Family Law LWFL121

Chapter 2
F R A NCO IS ST E E NK A MP
(PIHE DURBANVILLE CAMPUS)
FRANCOIS.STEENKAMP@PEARSON.COM

MS PowerPoint slides prepared by Francois Steenkamp (PIHE Durbanville Campus) francois.steenkamp@pearson.com

Parent and child
• Read the vignette of Robin & Tracy on p. 176
• What do you think?
• 1. Do children have rights?
• 2. What kind of rights do you think Robin and Tracy have?
• 3. Drawing from your own experience, compile a comprehensive list
of responsibilities and rights of parents in respect of their minor
children
• 4. Does Mrs Penny Abrahams have the right to call in a social worker?
Parent and child (cont.)
• Read the vignette of Penny, Casanova & Romeo on p. 176
• What do you think?
• 1. Can Casanova force Penny and Casandra to undergo blood tests?
• 2. Do you think Casanova’s physical features’ defence is a strong enough argument to rebut Penny’s
paternity claim?
• 3. Make a list of any other ways Casanova could prove that he is not Casandra’s father
• 4. Should Elton be the father of Casandra, since Elton is married to Penny?
• 5. Is it in Casandra’s best interest to know her biological father?
• Assume Romeo finds out that he is Casandra’s father after undergoing blood tests. Romeo wants to have a
relationship with his daughter. He wants Casandra to know that he is her father, and not Penny’s husband
Elton
• 6. Can Romeo acquire parental rights and responsibilities, now that he knows he is Casandra’s biological
father?
• 7. Can he visit Penny?
• Romeo is also planning on asking Penny if Casandra can spend her weekends at his home
• 8. Can he make this request?
Parent and child (cont.)
• Read the vignette of Lisa, Pam, Iamhigh, Penny & Frank on p. 176
• What do you think?
• 1. Can Frank legally prevent Lisa from seeing and communicating with
Iamhigh?
• 2. Frank ‘grabs Lisa by the hair and slaps her across the face’ – how does
this type of chastisement make you feel?
• 3. Are parents allowed to chastise their children?
What does the law say?
• We will focus on the scope and legal relationship between parents and their
children in this chapter
• A child in defined as a person under the age of 18 in SA
• Section 28 of the Constitution, 1996 has significantly influenced the
relationship between parents and children
• Convention on the Rights of the Child (Children’s Convention)
• African Charter on the Rights and Welfare of the Child
• Children’s Act 38 of 2005 (many rules etc. which we are going to discuss)
• The Act has not replaced the common law governing the relationship
between parent and child
• The Act emphasises children’s rights and parental responsibilities
The rights and best interests of the child
• Section 28 of the Constitution, 1996 sets out the rights of children
• Some rights directly concern the relationship between children & their
parents
• E.g. children have a right to ‘family care or parental care’ and to ‘basic
nutrition, shelter and basic health care services
• Government of South Africa v Grootboom = The Constitutional Court (CC)
held that the primary responsibilities for fulfilling the constitutional rights
to food, shelter and health care, fall on the child’s parents or other family
• The Children’s Act = Law that gives effect to the rights of children as set out
in the Constitution and the international children’s rights treaties
• The Act is written from a human rights perspective that emphasis the
equality and dignity of children
Constitution, 1996
Section 28
The child’s best interests
• The Constitution, 1996 provides that ‘a child’s best interests are of
paramount importance in every matter concerning the child’
• The Children’s Act 38 of 2005 has a similar provision: ‘In all matters
concerning the care, protection and well-being of a child the standard that
the child’s best interests is of paramount importance and must be applied’
• ‘Best interests of the child’ = Not a new standard to South African law
• Courts have applied this standard for decades, particularly in divorce cases
• Section 7 of the Children’s Act provides a formal definition of what is meant
by this (for the first time), as well as the factors that need to be considered
in this regard
• List of factors when applying the best interests of the child standard
• See Section 7 of the Act
Children’s Act 38 of 2005
The child’s best interests (cont.)
• In many ways the ‘best interests of the child’ remains an elusive concept
• The application of this standard by the courts have often been criticised
• In S v M, Sachs J noted that this standard is ‘indeterminant’ and provides
little guidance to courts regarding its application
• In Minister of Welfare and Population Development v Fitzpatrick it was noted
that this standard is however required, that the standard should be flexible
and that individual circumstances will determine which factors secure the
best interest of the child (on a case-by-case basis)
• Look at the ‘Using the Law’ section on p. 181 – Do the exercise using the
information in this slideshow
The child’s best interests (cont.)
• This standard is often applied in terms of the subjective views of the court
applying it, as opposed to it being an objective yardstick
• Section 9 of the Children’s Act confirms ex abudante cautela that the best interests
of the child are paramount in all matters concerning the child
• It has also been argued that this standard is applied differently by the various
experts involved in matters relating to children (they have different perspectives
as to what constitutes the best interests of the child (e.g. psychologists, social
workers etc.)
• The determination should be a factual one that has to be determined according to
the circumstances and merits of each case
• The standard should be flexibly applied and not be exhaustively defined
• The judiciary has laid down guidelines for its application over the years
• E.g. Guidelines in French v French regarding where a child should be placed? =
