FAMILY LAW (LLB

FAML-501)

Ms Yeukai J Chihwai
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STUDY UNIT 1.14 : THE INTERESTS OF THE
CHILDREN OF DIVORCING PARENTS, CHILDREN’S
RIGHTS AND PARENTAL RESPONSIBILITIES &
RIGHTS.
Source References

• South African Family Law Textbook

(Chapter 11)​

• Prescribed case law and Acts are listed

under “source reference” in each study
unit/theme within these slides

4
 Unit Outcomes

At the end of this section, you should be able to:

➢ 1. Discuss the importance of section 28 of the constitutional rights of children.
➢ 2. Discuss the rights of children relevant to section 28 of the Constitution.
➢ 3. Discuss the effect(s) the Constitution bears on the rights and relationship
between parent and child.
➢ 4. Discuss the objective the Children’s Act has on the rights of children in South
Africa.
➢ 5. Discuss the extent to which the law provides protection, authority, rights, duties,
and responsibilities of parents in respect of their children.
➢ 6. List and discuss the several ways of acquiring parental responsibilities and
rights and the termination thereof.
➢ 7. Indicate when a court may refuse a child’s return in circumstances of abduction.

5
 Unit Outcomes

At the end of this section, you should be able to:

➢ 7. Indicate when a court may refuse a child’s return in circumstances of abduction.
➢ 8. List and explain the various elements of parental responsibilities and rights that
can be enforced by way of civil and criminal remedies.
➢ 9. Relevant to WW v EW 2011 (6) SA 53, explain the influence of the recent
terminology regarding the substantive law of Parent and Child.
➢ 10. Discuss the Judicial power to interfere with parental responsibilities and rights.
➢ 11. Discuss in which circumstances the duty of support over a child is terminated,
with reference to case law.
➢ 12. Explain the meaning of the following concepts “care,” “contact” and
“guardianship.”

6
 Unit Outcomes

At the end of this section, you should be able to:

➢ 13. Discuss the court’s discretion of making an order in
respect of “care”, “contact” and “guardian”, rely on authority.
➢ 14. Explain the paramountcy principle relevant to authority.
➢ 15. Explain what is implied by “maintenance” and how the
duty of support may overlap with the duty of care.
➢ 16. Demonstrate an in-depth knowledge of what adoption is
and the criteria attached thereto.
➢ 17. Discuss the position when more than one person has
parental responsibilities and rights in respect of a child.

7
 Chapter 14:The interests of the children of
divorcing parents
Introduction

➢ The best interests of the child are the

most important issue with regard to the
legal position of the child of a divorcing
couple

8
 Chapter 14:The interests of the children of
divorcing parents
The best interests of the child

➢ Section 28(2) of the Constitution of the Republic of South Africa, 1996 provides
that a child’s best interests are of paramount importance in every matter
concerning the child.
➢ Section 6 of the Children’s Act 38 of 2005 furthermore sets out general
principles which must guide the implementation of legislation and guide
proceedings, actions and decisions by organs of state relating to a specific
child or children in general.
➢ Section 9 of the Children’s Act requires that the paramountcy of the child’s best
interests must apply in all matters concerning a child’s care, protection and
well-being
➢ The Convention on the Rights of the Child and the African Charter on the
Rights and Welfare of the Child requires that the child’s best interests must be
“the primary consideration” in all actions concerning the child
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 Chapter 14:The interests of the children of
divorcing parents
The best interests of the child
➢ Thus the child’s best interests must be the yardstick in respect of the legal position of a
child of divorcing parents
➢ In terms of section 7(1) of the Children’s Act, the following factors must be taken into
consideration when they are relevant:
✓ (1) The nature of the personal relationship between the child and his or her
parents, or any specific parent, and between the child and any other care-giver
or relevant person.
✓ (2) The attitude of the parents, or any specific parent, towards the child and the
exercise of parental responsibilities or rights in respect of the child.
✓ (3) The capacity of the parents, any specific parent, or any other care-giver or
person, to provide for the child’s needs, including his or her emotional and
intellectual needs.10
✓ (4) The likely effect any change in the child’s circumstances would have on the
child, including the likely effect of the child’s separation from either parent or both
parents, a sibling, another child, or any other care-giver or person with whom the
child has been living.

