As a parent, one has the responsibility to protect the rights of your child (ren). Parents take on the role of protector, until such an age that the child can fend for themselves in the world. Being a parent is a huge responsibility; making daily decisions affecting the care, welfare, and development of one’s child (ren).
This blog aims to highlight the fundamental rights and responsibilities that parents have towards their child (ren) with reference to The Children’s Act 83 of 2005.
The Children’s Act 38 of 2005
The Children’s Act 83 of 2005 is an extensive legal document that was created to help protect children and make sure that their rights are respected. You can download a full PDF copy of the South African Children’s Act here: https://www.gov.za/documents/childrens-act or a child-friendly adaptation of the Children’s Act here: https://www.unicef.org/southafrica/media/1276/file/ZAF-childrens-act-explained-booklet-1-2009.pdf.
The word parent is used interchangeably with the term guardian and caregiver, who can be granted the same rights and responsibilities as the biological parent(s) of the child (ren) concerned.
Chapter 3 of the Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards his/her child:
to care for the child;
to keep contact with the child;
to act as guardian of the child; and
to contribute to the maintenance of the child.
Let’s unpack the above parental rights and responsibilities terminology.
Care (more commonly known as custody):
This refers to the provision of a suitable place for the child (ren) to live. Such an environment must be conducive to the child (ren) emotional and physical health and encourages the child’s development. Inclusive but not limited to the child (ren) right to medical care, financial support, education, safety, shelter, and food.
As a parent you have the right to raise your child (ren) according to your values, beliefs, and religion; making decisions in relation to the child (ren) education, discipline, and medical treatment; providing that such decisions do not pose a risk to the child (ren) well-being and have been agreed to by the co-parent , unless awarded primary guardianship . Denying your child (ren) imperative medical treatment and their fundamental right to education is an infringement on their human rights .
A person who is a guardian of the child (ren) has the responsibility to make legal and major decisions pertaining to the child (ren). If more than one person has guardianship over a child, all of the guardians’ consent and/or assistance are required. For example, deciding on the child (ren) schooling and/ or consenting to therapy. Refer to page 45 Section 3 of the Children’s Act 38 of 2005 for more information on guardianship.
- Both parents have the responsibility to contribute to the maintenance of the child (ren).
- A child (ren) reasonable needs to have a proper upbringing must be considered and includes the provision of food, clothing, accommodation, medical care, and education.
For more information see the Maintenance Act No. 99 of 1998
- The parent with whom the child (ren) is not residing with has the right to maintain contact with the child. In other words, maintain a personal relationship with the child (ren).
- This relationship can be maintained by allowing the parent to see, spend time with (visit or be visited) or communicate (through post, by telephone, or any form of electronic communication) with the child.
- The primary caregiver has a responsibility to allow this parent to keep contact with the child (ren) and to inform him/her of any change in the child (ren) residential address. Failure to comply with this will be a criminal offense.
(Adapted from the UNICEF & Social Development booklet The Children’s Act explained)
What happens when Parents get Divorced?
Both parents have equal rights and responsibilities towards the above mentioned, however this can change when parents get divorced/separated and no longer live together. Court proceedings and/ or agreements between parents can give each respective parent-specific rights and responsibilities, however, such proceedings can also revoke a parent of their rights to their child (ren).
When parents’ divorce/ separate, their rights and responsibility towards their child/ren depends on the circumstances pertaining to each case as well as the best interest of the child stipulated in chapter 1 of the Children’s Act, No. 38 of 2005; “in all matters concerning the care, protection, and well-being of a child the standard that the child’s best interest is of paramount importance must be applied”.
- One parent may be granted full parental rights and
responsibilities. The parent is entitled to all the rights set out in the Children’s Act No. 38 of 2005.
- Shared contact/parenting is a term used when more than one parent has rights and responsibility towards the child(ren), also known as a co-holders of parental rights and responsibilities. A parenting plan is a crucial document that stipulates an agreement between the co-holders of parental rights and responsibilities towards their children. The parenting plan should always be created in the best interest of the child (ren). Please see the Connect Groups blog post on parenting plans for more information; https://theconnectgroup.co.za/2020/11/08/parenting-plans-explained/
- Suspension and/or termination of parental rights and responsibilities are stipulated in section 28 of the Children’s Act 38 of 2005. This is a decision that is not made lightly and can only be granted via a High Court order. The granted suspension of a parent’s rights and responsibilities may be specified to particular rights and responsibilities for a stipulated time period. When considering such an application, the court must take into
account any infringement of the child (ren) rights set out in the Bill of Rights and the principles set out in Chapter 2; pg. 32 Section 7 (1) of the Children’s Act No. 38 of 2005. Our next blog will be on Children’s Rights which will share more information.
As family dynamics have changed over time, nuclear families are no longer solely represented by married parents.
When un-married parents separate the rights and responsibilities of the biological father are subject to change based on a multitude of factors stipulated in Chapter 3 (page 40) of the Children’s Act No. 38 of 2005.
- The unmarried, biological father has full parental rights to his child (ren) if he:
Is living with the mother of the child (ren) in a permanent life-partnership at the time of birth
- Has agreed to be identified as the child (ren) biological father at birth;
- Has successfully applied to be identified as the child (ren) father (this means that if an unmarried mother does not want to acknowledge the father of her child (ren), the father can apply for a court order which forces the mother to put his name on the child (ren) birth certificate or prove his paternity with a paternity test);
- Has contributed or tried to contribute to the child (ren) upbringing for a reasonable period; or
- Has contributed or has tried to contribute towards maintenance expenses for the child (ren) for a reasonable period.
If the mother has denied the father access to their child, an unmarried father can exercise his rights by applying for Care and/or Contact rights at the Children’s Court. Guardianship rights must be lodged at the High Court. Please see our blog on Care and Contact here: https://theconnectgroup.co.za/2020/11/20/care-contact-assessments-explained/
The Connect Group can assist
The Connect Group services can further assist parents in drawing up a Parenting Plan, stipulating the parents’ rights and responsibilities towards the child (ren) and Care & Contact Assessments which are statutory investigations determining the best arrangements between the children concerned and all co-holders of parental rights.
We provide Therapeutic Assessments of the child (ren) concerned to ensure that the views expressed by the child (ren) are given due consideration. If you would like to contact us regarding the above-mentioned services please follow this link: https://theconnectgroup.co.za/contact/