Preservation of the child’s sense of security, the suitability of the caregiving
parent (religion, language, fitness as a parent), material considerations and the
wishes of the child
What does ‘paramount’ mean?
• Constitution, 1996 & Children’s Act require that the best interest of the child
must be paramount
• Constitutional Court – The word ‘paramount’ can be described as ‘empathic’
(i.e. in every matter concerning the child)
• The child’s interest can however not override the interest of everyone else
involved (their constitutional rights must also be considered etc.)
• The best interests of the child is not an absolute consideration/right, and can
be limited in terms of Section 36 (limitation clause) of the Constitution, 1996
• See S v M – What are the duties of the sentencing court in the light of section
28(2) of the Constitution and any relevant statutory provisions when the
person being sentenced is the primary caregiver of minor children?
• Mother was placed under correctional supervision, as opposed to being sent
back to prison – The court held that this was in the best interest of society,
the children, and the victims of her fraud (see also triad in Zinn - the gravity
of the offense, the circumstances of the offender, and public interest)
What does ‘paramount’ mean? (cont.)
• See the ‘Using the Law’ section on p. 182
• Bainham – Child’s interest will not necessarily be paramount
• A ‘secondary’ or less important interest of a child must yield to a ‘primary’
interest of another family member
• Everyone in the family has a duty to make sacrifices
• Herring – Children are best served in families which foster co-operation and
mutual support, it is in the child’s best interest to learn how to make
sacrifices for others (a limited altruism is sought) – Children should be aware
of their social obligations and not make excessive demands on their parents
• Bonthuys – The rights of members of the family should be considered
alongside that of the child
• Courts should endeavour to interpret the rights of all family members in a
way which accommodates and facilitates relationships, rather than
individualistic, competing entitlements
The child’s views
• Many legal scholars regard children’s autonomy rights as critically important
• The child’s right to be heard (see African Charter on the Rights and Welfare of the Child,
Article 4(2))
• Section 31 of the Children’s Act also provides all children with a ‘voice’
• A person holding parental responsibilities and rights ‘must give due consideration to
any views and wishes expressed by the child, bearing in mind the child’s age, maturity
and stage of development’ before taking any major decisions involving the child
• The Act lists the following ‘major decisions’ requiring consultation:
• 1. Marriage, adoption, departure and removal from the South Africa, application for a
passport, alienation & encumbrance of immovable property
• 2. Affecting contact between the child and a co-holder of parental responsibilities &
rights
• 3. The assigning of guardianship and care in respect of the child to another person in
the event of the death of the parent
• 4. Significant changes to, or an adverse affect on, the child’s living conditions,
education, health, personal relationships with a parent or family member, or generally,
the child’s well-being
The child’s views (cont.)
• See ‘Obiter’ box on pp. 183-184
• Children’s rights to autonomy & their right to an open future
• Autonomy (freedom) can be defined as ‘the condition which allows each
individual to determine his or her goal or life plan’
• The rights of children to make their own decision about how they want to live
their lives
• Children’s autonomy interests and rights must be respected
• What happens when the child wants to do something which adult decision-
makers disapprove of?
• Conflict = Between safeguarding the ‘best interests of the child’ and giving
effect to the child’s own wishes
• Eekelaar = A child’s immediate autonomy may be restricted if these threaten his
or her long-term autonomy (ensure maximum opportunities to pursue life goals
as close to the child’s autonomous choice)
The child’s views (cont.)
• Children often lack the required life experience (e.g. predicting the behaviour of others
or the viability of the child’s own plans), or the psychological, mental, developmental
and emotional maturity to know what is in their long-term best interests
• Feinberg – Expresses it as ‘the child’s right to an open future’
• Children should be guided in such a way that their long-term options remain open and
not limited
• This is not to say that the child’s views should be ignored completely, but should be
allowed at least some opportunity to decide what is in his or her own ‘best interests’
• Health and intellectual development should be nurtured
• The responsible adult should strive towards ‘maximising opportunities for self-
determination in establishing relationships and self-identity’
• Children should be given an opportunity to contribute to the outcome without limiting
their future possibilities – This will enhance their autonomy by developing their capacity
to formulate goals
• The Children’s Act requires that when important decisions are taken, the wishes and
views of the child are heard and considered
Parental responsibilities & rights
• The Children’s Act re-expresses the traditional concept of ‘parental power’ as
‘parental responsibilities and rights’
• Parents still have some authority over their children
• ‘Parents have rights and powers in order to fulfil their obligations towards their
children’
• This shifts the focus to parental responsibilities rather than parental power or
parental rights
 What are parental responsibilities & rights?
• See the ‘Using Law’ box on p. 185
• Section 18 of the Children’s Act lists the four responsibilities & rights:
Guardianship, care, contact and maintenance

