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Children and the new Children’s Act

The implementation of the Children’s Act, Act 38 of 2005 has changed the terminology previously used in respect of children. It has also defined the parental rights and responsibilities that parents or other parties may have, and confers equal and joint guardianship status on parents of children born from marriage.

The ‘best interests of the child’ principle

The child’s best interest is a constitutional right of every child. In all matters concerning a child, the best interests of the child is paramount. 

The Act provides a list of factors that have to be considered when determining a child’s best interests:

 

  • the nature of the personal relationship between:
    • the child and the parents, or a specific parent; and
    • the child and any other caregiver or person relevant in the circumstances;
  • the attitude of the parents, or a specific parent, towards:
    • the child; an
    • the exercising of parental responsibilities and rights;
  • the capacity of the parents, or a specific parent, or any other caregiver or relevant person to provide for the needs of the child, including emotional and intellectual needs;
  • the likely effect on the child of any change in his/her circumstances, including any separation from
    • both or either of the parents; or
    • any sibling or other child, caregiver or relevant person, with whom the child has been living;
  • the practical difficulties and expense of the child having contact with either or both parents, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with either or both parents on a regular basis;
  • the need of the child:
    • to remain in the care of his/her parent(s), family and extended family; and
    • to maintain a connection with his/her parent(s), family, extended family, culture or tradition;
  • the child’s:
    • age, maturity and stage of development;
    • gender;
    • background; an
    • any other relevant characteristics;
  • the child’s physical and emotional security, as well as his/her intellectual, emotional, social and cultural development;
  • any disability the child may have;
  • any chronic illness from which the child may suffer;
  • the need for the child to be brought up within a stable family environment and, where this is not possible, in one resembling as closely as possible a caring family environment;
  • the need to protect the child from any physical or psychological harm that may be caused by:
    • subjecting the child to maltreatment, abuse, neglect, exploitation, degradation, violence or other harmful behaviour; or
    • exposing the child to maltreatment, abuse, degradation, ill-treatment, violence or other harmful behaviour towards another person;
  • any family violence involving the child or a family member; and
  • the action or decision that will avoid or minimise legal or administrative proceedings involving the child.

The Children’s Act also expressly includes the right of a child to participate in any decisions pertaining to him/her.

Parental rights and responsibilities

‘Parental rights and responsibilities’ is the umbrella term for the rights and responsibilities a person may have in respect of a child. These include all or some of the elements of guardianship, care, contact and maintenance.

A holder of full parental rights and responsibilities has the right and responsibility to:

  • care for the child;
  • maintain contact with the child;
  • act as the guardian of the child; and
  • contribute to the maintenance of the child.

More than one person may have parental rights and responsibilities; they are referred to as co-holders. The Act allows courts to grant any person parental rights and responsibilities, even in the absence of a biological or legal relationship between the adult and child.

The holder or co-holder of parental rights and responsibilities must always act in the best interests of the child, while also taking into account the child’s wishes.

Care

With the implementation of the Children’s Act, the term ‘custody’ has been replaced by the concept of ‘care’. The Act states that care, in relation to a child, and where appropriate and within available means, includes:

Contact

With the implementation of the Children’s Act, the term ‘access’ has been replaced with the term ‘contact’, which is defined as:

  • maintaining a personal relationship with the child; and
  • if the child lives with someone else
    • communicating on a regular basis with the child in person, including
  • visiting the child; or
  • being visited by the child; or
    • communicating on a regular basis with the child in any other manner, including:
  • by post;
  • by telephone; or
  • by any other means of electronic communication, such as Skype, email and Facebook.

It is a child’s right to have contact with both his/her parents. In considering the amount and form of contact a parent should have with the child, the factors contained in the Children’s Act are taken into consideration. Each situation is unique and the outcome will depend on the facts presented, the child’s development, the parent’s relationship with the child and the child’s wishes, when applicable.

The following are common forms of contact:

 

  • reasonable contact
  • defined contact
  • supervised contact
  • indirect contact
  • phased-in contact
  • shared contact/parenting

 

Reasonable contact

This is the most common form of contact. Reasonable contact does not mean unlimited contact; it means what is reasonable taking into account the child’s age, wishes and circumstances.

If the parents do not get along or cannot agree on what constitutes reasonable contact, it is recommended that they draw up a schedule outlining the parameters. This is called defined contact.

