parent
The signs of coercion must be evaluated carefully to distinguish genuine expressions from coached or influenced responses. The assessment must be guided by the Children’s Act, 2005 (Act No. 38 of 2005), professional standards, and relevant case law.
To investigate coercion, the social worker needs to take the following into account, namely –
(a) The behavioural and verbal indicators of coercion.
The social worker may find that the child excessively criticises or vilifies one parent without clear justification, often echoing language or accusations made by the other parent.
The principle that children’s views should be considered without coercion or manipulation is outlined in Section 10 of the Children’s Act 38 of 2005 in South Africa. This section emphasizes that every child capable of forming their own views has the right to participate in decisions affecting them. Their views must be given due consideration, taking into account their age, maturity, and stage of development. This ensures that children are heard in a fair and unbiased manner, safeguarding them from undue influence.
The court in McCall v McCall 1994(3)SA201(C) identified the child’s emotional well-being and the nature of the child-parent relationship as critical factors in custody and access disputes.
In LB v YD[2009]ZASCA1 the court recognised the damaging effects of one parent manipulating a child’s perspective of the other parent, emphasizing the importance of objective assessments.
(b) The contextual indicators of coercion
The influencing parent restricts the child’s contact with the other parent, fostering an environment where the child hears only one side. The child demonstrates an unusual understanding of legal matters or adult conflicts, suggesting they were exposed to or involved in discussions beyond their developmental level.
Section 7(1)(k) of the Children’s Act requires courts to consider the child’s relationship with each parent and how it is being influenced, while section 31(1)(b) emphasises that decisions affecting a child must involve the child in an age-appropriate manner, free from coercion.
The court in AD v DW[2008]ZACC12 stressed the need to ensure that children’s voices are not influenced by external factors, prioritising authenticity in assessing their views.
(c) The impact of coercion.
In accordance with section 9 of the Children’s Act, the child’s best interest is paramount, which includes ensuring that their views are genuinely their own. Section 13(1)(b) safeguards children’s right to participate freely in matters affecting them, without being manipulated or coerced.
Finch v Finch 1996(2)SA721(N) demonstrated the need to ensure that children’s views are independent, especially in cases involving allegations of alienation.
V v V (2004)2AllSA280(C) highlighted how courts must evaluate children’s testimony for reliability and consider whether they have been influenced by parental conflict.
In conclusion the presence of coercion can be established through behavioural, verbal, and contextual indicators. Social workers and the court must rely on thorough investigations, guided by the Children’s Act, 2005, and informed by established case law. Identifying coercion is crucial to protect the child’s emotional and mental well-being and ensure that their best interests are upheld in legal proceedings.
KEY COMPONENTS OF A SOCIAL WORKER’S REPORT
A social worker’s report in a children’s court matter must include a detailed section on the family background, as this information is essential for understanding the child’s circumstances, the relationships within the family, and the factors that may influence the child’s well-being. The Children’s Act, 2005 (Act No. 38 of 2005) provides a framework for compiling this information, and South African case law further emphasises its importance.
1. Family Background
The family background that the social worker needs to consider, includes the family composition and structure, the history of the family dynamics, the parenting capacities and responsibilities and the relationships in the household.
(a) The family composition and structure.
The Family Background check should investigate the living arrangements of the child and other family members, the marital or partnership status of the parents (e.g., married, divorced, separated, never married) and include all the names, ages, and relationships of all family members, including parents, siblings, and extended family.
The legislative basis lies in section 7(1)(k) of the Children’s Act, which requires the court to consider the nature of the child’s relationships with family members and in section 150(1)(a-h), which identifies situations where a child may need care and protection, necessitating an understanding of the family composition.
The court in McCall v McCall 1994(3)SA201(C) emphasised the importance of understanding family relationships when assessing the child’s best interests.
(b) History of family dynamics.
The report should indicate the quality of relationships between family members, particularly between the child and their parents or caregivers, the history of conflicts, domestic violence, substance abuse or neglect within the family and the patterns of care and involvement of each parent in the child’s life.
The legislative basis is found in section 6(2)(a) which stipulates that investigations must promote the child’s safety, stability and well-being, and section 9 of the Children’s Act, therein that the child’s best interest must be paramount, which requires a full understanding of family dynamics.