Children’s Act 38 of 2005

What is guardianship?
• Guardians deal with the administrative affairs of a child
• The guardian must administer and safeguard the child's property and property interests; assist or
represent the child in administrative, contractual and any other legal matters; give or refuse
consent in matters such as the child's marriage, adoption, removal or departure from South
Africa, application for a passport and the alienation or encumbrance of any immovable property
of the child
• In terms of the common law, married fathers were sole guardians of their children
• Mothers only became guardians if they were unmarried when the baby was born, were windows,
or had been awarded sole guardianship by a divorce court
• The Guardianship Act of 1993 changed these rules (repealed by Children’s Act 38 of 2005)
• It provided for joint-guardianship powers by mothers and fathers
• In terms of the Children’s Act, many children will have 2 guardians (usually their biological
parents)
• If a child has 2 or more guardians, they may act independently of each other, except for the
activities listed in Section 18(3)(c) – see prior slide
• The child’s biological parents are its ‘natural guardians’
• A legal guardian is someone who is appointed as the guardian of a child in a will or by a court
What is guardianship? (cont.)
• A court takes the following factors into account when considering the
assignment of guardianship by order of court:
• 1. The best interests of the child
• 2. The relationship between the applicant and the child, and any other relevant
person and the child, and
• 3. Any factor that should, in the opinion of the court, be taken into account
What does ‘care’ mean?
• The Children’s Act uses the word ‘care’ instead of the word ‘custody’ traditionally
used in common law
• The definition of ‘care’ provided in the Children’s Act is much broader than the
traditional understanding of ‘custody’, and is more child-centred
• Child custody in the common law:
• Lee and Honoré: In terms of his or her rights to custody of the child, a parent is,
‘entitled to the physical presence of the child and controls his/her daily life and
education (both secular and religious); decisions on medical care for the child,
the necessary reasonable discipline and the persons with whom the child may
associate are also made by the custodian parent’
• Custody was an aspect of the parental power, which gave parents ‘control over a
minor child’s life, education (both religious and secular), health and association
with others, as well as the power of moderate punishment’
 What does ‘care’ mean?
• Section 1(1) of the Children’s Act defines ‘care’ in relation to a child as follows:

