Written By: Colleen Mechanic
11 April 2022
When people think about the concept of parenting, they often think of a mother caring for her child. However, this generation of fathers is often much more hands-on and involved in their children’s lives… or wants to be. Sadly, one still finds mothers who withhold access to their child from fathers, either to punish them when their romantic relationship breaks down or to try to force the father to pay more spousal or child maintenance. Unfortunately, the biggest victims in these scenarios are the innocent children.
WHAT DOES THE CHILDREN’S ACT 38 OF 2005 GOVERN?
Fortunately, the Children’s Act 38 of 2005 (“the Children’s Act”) was introduced to provide protection to children and to provide some relief to fathers. Importantly, the Constitution and the Children’s Act stipulate that the child’s best interest should be guarded and treated as being of paramount importance in any matter concerning a child. Case law has also shown that our Courts are increasingly cognisant of the fact that both mothers and fathers play an important role in their child’s life, and it is usually in the child’s best interests to have a relationship with both parents.
The Children’s Act also introduced the concepts of parental responsibilities and rights. These concepts replace the previous common law position of parental authority, and it is noteworthy that the Act places responsibilities before rights. In this way, the legislation stresses the importance of parental responsibilities and links the two to reflect that a parent should not have responsibilities without rights and vice versa.
WHAT DO PARENTAL RESPONSIBILITIES AND RIGHTS ENTAIL?
The following four components of parental responsibilities and rights are set out in section 18(2) of the Children’s Act:
- to care for the child;
- to have contact with the child
- to act as a guardian of a child,
- to contribute to the child’s maintenance.
The concepts of “care” and “contact” replace what was previously referred to as “custody” and “access”.
WHAT IS THE DEFINITION OF CARE IN TERMS OF THE CHILDREN’S ACT?
Caring for a child involves providing a suitable home for the child to live in conditions that contribute to the child’s wellbeing. Care also consists of the supervision of the child’s daily life, including their education and religious upbringing, and guiding the child’s behaviour.
WHAT IS THE DEFINITION OF CONTACT IN TERMS OF THE CHILDREN’S ACT?
Contact is defined as “maintaining a personal relationship with the child, “ which applies even when a parent does not live with the child. In this case, contact can be maintained through seeing and spending time with the child or even having regular communication with the child, either personally or through telephonic or electronic communication means.
WHAT DOES ACTING AS A CHILD’S GUARDIAN ENTAIL IN TERMS OF THE CHILDREN’S ACT?
Section 18(3) of the Children’s Act provides that the child’s guardian is responsible for administering and safeguarding a child’s property interests and assisting or representing a child in legal matters. In addition, a guardian will be required to provide or refuse consent for a child’s marriage, adoption or removal from South Africa, or an application for a passport.
WHAT DOES CONTRIBUTING TO A CHILD’S MAINTENANCE INCLUDE IN TERMS OF THE CHILDREN’S ACT?
Maintenance is a well-known concept involving the financial support of their child through providing the child’s basic necessities, including food, clothing, accommodation, and medical care.
CAN A PARTY REFUSE TO PAY MAINTENANCE BECAUSE THEY HAVE NO CONTACT WITH THEIR CHILD?
It is essential to understand that fathers (and mothers) have a responsibility to maintain their children. This responsibility applies even when a father is not married to the child’s mother or does not have parental rights. Thus, a father is still required to pay maintenance even if he has no contact with his child. The duty to maintain his child is the only parental responsibility that automatically clings to the unmarried father, regardless of the circumstances. Sadly, this is often exploited by mothers in divorces where the issues of access and maintenance are contested.
WHAT IS A PARENTAL RESPONSIBILITIES AND RIGHTS AGREEMENT?
Ideally, the child’s mother and father can conclude a Parental Responsibilities and Rights Agreement in terms of section 22 of the Children’s Act. This agreement must be in the prescribed format and has to be registered with the Family Advocate, or made an Order of the High Court or Children’s Court, in order to take effect.,
Failing this amicable solution, the Children’s Act makes provision for the child’s biological father to have and exercise full or specific parental responsibilities and rights in respect of their child and may be utilised to come to the father’s aid. However, the Act does differentiate between a father who was married to the child’s mother and a father who was not.
WHAT PARENTAL RESPONSIBILITIES AND RIGHTS DOES A CHILD’S BIOLOGICAL, MARRIED FATHER HAVE?
According to section 20 of the Children’s Act, the biological father of a child automatically has full parental responsibilities and rights over his child, if the father is married to the child’s mother. The father will acquire the same responsibilities and rights if the father was or is married to the child’s mother when the child was conceived or born or at any time between these two milestones. This will apply even after divorce, unless a court orders otherwise.
HOW DOES A CHILD’S BIOLOGICAL, UNMARRIED FATHER OBTAIN CUSTODY OR PARENTAL RESPONSIBILITIES AND RIGHTS?
While married fathers have these rights automatically, unmarried fathers do not. In order for the unmarried, biological father to obtain full parental responsibilities and rights to his child born out of wedlock, section 21 of the Children’s Act provides certain conditions that such a biological father, namely must fulfil:
- At the time of the child’s birth, he is or was living with the mother in a permanent life-partnership; or, regardless of whether he has lived or is living with the mother:
- He consents to be identified or successfully applies for a Court Order to be identified as the child’s father or pays damages in terms of customary law; and
- He contributes, or has attempted in good faith to contribute, towards the child’s upbringing and expenses in connection with the child’s maintenance for a reasonable period.
WHAT CAN A FATHER IN SOUTH AFRICA DO TO OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES WHEN THE CHILD’S MOTHER WITHHOLDS CONTACT?
If the child’s mother has denied the father access to their child, an unmarried father can exercise his rights by applying to the Court for an order granting him the rights that he wishes for. An application for guardianship rights must be lodged at the High Court or the Children’s Court in terms of section 24 of the Children’s Act. If he wishes to obtain care and/or contact rights, such application may be made at the Children’s Court or the divorce court in terms of section 23 of the Children’s Act. If the father wants care and contact rights and to be the guardian of his child, the application will have to be brought in the High Court or the Children’s Court.
WHAT FACTORS DOES A COURT TAKE INTO CONSIDERATION WHEN A FATHER APPLIES FOR PARENTAL RESPONSIBILITIES AND RIGHTS?
In considering an unmarried father’s application for parental responsibilities and rights, the Courts will take the following factors into account, in addition to the requirements set out above:
- The best interests of the child;
- The relationship between the unmarried father and the child, which may be ascertained by interviewing the child to determine their attitude towards the relief sought in the application;
- The degree of commitment that the unmarried father has shown towards the child.
- The relationship between the child and another person, such as the mother, and the effect of separating the child from their mother; and
- Any other factor the court considers relevant, such as whether the unmarried father has a history of violence towards children.
The Supreme Court of Appeal has stipulated that our Courts must not discriminate against unmarried fathers unfairly. It has further emphasised in various case law that the merits of each case must be looked at, and an individual determination must be made in relation to the facts of each case. The Court may take into consideration the recommendations of other experts, such as the Family Advocate, social workers or psychologists.
When full parental rights and responsibilities are gained, a father will have the same parental rights and responsibilities as the mother – meaning the same ability to make decisions on how the child is to be raised, cared for and treated.
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