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 Chapter 14:The interests of the children of
divorcing parents
The best interests of the child

➢ In terms of section 7(1) of the Children’s Act, the following factors must be taken into
consideration when they are relevant:
✓ (5) The practical difficulty and expense of the child having contact with his or her
parents,or a specific parent, and whether that difficulty or expense would
substantially affect the child’s right to maintain personal relations and direct
contact with that parent on a regular basis.
✓ (6) The child’s need to remain in the care of his or her parent, family and
extended family, and to maintain a connection with his or her family, extended
family, tribe, culture or tradition
✓ (7) The age, maturity, stage of development, gender, background and any other
relevant characteristic of the child.
✓ (8) The child’s physical and emotional security and his or her intellectual,
emotional, social and cultural development.
✓ (9) Any disability the child may have.
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 Chapter 14:The interests of the children of
divorcing parents
The best interests of the child

➢ In terms of section 7(1) of the Children’s Act, the following factors must be taken into
consideration when they are relevant:
✓ (10) Any chronic illness from which the child may suffer.
✓ (11) The child’s need to be brought up in a stable family environment or, if this
cannot be achieved, in an environment resembling a family environment as
closely as possible.
✓ (12) The need to protect the child from any physical or psychological harm which
may be caused by subjecting him or her to maltreatment, abuse, neglect,
exploitation or degradation, exposing him or her to violence, exploitation or other
harmful behaviour, or exposing him or her to maltreatment, abuse, degradation,
ill-treatment, violence, or harmful behaviour towards another person.
✓ (13) Any family violence involving the child or a family member of the child.
✓ (14) Which action or decision would avoid or minimise further legal or
administrative proceedings regarding the child

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 Chapter 14:The interests of the children of
divorcing parents
The best interests of the child

➢ The court must also consider the rights of

the child’s parent(s), for rendering the
child’s best interests paramount does not
mean that all other constitutional rights may
simply be ignored, or that limitations of the
child’s best interests are impermissible.
➢ The child’s best interests must be applied
“in a meaningful way without unduly
obliterating other valuable and
constitutionally protected interests

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 Chapter 14:The interests of the children of
divorcing parents
The Mediation in Certain Divorce Matters Act

➢ A Family Advocate may be requested to institute an enquiry in terms of the

Mediation in Certain Divorce Matters Act
➢ In Van Vuuren v Van Vuuren the court indicated that a Family Advocate ought
to apply for an order authorising an enquiry if one of the following situations
was envisaged:
✓ (1) Care of a young child will not be awarded to the child’s mother.
✓ (2) Siblings will be separated.
✓ (3) Care will be awarded to a person other than the child’s parent.
✓ (4) An arrangement regarding care or contact will be made which is prima
facie (that is, on the face of it) not in the child’s interests
➢ A family advocate may work with the family counsellor, he/she makes a report
and recommendations, however courts are not obliged to consider the report

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 Chapter 14:The interests of the children of
divorcing parents
The Divorce Act
➢ Section 6 of the Act specifically regulates the position of minor or dependent children
born of the divorcing couple (not for stepchildren)
➢ The court cannot grant a divorce order until it has been satisfied that the arrangements
made or contemplated with regard to the welfare of any minor or dependent child of
the marriage are satisfactory or the best that can be achieved in the circumstances
(s6(1)(a))
➢ The section also require the court to consider the Family Advocate’s report and
recommendations before granting the divorce.(s6(1)(b))
➢ The court also have to make sure that section 10 of the Children’s Act is also
complied with
➢ The section states that affords every child who is of such an age, maturity and stage
of development as to be able to participate in any matter concerning him or her the
right to participate in an appropriate way and to have due consideration given to his or
her views,

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 Chapter 14:The interests of the children of
divorcing parents
The Divorce Act

➢ Section 6 (2) empowers the court to cause any investigation it deems necessary to be
carried out and to order any person to appear before it
➢ For example the court may make an order that the child must be interviewed by an
expert, such as a psychologist, and that the expert’s report must be submitted to the
court and/or that the expert must appear in court to give evidence
➢ The child’s views can be conveyed by having a legal representative appointed for the
child in terms of section 6(4) of the Divorce Act and having the parents, or either of
them, pay the costs of such legal representation if necessary
➢ Section 28(1)(h) of the Constitution further entitles the child to legal representation in
civil proceedings if absence of such representation would result in substantial injustice.
➢ The legal representation is provided by the state, at state expense