Children’s
Act 38 of
2005
What does ‘care’ mean? (cont.)
• See the ‘Using Law’ box on p. 187
• ‘Care’ has a much wider ambit than custody
• It means not only providing for the child’s daily needs such as a safe home, food,
education and love
• It also includes promoting the well-being of the child, maintaining a sound
relationship with the child and, of paramount importance, attending to the best
interests of the child
Can parents control children’s social interaction?
• The definitions of ‘custody’ and ‘parental power’ refer expressly to the parents’
power to decide with whom their children may associate
• The definition of ‘care’ does not have a similar express provision
• Does this mean that parents have lost their control over their children’s social life
and choice of friends?
• Are parents now unable to forbid their children from associating with people
whom the parents believe will have a damaging impact on the child’s life?
Can parents control children’s social interaction?
(cont.)
• See ‘Using Law’ box on p. 187
• Gordon v Barnard 1977 (1) SA 887 (C):
• Court held that parental authority is extant & extensive. Respondent’s
(boyfriend) relationship with applicant’s (father) minor daughter (below age 21 in
1977) was a direct challenge to the father’s parental authority, as was the
attempted abduction/absconding
• Respondents action amounted to an injuria (injury/damages) and the applicant
was entitled to relief. Respondent was interdicted from having any contact with
minor daughter until she reached majority. Respondent was made to pay cost of
suit
Can parents control children’s social interaction?
(cont.)
• H v I 1985 (3) SA 237 (C):
• The applicant (father) of a 17 year-old daughter (minor), had been granted an interim
interdict restraining the respondent (boyfriend) from communicating in any manner
with applicant's daughter, with whom the respondent had been conducting a
relationship. On the extended return date the respondent opposed the application,
contending inter alia that there was a conflict of opinion between the applicant and his
wife as regards the relationship, and that the applicant had no authority to prevent his
daughter from making her own decisions in this regard
• A child was conceived as between the minor and respondent, but an abortion was
obtained
• Court held that the conflict of opinion between the parents was irrelevant, as the
father's will must prevail in event of such parental conflict of opinion. There was no
question in the circumstances of the applicant (father) having waived his rights by
condoning wife's alleged conduct or opinions, the test being whether the father still
exercised parental authority over the minor or not
• Applicant established that daughter was developmentally immature, and that further
association with respondent (boyfriend) was adverse to her interests. The father had not
waived his rights to dictate daughter's choice of associates, therefore the interim rule
nisi, which operated as an interdict, was confirmed (made final)
Can parents control children’s social interaction?
(cont.)
• L v H 1992 (2) SA 594 (E)
• The applicant is the father of his 18 year-old daughter. Daughter pregnant at the
time of suit, the father of the child to be born is the respondent, who is also 18
years old
• The respondent was interdicted and restrained from in any manner whatsoever
communicating with, and/or contacting, K L save through her father or his
attorney and/or from assaulting the minor and/or abducting her or aiding and
abetting her to abscond from her parental home until such time as she obtained
the age of majority. Respondent is also ordered to pay the costs of the
application
• The court wrestled with the issue of ‘condemning the child to permanent
illegitimacy’ (i.e. the eventuality of the child being born ‘out of wedlock’. In
confirming the rule nisi, the court will prevent marriage as between respondent
and the minor. The court held that the impending birth of the child was not a
consideration which should inform the decision of the court as the envisaged
marriage would, in all likelihood, not be successful/permanent
Can parents control children’s social interaction?
(cont.)
• In H v I the court held that ‘where the marital home is intact, although the
parents share the parental authority, the father’s will prevails should there be a
difference of opinion
• ‘Bonus pater familias’ doctrine
• In terms of the Children’s Act, mothers and fathers who live together have equal
status with regard to the exercise of parental responsibilities and rights, and are
expected to cooperate in the exercise of their responsibilities (see Sections 19 –
21 of the Act)
Chastisement and discipline
• The common law definitions of custody and parental power refer expressly to the
parents’ powers of ‘moderate punishment’
• The definition of ‘care’ in Section 1 of the Children’s Act does not mention
‘punishment’, ‘chastisement’ or ‘discipline’, but instead talks about guiding the
behaviour of the child in a humane manner’ and ‘maintaining a sound
relationship with the child’
• ‘Care’ also requires parents to protect their children from maltreatment, abuse,
degradation, and any other physical or emotional harm, and to respect, protect
and promote the children’s rights as set out in the Bill of Rights in the
Constitution, 1996
• Chapter 8 of the Children’s Act – Speaks to intervention in families where the
children are at risk of harm, and regulates removal into alternative care
• Section 144(1)(b) notes that early intervention programmes must focus on
‘developing appropriate parenting skills and the capacity of parents and care-
givers to safeguard the well-being and the best interests of their children,
including the promotion of positive, non-violent forms of discipline
Chastisement and discipline (cont.)
• Read the ‘Using Law’ box on p. 188
• Du Preez v Conradie 1990 (4) SA 46 (B):
• Applicant (biological father) and second respondent (biological mother) were husband
and wife, but then divorced. First respondent (stepfather) and second respondent then
married. Applicant brought suit after children reported violent chastisement/assaults to
him via phone etc. The court confirmed that it is the upper guardian of all minors. It
affirmed the erstwhile right at common law of parents to delegate their parental right to
chastisement to other persons in loco parentis during a temporary absence (e.g. teachers
etc.). A custodian parent has the right to chastise minor children, such chastisement
must be moderate and reasonable and includes the right to impose moderate and
reasonable corporal punishment. The court held that both the mother and stepfather
could exercise rights of chastisement and discipline, the latter doing so by virtue of
delegation of the mother’s rights. None of the parents/stepparents shall molest the
children or exceed the bounds of moderate and reasonable chastisement in the
disciplining and correction of the children.
• Look at guidelines the court considered in determining when and what type of physical
punishment is appropriate
 What does ‘contact’ mean?
• The Children’s Act uses the word ‘contact’ instead of the word ‘access’
traditionally used in the common law
• Contact is primarily about maintaining a relationship between parent and a child
when they no longer share the same home
• Section 1(1) (the definitions section) of the Children’s Act provides:

