Authored By: Tsholanang Zanele Seleka
North West University
Introduction
The deliberately instigated alienation of a child from the other parent, whether mother or father, leads to a complicated constitutional question: should the potentially profoundly harmful emotional effects of such behavior merely be addressed by the family law regime, or can such behavior also invite criminal sanctions?[1] Such question is increasingly important as parental alienation allegations are made increasingly frequently in the context of high-conflict divorces and parenting disputes.
It is true, even so far as the law in South Africa is concerned, that where conduct unfairly impacts on the child’s relationship with one of his/her parents, such conduct can be incompatible with the best interests of that child.2
As yet, South Africa does not recognize the concept of parental alienation as a specific criminal offense,3 and thus, where applicable, such conduct falls to be remedied through constitutional and/or civil mechanisms directed towards the protection of the child.4 This lack of a criminal offense leaves a tension between the desire to shield children from deliberate, systematic emotional and psychological damage and the risks associated with criminalizing complex family law disputes. Persistent and unjustified alienating behavior will in certain cases indeed constitute an infringement of the child’s constitutional rights and the constitutional principle that the child’s best interests must be paramount,5 but distinguishing these types of behaviors from cases where a child’s estrangement from a parent might be justified (eg on grounds of abuse or neglect) can be a challenging and delicate task.6
For these reasons the author submits that parental alienation should not currently be criminalized as a separate crime in South Africa but the current family law framework needs to be enhanced and adequately funded to respond to harmful alienating behavior without criminalizing legitimate protecting parenting and exacerbating conflict between parents. The article will investigate the definition of parental alienation and distinguish it from legitimate parent-child estrangement. Furthermore, it will consider the South African constitution and legislative framework and remedies, the pros and cons of criminalization, briefly discuss foreign trends and ultimately discuss the most constitutionally sound legal response for South Africa.
Main Body
Legal Framework
Currently South Africa does not criminalise parental alienation as an offense in itself. However, the conduct which is characteristic of parental alienation could be dealt with (as per the particular facts) under various constitutional, statutory and civil laws, including the children’s Act 38 of 2005, and (if it fits the criteria) the domestic violence Act 116 of 1998.7 This naturally leads to the question of whether the existing laws and remedies effectively safeguard children from behaviour which, intentionally and deleteriously, interferes with their relationship with a parent.
South African law’s primary tenet of protecting children can be found in section 28(2) of the Constitution, which states “A child’s best interests are of paramount importance in every matter concerning the child”. 8
It is submitted that this section does not require an all-encompassing visit to both parents in all situations, rather, that the Court has a duty to assess the child’s best interests based on the facts of a specific case.9 Repeated, and unjustified interference, with the parent-child relationship where it is deliberately targeted at destroying that relationship and causes or is threatening to cause the child emotional harm or is likely to do so is one where court intervention is likely to occur,10 and conversely, in cases of proven abuse or other forms of harm to a child a court will not automatically rule that visiting with the parent is in the child’s best interests.11
Section 28 (1) (b) of the Constitution affirms every child’s right to care from family or parents and Section 28 (1) (d) protects them from maltreatment, neglect, abuse and degradation.1[2] Both of these sections are relevant to parental alienation as deliberate and constant manipulation could be perceived as a type of maltreatment, depending on the specifics of the case. 1[3]
However, these constitutional provisions do not require that these rights only be safeguarded by criminalization, they can also be enforced through civil remedies, orders for protection, therapy and the specialised family law procedures.14
The Children’s Act is the main legislation dealing with responsibilities and rights associated with parents and children. Section 7 requires that a child’s best interests be given the first priority and that courts consider various factors such as the child’s bond with both parents, the impact of a changing environment on the child, the practicality of continued contact and protecting the child from emotional and physical injury. 15 These provisions may be used as an assessment of whether one parent’s conduct has demonstrably harmed the child’s relationship with the other parent.