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 Chapter 14:The interests of the children of
divorcing parents
The Divorce Act

➢ Section 6(3) of the Divorce Act provides that once the court has considered the
family advocate’s report and recommendations and is satisfied that the
arrangements made or contemplated with regard to the welfare of the child are
satisfactory or the best that can be achieved in the circumstances, it may make
any order it deems fit with regard to the child’s guardianship, custody, access
and maintenance.
➢ The Children’s Act requires that, having regard to his or her age, maturity and
stage of development, the child must be informed of any action or decision
taken in a matter which significantly affects him or her, the child must be
informed of the order the court has made.
➢ The Act does not specify who must inform the child; presumably it would
usually be the child’s parent or the legal representative of one of the parents or
of the child.

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 Chapter 14:The interests of the children of
divorcing parents
Aspects the Courts may regulate

➢ Section 6(3) of the Divorce Act provides that the court which makes a divorce
order may make any order it deems fit in respect of the “maintenance of a
dependent child of the marriage” or the “custody or guardianship of, or access
to, a minor child of the marriage
➢ In respect of section 6(3) of the Divorce Act, it should be noted that the court’s
power to make an order relating to guardianship, custody/care and
access/contact is limited to minor children because parents cease to have
guardianship, care and contact when their child becomes a major
➢ However, the maintenance part is not subject to the same limitation, because a
parent’s duty of support continues until his or her child becomes self-
supporting, regardless of whether this happens before or after the child attains
majority
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 Chapter 14:The interests of the children of
divorcing parents
Guardianship

➢ At common law, “guardianship” has a wide and a narrow meaning.

➢ In the narrow sense, it refers to the capacity to administer a minor’s estate on his or
her behalf, and to assist the minor in legal proceedings and the performance of juristic
acts.
➢ In the wide sense, it also includes care.
➢ The Children’s Act limits the meaning of “guardianship” to the narrow sense of the
term
➢ Section 18(3) of the Act, “guardianship” refers to
✓ administering and safeguarding a child’s property and property interests,
✓ assisting or representing the child in administrative, contractual and other legal
matters,
✓ and giving or refusing any consent that is legally required in respect of the child
(such as consent to the child’s marriage or adoption)
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 Chapter 14:The interests of the children of
divorcing parents
Guardianship
➢ In terms of the Children’s Act, both parents of a child born of married parents are the child’s
guardians
➢ Usually the parents continue to exercise equal, concurrent guardianship (also sometimes called
joint guardianship) after divorce.
➢ If the court deviates from the usual position and awards guardianship to one of the parents, that
parent exercises guardianship alone, but the other parent’s consent to the child’s marriage and
adoption is still required
➢ If the court awards sole guardianship to one of the parents, that parent becomes the child’s only
guardian to the exclusion of the other parent.
➢ Sole guardianship means that, apart from the child’s adoption, the sole guardian is the only
parent whose consent needs to be obtained for those acts in respect of which both parents’
consent is normally required.
➢ In terms of section 6(3) of the Divorce Act, a court which awards sole guardianship to one of the
parents upon divorce may order that, on the predecease of that parent, someone other than the
surviving parent will become the child’s legal guardian, either jointly with, or to the exclusion of
the surviving parent.

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 Chapter 14:The interests of the children of
divorcing parents
Care

➢ The meaning of “care”

➢ Section 1(1) of the Children’s Act defines “care” as encompassing the following:
✓ (1) Within available means, providing the 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.
✓ (2) Safeguarding and promoting the child’s well-being.
✓ (3) Protecting the child from maltreatment, abuse, neglect, degradation,
discrimination, exploitation, and any other physical and moral harm or hazards.
✓ (4) Respecting, protecting, promoting and securing the fulfilment of, and
guarding against any infringement of the child’s constitutional rights and the
rights set out in the Children’s Act.
✓ (5) Guiding and directing the child’s education and upbringing in a manner which
is appropriate to the child’s age, maturity and stage of development.