The court in S v M (Centre for Child Law as Amicus Curiae) [2007]ZACC18 highlighted the role of family dynamics in decisions affecting the child’s best interests.
(c) Parenting capacities and responsibilities.
This includes assessment of each parent’s ability to meet the child’s physical, emotional, and developmental needs as well as the history of caregiving roles, financial support, and involvement in the child’s upbringing.
The legislative basis therefore is found in section 18(2) (a) – (c) which defines parental responsibilities and rights, including care, contact and maintenance; and in section 7(1)(h) of the Children’s Act, i.e. the ability of the parents to provide for the child’s emotional security and developmental needs.
The court in F v F (2006)3SA42(SCA) stressed the importance of assessing each parent’s capacity to care for the child when determining custody and contact.
(d) Relationships in the household.
Interactions between the child and other household members (e.g., parents, siblings, or extended family) and any evidence of conflict, abuse, or neglect within the home as well as the emotional climate in the household and its effect on the child, are included.
Section 7(1)(h) of the Children’s Act considers the child’s familial relationships and their role in the child’s well-being.
In M v S [2007]ZACC18 the court emphasised the importance of evaluating family dynamics and relationships when assessing a child’s living circumstances.
2. Physical factors
The physical factors that the social worker need to investigate, include the living conditions, the child’s physical health, access to education and nutrition, safety and risk factors and the child’s physical developmental needs.
(a) Living conditions
The details to be included in the report of the social worker, are the following, namely –
- The condition of the home environment (cleanliness, safety, and adequacy of housing).
- Safety and cleanliness of the home environment (e.g., hygiene, access to utilities such as water and electricity).
- The social worker’s report may include document for observations during in-person visits, including photographs if allowed, to provide a clear picture of the housing conditions.
- Access to basic necessities such as water, electricity, and sanitation.
- Space and sleeping arrangements for the child.
The legislative basis is found in –
- section 150(1)(f) of the Children’s Act which identifies inadequate or unsafe living conditions as grounds for considering a child in need of care and protection; and
- section 28(1)(c) of the Constitution which ensures the child’s right to adequate housing, nutrition, and basic services.
In the case of Government of the Republic of South Africa v Grootboom [2000]ZACC19 the court emphasised the importance of proper living conditions in safeguarding children’s rights.
(b) The child’s physical health.
The details to be included in the report of the social worker, include –
- The child’s general physical condition (e.g., any signs of malnutrition, injuries, or illness).
- Whether the child has access to medical care and whether it is being utilised appropriately.
- Any evidence of physical neglect or abuse.
The legislative basis therefore is found in section 7(1)(g) of the Children’s Act which requires consideration of the child’s physical health when determining their best interest and section 110(1)(c) which mandates reporting when a child shows signs of physical abuse, neglect, or ill-treatment.
The court in AD v DW (Centre for Child Law as Amicus Curiae) 2008(3)SA183(CC) highlighted the importance of ensuring children’s physical and emotional well-being.
(c) Access to education and nutrition
Details to include in the social worker’s report, includes –
- Whether the child has access to adequate and consistent nutrition.
- Whether the child attends school regularly and the adequacy of educational resources provided.
The legislative basis is found in both –
- section 28(1)(c) of the Constitution, which protects the right to basic nutrition and education; and
- section 150(1)(a–h) of the Children’s Act, which highlights the importance of education and nutrition in determining whether a child is in need of care.
The court in Juma Musjid Primary School v Essay NO [2011]ZACC13 affirmed the state’s responsibility to ensure access to education, a critical factor in assessing a child’s physical well-being.
(d) Safety and risk factors
Details to include consist of the following, namely –
- Any potential hazards in the child’s living environment (e.g., unsafe structures, violence, or exposure to harmful substances; and
- Access to protective resources, such as security or supervision.
The legislative basis is found in section 150(1(d) which identifies exposure to harmful environments as a reason for intervention and section 9 of the Children’s Act which mandates that all decisions must prioritise the child’s best interests, including physical safety.
The court in Jooste v Botha 2000 (2)SA199(T) addressed the need for a safe environment to uphold the child’s best interests.
(e) Physical development needs.
The social worker needs to include details in her report regarding –
- The child’s physical growth and developmental milestones.