Defined contact

Defined contact means that there are specific directions as to when, where and how a parent may exercise contact with the child. It is normally recorded as follows:

The father/mother will exercise reasonable contact to the child/children which shall be exercised as follows:

The advantage of defined contact is that parents can plan ahead as they know when they will be responsible for the child. It also provides certainty and routine for the child.

Flexibility is often built into the schedule, for situations where a parent cannot exercise contact for reasons out of his/her control. In these instances, provision will be made for the parent to catch up the missed time.

Supervised contact

Supervised contact means that a parent can only have contact with the child in the presence of either the other parent or a third party. Depending on the circumstances, the third party can be:

  • a family member of either parent, trusted by both;
  • a qualified social worker; or
  • anyone who both parents trust and who is competent to act as a neutral third party.

Supervised contact may be implemented if it is necessary to protect the child, and is often applied in the following circumstances:

  • where the child is very young and the parent is not familiar with the child’s caretaking and routine;
  • where there are allegations or a history of violence towards the child;
  • where the parent exercising contact has psychological problems or addictions and cannot be trusted with the child on his/her own;
  • where an absent parent needs to re-establish their relationship with the child, and the child is of a very young age.

Supervised contact should not be used as punishment for a parent, but as a means, whether temporarily or permanently, to facilitate a relationship between the child and the parent. It is normally recorded as follows:

The father/mother will exercise supervised contact to the child/children in the presence of a third party appointed by agreement between the parties or a designated social worker, as follows:

Supervised contact can be changed to unsupervised under certain conditions, including:

  • when the child concerned is assessed by an expert who recommends that supervised contact is no longer necessary;
  • when the parent undergoes certain counselling;
  • when the child reaches a certain age; and/or
  • when the parent provides evidence that he/she has not been abusing any substances.

Phased-in contact

As children get older, their needs change and often their contact with a parent can be extended. This is called phased-in contact.

Phased-in contact is often used when a parent has been absent from a child’s life, and needs to be reintroduced to the child gradually, to minimise any negative effects and feelings of discomfort.

Indirect contact

A person can have contact to a child indirectly through telephone, e-mail, letters and so forth. Indirect contact is usually combined with other forms of contact and especially important when a parent lives far away which makes frequent direct reasonable or defined contact difficult or impossible.

Shared contact/parenting

Shared contact or shared parenting is a collaborative arrangement in which both parents have the right and the responsibility to be actively involved in raising their children after divorce or separation.A regime of shared parenting is based on the idea that parental responsibilities should be genuinely shared by both parents, and it is a method of parenting that allows both parents the chance to actively parent their child. More and more parents are moving away from the traditional care agreement of primary residences and alternate residences.

Guardianship

A child may have more than one guardian. Guardians do not necessarily have either care of or contact with the children. Guardianship is simply the right and responsibility to:

 

  • administer and safeguard the child’s property or property interests;
  • assist or represent the child in administrative, contractual and other legal matters;
  • give or refuse any consent required by law in respect of the child, including:
    • consent to the child’s marriage;
    • consent to the child’s adoption
    • consent to the child’s departure or removal from the Republic of South Africa;
  • consent to the child’s application for a passport; and
  • consent to the alienation or encumbrance of any of the child’s immovable property.

As the upper guardian of all children, the High Court has a wide discretion in exercising its powers, and in interfering with the rights and responsibilities of a guardian, should it be in the child’s best interests. In any dispute relating to guardianship, the High Court will consider all the relevant facts and request the input of the Office of the Family Advocate or any other expert who may be of assistance in determining the child’s best interests. It is also possible for the court to appoint a legal representative for the child.

Sole guardians

When a child only has one guardian, that person is referred to as the sole guardian. Their tasks are to:

  • administer and safeguard the child’s property and property interests;
  • assist or represent the child in administrative, contractual and other legal matters; and
  • give or refuse consent
    • if it is required by law in any aspect pertaining to the child;
    • for the child to marry, if the child is not yet 18 years old;
    • for the child to be adopted;
    • for the child’s departure from the Republic of South Africa;
    • for the child’s application for a passport; and
    • for the alienation or encumbrance of any of the child’s immovable property.

 

In his/her will, a sole guardian may appoint a fit and proper person to take over guardianship of the child in the event of his/her death.