Children’s Act 38 of 2005

What is maintenance? Children’s Act 38 of 2005
What is maintenance? (cont.)
• One of the parental responsibilities listed in Section 18 is the duty to ‘contribute
to the maintenance of the child’
• This duty is part of the parents’ duty of support
• In this context, it refers to financial support, rather than emotional support
• E.g. a home, food, clothes, education etc., or money as needed
• Such parental duty exists at common law and various pieces of legislation ,
including the Divorce Act
• The Constitution, 1996 – Children have rights to food, shelter, health care and
parents are primarily responsible for fulfilling these rights
 Support duties in terms of the Children’s Act
• Section 18(2)(b) describes the primary support duties (the duty to contribute to
the maintenance of the child)
• As well as in the definition of ‘care’ in Section 1(1) (the definition section)

Children’s Act 38 of 2005

The common-law duty of support
• Support duties in the Children’s Act must be understood against the backdrop of
the common law support duties
• Parents retain their common law support duties unless families live under
(African) customary law
• At common law, reciprocal duties of support arise between people when:
• 1. There is a particular kind of legal relationship between them (e.g. parent-child
relationship, husband and wife, grandparent or grandchild, siblings etc.)
• 2. The person from whom support is claimed has the necessary means to supply
this support (those obliged to support others must make an effort to earn money
to provide etc.) - See Martins v Martins (husband can’t resign to go to university)
• 3. The person who is claiming support is in need of support (limited to ‘necessary
support’, but does not mean only bare essentials of subsistence), also depends
on the standard of living of the particular family
The common-law duty of support (cont.)
• The parent-child support duty, like all other common-law support duties, is
reciprocal
• Children may also have duties to support their parents
• Young children – Supported by parents (large inheritance?)
• Old parents – May need support of children
• If there are two parents, the parents have a shared duty of support on a pro rata
basis (proportional basis)
• The parent who earns more must provide more child support
• Duty of support – Includes home, food, clothing, medical care, education etc.
• Not confined to the bare necessities of life
• Standard of living and income bracket (see McCallum v Hallen – dentist fillings) of
parents are important e.g. expensive university attendance etc. - See Gold v Gold
- SANDF
The common-law duty of support (cont.)
• The duty to support does not terminate when the child reaches the age of majority (now 18)
• Butcher v Butcher – Many students have not concluded their secondary or tertiary education
• Children oftentimes remain financially dependent for a long time
• Biological offspring could have a claim of support for maintenance even when they are well over
the age of majority (usually lessens in the late 20s)
• See Gliksman v Talekinsky (widowed daughter and dependents)
• In principle, the duty of support ends when the child no longer needs it
• Young child with large inheritance (no need for support) – Case-by-case basis
• Children have a support claim against their deceased parent’s estates
• Does not extend to step-children (only based on blood relationship) (the Constitution might have
changed this – position currently uncertain in law, see Heystek v Heystek)
• Married in community of property = Stepchildren will be supported from the joint estate
• Married couples (regardless of the matrimonial property regime) must support all members of
the household
The constitutional duty of support
• In terms of Section 28(1) of the Constitution, 1996 children have a right to ‘family
care or parental care’ and to ‘basic nutrition, shelter and basic health care
services’
• In Government of South Africa v Grootboom, the Constitutional Court held that
the primary responsibilities for fulfilling the rights to food, shelter and health
care fall on the child’s parents or other family
• Read the ‘Obiter’ box on p. 192 regarding what happens in practice in this
country in terms of financial support among (extended) family members
The constitutional duty of support
• Mentz v Simpson 1990 (4) SA 455 (A):
• The Appellate Division (as it then was) varied the order of the court a quo in
respect of the maintenance payable by the biological father. Proof of expenses
are required, cannot just be estimated etc. Maintenance payments reduced
• Lamb v Sack 1974 (2) SA 670 (T)
• The general principle is that the duty of supporting a child is a duty common to
both parents, according to their respective means, and it makes no difference
whether such child is born in, or out of, wedlock. There is no valid reason why the
ordinary rule that the burden of support, resting on both parents jointly, is
distributable inter se according to their respective means and income, should not
also apply in respect of the natural parents of illegitimate children. This approach
is in accordance with the principles of our law on the subject and it is also
consistent with the benevolent attitude of our modern society to the so-called
‘illegitimate child’
• Read the box ‘Obiter’ p. 192
How do people acquire parental responsibilities
and rights?
• Families come in many shapes and sizes
• Married mothers and fathers, unmarried mothers and fathers
• Adopted children
• Children’s Act acknowledges diversity of the family makeup
• Biological parents usually acquire parental rights and responsibilities
automatically (Section 19 & 20)
• Unmarried fathers - Section 21 (see CAM)
• Adoption, artificial insemination or surrogacy = Parental rights & responsibilities
acquired
• Section 22 – E.g. mother may enter into a parental rights and responsibilities
agreement with another person who has an interest in the matter (that person
then shares the responsibilities)
Continuous Assessment (CAM) 1 (20 marks)
• 1. Provide a thorough exposition of contemporary South African law as it relates
to the status of married mothers, unmarried mothers and unmarried biological
fathers vis-à-vis their children (Section 4 pp. 193 – 201)
• 2. Also include an historical overview
• 3. Explain the present legal position(s) fully
• 4. Refer to legislation, case law and other relevant sources