In Section 18which emphasise the responsibilities and rights of parents, including the duty and right of contact with a child and their maintenance and guardianship, are outlined.16 Parental alienation can directly interfere with the child’s right of and parental responsibility of contact. Sections 33 and 34 refer to parenting plans which may cover residence, contact, communication and the responsibilities of parents toward their child.17
The Domestic Violence Act might be brought into play when alienating behavior is a part of wider psychological or emotional manipulation and abuse where the statutory criteria for domestic abuse are met.18 Parental alienation is not a crime in itself under this Act.
Another institutional response available to South African courts is the office of the Family Advocate, whose purpose is to assist the court in determining matters involving children and providing recommendations regarding their best interests. Through the procedures established by the Mediation in Certain Divorce Matters Act 24 of 1987, this office conducts investigations into children’s situations and offers guidance to the courts.19 This role can be particularly beneficial in cases of parental alienation when the court needs to investigate claims of this behavior alongside expert reports from psychologists or social workers.
The existence of a variety of possible civil and statutory responses gives the courts significant latitude. Depending on the individual circumstances of the case, courts can alter residence and contact arrangements, order that parenting plans be implemented or altered, direct that therapeutic assistance be provided, and may issue protective orders.20 While the South African legal framework doesn’t entirely lack civil responses, it fails to explicitly recognize and regulate parental alienating conduct. It is within this legal context that we need to analyse court decisions dealing with claims of parental alienation. There must be a way that is developed that prevent ongoing behaviour of one parent refusing the other one to have access over the child. That will lead to a decrease of parental alienation cases in South Africa.
Case Law Analysis
Recent court decisions in South Africa demonstrate an increasing tendency to act on claims that a child’s relationship with one parent is being negatively impacted by the conduct of the other. However, the cases show that parental alienation is treated as a factual matter, rather than being taken for granted.
In B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96, the High Court examined claims that the mother was purposefully damaging the children’s bond with the father. The Family Advocate’s report indicated that these claims were consistent with recognized signs of parental alienation and confirmed that the children were experiencing distress as a result.21 The court adjusted existing arrangements to increase the applicant’s contact with his children.22
The decision in this case is important because it emphasises the need for an independent assessment, rather than accepting the claim of parental alienation at face value. It highlights the concept of parental alienation as a relevant factor to courts when it is supported by objective evidence and tied to the child’s welfare. 23 Similarly, the judgment in G.J.N v M.C (34350/2020) [2025] ZAGPPHC 329 exhibits a degree of caution on the part of the court. In this case, rather than deciding on the merits of the arguments, the court requested a forensic investigation.2[4]
The case serves as a prime example of the need for the thorough analysis of facts in claims of parental alienation, as courts cannot rely on competing narratives from parents.
In M.D v L.N and Another (3051/2020) [2025] ZAECQBHC 4, clinical psychologists found that one of the parents was deliberately exposing the children to the acrimonious nature of the parent’s dispute and fostering negativity toward the other parent.25 The court agreed that there had been parental alienation and confirmed that the children were being harmed psychologically. The residence of the children was accordingly changed.26 This case is a good example of when a child’s psychological welfare can override a parent’s wishes.27
The judgment in M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 is noteworthy as it reveals the strong connection between child alienation behavior and psychological/emotional abuse. The court recognized the behavior, which included denigrating and portraying the father as dangerous to the child, 28 as abusive, regardless of the lack of a specific diagnosis of “parental alienation syndrome”.29
Previous case law, such as T.L.D v B.G (015642/2022) [2023] ZAGPJHC 801 (13July2023), also illustrates the significant impact that alienating conduct can have on children and what legal actions might be taken as a consequence. 30 The child’s claim that the mother was dangerous due to the father’s influence led the court to give the mother primary parenting rights, pending therapy for the child and the father.31
Taken together, three principles can be observed from South African case law. The South African courts acknowledge that the conduct associated with parental alienation can have negative psychological effects on children.32 The best interests of the child must always remain paramount in proceedings related to this issue.33 Thirdly, courts will prefer to make orders in line with family law principles, such as those addressing residence or contact, over any type of punishment in order to achieve desired results.34
Therefore, it would appear that there is room within the existing case law for South African courts to react against harmful alienating behavior. The more difficult question arises in determining whether existing remedies are sufficiently effective and whether lack of legislative guidance necessitates criminalisation.
