Being a parent is a huge responsibility, and when it comes to understanding the laws that apply to parents in South Africa, it can be rather overwhelming. It is important to understand not only your rights as a parent, but also your responsibilities towards your child.
The Children’s Act, 38 of 2005
The Children’s Act, 38 of 2005, is a legal document that regulates all aspects relating to children. The Children’s Act covers a variety of aspects relating to children, including giving effect to certain rights of children as provided for in the Constitution; providing for children in so far as their care and protection is concerned; defining parental responsibilities and rights of parents; and a number of additional aspects.
For purposes of this article, and specifically, to deal with the aspect of parental responsibilities and rights, we will consider Section 18, contained under Chapter 3 of the Children’s Act.
Section 18 of the Children’s Act sets out in detail the meaning of parental responsibilities and rights. Section 18(2) provides that parental responsibilities and rights which a person may have in respect of a child include the responsibility and right to: –
to care for the child;
(b) to maintain contact with the child;
(c) to act as guardian of the child; and
(d) to contribute towards the maintenance of the child.
The Department of Social Development created a booklet which explains the rights of children, as well as the responsibilities and rights of parents, and can be found here.
The Responsibility to Care for the child
Each parent has a responsibility to care for their child. This means that each parent has a responsibility to provide their child with a suitable place to live; living conditions that are conducive to the child’s health, well-being and development; and the necessary financial support.
Caring for a child also means, inter alia, safeguarding and promoting the well-being of the child; protecting the child from maltreatment; guarding against any infringements of the child’s rights; guiding, directing and securing the child’s education; guiding the child’s behaviour in a humane manner; maintaining a sound relationship with the child, and ensuring that the best interests of the child is the paramount concern in all matters affecting the child.
Parents should also ensure that their children are safe and secure at all times, which includes monitoring what they do online and keeping an eye on who they associate with. Parents also have a responsibility to teach their children how to be responsible citizens.
The Right (and responsibility) to maintain contact with the child
Each parent has a right to maintain contact with their child. What many do not realise, is that the issues of contact and maintenance are separate, and the amount of maintenance paid by a parent should not dictate the contact that he/she has with a child, and vice versa.
Whilst maintaining contact with a child is a Right, it is also a Responsibility. Unless circumstances prove otherwise, it would always be in a child’s best interests to maintain contact with both their parents. As such, a parent also has a responsibility to maintain contact and be actively involved in the lives of their children.
Along with this, a parent should also ensure that they encourage a relationship between a child and the other parent, and should not act in a manner which could be considered as parental alienation.
The Responsibility to act as guardian of the child
Parental responsibilities and rights include the responsibility to act as guardian of the child. Biological parents of a child are automatically provided with guardianship over their child; however, a court may on application award any other person with guardianship over a child.
Being a guardian of a child is set out in the Children’s Act to mean that one must administer and safeguard the child’s property and property interests; assist or represent the child in administrative, contractual or other legal matters; and give or refuse consent required by law in respect of the child. Ordinarily, unless otherwise stated, one guardian may act independently without the consent of the other guardian.
However, the law requires the consent of all guardians in respect of consenting to a child’s marriage, to be adopted, to depart the Republic of South Africa, to obtain a passport, or for the alienation of a child’s immoveable property.
The Responsibility to contribute towards the maintenance of the child
In South Africa, both parents have an obligation to support their children financially. Maintenance of children is defined further in the Maintenance Act, which has been discussed in previous blog posts which can be found on our website.
In short, Maintenance of Children includes schooling related expenses, medical related expenses, and general expenses of the child. General expenses of children include food, housing, clothing, entertainment and other costs, and is usually paid by one parent, to the parent with whom the child is primarily resident.
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Understanding your parental rights and responsibilities in accordance with South African law is essential to ensure that you give your child the best upbringing possible. While these laws may seem daunting at first glance, once you understand them fully you, will be able to confidently navigate any issues or disputes related to a parent’s rights and responsibilities.
It will also assist you in determining whether the child’s other parent is acting in accordance with their responsibilities and rights, and to take the necessary legal in the event that they are not acting accordingly.
We understand how difficult it can be to navigate family and matrimonial legal matters. Our family law department has extensive experience in dealing with these matters in a sensitive and compassionate way. We pride ourselves in providing exceptional legal advice and support in all areas relating to family law.
Our breadth and depth of experience ensure an empathetic and effective approach to the difficulties you face. Our team can provide the necessary expertise to help you with all your family-related legal affairs. For assistance with any Family Law related matters, please contact Kelly van der Berg – kelly@pagelinc.co.za.