Due date: 5 August 2020 at 15:00

via email
How do people acquire parental responsibilities
and rights? (cont.)
• Families come in many shapes and sizes
• The Children’s Act acknowledges the diversity of family forms in South African
society
• The Act envisages a range of ways in which people may acquire parental
responsibilities and rights
• Biological parents = Usually acquire full parental responsibilities automatically
(Section 19 & 20)
• Unmarried fathers = May acquire full parental responsibilities & rights in terms of
section 21
• Adoptive parents & parents via artificial insemination or surrogate motherhood
also acquires parental responsibilities & rights
• People who do not acquire these rights automatically, may acquire some or all
parental responsibilities in other ways
How do people acquire parental responsibilities
and rights? (cont.)
• Section 22 = A mother may enter into a parental rights & responsibilities
agreement with another person having ‘an interest in the care, well-being and
development of the child’
• E.g. the biological father of the child, or new domestic partner
• Section 23 empowers the court to assign the ‘care’ and ‘contact’ aspects of
parental responsibilities and rights to ‘any person having an interest in the care,
well-being or development of the child’
• What is considered by the court?
• 1. The best interest of the child
• 2. The relationship between the applicant and the child
• 3. The degree of commitment that this person has shown towards the child
• 4. Extent to which the applicant has contributed to the maintenance of the child
How do people acquire parental responsibilities
and rights? (cont.)
• A court order in terms of Section 23 does not affect the parental responsibilities
and rights of anyone else
• Section 24 = Deals with guardianship
• The High Court may assign guardianship to anyone who has an interest in the
care, well-being and development of a child
• Must be in the best interest of the child
• Look at examples of caregivers on p. 194
How do people acquire parental responsibilities
and rights? (cont.)
• Parental responsibilities and rights of married and unmarried mothers:
• Section 19 = Biological mother always has full parental responsibilities & rights in
respect of the child
• Unless the biological mother is an unmarried child herself (then she will have no
guardianship)
• Such a child-mother’s own guardians will become the guardians of the child
(unless the biological father acquires guardianship)
• Such a child-mother will however retain her parental responsibilities
• Duty of support in terms of the common law (grandparents)
• See ‘Obiter’ box on p. 195
How do people acquire parental responsibilities
and rights? (cont.)
• Parental responsibilities and rights of married fathers:
• Section 20:
• Biological father of a child acquires full responsibilities and rights in respect of
the child if he is married to the child’s mother
• Full rights & responsibilities = If father married to mother at time of conception,
the time of birth, or any time in between
• Paternity claims? (See next section)
• The mother who is or was married:
• Married woman = Child is presumed to be born of married parents
• The common law presumes that the woman’s husband is the child’s father
• Pater est quem nuptiae demonstrant
How do people acquire parental responsibilities
and rights? (cont.)
• This presumption can be rebutted on a balance of probabilities (civil burden)
• Look at the number of ways in which a husband can rebut the presumption on p.
196
• 1. No sexual intercourse
• 2. Gestation period
• 3. ‘I am sterile’
• 4. ‘I used a condom’
• 5. ‘The child doesn’t look anything like me’
• 6. ‘She slept with other men’
• 7. ‘Let’s go for blood or DNA testing’
How do people acquire parental responsibilities
and rights? (cont.)
• The unmarried mother:
• Section 36 = Presumption of paternity of a child born to a couple who are not
married to each other
• 1. The person must have had sexual intercourse with the mother