Critical Evaluation: Are Civil Remedies Sufficient?
The most forceful argument for criminalisation centres on the proposition that sustained and intentional alienating behaviour may amount to severe psychological abuse. In a situation where one parent actively sabotages the child’s relationship with the other, this can have a devastating impact on a child’s development, identity and sense of familial security.3[5] When this behavior is both intentional and persistent, and can be demonstrated to have caused harm, treating it merely as a private conflict between the two parents may feel woefully inadequate.
Moreover, criminalisation offers a stronger deterrent, particularly when dealing with repeat offenders who continuously thwart contact or defy court orders. A criminal offense communicates clear social disapproval and has the potential to prevent behavior such as the filing of knowingly false allegations for the express purpose of damaging a parent-child relationship, or the ongoing denial of legitimate court-ordered contact.
However, even with the strength of these arguments, they do not automatically warrant a general criminalization of parental alienation. The initial problem lies with legality: criminal offenses must be precise so that individuals are aware of the prohibited acts.3[6] Defining parental alienation is problematic because a child’s rejection of a parent could result from malicious manipulation, but also from neglect, abuse, trauma or genuine personal experiences.37 This concern is especially acute where parental alienation allegations have been made to undermine genuine allegations of domestic violence or child abuse. In 2023, the United Nations Special Rapporteur on violence against women and girls warned about the potential for parental alienation allegations to explain away the child’s rejection of a parent. 38 An offense that fails to distinguish manipulative alienation from necessary protection measures poses a serious threat to vulnerable children and parents.
Criminal proceedings also risk escalating the very conflict that led to the alienation. Prosecuting one parent is likely to intensify the hostility, prolong court involvement, and place further emotional strain on the child. It can also lead to a child being separated from their primary caregiver, a result contrary to their best interests. The fact that there are risks involved doesn’t mean that civil remedies are fully satisfactory. They are slow, costly, and adversarial. Delays can exacerbate the damage, as the child’s relationship with the alienated parent deteriorates throughout the legal process. By the time a judgment is reached after years of estrangement, it may no longer be very useful.
The more convincing conclusion, therefore, is that South Africa’s problem is one of a lack of regulatory and enforcement mechanisms, rather than a need for a sweeping criminal statute. Lawmakers should investigate ways to recognize harmful alienating conduct and develop a system of early intervention, specialist assessment, and graduated sanctions. Such legislation should focus on concrete, observable behaviors rather than the more nebulous “parental alienation syndrome.” 39
It could target behaviors like persistent thwarting of contact, malicious denigration of the other parent, purposeful withholding of critical information, demonstrably false accusations to undermine the relationship, and malicious relocation to hinder contact.
None of these, however, would be automatically decisive: a court would need to consider all the surrounding circumstances and determine the reasons for the child’s rejection of the other parent. The Constitution supports this approach: section 28(2) places paramountcy on the child’s best interests, while sections 28(1)(b) and 28(1)(d) acknowledge parental care and the need to be protected from maltreatment.40 However, section 36 necessitates that limitations on constitutional rights be reasonable and justifiable, and that the least restrictive measures be utilized.4[7] If expert family law assessment, therapeutic intervention and effective civil remedies can protect children, a blanket criminalization of parental alienation may not be necessary.
Rather, a graduated approach would be best: ordinary conflict could be handled within family law processes and mechanisms for dispute resolution; serious harmful alienating conduct could incur more serious civil penalties, including changes to residency and contact arrangements; and only the most egregious behavior-where there is concrete intent to harm, the intent causes the damage, and there is clear evidence-might warrant consideration of criminal prosecution.
Conclusion.
