A comparison of Dutch and South African legal mechanisms to address parental alienation

Abstract

This mini-dissertation examines the phenomenon of parental alienation (hereinafter referred to as PA) within a family law context and conducts a comparative legal analysis of the existing legal mechanisms available in South Africa and the Netherlands to address it. Given their erstwhile colonial entanglements and historical legal ties in Roman-Dutch law, these two jurisdictions were chosen for comparison. The study’s problem statement highlights the number of divorces and other parental separations in both jurisdictions and the fact that PA features in some cases. The aims and objectives of the research seek to evaluate and critically analyse the legal tools used to address PA in both countries to identify gaps and make recommendations for legal reform in South Africa, drawing from best practices in the Netherlands. The researcher’s rationale for embarking on a study of this kind stems from the severe consequences of PA on some of the parties involved, but especially children. Academic literature and legal precedents from both jurisdictions are examined and commented upon. The document contains six chapters, commencing with an introductory overview and progressing through a comparative legal analysis, a discussion of the findings, and then concludes with legislative, policy and other reform proposals. Overall, the document endeavours to contribute a nuanced understanding of PA in the context of the family law systems of South Africa and the Netherlands, suggesting legal and other solutions to address this complex issue adequately.