• 2. It must have taken place during the time when the child could have been
conceived
• If the above is proved = Onus shifts to man to rebut the presumption
• Civil burden of proof = Balance of probabilities
• Criminal burden of proof = Beyond reasonable doubt
• All the father needs to do is raise a reasonable doubt (he may even use some of
the defences discussed, e.g. physical features & ‘she slept with other men’)
• DNA testing?
How do people acquire parental responsibilities
and rights? (cont.)
• In YM v LB the SCA held that the High Court has the power to order scientific
tests in the best interest of the child (it has inherent jurisdiction)
• Section 37 of the Children’s Act = Scientific tests may be used to determine
paternity
• Courts are reluctant to declare a child extramarital (see Setal v Pravitha)
• In YM v LB the court held that ‘the right to privacy and bodily integrity may be
infringed if it is in the best interests of a child to do so’
• These rights may be limited in terms of Section 36(1) of the Constitution, 1996
• See the ‘Using Law’ box on p. 198 (as discussed in class)
• See discussion of Section 26 of the Children’s Act on p. 199 (amendments to birth
certificates)
• Excluded = Rape/incest or related gamete donors
How do people acquire parental responsibilities
and rights? (cont.)
• Parental responsibilities & rights of unmarried fathers:
• Common law = Fathers had no right to a child if they were not married to the
child’s mother
• However, they retained an obligation to support the child financially
• The Constitution, 1996 forbids discrimination on the grounds of sex or marital
status
• Unmarried fathers are still treated differently to unmarried mothers
• Constitutional Court = This discrimination is justified
• Section 21(1) of the Children’s Act = Automatically confers full parental
responsibilities and rights on unmarried fathers in respect of their child if (see
conditions on p 199)
How do people acquire parental responsibilities
and rights? (cont.)
• If a man meets these criteria, he is in the same legal position with regard to the
child as if he were married to the child’s mother
• Mediation = These provisions are vague and if there’s a dispute the matter must
be referred for mediation by a family advocate, social worker, social services
professional, or other suitably qualified person (e.g. psychologist)
• Section 22: Unmarried father can enter into a parental rights and responsibilities
agreement with the child’s mother
• Family advocate or the court must be satisfied with the agreement before
registering it or making it an order of court
• Only the High Court has the jurisdiction to amend, confirm or terminate a
parental responsibilities and rights agreement that relates to the guardianship of
a child
How do people acquire parental responsibilities
and rights? (cont.)
• See Section 23 (discussed previously)
• Biological father can approach the court for assignment of certain parental
responsibilities and rights (‘care & ‘contact’ etc.)
• Court must consider = The relationship between the applicant and the child, the
degree of commitment that the applicant has shown towards the child and the
extent that the applicant has contributed to the maintenance of the child
• See discussions of Section 24 & Section 21(2) on p. 201
• See also ‘Using Law’ box on p. 201
Co-holders of parental responsibilities & rights
• Many children have more than one parent
• People other than a child’s parents could have some or all of the parental
responsibilities and rights
• Contrast this with common law position
• Common law = Married fathers were the sole guardians of children, and
unmarried fathers had no rights at all, and married fathers had superior rights to
those of their wives with regards to other aspects of parental power
 Co-guardians
• Where there are two (or more) guardians, they may exercise their guardianship
duties independently of each other
• However, the consent of both (or all) guardians is required for the activities listed
in Section 18(3)(c) of the Children’s Act:

