Section 18 of the Children’s Act 38 of 2005 provides that a person may have full or specific Parental Responsibilities and Rights in respect of a child. Interestingly, the Law makes provision for there to be multiple holders of Parental Responsibilities and Rights over a child. Additionally, the Law, also provides that in certain defined cases unmarried fathers acquire automatic Parental Responsibilities and Rights over their child and are placed on exactly the same footing as a married father of a child.

 

DEFINING PARENTAL RESPONSIBILTIES AND RIGHTS

 

Parental Responsibilities and Rights include :

• Care: the right of care of the child;
• Contact: the right to maintain contact with the child;
• Guardianship: the right to act as the guardian of the child; and
• Maintenance: the responsibility to contribute towards the maintenance of the child.

 

The Sections furthermore provides that save for the exceptions listed below, a parent or any other other person who holds Parental Responsibilities and Rights over a child can exercise their guardianship rights independent and without the consent of any other party who may also hold Parental Responsibilities and Rights over the child.

 

For example, this would be in respect of a holder of Praental Responsibility and Rights signing consent forms for a medical operation for the child, enrolling a child at a school, as well as representing the child’s interests in Court and so forth.

 

The consent of all holders of Parental responsibilities and Rights would be required in the following cases:

• Marriage: the child’s marriage whilst the child is still a minor;
• Adoption: the child’s adoption by a third party while the child is still a minor;
• Departure & Removal to another Country: Leaving the Country whether for permanent or holiday purposes 
• Passports: any application for a passport for the child; and
• Immovable Property: the alienation or encumbrance of immovable property belonging to the child.

 

As is clear from the new Act:

• Custody: The term “custody” has been removed from the South African Law Books. It has been and replaced with a much broader concept of “care”.
• Access: the term “access” has been changed to that of “contact”.

 

In terms of the South African common law, custody refers to a person’s capacity to have the child with him or her and to control and supervise the child’s daily life whilst the definition of “care” in the new Act is extended beyond this concept and includes the right and responsibility to:

(i) care for the child;

(ii) support and guide the child;

(iii) assume responsibility for the child’s general upbringing, health, education, safety, social interactions, and general welfare.

 

The common law principle of contact (access) remains intact in the new Act with this principle embodying the right of the person holding Parental Responsibilities and Rights to maintain a personal relationship with the child as well as the right to enjoy the company of the child; and in addition, the right to communicate with the child on a regular basis.