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 Chapter 14:The interests of the children of
divorcing parents
Care

➢ The meaning of “care”

➢ Section 1(1) of the Children’s Act defines “care” as encompassing the following:
✓ (6) Guiding, advising and assisting the child in decisions he or she has to take,
bearing in mind the child’s age, maturity and stage of development.
✓ (7) Guiding the child’s behaviour in a humane manner.
✓ (8) Maintaining a sound relationship with the child.
✓ (9) Accommodating any special needs the child may have.
✓ (10) Generally ensuring that the child’s best interests are the paramount concern
in all matters affecting the child.
➢ Most of the elements of care are also part of the common-law concept of “custody”. In
terms of the common law, “custody” refers to a person’s capacity physically to have
the child with him or her and to control and supervise the child’s daily life.
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 Chapter 14:The interests of the children of
divorcing parents
Care

➢ During the subsistence of their marriage, both parents have care of the children
born of the marriage.
➢ Upon the parents’ divorce, the court may make any order regarding care it
deems in the child’s best interests
➢ In the past, care was normally awarded to one of the parents, with mothers
being preferred because it was simply assumed that they make better care-
giving parents
➢ In Van der Linde v Van der Linde the court declared that mothers are not
necessarily better able to be good parents on a day-today basis.
➢ The generally accepted view now seems to be that maternity may not, on its
own, be used to determine which parent should be awarded care/residency.
➢ The best interests of the child remain the paramount consideration
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 Chapter 14:The interests of the children of
divorcing parents
Care

➢ The rejection of the assumption that mothers make better care-giving parents is
undoubtedly in accordance with the equality clause of the Constitution.
➢ It is also in keeping with section 28(1)(b) of the Constitution, which affords all
children the right to parental care, and not only maternal care
➢ Gender equality claims should never, on their own, determine the outcome of a
care dispute, for the child’s interests must be the paramount concern
➢ Partly because of considerations of gender equality, joint care is increasingly
being awarded. The term “joint care” is used for joint legal care and joint
physical care/joint residency.
➢ Joint physical care/joint residency entails that the child spends substantial
amounts of time, such as part of each week, or alternate weeks, with each
parent.

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Chapter 14:The interests of the children of
divorcing parents
CLASS DISCUSSION

➢ There is argument that there is danger of

instability caused by frequent moves and
inconsistency in living arrangements which
renders joint care undesirable.
➢ What is your take on this statement and
do you also think joint care is
undesirable? Give reasons

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 Chapter 14:The interests of the children of
divorcing parents
Care

➢ The court may award split or divided care/residency to the parents.

➢ Split or divided care refers to one parent having care of some children and the
other parent having care of the other children.
➢ Such an order is not granted lightly, as the courts are loath to separate siblings.
➢ Split or divided care is normally awarded only if the care-giving parent neglects
some of the children, or if the change will bring about a substantial
improvement in a specific child’s position
➢ The court also has the power to award sole care to either parent.
➢ This may happen, for example, if one of the parents has abused the child.
➢ In exceptional cases the court may deprive both parents of care and award it to
a third party

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 Chapter 14:The interests of the children of
divorcing parents
Contact
➢ “contact” is the statutory equivalent of the common-law right of access.
➢ It refers to maintaining a personal relationship with the child and communicating with
the child on a regular basis if the child lives with someone else.
➢ The communication may take place in person:
✓ visiting the child or being visited by the child)
✓ or in any other way
• via telephone calls,
• telefaxes,
• letters,
• videos,
• video calls,
• electronic mail
• and mobile phone text messages

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 Chapter 14:The interests of the children of
divorcing parents
Contact

➢ The parties may agree on structured or defined contact in terms of how contact should
occur
➢ The agreement may be in general terms, such as that the non-care-giving parent will
have reasonable contact, or it may be very specific as to the frequency of contact, the
times during which and the places where contact may be exercised, and so forth.
➢ The court may order structured or defined contact or make an order in general terms,
such as that the non-care-giving parent is awarded reasonable contact
➢ An award of reasonable contact means that the non-care-giving parent may have
contact with the child at reasonable times, places and intervals
➢ By virtue of having been entrusted with the child’s care, the care-giving parent has the
final say in the case of a dispute, but he or she may not impose unreasonable
restrictions or conditions negating contact
➢ Eg insisting that contact take place at his or her home or in his or her presence

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 Chapter 14:The interests of the children of
divorcing parents
Contact