Children’s Act 38 of 2005

Sharing parental responsibilities & rights
• Sections 30 & 31 apply to all the parental responsibilities & rights when more
than one person holds these responsibilities & rights
• Section 30 – Each parent may in principle act completely independently of the
other in the exercise of parental responsibilities & rights without consulting the
other
• Section 31 – The other parent must be consulted in certain circumstances (look at
Section)
• J v J 2008 (6) SA 30 (C) (enrolment of child in English-language school)
• B v M 2006 (9) BCLR 1034 (W) (removal of child to another geographical location)
• Jackson v Jackson 2002 (2) SA 303 (SCA) (custody, international relocation)
• The above cases deal with litigation between warring parents regarding
important decisions, the court must always weigh all the relevant factors and
consider the best interest of the child
Parenting plans
• Parenting plans are useful where the co-holders of parental responsibilities and
rights don’t live together
• The parents can draw up a parenting plan setting out how their parental
responsibilities and rights will be exercised
• Formal parenting plan – May avoid repeated conflict & disagreement
• Also allows parents to make arrangements regarding children with a degree of
certainty
• See Section 33 of the Children’s Act (kinds of matters typically included in a
parenting plan (Section 33(3)(a)-(d)
• Parties may include other issues as well
• Assistance of the Family Advocate must be sought, or a social worker or
psychologist (or via mediation through a social worker)
• See example on p. 203 (very basic)
 What if a person refuses access or prevents the
exercising of rights etc…
• Section 35 – Creates criminal liability

Children’s
Act 38 of
2005
Termination, extension, suspension or restriction of
parental responsibilities & rights
• Parental responsibilities in terms of the Children’s Act persist until the child turns
18
• At common law = Responsibilities may persist past 18 (depending on the
financial etc. situation) – Terminates when the child no longer needs support
• After divorce = Both parents continue as guardians of their children
• Divorce court = Will make an order as to ‘custody’ (now called care), ‘access’
(now called contact) and maintenance
• High Court = Upper guardian of all minors within its jurisdiction
• Can at common law, curtail, suspend, intervene or terminate parental
responsibilities
• See Section 28 of Children’s Act
• Applications may be brought to the High Court, divorce court or children’s court
Children’s Act
38 of 2005

END