- Any identified disabilities or special needs and whether they are being adequately addressed.
The legislative basis is found in section 7(1)(h) which emphasises the need to address the child’s developmental need and section 11 of the Children’s Act, which provides specific protection for children with disabilities and chronic illnesses.
The court in S v M (Centre for Child Law as Amicus Curiae) [2007]ZACC18 recognised the importance of addressing developmental needs in ensuring the best interests of the child.
3. Emotional well-being of the child
The child’s emotional state, including signs of anxiety, depression, fear, or distress. Observations of the child’s behaviour, such as withdrawal, aggression, or clinginess. The child’s feelings about their current living environment, caregivers, and family dynamics.
The legislative basis is found in section 7(1)(h) which stipulates consideration of the child’s emotional well-being when determining their best interests and section 150(1)(h) of the Children’s Act which identifies emotional neglect as a ground for finding a child in need of care and protection.
In S v M (Centre for Child Law as Amicus Curiae) [2007]ZACC18the court emphasized the importance of a child’s emotional well-being in ensuring decisions align with the child’s best interests.
4. Mental health of the child
The assessment of any mental health issues, such as trauma, PTSD, or other psychological disorders are included. Records or observations from psychologists, psychiatrists, or counsellors (if applicable) should be studied as well as any impact of past experiences, such as abuse or neglect, on the child’s mental health.
The legislative basis is found in –
- Section 110(1)(c) of the Children’s Act, which mandates reporting if a child shows signs of emotional abuse, which could affect their mental health; and
- Section 28(1)(d) of the Constitution which protects children from abuse, neglect, and harmful environments that could affect mental health.
The court in Minister of Welfare and Population Development v Fitzpatrick [2000]ZACC6 acknowledged the need to prioritise mental and emotional stability when determining the placement of children.
5. The parent-child relationship and attachment
The quality of the relationship between the child and each parent or caregiver (e.g., secure, avoidant, or strained attachment), any signs of parental alienation or coaching, where a child may be influenced by one parent against the other as well as any evidence of nurturing or lack thereof from the caregivers should be investigated.
The legislative basis is found in section 7(1)(a) – (f) of the Children’s Act, which focuses on maintaining healthy relationships with caregivers and prioritising the child’s best interests.
The court in Van der Linde v Van der Linde 1996(3)SA509(O)stressed the importance of fostering healthy parental relationships in custody and care matters.
6. Impact of family conflict on the child
Observations of how family disputes (e.g., divorce, custody battles) affect the child’s emotional and psychological state and any signs of stress or behavioural changes linked to family conflict, should be observed.
The legislative basis is found in section 7(1)(l) of the Children’s Act, which requires consideration of the effects of separation or conflict on the child’s well-being.
In Venter v Venter [1949]1AllSA408(T)the courthighlighted the negative psychological impact of parental conflict on children.
7. The child’s capacity to express their own views
The social worker should investigate whether the child is mature enough to express their views on their care and living arrangements. The child’s expressed preferences and any observed inconsistencies that may indicate external influence or coaching, should be carefully considered and not taken at face value.
The legislative basis thereof is found in section 10 of the Children’s Act, which guarantees the right of children to participate in decisions affecting them, considering their age and maturity.
The court in the matter of Legal Aid South Africa v Magidiwana [2014]ZACC17 reinforced the principle of involving children in decisions that impact their lives.
8. Signs of emotional abuse or coaching
Signs of emotional abuse by a parent against a child which the social worker should also investigate, include –
- Inconsistent or rehearsed statements from the child that suggest coercion or manipulation;
- Behaviour such as fearfulness or excessive loyalty to one parent, often indicative of coaching.
The legislative basis is found in section 1 which defines “abuse” to include emotional harm caused by manipulation or exposure to conflict and in section 110 of the Children’s Act which obligates professionals to report signs of emotional abuse.
In the matter of B v S (Centre for Child Law as Amicus Curiae) [2011]ZASCA115 the court highlighted how parental manipulation can harm a child’s emotional and psychological health.
IN CONCLUSION
The assessment of psychological factors in a social worker’s report must prioritise the best interests of the child as required under Section 9 of the Children’s Act, 2005. The report should provide a balanced, evidence-based perspective that helps the court understand the child’s emotional and mental state and make decisions that protect their well-being.