➢ The court may impose any conditions and/or restrictions on contact that it
deems in the best interests of the child.
➢ If the relationship between the non-care-giving parent and the child is very
poor, the court may order phased-in contact, thus the court may order that
initially contact is to occur only occasionally, and that contact should become
more regular as the relationship improves
➢ The court may also postpone contact until the non-care-giving parent has, for
example, successfully undergone treatment for alcoholism, drug-dependency
or abusive behaviour.
➢ A parent’s contact may also be suspended pending a psychological or
psychiatric evaluation to determine whether contact is in the child’s best
interests and/or pending the parent’s undergoing psychological or psychiatric
treatment or therapy
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 Chapter 14:The interests of the children of
divorcing parents
Contact

➢ The court may also order supervised contact, if contact entails a clear risk to the child,
such as abuse or abduction, or if a long period of time has elapsed since the child last
had contact with the parent
➢ The court may impose include prohibiting physical contact, but may be allowed to
communicate with the child by means of telephone calls, telefaxes, letters, videos,
video calls, electronic mail, mobile phone text messages and so forth
➢ The court will deny the non-care-giving parent contact only if this is in the child’s best
interests.
➢ It may award contact to a third party who does not have an inherent right of contact,
such as a sibling, grandparent, or step-parent, but then it does so in its capacity as
upper guardian of all minors
➢ Go and read the Van Rooyen v Van Rooyen case law and the changes that came
about after the enactment of the Constitution

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 Chapter 14:The interests of the children of
divorcing parents
Maintenance

➢ Maintenance is not defined in the Children’s Act and thus retains its common-
law meaning of encompassing items like food, clothing, accommodation,
medical care and a suitable education
➢ After their divorce, both parents remain obliged to support their children in
accordance with their respective means.
➢ Normally, the non-care-giving parent is ordered to pay the caregiving parent a
specified amount of maintenance for the children on a weekly or monthly basis.
➢ However, the parent with whom an adult but dependent child lives may not
claim maintenance on behalf of the adult child, because only the adult child has
locus standi to sue for his or her maintenance
➢ The care-giving parent cannot claim maintenance from the other parent if the
latter does not have the means to support the child

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 Chapter 14:The interests of the children of
divorcing parents
Maintenance
➢ Maintenance is not defined in the Children’s Act and thus retains its common-law
meaning of encompassing items like food, clothing, accommodation, medical care and
a suitable education
➢ After their divorce, both parents remain obliged to support their children in accordance
with their respective means.
➢ Normally, the non-care-giving parent is ordered to pay the caregiving parent a
specified amount of maintenance for the children on a weekly or monthly basis.
➢ However, the parent with whom an adult but dependent child lives may not claim
maintenance on behalf of the adult child, because only the adult child has locus standi
to sue for his or her maintenance
➢ The care-giving parent cannot claim maintenance from the other parent if the latter
does not have the means to support the child (Zimelka v Zimelka)
➢ The care-giving parent may not claim so much maintenance for the child that the non-
caregiving parent retains no income. (Baart v Malan)

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 Chapter 14:The interests of the children of
divorcing parents
Enforcement of guardianship, care and contact

➢ Enforcement of guardianship, care and contact can be done in various forms

including
✓ Interdict
✓ An order directing compliance
✓ Reasonable force

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THE RESPONSIBILITIES AND RIGHTS OF
PARENTS AND CHILDREN
Chapter 22:The Children’s Rights
INTRODUCTION

➢ Internationally, the focus of the private-law

rules regarding the parent-child
relationship has increasingly shifted from
the rights and powers of parents towards
the rights and entitlements of children
➢ South African being a signatory of various
international instruments regulating the
rights of the children has also shifted to
that and has also embedded the rights in
its Constitution

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 Chapter 22:The Children’s Rights
Constitution of the Republic of South Africa

➢ The purpose of this section, which is commonly known as the children’s rights clause, is to
protect children, not their parents. Thus the section affords rights to children, not their parents
➢ Section 28 provides as follows:
➢ (1) Every child has the right
✓ (a) to a name and a nationality from birth;
✓ (b) to family care or parental care, or to appropriate alternative care when removed from
the family environment;
✓ (c) to basic nutrition, shelter, basic health care services and social services;
✓ (d) to be protected from maltreatment, neglect, abuse or degradation;
✓ (e) to be protected from exploitative labour practices;
✓ (f) not to be required or permitted to perform work or provide services that –
• (i) are inappropriate for a person of that child’s age; or
• (ii) place at risk the child’s well-being, education, physical or mental health or
spiritual, moral or social development;

