Children’s Rights

Children’s rights are entrenched in the Children’s Act 38 of 2005 (“the Children’s Act”) and the Constitution of the Republic of South Africa,1996.  In all matters concerning the child, the best interest of the child are of paramount importance and the Children’s Act provides an extensive list of factors to be considered when determining the best interest of the child.

Every Magistrates Court is a Children’s Court.  The court deals with matters affecting the rights of minor children and any person or child may approach the court when it is believed that a child is in need of care and protection.  The court also makes the decision about children who are abandoned, neglected and abused and in need of a place of care.

Good to know

It is mandatory for dentists, teachers, social workers, lawyers, ministers of religion, nurses and traditional leaders to report child abuse, neglect and physical injury.

Parental Responsibilities And Rights

The Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards his/her child:

• to care for a child;
• to keep contact with a child;
• to act as guardian of a child; and
• to contribute to the maintenance of a child.

Although both parents of a child have equal rights and responsibilities, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents if the parents are not living together.

The Children’s Act also makes it possible for parental rights and responsibilities to be shared between several persons, even if there exists no biological or legal relationship between the child and the adult.

A parent or any other person who has an interest in the wellbeing of a child can apply to the Children’s Court, High Court or the Divorce Court during divorce proceedings for an order granting him/her with rights and responsibilities.

Parenting Plans

Section 33 of the Children’s Act (“the Children’s Act”) states that persons who are co-holders of parental rights and responsibilities may enter into a written contract that regulates and describes how they should exercise these rights and responsibilities toward the child. This is known as a parenting plan.

The following issues are usually described in the parenting plan:

• Where the child is to live;
• The maintenance responsibilities of each party;
• Contact between the child and any of the parties; and
• Schooling and religious upbringing of the child

A parenting plan should reflect the interests and the needs of the child and should be drafted in such a manner as to allow both parents to have clear guidelines to promote effective and peaceful co-parenting post-separation.

In the event of disagreements about the parenting plan, the Children’s Act prescribes that the parties should first attempt to solve the problem with the help of a suitably qualified expert. This person can be a family advocate, social worker, psychologist or certified mediator. If this first step fails, then the parties may approach the courts for relief.

It is very important to remember that a parenting plan only takes effect if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.

Child Maintenance

The duty to maintain a child is shared between both parents according to their respective means. This duty applies regardless of whether the child was adopted or born out of wedlock.

A parent can claim maintenance on behalf of their child until the child reaches the age of majority. (In South Africa the age of majority is 18 years).

Once the child turns 18 years, the child is considered an adult and he/she would need to apply for maintenance in their own name should they require continued funding.

A parent cannot evade the responsibility to pay maintenance and it is important to remember that a parent’s duty to support their child is not affected by remarriage post-divorce or giving up work to embark on full-time studies. Even if a parent has no income, the courts will consider the assets of the parent and may order them sold to pay for the maintenance obligation.

Reasonable maintenance comprises the basics needed to sustain life – such as food, shelter and medical attention – in addition to more advanced needs such as higher education should the child display aptitude. If the parents cannot agree on reasonable maintenance, the court will determine the amount based on the specific circumstances of the child as well as the parents’ economic means.

Unmarried Father’s Rights

Prior to the Children’s Act 38 of 2005 (“the Children’s Act”), an unmarried biological father’s rights were not automatically recognised. In order to gain access, custody or guardianship he would have had to bring an application in the High Court.

Fortunately, times have changed and now an unmarried biological father automatically acquires full parental rights and responsibilities if he fulfils the criteria set out in section 21 of the Children’s Act:

• 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 –
  • consents to be identified as the child’s father or successfully applies to be identified as the child’s father or pays damages in terms of customary law;
  • contributes, or has attempted to contribute in good faith, to the child’s upbringing for a reasonable time; and
  • contributes, or has attempted to contribute in good faith, to the maintenance of the child.

If any dispute arises about whether the father fulfils the criteria, the parents are first required to go for mediation with a family advocate, social worker or any other suitably qualified person.

If it is found that the father doesn’t satisfy the criteria, he may then enter into a written contract with the mother of the child to gain parental rights and responsibilities or approach the High Court to gain these rights.

Relocation Applications

When a parent decides to relocate with the minor child, the consent of the other parent as co-guardian must be obtained in terms of the Children’s Act 38 of 2005 (“the Children’s Act”).

The Children’s Act does not provide guidance in deciding relocation applications and therefore the High Courts decide what is in the best interests of the child.

In evaluating the application, the High Courts will be guided by case law and consider whether the relocation is:

• Reasonable;
• In good faith; and
• Compatible with the child’s welfare.

The High Courts must balance the impact of the decision on all parties. The Court recognises that granting a relocation application will sever the child’s contact with the stationary parent and respect that it will have an impact on the parent’s life. At the same time, the Court also recognises the rights of the relocating parent to family life and freedom of movement.

It is in the best interests of the child to maintain contact with the stationary parent and this will usually be determined by entering into a parenting plan specifying how contact will be maintained.

In relocating cases, it is in the best interest of the child to maintain a positive relationship with the stationary parent and in practice, the parents usually enter into a parenting plan (with or without the assistance of a mediator) governing their co-parental responsibilities and rights post-relocation.