In the event that a sole guardian does not fulfil his/her obligations or act in the best interests of the child, the High Court may be approached by:

  • any person who has care of the child;
  • any person who has contact with the child;
  • any other person with sufficient interest in the care, protection, well-being or development of the child;
  • the child, acting with the leave of the court;
  • any person acting in the child’s interests, and acting with the leave of the court; or
  • a family advocate or a representative of any interested organ of state.

After considering all the facts, and if it is in the best interests of the child, the High Court will grant any order necessary to ensure that these interests are served, including an order:

  • terminating the sole guardian’s guardianship, and appointing another person as guardian;
  • suspending the sole guardian’s guardianship for a period of time, and appointing another person as temporary guardian;
  • preventing the sole guardian from exercising certain rights as a guardian;
  • setting aside decisions made by the sole guardian;
  • granting consent on behalf of the sole guardian when their consent is required and they refuse to give such consent; or
  • dispensing with the sole guardian’s consent.

Co-guardians

When a child has more than one guardian, those people are referred to as co-guardians. In cases such as these, all guardians must give their consent:

  • if it is required by law in any aspect pertaining to the child;
  • for the child to marry, if the child is not yet 18 years old;
  • for the child to be adopted;
  • for the child’s departure from the Republic of South Africa;
  • for the child’s application for a passport; and
  • for the alienation or encumbrance of any of the child’s immovable property.

Co-guardians are responsible, but do not require each other’s consent, for:

  • administering and safeguarding the child’s property and property interests; and
  • assisting or representing the child in administrative, contractual and other legal matters.

In the event that one or all co-guardians do not fulfil their obligations or act in the child’s best interests, the High Court may be approached by:

  • a co-guardian;
  • any person who has care of the child;
  • any person who has contact with the child;
  • any other person with sufficient interest in the care, protection, well-being or development of the child;
  • the child, acting with the leave of the court;
  • any person acting in the child’s interests, and acting with the leave of the court; or
  • a family advocate or a representative of any interested organ of state.

After considering all the facts, and if it is in the best interests of the child, the High Court may grant any order that it deems necessary, including an order:

  • in respect of a co-guardian:
    • terminating his/her co-guardianship;
    • suspending his/her co-guardianship for a period of time;
    • setting aside any decisions made or legal steps taken by the co-guardian on the child’s behalf;
    • interdicting or preventing the co-guardian from exercising any or certain acts in respect of the administration of the child’s property or property interests; or
    • interdicting or preventing the co-guardian from exercising any or certain acts in assisting or representing the child in legal, administrative and contractual matters.
  • in respect of all co-guardians:
    • terminating both guardians’ guardianship, and appointing an alternative guardian/s;
    • suspending both guardians’ guardianship for a period of time, and appointing a temporary guardian/s for the necessary period;
    • setting aside any decisions made or legal steps taken by the co-guardians on the child’s behalf;
    • interdicting or preventing the co-guardians from exercising any or certain acts in respect of the administration of the child’s property or property interests; or
    • interdicting or preventing the co-guardians from exercising any or certain acts in assisting or representing the child in legal, administrative and contractual matters.

In the event that one of the guardians refuses to give his/her consent, the High Court may be approached by:

  • a co-guardian;
  • any person who has care of the child;
  • any person who has contact with the child;
  • any other person with sufficient interest in the care, protection, well-being or development of the child;
  • the child, acting with the leave of the court;
  • any person acting in the child’s interests, and acting with the leave of the court; or
  • a family advocate or a representative of any interested organ of state.

After considering all the facts, and if it is in the best interests of the child, the High Court will grant any order necessary to ensure that these interests are served, including an order:

  • granting the necessary consent on behalf of the co-guardian;
  • dispensing with the co-guardian’s consent; or
  • refusing to grant consent on behalf of the co-guardian or to dispense with the co-guardian’s consent.

In the event that both guardians refuse to give their consent, the High Court may be approached by:

  • any person who has care of the child;
  • any person who has contact with the child;
  • any other person with sufficient interest in the care, protection, well-being or development of the child;
  • the child, acting with the leave of the court;
  • any person acting in the child’s interests, and acting with the leave of the court; or
  • a family advocate or a representative of any interested organ of state.

After considering all the facts, and if it is in the best interests of the child, the High Court will grant any order necessary to ensure that these interests are served, including an order:

  • granting the necessary consent on behalf of both guardians;
  • dispensing with both guardians’ consent; or
  • refusing to grant consent on behalf of the guardians or to dispense with the guardians’ consent.