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 Chapter 22:The Children’s Rights
Constitution of the Republic of South Africa

➢ Section 28 provides as follows:

➢ (1) Every child has the right
✓ (g) not to be detained except as a measure of last resort, in which case, in addition to the
rights a child enjoys under sections 12 and 35, [that is, the sections relating to freedom
and security of the person and the rights of arrested, detained and accused persons] the
child may be detained only for the shortest appropriate period of time, and has the right to
be –
• (i) kept separately from detained persons over the age of 18 years; and
• (ii) treated in a manner, and kept in conditions, that take account of the child’s age;
✓ (h) to have a legal practitioner assigned to the child by the state, and at state expense, in
civil proceedings affecting the child, if substantial injustice would otherwise result; and
• (i) not to be used directly in armed conflict, and to be protected in times of armed
conflict.
➢ (2) A child’s best interests are of paramount importance in every matter concerning the child

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 Chapter 22:The Children’s Rights
Rights that are mostly relevant to family law

❖ The right to a name

✓ The Births and Deaths Registration Act 51 of 1992 gives effect to the child’s right
to a name.
✓ According to the Act, the birth of every child who is born alive must be registered
within 30 days, and a forename (that is, a first name) and surname must be
assigned to the child before registration can take place.
✓ The surname depends on whether the child is born of married or unmarried
parents.
❖ The right to be protected from maltreatment, neglect, abuse or degradation
✓ In the family-law context, the most important of these are the rules regarding
domestic violence, enforcement of maintenance, and child removal.
✓ However, the child’s constitutional right to be protected from maltreatment,
neglect, abuse or degradation is clearly not limited to those rules

38
 Chapter 22:The Children’s Rights
Rights that are mostly relevant to family law
❖ The right to family, parental or appropriate alternative care, and the right to nutrition,
shelter, health care and social services
✓ Section 28(1)(b) and (c) affords the child the right to family or parental care, or
appropriate alternative care if he or she is removed from the family environment, and the
right to basic nutrition, shelter, basic health care services and social services
✓ The CC states that the right rests on the parents and guardians and the state intervenes
when the child’s parents or family members fail or are unable to provide care to the child.
✓ Various case laws have dealt and shaded light on this right- refer to your textbook
✓ Our courts have held that the child’s right to parental or family care must be taken into
account in all matters which affect the child, including sentencing a convicted parent, and
detaining a parent pending his or her deportation from the country
✓ A child who is removed from family or parental care must be placed in appropriate
alternative care.
✓ Since the state is obliged to provide alternative care to children who have been removed
from their family environment, it must provide appropriate facilities for and meet the basic
needs of such children

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 Chapter 22:The Children’s Rights
Rights that are mostly relevant to family law

❖ The right to legal representation

✓ This right can only be explained through various case laws
✓ In Du Toit v Minister for Welfare and Population Development the Constitutional
Court stated that when the interests of children are at stake, those interests must
be “fully aired” before the court so as to avoid substantial injustice to those
children “and possibly others
✓ Legal Aid Board v R. In this case a12 year old send a text message to a staff
member at Childline to request help because of the very acrimonious litigation
between her parents about her care. The staff member contacted Legal Aid
South Africa to appoint a lawyer for the child. The child consulted with the lawyer
and indicated that she wanted him to represent her. The child’s mother objected
to the appointment on the ground that only the court or the child’s legal guardian
or another person who has parental responsibilities and rights has the power to
appoint a legal representative for the child. The court rejected the mother’s
objection basing on section 28(1)(h)
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 Chapter 22:The Children’s Rights
The paramountcy of the child’s best interests
➢ Section 28(2) of the Constitution provides that a child’s best interests are of paramount importance in
every matter concerning the child
➢ In the past, the best interests of the child were considered mainly in the field of family law. Now,
however, they must be central in all fields of the law.
➢ since the coming into operation of section 28(2), the courts have taken the child’s best interests into
account in
✓ sentencing a child offender,
✓ sentencing an offender who committed sexual crimes involving children,
✓ sentencing a parent who had been convicted of a crime,
✓ deciding whether to allow the media to attend a trial involving an accused minor,
✓ deciding whether to detain a father pending his possible deportation,
✓ in respect of the testimony of child witnesses in criminal cases and of child victims of crime,
✓ in respect of the detention and deportation of unaccompanied foreign children from South Africa,
✓ in respect of matters concerning education,
✓ in assessing damages in a delictual claim,
✓ and in deciding whether to allow a child to claim compensation for a life with disability in
“wrongful life” cases
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 Chapter 22:The Children’s Rights
National and International instruments governing the Children’s Rights
➢ The United Nations Convention on the Rights of the Child
✓ On the 16th of June 1995 South Africa ratified this international instrument and when a country
ratifies it has to comply with the obligations the Convention imposes on state parties
✓ Thus the children’s rights clause in the Constitution
✓ The Convention further stipulates that the best interests of the child must be “a primary”
consideration in all actions concerning the child.
✓ The Convention deals with many of the rights which are also enshrined in our Constitution,
such as
• the right to life,
• the child’s right to a name and nationality,
• the right to freedom of expression, thought and conscience,
• freedom of religion, freedom of association,
• the right to privacy,
• the right to be free from violence, abuse, neglect, maltreatment and exploitation,
• the right to education,
• and the right to be protected from work which is hazardous to the child

