Parental responsibilities and right – No 38 of 2005 Children’s Act, 2005

PARENTAL RESPONSIBILITIES AND RIGHTS

Part I

Acquisition and loss of parental responsibilities and rights

Parental responsibilities and rights

18. (1) A person may have either full or specific parental responsibilities and rights in respect of a child

(2) The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right-

  • (a) to care for the child;
  • (b) to maintain contact with the child;
  • (c) to act as guardian of the child; and
  • (d) to contribute to the maintenance of the child.

(3) Subject to subsections (4) and (5), a parent or other person who acts as guardian of a child must

  • (a) administer and safeguard the childai??i??s property and property interests;
  • (b) assist or represent the child in administrative, contractual and other legal
  • matters; or
  • (c) give or refuse any consent required by law in respect of the child, including-
  • (i) consent to the childai??i??s marriage;
  • (ii) consent to the childai??i??s adoption;
  • (iii) consent to the childai??i??s departure or removal from the Republic;
  • (iv) consent to the childai??i??s application for a passport; and
  • (v) consent to the alienation or encumbrance of any immovable property of the child

(4)Whenever more than one person has guardianship of a child, each one of them is competent subject to subsection (5), any other law or any order of a competent court to exercise independently and without the consent of the other any right or responsibility arising from such a guardianship

(5) Unless a competent court orders otherwise, the consent of all the persons that have guardianship of a child is necessary in respect of matters set out in subsection (3)(c).

Parental responsibilities and rights of mothers

(1)The biological mother of a child, whether married or unmarried, has fullAi??responsibilities and rights in respect of the child.

(2) If-

  • (a)The biological mother of a child is an unmarried child who does not have
  • guardianship in respect of the child; and
  • (b)the biological father of the child does not have guardianship in respect of the
  • Child. Ai??The guardian of the childai??i??s biological mother is also the guardian of the child.

(3) This section does not apply in respect of a child who is the subject of a surrogacy

Parental responsibilities and rights of married fathers

20. The biological father of a child has full parental responsibilities and rights inAi??respect of the child-

  • (a) if he is married to the childai??i??s mother; or
  • (b) if he was married to the childai??i??s mother at-
  • (i) the time of the childai??i??s conception;
  • (ii) the time of the childai??i??s birth; or
  • (iii) any time between the childai??i??s conception and birth.

Parental responsibilities and rights of unmarried fathers

21. (1) The biological father of a child who does not have parental responsibilities andAi??rights in respect of the child in terms of section 20, acquires full parental responsibilitiesAi??and rights in respect of the child-

  • (a) if at the time of the childai??i??s birth he is living with the mother in a permanent life-partnership; or
  • (b) if he, regardless of whether he has lived or is living with the mother-
  • (i) consents to be identified or successfully applies in terms of section 26 toAi??be identified as the childai??i??s father or pays damages in terms of customaryAi??law;
  • (ii) contributes or has attempted in good faith to contribute to the childai??i??s upbringing for a reasonable period and
  • (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

(2) This section does not affect the duty of a father to contribute towards the maintenance of the child

(3) (a) If there is a dispute between the biological father referred to in subsection (1) and the biological mother of a child with regard to the fulfilment by that father of the conditions set out in subsection (l)(a) or (b), the matter must be referred for mediation to a family advocate, social worker, social service professional or other suitably qualified person.

(b) Any party to the mediation may have the outcome of the mediation reviewed by a court (4) This section applies regardless of whether the child was born before or after the commencement of this act

Parental responsibilities and rights agreements

22. (1) Subject to subsection (2), the mother of a child or other person who has parental responsibilities and rights in respect of a child may enter into an agreement providing for the acquisition of such parental responsibilities and rights in respect of the child as are set out in the agreement, with-

  • (a) the biological father of a child who does not have parental responsibilities and rights in respect of the child in terms of either section 20 or 21 or by court order,or
  • (b) any other person having an interest in the care, well-being and development of the child

(2) The mother or other person who has parental responsibilities and rights in respect of a child may only confer by agreement upon a person contemplated in subsection (1) those parental responsibilities and rights which she or that other person has in respect of the child at the time of the conclusion of such an agreement.

(3)A parental responsibilities and rights agreement must be in the prescribed format and contain the prescribed particulars.

(4)Subject to subsection (6), a parental responsibilities and rights agreement takes effect only if

  • (a) registered with the family advocate; or
  • (b) made an order of the High Court, a divorce court in a divorce matter or theAi??childrenai??i??s court on application by the parties to the agreement.

(5) Before registering a parental responsibilities and rights agreement or before making a parental responsibilities and rights agreement an order of court, the family advocate or the court concerned must be satisfied that the parental responsibilities and rights agreement is in the best interests of the child.

(6) (a) A parental responsibilities and rights agreement registered by the family advocate may be amended or terminated by the family advocate on application-

  • (i) by a person having parental responsibilities and rights in respect of the child;
  • (ii) by the child, acting with leave of the court; or
  • (iii) in the childai??i??s interest by any other person, acting with leave of the court.

(b) A parental responsibilities and rights agreement that was made an order of court may only be amended or terminated on application-

  • Ai??(i) by a person having parental responsibilities and rights in respect of the child;
  • (ii) by the child, acting with leave of the court; or
  • (iii) in the childai??i??s interest by any other person, acting with leave of the court.

(7) Only the High Court may confirm, amend or terminate a parental responsibilitiesAi??and rights agreement that relates to the guardianship of a child.