Holders of Parental Rights and Responsibilities

​

Biological parents have automatic parental rights and responsibilities in terms of the Children's Act, however the Act distinguishes between biological mothers, married and unmarried fathers.

​

In terms of Section 19 of the Children's Act, a biological mother, whether married or unmarried, automatically has full parental rights and responsibilities in respect of her child by virtue of the fact that she has given birth to the child.

​

In terms of Section 20 of the Children Act, the biological father of a child has full parental responsibilities and rights in respect of the child

• if he is married to the child's mother; or 

• if he was married to the child's mother at

  • (i) the time of the child's conception;

  • (ii) the time of the child's birth; or

  • (iii) any time between the child's conception and birth

​

The biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of Section 20, acquires full parental responsibilities and rights in respect of the child:

• if at the time of the child's birth he is living with the mother in a permanent life-partnership; or

• if he, regardless of whether he has lived or is living with the mother-

  • (i) consents to be identified or or applies for an amendment to be effected on the birth certificate that he be registered as the biological father of the child in terms of the Births and Deaths Registration Act or pays damages in terms of customary law;

  • (ii) contributes or has attempted in good faith to contribute to the child's upbringing for a reasonable period; and

  • (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

​

Regardless of the above, the duty of the biological father to maintain the child is not affected.

​

​

Guardianship

​

Guardianship involves the consent regarding all the decision making surrounding a child, such as administering and safeguarding of the child's property and property interests, assisting or representing the child in administrative, contractual and other legal matters, schooling, passports, adoption and marriage.

​

The High Court is the upper guardian of all children in South Africa. Therefore, if someone believes that a guardian is not fulfilling their duties, the High Court can intervene and terminate guardianship under certain circumstances.

 

Any person having an interest in the care, well-being and development of a child may apply to the High Court for an order granting guardianship of the child to the applicant.

 

When considering an application for guardianship, the court must take into account:

• the best interests of the child;

• the relationship between the applicant and the child, and any other relevant person and the child; and

• any other fact that should, in the opinion of the court, be taken into account.

​

In the event of a person applying for guardianship of a child that already has a guardian, the applicant must submit reasons as to why the child's existing guardian is not suitable to have guardianship in respect of the child.

​

​

Termination, extension, suspension or restriction of parental responsibilities and rights

​

Section 28 of the Children's Act provides that a court can grant an order suspending for a period, or terminating any or all parental responsibilities and rights and can further grant an order that circumscribes or limits parental responsibilities and rights. When considering the application, the court must take the following factors into account:
 

• the best interest of the child;

• the relationship between the child and the person whose parental responsibilities and rights are being challenged;

• the degree of commitment that the person has shown towards the child; and

• any other fact that should, in the court’s opinion, be taken into account.

 
In terms of the Children's Act, the following persons can approach the court for such an application:
 

• co-holders of parental responsibilities and rights in respect of the child;

• anyone with sufficient interest in the care, protection, well-being or development of the child;

• the child, acting with the leave of the court;

• anyone acting in the child’s best interests, and acting with the leave of the court; or

• a family advocate or representative of an interested organ of state.

​

​

Contact B Gouws Inc. Attorneys today for assistance in any dispute regarding the care, contact and guardianship of a child.

​