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 Chapter 22:The Children’s Rights
National and International instruments governing the Children’s Rights

➢ The African Charter on the Rights and

Welfare of the Child
✓ SA ratified this Charter on the 7th of Jan
2000. Many of the provisions of the
Children’s Act embody the obligations
South Africa has incurred by ratifying this
Charter
✓ The Charter deals with many of the rights
which are enshrined in our Constitution
✓ The Charter further stipulates that the best
interests of the child must be “the
primary” consideration in all actions
concerning the child.

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 Chapter 22:The Children’s Rights
National and International instruments governing the Children’s Rights

➢ The Children’s Act 38 of 2005

✓ The rights a child has in terms of the
Children’s Act supplement those the
Constitution confers on every child
✓ It gives effect to the child’s constitutional
rights to family or parental care or
appropriate alternative care when removed
from the family environment, to social
services, to be protected from maltreatment,
neglect, abuse or degradation, and to have
his or her best interests afforded
paramountcy in every matter concerning him
or her
✓ Read further about the Children’s Act

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Chapter 23: Parental Responsibilities and Rights

Introduction

❖In terms of the common law, parents have parental authority

(or parental power) over their children.
❖This authority gives parents rights, powers, duties and
responsibilities in respect of their minor children and the
children’s property.
❖Section 1(1) of the Children’s Act uses the term “parental
responsibilities and rights” instead of “parental authority”.
❖Parental responsibilities and rights include caring for the
child, maintaining contact with the child, acting as the child’s
guardian, and contributing to the child’s maintenance

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Chapter 23: Parental Responsibilities and Rights
Guardianship

➢ In terms of section 18(3) of the Children’s Act,

“guardianship” refers to administering and
safeguarding a child’s property and property
interests, assisting or representing the child
in administrative, contractual and other legal
matters, and giving or refusing consent that is
legally required in respect of the child.
➢ Before the guardian takes a decision
regarding the child he or she 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.

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 Chapter 23:Parental Responsibilities and Rights
Care
✓ Section 1(1) of the Children’s Act defines “care”
✓ The person who has care may decide where the child is to reside, with whom the
child may associate, which school the child is to attend, whether the child should
undertake tertiary education, what religious education the child should receive,
whether the child may attend specific social events, in which language the child is
to be brought up, whether and what medical treatment the child should receive, and
so forth
✓ Care-giving parent also still has the right to discipline the child
✓ The person who has care enjoys a broad discretion in respect of the exercise of the
responsibilities and rights encompassed by care.
✓ However, bearing in mind the child’s age, maturity and stage of development, the
person must give due consideration to any views and wishes expressed by the child
before he or she takes a decision which affects contact between the child and a co-
holder of parental responsibilities and rights or is likely to significantly change or
have an adverse effect on the child’s living conditions, education, health, personal
relations with a parent or family member or, generally, on the child’s well-being
➢ Contact
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 Chapter 23:Parental Responsibilities and Rights
Contact