The problem of parental alienation is particularly vexatious as it bridges issues of children’s rights, parental duties, psychological harm and constitutional protection. Persistent intentional behavior that unjustifiedly destroys the relationship between child and parent, it may be contended, can do great harm to the child, and is more than a mere matrimonial discord. However, because the concept itself is complicated and fraught with risk, it would be extremely dangerous to convert it into a generic criminal offence.
South Africa’s Constitution and Children’s Act already provide for interventions. We have already shown that South African courts are able to order changes of residence and contact, give weight to expert evidence and the Family Advocate, and can take steps to protect children’s best interests. The central weakness, it appears, is not the lack of any remedies at all, but the absence of a clear statutory basis, early intervention and consistent procedures to identify harmful alienating conduct. I propose that parental alienation ought not to be criminalised in a broad and independent form, and that a criminal offence would pose challenges concerning clarity, abuse and disproportionately, particularly where it can be employed to challenge claims of child abuse or where a parent who has genuine safety concerns seeks to protect a child.
Instead, child-centred legislation should be put in place in South Africa to address harmful alienating behaviour. This would be grounded in objective acts and behaviours, should involve an inquiry into why the child rejected a parent, incorporate safety protections for genuine concerns, build strong early multidisciplinary interventions, and incorporate progressive civil and family law remedies, including an acceleration of current mechanisms, family advocacy, expert evaluations, parenting coordination and therapy. South African law must rather seek to protect children from psychological harm by enacting clear statutory measures and strengthening family law intervention before embarking on criminalization; its purpose not necessarily to protect children’s contact with parents at all costs or to punish a single parent, but to maintain child well-being where healthy family relationships are possible and healthy for the child.
BIBLIOGRAPHY
Books and Journal Articles
Van der Bijl C, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157.
Cases
B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96.
G.J.N v M.C (34350/2020) [2025] ZAGPPHC 329.
M.D v L.N and Another (3051/2020) [2025] ZAECQBHC 4.
M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164.
Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC).
S v Acheson 1991 (2) SA 805 (Nm).
S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
S v Mlotshwa 1996 (2) SACR 263 (A).
T.L.D v B.G (015642/2022) [2023] ZAGPJHC 801.
Legislation
Children’s Act 38 of 2005.
Constitution of the Republic of South Africa, 1996.
Domestic Violence Act 116 of 1998.
Mediation in Certain Divorce Matters Act 24 of 1987.
International and United Nations Materials
Alsalem R, ‘Custody, Violence against Women and Violence against Children’ UN Doc A/HRC/53/36 (13 April 2023).
[1] Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice ,140–157.
2 B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 para 19; Constitution of the Republic of South Africa, 1996 s 28(2).
3 Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157.
4 Constitution of the Republic of South Africa, 1996 ss 28(1)(b), 28(1)(d) and 28(2); Children’s Act 38 of 2005 ss 7, 18, 33 and 34; Domestic Violence Act 116 of 1998 ss 1, 4, 6 and 7.
5 Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157; Constitution of the Republic of South Africa, 1996 s 28(2); M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 51–53, 72–75.
6 Reem Alsalem, ‘Custody, Violence against Women and Violence against Children’ UN Doc A/HRC/53/36 (13 April 2023) paras 41–47; Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157.
7 Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157; Constitution of the Republic of South Africa, 1996 ss 28(1)(b), 28(1)(d) and 28(2); Children’s Act 38 of 2005 ss 7 and 18; Domestic Violence Act 116 of 1998 ss 1 and 6.
8 Constitution of the Republic of South Africa, 1996 s 28(2).
9 Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) para 17; S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC) paras 23–26.
10 M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 47, 50–53; M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 20–21.
11 M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 46–53, 75 and order paras 1–5; Domestic Violence Act 116 of 1998 ss 6(4) and 7.
12 Constitution of the Republic of South Africa, 1996 ss 28(1)(b) and 28(1)(d).
13 Constitution of the Republic of South Africa, 1996 ss 28(1)(b), 28(1)(d) and 28(2); M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 51–53, 73–75.