✓ Contact refers to maintaining a personal relationship with the child and

communicating with the child on a regular basis if the child lives with
someone else.
✓ Communication may take place
• in person (for example, by visiting the child or being visited by the
child) or
• in another format (for example, via telephone calls, telefaxes, letters,
videos, video calls, social media, electronic mail and mobile phone
text messages)
✓ While a person exercises his or her right of contact, he or she is
temporarily empowered to exercise responsibilities and rights that are
normally exercised by the person who has care.
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 Chapter 23:Parental Responsibilities and Rights
Maintenance

➢ Food, clothing, accommodation, medical care and a suitable education are all included in
maintenance
➢ The exact scope of the duty of support in respect of a child depends on the circumstances of
the particular case.
➢ Factors which are taken into account include
✓ the child’s needs, age and state of health;
✓ the means, income and social status of the person who is liable for maintenance;
✓ and the fact that the person in whose care the child is meets (at least part of) his or her
duty of support by undertaking the responsibilities involved in exercising care
➢ The needs of the child must first be established; then the amount of the liable person’s
maintenance contribution must be calculated, taking into account the person’s means.
➢ If more than one person is liable for a child’s support, the duty to provide maintenance is
apportioned between them in accordance with their respective means

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 Chapter 23:Parental Responsibilities and Rights
Maintenance : The bearers of child support

➢ The state
➢ As regards the state’s duty, it suffices to point out that two of the ways in
which the state
✓ attempts to meets its obligation to support children are by funding
various social grants, such as the child support grant, foster child grant,
and care-dependency grant,
✓ and establishing welfare programmes, such as free health care for
children under six years of age and the National School Nutrition
Programme
➢ Grootboom case

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 Chapter 23:Parental Responsibilities and Rights
Maintenance : The bearers of child support
➢ The child’s parents
✓ Parenthood automatically gives rise to the duty to support one’s child
✓ Both parents must support their child, regardless of whether the child is born of
married or unmarried parents.
✓ The duty is apportioned between the parents in accordance with their
respective means
➢ The child’s grandparents
✓ If neither of the child’s parents can support the child, the duty of support
passes to the child’s grandparents.
✓ The child’s siblings
✓ If neither the child’s parents nor his or her grandparents are in a position to
support the
✓ child, the duty of support passes to the child’s siblings.48 The duty to support a
sibling applies
✓ in respect of brothers, sisters, half-brothers and half-sisters.
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 Chapter 23:Parental Responsibilities and Rights
Maintenance : The bearers of child support
➢ A person who is not the child’s parent, grandparent or sibling but has care of
the child
✓ for example, a person who cares for a child with the consent of the child’s
parent or guardian, a person who cares for a child whilst the child is in
temporary safe care, the person at the head of a child and youth care centre or
shelter, and a child and youth care worker who cares for a child who is without
appropriate family care in the community does not have a duty of support in
respect of the child.
✓ However, a child who is at the head of a child-headed household may have a
duty of support in respect of the children in the household if they are his or her
siblings
➢ The child’s siblings
✓ If neither the child’s parents nor his or her grandparents are in a position to
support the child, the duty of support passes to the child’s siblings.
✓ The duty to support a sibling applies in respect of brothers, sisters, half-
brothers and half-sisters.

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 Chapter 23:Parental Responsibilities and Rights
Ways of acquiring parental responsibilities and rights

✓ Birth
✓ A marriage or civil union with the child’s mother at the time of the child’s
conception or birth or at any intervening time
✓ A marriage or civil union between the child’s parents after the child’s birth
✓ A permanent life partnership between the parents at the time of the child’s birth
✓ Acknowledging paternity, contributing to the child’s upbringing, and contributing
to the child’s maintenance
✓ A parental responsibilities and rights agreement
✓ Appointment in a will
✓ Assignment by an order of the court
✓ Adoption (You will cover it in the tutorial)

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 Chapter 23:Parental Responsibilities and Rights
Termination of parental responsibilities and rights

✓ All aspects of parental responsibilities and rights (including the duty of

support) are terminated by the child’s death.
✓ Most aspects of parental responsibilities and rights are also terminated
by the parent’s death and by the child’s attainment of majority
✓ Termination of the duty of support
• Childs death
• Adoption of the child
• Child becoming self-supporting
• Child entering into marriage or civil union
• The liable’s party- insolvency

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