14 Constitution of the Republic of South Africa, 1996 ss 28(1)(b), 28(1)(d), 28(2) and 36; Children’s Act 38 of 2005 ss 7, 18, 33 and 34; Domestic Violence Act 116 of 1998 ss 4, 6 and 7; Mediation in Certain Divorce Matters Act 24 of 1987 s 4.
15 Children’s Act 38 of 2005 s 7(1)(a), (d), (e), (f) and (j).
16 Children’s Act 38 of 2005 s 18(2).
17 Children’s Act 38 of 2005 ss 33–34.
18 Domestic Violence Act 116 of 1998 s 1 (definitions of ‘domestic violence’ and ‘emotional, verbal or psychological abuse’); s 6 (protection orders); M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 51–53, 73–75.
19 Mediation in Certain Divorce Matters Act 24 of 1987 s 4(1).
20 Children’s Act 38 of 2005 ss 7, 18, 33 and 34; Domestic Violence Act 116 of 1998 ss 4, 6 and 7; B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 paras 19–21, 26.1.
21 B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 paras 2–8, 12 and 19–20.
22 B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 paras 19–21, 26.1.
23 B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 paras 2–5, 19–21
24 G.J.N v M.C (34350/2020) [2025] ZAGPPHC 329 paras 1–2, 14–16, 22–24 and order.
25 M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 20–24.
26 M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 23–27; see also order para 3.1.2.
27 M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 24–27; Constitution of the Republic of South Africa, 1996 s 28(2); Children’s Act 38 of 2005 s 7.
28 M.H v S.S.H (Appeal) (A2025-055489) [2025] ZAGPJHC 1164 paras 47, 50–53.
29 M.H v S.S.H (Appeal) (A2025-055489) [2025] ZAGPJHC 1164 paras 51–53; Domestic Violence Act 116 of 1998 s 1.
30 T.L.D v B.G (015642/2022) [2023] ZAGPJHC 801 paras 5–9, 21–22; order paras 2(b)–(e).
31 T.L.D v B.G (015642/2022) [2023] ZAGPJHC 801 paras 7–9, 21–22; order paras 2(b)–(h).
32 M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 23–27; M.H v S.S.H (Appeal) (A2025-055489) [2025] ZAGPJHC 1164 paras 47, 50–53; T.L.D v B.G (015642/2022) [2023] ZAGPJHC 801 paras 5–9, 21–22.
33 Constitution of the Republic of South Africa, 1996 s 28(2).
34 B.P.M v J.L.M (1909/2024) [2025] ZALMPPHC 96 paras 19–20, 26.1; M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 23–27 and order para 3.1.2.
35 M.D v L.N and Another (Reasons) (3051/2020) [2025] ZAECQBHC 4 paras 23–24; M.H v S.S.H (Appeal) (A2025/055489) [2025] ZAGPJHC 1164 paras 51–53, 73–75.
36 Constitution of the Republic of South Africa, 1996 s 35(3)(l); S v Mlotshwa 1996 (2) SACR 263 (A) 267; S v Acheson 1991 (2) SA 805 (Nm) 822.
37 Reem Alsalem, ‘Custody, Violence against Women and Violence against Children’ UN Doc A/HRC/53/36 (13 April 2023) paras 40–47; Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157.
38 Reem Alsalem, ‘Custody, Violence against Women and Violence against Children’ UN Doc A/HRC/53/36 (13 April 2023) paras 40–47.
39 Reem Alsalem, ‘Custody, Violence against Women and Violence against Children’ UN Doc A/HRC/53/36 (13 April 2023) paras 40–47; Charnelle van der Bijl, ‘Considering Parental Alienation under the Aegis of the Criminal Law’ (2016) 29(2) South African Journal of Criminal Justice 140–157.
40 Constitution of the Republic of South Africa, 1996 ss 28(1)(b), 28(1)(d) and 28(2).
41 Constitution of the Republic of South Africa, 1996 s 36(1).
